time of eviction." This may greatly exceed the value and the price of the land, at the time of the sale; but the rule was adopted in the first settlement of the country, when the value of the land consisted chiefly in the improvements made by the occupants; and if the warranty would not have secured to them the value of those improvements, it would not have been of much benefit to them. In other states, the measure of damages, on a total failure of title, even on the covenant of warranty, is the value of the land at the execution of the deed, and the evidence of that value is the consideration money, with interest and costs." If the subsisting incumbrances absorb the value of the land, and the quiet enjoyment be disturbed by eviction by paramount title, the measure of damages is the same as under the covenants of seisin and of warranty. The uniform rule is to allow the consideration money, with interest and costs, and no more. If the incumbrance has not been extinguished by the purchaser, and there has been no eviction under it, he will recover only nominal damages, inasmuch as it is uncertain whether he would ever be dis

a Gore v. Brazier, 3 Mass. Rep. 523. Parker, J. in Caswell v. Wendell, 4 ibid. 108. Bigelow v. Jones, ibid. 512. This was formerly the rule also in South Carolina. Liber v. Parsons, 1 Bay, 19. Guerard v. Rivers, ibid. 265. Witherspoon v. Anderson, 3 Dess. Eq. Rep. 245. But the rule is now settled in South Carolina, according to the English common law doctrine. Henning v. Withers, 2 Tred. Const. Rep. 584. Ware v. Weathnall, 2 McCord's Rep. 413. b Talbot v. Bedford, Cooke's Tenn. Rep. 447. Lowther v. The Commonwealth, 1 Harr. & Munf. 202. Crenshaw v. Smith, 5 Munf. 415. Stout v. Jackson, 2 Rand. 132. Stewart v. Drake, 4 Halsted's Rep. 139. Bennet v. Jenkins, 13 Johns. Rep. 50. Phillips v. Smith, North Carolina Law Repository, 475. Cox v. Strode, 2 Bibb. 272. Booker v. Bell, 3 ibid. 175. The rule in Virginia has been fluctuating. In Mills v. Bell, 3 Call, 326. it was the value at the time of eviction. In Nelson v. Matthews, 2 Harr. & Munf. 164. it was the value at the time of the contract. But I apprehend the later doctrine to be that stated in the text.

turbed. If however, the grantor had notice to remove The incumbrance, and refused, equity would, undoubtedly. compel him to raise it, and decree a general performance of a covenant of indemnity, though it sounds only in da mages. The ultimate extent of the vendor's responsibi lity, under all or any of the usual covenants in his deed, is the purchase money, with interest; and this I presume to be the prevalent rule throughout the United States.

If the eviction be only of a part of the land purchased, the damages to be recovered under the covenant of seisis. are a rateable part of the original price, and they are to bear the same ratio to the whole consideration, that the value of the land, to which the title has failed, bears to the value of the whole tract. The contract is not rescinded, so a to entitle the vendee to recover back the whole consideration money, but only to the amount of the relative value of the part lost. The French code adopts the same rule of compensation on eviction of part only of the subject; but it allows the whole sale to be vacated, if the eviction be of such consequence, relatively to the whole purchase, that the purchase would not have been made without the part lost. This has the appearance of refined justice; but the prosecution of such an inquiry must, in many cases, be very difficult and delusive; and this part of the prov sion, allowing the contract to be rescinded, has been

a Prescott v. Trueman, 4 Mass. Rep. 627. Delavergne v. Norrie,

7 Johns. Rep. 358.

6 Funk v. Voneida, 11 Serg. & Rawle, 109. where the authorities are collected and enforced in the learned opinion of Mr. Justice Duncan, and where he shows the ancient rule, under the writ of warran tia chartæ qui timet implicari.

c Morris v. Phelps, 5 Johns. Rep. 49. Guthrie v. Pugsleys, 12 ibid. 126. See, also, Beauchamp v. Damory, Year Book, 29 Edw. III. 4. and 13 Edw. IV. 3. Gray v. Briscoe, Noy, 142. Dig. 21.2.1. 13. Ibid. 1. 64. sec. 3. Pothier, Traité du Cont. de Vente. No. 99.

139. 142. all which cases are cited in Morris v. Phelps.

dropped in Louisiana.a The measure of compensation for a deficiency in the quantity of land, in the case of a sale by the acre, unattended with special circumstances, has been assumed, in some cases, to be the average, and not the relative value. But in cases of eviction of a specific part, justice evidently requires that the relative, instead of the average value, be taken as the rule of computation; for though the part lost may not be one tenth part of the quantity of land purchased, it may be nine tenths of the value of the whole; or it may be one half part of the land sold, and yet it may be the rocky or the barren part of the farm, and not one hundredth part of the value of the remaining moiety.

The French law, prior to the revolution, gave to the buyer a compensation for improvements, and the increased value of the land, in addition to the restitution of the price, with interest and costs. It was founded on the RoAman law; but the provision was destitute of fixedness and precision. The Code Napoleon has rescued the rule from the guidance of loose and arbitrary discretion, and reduced it to certainty. It allows the purchaser on eviction to recover the price, and the mesne profits which he is obliged to pay to the owner, and his costs and expenses, and the increased value of the lands, independent of the acts of the purchaser, and also the beneficial improvements which he may have made. The rule in the French law does not operate with equality and justice. The vendor is bound to pay for the increased value of the land, and yet if it happens to be diminished in value

a Code Napoleon, art. 1636, 1637. Civil Code of Louisiana, No. 2490.

b 2 Harr. & Munf. 178. 4 Munf. 332.

c Pothier's Traité du Cont. de Vente, No. 132-141. Inst. Droit François par Argou, tom. ii. liv. 3, ch. 23.

d Code Napoleon, art. 1630-1641. VOL. IV.

59

at the time of eviction, the vendor is not less bound to refund the purchase money. The Civil Code of Louisiana has closely copied the general provisions of the French code on the subject, but it has omitted this inequality of regulation, and it likewise confines the recovery to the price, mesne profits, costs, and special damages, (if any,) and beneficial improvements. Both the French and Louisianian codes make the seller pay even for the embellishments of luxury expended on the premises, if he sold in bad faith, knowing his title to be unsound.

The rule of the common law, and the one most prevalen in this country, appears to be moderate, just, and safe. The French rule in the code is manifestly unjust. I cannot invent a case, said Lord Kames," where the maxim cujus commodum ejus debet esse incommodum, is more directly applicable. If the price, at the time of the eviction, be the standard for the buyer, it ought to be equally so for the seller. The hardship of the doctrine, that the seller must respond, in every case, for the value of the land at the time of eviction, and for useful improvements, consists in this, that no man could ever know the extent of his obligation. He could not venture to sell to a wealthy or enterprising purchaser, or in the vicinity of a growing town, without the chance of absolute ruin. The want of title in cases of good faith, is usually a matter of mutual error, for the buyer investigates the title when he buys; and the English rule would appear to be the most practicable, certain, and benign in its application.

In

The manner of assigning breaches on these various covenants, depends upon the character of the covenant. the covenant of seisin, it is sufficient to allege the breach by negativing the words of the covenant. But the cove

a Art. 2482-2490.

b Principles of Equity, vol. i. 289. e Ibid. vol. i. 288-303.

nants or quiet enjoyment, and of general warranty, re for quire the assignment of a breach by a specific ouster, or viction by a paramount legal title. So, in the case of the covenant against incumbrances, the incumbrance must be specifically stated. These are some of the general and universally acknowledged rules, that apply to the subject ; and it has been held not to be necessary to allege an ouster, or eviction, on the breach of a covenant against incumbrances, but only that it is a valid and subsisting incumbrance. A paramount title, in a third person, is an incumbrance within the meaning of the covenant.a

5. Of the several species of conveyances.

Sir William Blackstone divides conveyances into two kinds, viz. conveyances at common law, and conveyances which receive their force and efficacy from the statute of uses. The first class is again subdivided into original or primary, and derivative or secondary conveyances.

As some of those conveyances have grown obsolete, and as the principles which constitute and govern all of them, have been already discussed, it will not be requisite to do more than take a cursory view of those which are the most in practice, and of the incidental learning connected with the subject.

(1.) Of feoffment.

Feoffment was the mode of conveyance in the earliest periods of the common law. It signified, originally, the grant of a feud or fee; but it became, in time, to signify the grant of a free inheritance in fee, respect being had to the perpetuity of the estate granted, rather than to the feudal tenure. Nothing can be more concise, and more perfect in its parts, than the ancient charter of feoffment.

a Prescott v. Trueman, 4 Mass. Rep. 627.

b Com, vol. ii. 309.