was held to be personally liable on his covenants, he could not show that the consideration was not wholly or in part received by him or for his use: Bloom v. Wolfe, 50 Iowa, 286. And parol evidence that the plaintiff knew that the defendant had not title to a part of the land described has been held to be inadmissible to show that no consideration was paid for that part: Wadhams v. Innes, 4 Ill. App. 642.

When Consideration not Ascertainable. When no consideration is named in the deed, and it is not ascertainable, Smith v. Strong, 14 Pick. 128, or where the conveyance is the result of negotiations with a third person, as where a person owing a debt procured the defendant to convey a tract of land to the plaintiff, his creditor, who agreed to receive it in satisfaction of the debt, and there is therefore no privity between plaintiff and defendant respecting the consideration paid, Byrnes v. Rich, 5 Gray, 518, resort must be had to the actual value of the land, and the damages will be measured by the value of the land at the time of the conveyance, with interest. So where the defendant was a stranger to the consideration, except as to a part which he received upon the subsequent execution of the deed, the measure of damages was held to be the value of the land at the time of the conveyance, or at the election of the plaintiff, the amount actually received by the defendant: Staples v. Dean, 114 Mass. 125; see Recohs v. Younglove, 8 Baxt. 385.

It is immaterial, however, that the consideration was paid or delivered to another person than the grantor; or that it was, before delivery, the property of another than the grantee; provided that it is agreed upon between the grantor and the grantee as the consideration upon which the deed is given. For their agreement creates a privity between them in respect to the consideration, and makes it the contract price of the conveyance, and it is therefore the measure of the grantee's loss: Hodges v. Thayer, 110 Mass. 286.

DAMAGES TO ASSIGNEE.—Where the covenant of seisin is held to run with the land, and the suit is by the assignee of the covenantee, then the measure of damages is not the consideration mentioned in the covenantor's deed (for if that were so, there might in some cases be a recovery for much more than the assignee had paid for the property), but the consideration which the assignee has paid to his immediate grantor, with interest from the date of the eviction and costs in the ejectment suit, with this limitation, however, that the recovery cannot be for an amount exceeding the consideration received by the covenantor for the same lands: Crisfield v. Storr, 36 Md. 150; Dickson v. Disiré, 23 Mo. 151; S. C., 66 Am. Dec. 661. Where the grantee has purchased in the adverse title, the measure of damages is the amount paid: See infra; but where he assigns the covenants in the deed of his grantor, as a part of the consideration paid for the adverse paramount title, the assignee is entitled to the full amount of the purchase-money in an action on the covenant of seisin: Lawless v. Collier, 19 Mo. 480.

FRAUD. — “It must not be supposed that, in an action on the covenant, fraud can be taken advantage of by the purchaser to increase his damages. So long as the distinction is preserved between tort and contract, so long must the remedy be by action in the nature of a writ of deceit, and not by action of covenant": Rawle on Covenants, 5th ed., sec. 159, citing Carvill v. Jacks, 43 Ark. 439.

INTEREST FOR WHAT TIME. Where the grantee has not been in possession, or his occupancy has not been beneficial, and productive of rents and profits, he may recover interest for the whole period from the date of the conveyance: Spring v. Chase, 22 Me. 505; S. C., 39 Am. Dec. 595; Lawless v. Collier, 19 Mo. 480. The fact that the vendee received no rents and profits

from the premises cannot be taken into consideration to reduce damages, as a person purchasing real estate is presumed to do so because the rents and profits will be equivalent to the interest of the money he pays for it: Spring v. Chase, 22 Me. 505; S. C., 39 Am. Dec. 595. So the grantee may recover interest, though he has not been in possession, for the money due to the owner for rents and profits constitutes a distinct and separate claim: Mitchell v. Hazen, 4 Conn. 496.

On the other hand, if there has been a beneficial occupancy, and the grantee has been in the enjoyment of rents and profits up to the time of the action on the covenant or to the time of eviction, he can recover interest only for the time during which he is liable for mesne profits, which varies under different statutes, the time being generally from four to six years immediately prior to the eviction: Lawless v. Collier, 19 Mo. 480; Hutchins v. Roundtree, 77 Id. 500; Clark v. Parr, 14 Ohio, 118; Staats v. Ten Eyck, 3 Caines, 111; S. C., 2 Am. Dec. 254; Semple v. Whorton, 68 Wis. 626; Conrad v. Druids' Grand Grove, 64 Id. 258; Messer v. Oestreich, 52 Id. 695. But in Illinois the plaintiff was perinitted to recover the consideration money and interest for the whole period, together with the taxes paid on the premises, less the value of the rents received, or which could have been received, by the grantee from the land: Frazer v. Supervisors, 74 Ill. 282. Interest for the whole period will be computed from the date of the deed: Smith v. Strong, 14 Pick. 128; or from the time of payment: Spring v. Chase, 22 Me. 505; S. C., 39 Am. Dec. 595; to the time of the judgment: Caswell v. Wendell, 4 Mass. 108; note to Cooke v. England, 92 Am. Dec. 630.

NOMINAL DAMAGES ONLY WHEN NO PROOF OF ACTUAL LOSS. Though the breach of the covenant of seisin occurs, if at all, upon the delivery of the deed, and the measure of damages will be ordinarily the consideration money and interest, because the grantee takes nothing by his deed, still, the general rule that actual damages only are recoverable for breach of contracts applies here as elsewhere: Willson v. Willson, 25 N. H. 229; S. C., 57 Am. Dec. 320; Hartford etc. Co. v. Miller, 41 Conn. 112. And though there may have been a technical breach of the covenant, there may have been no actual loss to the purchaser, and he may be in the same condition as when the covenant was executed. Under these circumstances, it is maintained in some cases that no recovery can be had except for nominal damages, unless the grantee has been compelled, by the assertion of a paramount title, to yield possession to the claimant, or has suffered some other substantial injury, on the ground that it would be manifestly inequitable to permit the plaintiff to recover the consideration money and interest, and still retain possession of the land, which might, by lapse of time, ripen into a perfect title: Boon v. McHenry, 55 Iowa, 202; Norman v. Winch, 65 Id. 263; Henke v. Johnson, 62 Id. 555; Collier v. Gamble, 10 Mo. 473; Lawless v. Collier, 19 Id. 480; Cockrell v. Proctor 65 Id. 41; Clark v. Bullock, 65 Id. 535; Conklin v. Hannibal etc. R. R. Co., 65 Id. 533; Walker v. Deaver, 79 Id. 675; Farmers' Bank v. Glenn, 68 N. C. 35; Haynes v. White, 55 Cal. 38; Noonan v. Ilsley, 22 Wis. 27; Eaton v. Lyman, 30 Id. 45; Oakes v. Estate of Buckley, 49 Id. 600; Smith v. Hughes, 50 Id. 625. It is undoubtedly true that it should appear that the plaintiff has suffered actual loss, and that a mere uninjurious flaw in the title would give the plaintiff a right to no more than nominal damages; that the actual damage suffered will always ultimately measure the damages: Hartford etc. Co. v. Miller, 41 Conn. 112; Willson v. Willson, 25 N. H. 229; S. C., 57 Am. Dec. 320; Kimball v. Bryant, 25 Minn. 496. But though doubt is expressed, there seems to be no real reason why, when there is a total failure of title, the grantee

should not be allowed to recover full damages, although he has not yet been ousted by the holder of the paramount title: 2 Sutherland on Damages, 267, 268; Rawle on Covenants, 5th ed., sec. 176; Parker v. Brown, 15 N. H. 176, 188. He has received no title, and all that he takes, if he takes anything, is the possession. This the grantor may retake, if the grantee recovers full damages, and the parties are then in the same condition as before, for a reconveyance is not necessary to a recovery of the entire purchase-money, where the title has entirely failed, the record of the recovery estopping the grantee from asserting any title as against his grantor in the future: Lawless v. Collier, 19 Mo. 480; Parker v. Brown, 15 N. H. 176, 188; see Recohs v. Younglove, 8 Baxt. 385, 387; Akerly v. Vilas, 21 Wis. 109; Tone v. Wilson, 81 Ill. 529; Flint v. Steadman, 36 Vt. 210.

But if the possession of the purchaser has by lapse of time ripened into a valid title under the statute of limitation, his recovery on the covenant can be of no more than nominal damages, though there be a technical breach: Pate v. Mitchell, 23 Ark. 591; Wilson v. Forbes, 2 Dev. 30; Cowan v. Silliman, 4 Id. 47; Somerville v. Hamilton, 4 Wheat. 230; Garfield v. Williams, 3 Vt. 328. And a recovery of merely nominal damages may be pleaded in bar of any subsequent action on the covenant in this country: Donnell v. Thompson, 10 Me. 174; Nosler v. Hunt, 18 Iowa, 217; though in England this is not so, as the covenant is regarded as a continuing one, upon which successive recoveries may be had as often as damage is suffered: See Boon v. McHenry, 55 Id. 202. And when the plaintiff perceives that his action must result in nominal damages, his proper course is to discontinue, or suffer nonsuit, which will not bar a subsequent action: Harris v. Newell, 8 Mass. 263.

Nominal damages are denied in Ohio: Backus v. McCoy, 3 Ohio, 211; Foote v. Burnett, 10 Id. 318; Devore v. Sunderland, 17 Id. 52; see Schofield v. Iowa Homestead Co., 32 Iowa, 317. And in Wisconsin, it is earnestly and ably contended by Dixon, C. J., that there should be no allowance of nominal damages in that state, because covenants of seisin are there held to run with the land: Eaton v. Lyman, 30 Wis. 41, and the principal case.

When Grantor Subsequently Acquires Perfect Title, Nominal Damages only are Recovered. After the execution of the deed containing the covenant of seisin, the vendor's title may become perfect, though at the time of the conveyance it was defective. This may occur by means of accident or of lapse of time, through the intervention of strangers or by reason of the grantor's own acts; and the grantor may buy in the outstanding paramount title. Then, by virtue of the covenants of the deed, or of the doctrine of estoppel, this after-acquired title may inure to the grantee. This perfects his title; and if not otherwise damaged, it is held that he can recover only nominal damages for the technical breach existing at the time of the conveyance: Morrison v. Underwood, 20 N. H. 369; Baxter v. Bradbury, 20 Me. 260; Farmers' Bank v. Glenn, 68 N. C. 35; Hartford etc. Co. v. Miller, 41 Conn. 112; Westbrook v. McMillan, 1 Hill (S. C.), 317; S. C., 26 Am. Dec. 187; King v. Gilson, 32 Ill. 348; S. C., 83 Am. Dec. 269; Knowles v. Kennedy, 82 Pa. St. 445; Burke v. Beveridge, 15 Minn. 208; Kimball v. Bryant, 25 Id. 496, 500; McCarty v. Leggett, 3 Hill, 134 (denies even the right to nominal damages, but to this the case is not authority); Noonan v. Пsley, 21 Wis. 138. And some cases maintain that even though the grantor acquires the title after suit brought on the covenant, still the plaintiff's damages will be reduced to a nominal sum merely: King v. Gilson, 32 Ill. 348; S. C., 83 Am. Dec. 269; Reese v. Smith, 12 Mo. 344. And in such case, it is said that the plaintiff can recover only the amount necessary to indemnify him for acts done by

the holder of the adverse title: McInnis v. Lyman, 62 Wis. 191. On the other hand, it is held, with perhaps more reason, that a defendant cannot give in evidence a title acquired by him subsequent to the bringing of the action; for the rights of the parties must be determined as they were at the time the action was begun: Morris v. Phelps, 5 Johns. 49; S. C., 5 Am. Dec. 323.

The majority of authority is as above stated, that nominal damages only are recoverable when the grantee's title has been perfected by inurement. But there are strong and weighty arguments to be made, which strenuously support the contrary conclusion, since the course of decisions above noted "fastens upon the purchaser the subsequently acquired title nolens volens, depriving him of the option whether to accept it, or to fall back upon his covenants; or to put it in another form, it has virtually the same effect as an injunction restraining him from proceeding at law upon the covenants": Rawle on Covenants, 5th ed., sec. 179; and see Reese v. Smith, 12 Mo. 344, a strong case in this direction, and one which plainly goes too far, for the purchaser was compelled, after suit, to take a title which had not even inured to him: See Noonan v. Isley, 21 Wis. 146; S. C., 22 Id. 32. There are also wellreasoned cases which clearly apprehend this view, that the election should be with the covenantee, and not with the covenantor; and in the light of their sound logic, the question can hardly be regarded as settled: See Tucker v. Clarke, 2 Sand. Ch. 96; Bingham v. Weiderwax, 1 N. Y. 509; Burton v. Reeds, 20 Ind. 93; Blanchard v. Ellis, 1 Gray, 199; see also Noonan v. Isley, 21 Wis. 146; S. C., 22 Id. 32; Nichol v. Alexander, 28 Wis. 130; McInnis v. Lyman, 62 Id. 191; see Rawle on Covenants, secs. 179–186.

DAMAGES FOR PARTIAL BREACH. — Upon a partial breach of the covenant of seisin, the rule is well settled that the covenantee recovers pro tanto only, and it seems that he cannot rescind and recover the whole consideration money: Morris v. Phelps, 5 Johns. 49; S. C., 4 Am. Dec. 323. In the early case of Gray v. Briscoe, Noy, 142, the grantor covenanted that he was seised of a fee, whereas in fact the land was a copyhold, and damages were directed to be given in the amount of the difference in value between a fee-simple and a copyhold estate, as valued by the county: See Wace v. Bickerton, 3 De Gex & S. 751. And so where a person covenants for a seisin in fee when he is seised only of a life estate, the covenantee recovers the consideration money less the value of the life estate: Tanner v. Livingston, 12 Wend. 83; Lockwood v. Sturdevant, 6 Conn. 373; Recohs v. Younglove, 8 Baxt. 385; see Rickert v. Snyder, 9 Wend. 416; Blanchard v. Blanchard, 48 Me. 174. And life assurance tables are admissible to show the value of the life estate: Mills v. Catlin, 22 Vt. 98; Donaldson v. M. & M. R. R. Co., 18 Iowa, 280. And so where a deed was made of an entirety in fee, with covenants of seisin, power to sell, and of warranty, and in fact the grantor was seised in fee of only two sixths of the premises, and had but a life estate in the other four sixths, it was held that the covenantee could recover only in proportion to the value of the part to which the title had failed, — that is, four sixths of the consideration money, less the value of the life estate; and interest was not allowed during the grantor's life, since the plaintiff could not be called upon for mesne profits during that period: Guthrie v. Pugsley, 12 Johns. 126; and see Tone v. Wilson, 81 Ill. 529; Scantlin v. Allison, 12 Kan. 851; Ela v. Card, 2 N. H. 175; S. C., 9 Am. Dec. 46; Downer v. Smith, 38 Vt. 464. And in general, following these cases, it may be considered as settled that, where the title fails in part, the recovery on the covenant of seisin will be pro tanto to the extent of the actual loss: See Tierney v. Whiting, 2 Col. 620; Hubbard v. Norton, 10 Conn. 435; Phillips v. Reichert, 17 Ind. 120; Hoot v. Spade, 20

Id. 326; McNear v. McComber, 18 Iowa, 14; Dale v. Shively, 8 Kan. 276; Blanchard v. Hoxie, 34 Me. 376; Morrison v. McArthur, 43 Id. 567; Bryan v. Smallwood, 4 Har. & McH. 483; Lucas v. Wilcox, 135 Mass. 77; Furniss v. Ferguson, 15 N. Y. 443: Adams v. Conover, 22 Hun, 424; Nyce v. Obertz, 17 Ohio. 76; McAlpin v. Woodruff, 11 Id. 125 (dower); Terry v. Drabenstadt, 68 Pa. St. 400 (dower).

Furthermore, when the land is sold for an entire consideration and the title fails to a part of the land, parol evidence may be heard as to the value of the part lost, and as to the value of the whole tract purported to be conveyed, and the measure of damages will be such a fractional part of the whole consideration paid as the value at the time of the purchase of the piece to which the title fails bears to the value of the whole piece purchased, and interest thereon: Morris v. Phelps, 5 Johns. 49; S. C., 4 Am. Dec. 323; Weber v. Anderson, 73 III. 439; Wright v. Nipple, 92 Ind. 310; Major v. Dunnavant, 25 Ill. 265; Wadhams v. Innes, 4 Ill. App. 642; Mishke v. Baughn, 52 Iowa, 528; Semple v. Whorton, 68 Wis. 626 (correcting a clerical error in the statement of the rule as contained in Messer v. Oestreich, 52 Wis. 696; inadvertently repeated in Bartlett v. Braunsdorf, 57 Id. 3; and Docter v. Hellberg, 65 Id. 424; wherein the words "whole purchase price" are used instead of "the value of the whole piece purchased "); Blanchard v. Hoxie, 34 Me. 376; Blanchard v. Blanchard, 48 Id. 177; Cushman v. Blanchard, 2 Me. 266; S. C., 11 Am. Dec. 76; Leland v. Stone, 10 Mass. 463; Cornell v. Jackson, 3 Cush. 510; Ela v. Card, 2 N. H. 175; S. C., 9 Am. Dec. 46; Giles v. Dugro, 1 Duer, 331; Dickens v. Sheppard, 3 Murph. 526; Wallace v. Talbot, 1 McCord, 467; King v. Pyle, 8 Serg. & R. 166; Bedupland v. McKeen, 28 Pa. St. 134; Raines v. Cal loway, 27 Tex. 685; Beverly v. Lawson, 3 Munf. 317; Nelson v. Matthews, 8Hen. & M. 164; Butcher v. Peterson, 26 W. Va. 447; Griffin v. Reynolds, 17 How. 611. And in Semple v. Whorton, 68 Wis. 626, it was held, Taylor, J., dissenting, that values at time of purchase may be shown by parol evidence, and are to be determined by the actual and visible conditions of the several parts at the time of the purchase, and not from the conditions then supposed to exist or contemplated by the parties. And so where several tracts are sold for an entire price per acre, and the title to one of the tracts which has valuable improvements on it is not in the grantor at the time of the sale, and neither of the parties had knowledge of the existence of the improvements, in ascertaining the measure of damages and the proportion of the purchase price recoverable, the value of the lost tract, including improvements at the time of the purchase, is to be estimated, and the ratio, between this value and the value of the whole tract at the same time, taken: Id.

It is also held in Morris v. Phelps, 5 Johns. 48, S. C., 4 Am. Dec. 323, that where the title to a part only of the land fails, the sale cannot be rescinded, and the whole consideration recovered back, but the plaintiff is restricted to his recovery of the proportionate loss. To the same effect, also, is Phillips v. Richert, 17 Ind. 122; and see also, as tending in this direction, Wetherbee v. Bennett, 2 Allen, 430; Batchelder v. Sturgis, 3 Cush. 301; Butcher v. Peterson, 26 W. Va. 447; Rolph v. Crouch, L. R. 3 Ex. 44. "And whatever may be the apparent or real hardship of the rule so laid down, there appears to be no escape from it in any purely common-law form of proceeding": Rawle on Covenants, 5th ed., sec. 187. Again, in Smith v. Hughes, 50 Wis. 625, it is held that a contract for the sale of land, fully executed by delivery of a deed with full covenants, and of possession of the land to the purchaser, cannot be rescinded; and especially where the vendor has not been guilty of any fraud or concealment, and the warrantor was solvent, and