J. G. (Jabez Gridley) Sutherland.

A treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 2) online

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King V. Gilson, 32 HI. 348, 83 Am. 12 King v. Gilson, supra, citing


who obtains a good title cannot compel his grantee, after evio
tion by title paramount, to accept such after-acquired title in
satisfaction of the covenants in his deed or in mitigation of
damages for their breach. ^^ It is held in Missouri that equity
will compel the acceptance of such title and enjoin the prosecu-
tion of a suit for damages; ^^ but this is contrary to the rule in
New York.'^^ The cases are generally to the effect that the
recovery of damages to the amount of the consideration and
interest thereon operates to revest the title in the covenantor or
give him the right of possession as against the covenantee and
estop the latter from claiming any title or interest in the premi-
ses under or by virtue of the conveyance. ^^ The rule is estab-
lished in Indiana that the grantor cannot claim a set-off on
account of the mesne proiits enjoyed by the grantee.^' though
the true owner fails in his action to evict to obtain a judgment
for them." The covenantee cannot recover interest if he has
had possession and has not responded to his evictor for mesne
profits, and then only for such time as he shall have accounted
for them.^® The rule is that for a total breach the measure of
damages is the consideration and interest ; and that for a mere
technical breach a nominal sum only can be recovered. Between
these extremes the recovery may be proportionate to the actual
injury; this is the invariable criterion and measure.^" Thus,

Baxter v. Bradbury, 20 Me. 260; 17 Wilson v. Peelle, 78 Ind. 384;

Cotton V. Ward, 3 Mon. 304; Reese Wright v. Nipple, 92 id. 310.

V. Smith, 12 Mo. 344; Cornell v. 18 Rhea v. Swain, 122 Ind. 272.

Jackson, 3 Cush. 506. 19 Hutchins v. Roundtree, 77 Mo,

13 Nichol V. Alexander, 28 Wis. 500.

118; Mclnnis v. Lyman, 62 id. 191; 20 Herndon v. Harrison, 34 Miss.

Blanchard v. ElHs, 1 Gray 199, 61 486, 69 Am. Dec. 399; Nutting v.

Am. Dec. 414; Bingham v. Welder- Herbert, 37 N. H. 346; Miller v.

wax, 1 N. Y. 513; Burton v. Reeds, Hartford & S. O. Co., 41 Conn. 130;

20 Ind. 93. Whiting v. Dewey, 15 Piclc. 428;

H Reese v. Smith, 12 Mo. 344. Brown v. Allen, 73 Hun 291.

15 Tucker v. Clarke, 2 Sandf. Ch. Where the title was in the gov-

96. ernmeiit and the vendee was obliged

iSNoonan v. Ilsley, 21 Wis. 138, to erect buildings on the land and

citing Porter v. Hill, 8 Mass. 36; transfer liis residence thereto in or-

Stinson v. Sumner, id. 150; Blanch- der to acquire title under the home-

ard V. Ellis, 1 Gray 202; Parker v. stead law, his recovery was
Brown, 15 N. H. 188. ' measured by the consideration paid


where the covenant was of seizin in fee and the estate possessed
and conveyed was copyhold, the covenant was broken and the
covenantee was held entitled to damages according to the dif-
ference in value between a fee-simple and a copyhold estate.^^
So where a fee-simple has been covenanted for and the title
conveyed was subject to a life estate, the value of the latter is
recoverable,^'' and may be computed from life tables.'^' Any
injury done the premises while they were held adversely to the
grantee may be recovered for in addition to interest during the
interim between eviction and restoration of title.^*

§ 602. Same subject. Where a deed of the entirety in fee
was made mth covenants of seizin, power to sell and of war-
ranty and the grantors owned only an undivided two-sixths and
a life estate in the other four-sixths the plaintiff recovered dam-
ages in an action for breach of the former covenants only in
proportion to the value of the part for which the title had failed ;
that is, four-sixths of the consideration money and interest ; but,
as the life estate of the defendants in the four-sixths passed
to the plaintiff by the deed the value of such life estate was
deducted ; nor was interest allowed during the life of the defend-
ants, as, during that time the plaintiff could not be called on for
mesne profits.''^ If A. conveys land to B., with covenant of
seizin, and the title to part only of the land fails, the sale will
not be rescinded by a recovery at law so as to give the vendee a
right of action to recover the whole consideration money; but
the plaintiff is only entitled to recover in proportion to the
extent of the defect of title, or the value of the part lost. The
measure of damages is the value of the part to which the title

and interest, less the value of the 83 Mills v. Catlin, 22 Vt. 98; Don-

riglits acquired from the grantor. aldson v. M. & M. R. Co., 18 loAva

Efta V. Svvanson, 13 5 Minn. 373. 280, 14 Am. Neg. Cas. 609, 87 Am.

21 Gray v. Briscoe, Nov 342. Dec. 391. See § 455.

22 Curtis V. Brannon, 98 Tenn. 24 Singleton v. Allen, 2 Strobh.
153, 69 L.R.A. 760; Guthrie v. Pugs- Eq. 166.

ley, 12 Johns. 126; Tanner v. Liv- 25 Tone v. Wilson, 81 111. 529;

ingston, 12 Wend. 83; Lockwood v. Scantlin v. Allison, 12 Kan. 851;

Sturdevant, 6 Conn. 373; Recohs v. Guthrie v. Pugsley, 12 Johns. 126;

Younglove, 8 Baxter 385. See Ela v. Card, 2 X. H. 175, 9 Am'.

Blanchard V. Blanchard, 48 Mc. 174; Dec. 46; Downer v. Smith, 38 Vt.

Rickert v. Snyder, 9 Wend. 416. 464.


has failed with refcrenee to the value of the residue. In a iSTcw
York case ^^ Kent, C. J., said : ''Another question is whether
the defendant ought not to have been ])erniitted to show that
the lands in the deed of 1795, of which there was a failure of
title, were of inferior quality to the other lands conveyed hj the
same deed. This appears to be reasonable ; and the rule would
operate with equal justice as to all the parties to a conveyance.
Suppose a valuable stream of water, with expensive improve-
ments upon it, with ten acres of adjoining barren land, was
sold for $10,000 ; and it should afterwards appear that the title
to the stream with the improvements on it failed, but remained
good as to the residue of the land; would it not be unjust that
the grantor should be limited in damages under his covenants
to an apportionment according to the number of acres lost, when
the sole inducement to the purchase was defeated and the whole
value of the purchase had failed? So, on the other hand, if
only the title to the nine barren acres failed, the vendor would
feel the weight of extreme injustice if lie was obliged to refund
nine-tenths of the consideration money. This is not the rule of
assessment. The law will apportion the damages to the measure
of value between the land lost and the land preserved. * * *
The recovery in value upon the warranty at common law was
regulated by the same rule. The capias ad valentiam was issued
to take as much land of the warrantor as was equal to the value
of the lands lost. Cape de terra in halliva tua ad valentiam
tantce terrce quod B. clamat ut jus suum; and if the lands of the
warrantor lay in another county, different from that in which
the lands in controversy lay, then the lands in question were first
appraised by a sheriff's inquest and afterwards the writ went
to the sheriff of the other county to take lands of equal value,
which value was specified in the writ.^' If the recovery in the
present case had been of an undivided part of all the lands con-
veyed by the deed, then the rule of apportionment of damages
according to the relative value could not have applied, and this
distinction runs through the authorities on the subject. Rut

26 Morris v. Plielps, 5 Johns. Williamson, r)() Pa. Super. 100.
49, 4 Am. Doc. 32.3 ; Mcngol v. 27 Practon, 384, a, h.




the plaintiff's title failed only to an midividerl part of a specified
tract, and remained good to another and larger tract conveyed
by the same deed and included in the same consideration. The
apportionment according to the relative value is therefore
strictly and justly applicable/' ^^ The prevailing rule is clearly
expressed by Cassoday, J., in a Wisconsin case : "In the absence
of fraud, we conchide that where the title fails to only a part
of the land conveyed the grantee ihay recover in an action on
the covenants of seizin and right to convey, or upon an agree-
ment to convey, such a fractional part of the whole considera-
tion 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 pur-
chased and interest thereon during the time he has been deprived
of the use of such fractional part, but not exceeding six
years." ^ On the failure of the right to cut timber the purchaser
may recover the difference in the value of the land with such
right for the purpose for which it was granted and without it.
But a second grantee cannot voluntarily incur the statutory
penalty for cutting timber and recover it from his gTantor's
vendor by abatement of the purchase-money.^° Where there is
a failure of title to a part and the paramount title is extin-
guished by the grantee the measure of damages is the amount
paid if it does not exceed the value of that part as found by the
jury. If it does exceed it the jury are to be guided, not by the

28 Glapp V. Ilerdman, 25 III. App.
50f); Hunt V. Raplee, 44 Hun ]4'J;
ISIoscs V. Wallace, 7 Lea 413;
Blaiu'hard v. lloxio, 34 Me. 376;
Hubbard v. Norton, 10 Conn. 422;
Partridge v. Hatch, IS N. H. 404;
Cornell v. Jackson, .3 Cush. 506.
See Wright v. Nipplo, 92 Ind. 310;
Wilson V. Poolle, 78 id. 384; Wood
V. Hihbins, 5S id. 392. Compare
American C. C. Co. v. Seitz, 101 id.

An ap])ortionin('iit has been made
wliere there was a failure of title
to crops which had so far matured
as to be valuable as part of the

land. Newburn v. Lucas, 126 Iowa
85 citing the text.

29 Semple v. Whorton, 68 Wis.
626. Taylor, J., expressed, in a dis-
senting opinion, the conviction that
tlic rule stated is a general one ap-
plicable to ordinary cases, and
should not be applied where the
part to which the title fails is of
more value than any of the other
parts of the tract purchased by rea-
son of facts which neither of the
parties knew at the time of the
bargain, and which, therefore, had
no influence in fixing the price.

30 Turner v. Lawson, 144 Ala. 432.


quantity of land, but by tbe value that such part proportionately
bears to the value of the whole tract as estimated by the con-
sideration in the deed.'^ A peculiar case has recently been
decided by the Maine court. The defendant held a mortgage
as security for the mortgagor's note. The latter arranged with
the plaintiif to furnish him money on a new mortgage to dis-
charge that held by the defendant. In lieu of such mortgage
the defendant assigned his mortgage to plaintiff as security for
the mortgagor's note. In the assignment there was a covenant
that there was no incumbrance on the mortgage and that the
assignor had a right to sell and convey. Some years before the
mortgagee had released a portion of the mortgaged premises to
the mortgagor, a fact which was not in his recollection when the
assignment was made. At the date of the transaction between
the parties to this action the mortgage covered property worth
more by several hundreds of dollars than the amount
advanced by plaintiff ; between then and the time of the foreclo-
sure it depreciated so as to leave a considerable sum due on the
note. It was held in an action on defendant's covenant that he
was liable only for nominal damages.^^

Section 4.

covenants of warranty and for quiet enjoyment.

§ 603. Their scope, and the remedy for a breach. These cov-
enants are usually treated as synonymous, since a concurrence
of the same circumstances is necessary to constitute a breach,
since they equally possess the capacity to run with the land, and
the rule in respect to the measure of damages is the same as to
both.^' They are assurances to the purchaser and his assigns
against a future hjss of title to and possession of the granted

81 Price v. Deal, 90 N. C. 290. Williams, 36 111. 65, 85 Am. Dec.

82 People's Sav. Bank v. Hill, 81 385; Rea v. Minkler, 5 Lans. 196;

Fowler v. Poling, 2 Barb. 300, 6 id.

Me. 71.

33 Simona v. Diamond M. Co., 159

M- V. 04 1 T 1 -c 1 IOC 1C}r); ]\Titchell v. Warner, 5 Conn,

ich. 241 ; .Jacobs v. Fowler, 135 '

App. Div. (N. Y.) 713; Morrow v. 497; Herrin v. IMcKntyre, 1 Hawka

Baird, 114 Tenn. 552; Bostwick v. 410; Bawle on Gov. Tit. 208, 215.

§ 603]



premises; in other words, their meaning is that neither the
grantee nor his heirs or assigns shall be deprived of the posses-
sion by force of a paramount title. ^* But if, when a deed is
executed, the grantor had neither title nor seizin iite covenant
cannot be enforced by the heirs of the grantee or his assignee;
the right of action is in the personal representative of the
grantee.^^ The purchaser may rely on the covenants although
he bought the land with knowledge that the title was defective,'^
and although the deed and the mortgage back were a part of the
same transaction and contained the same covenants, and the
relation of mortgagor and mortgagee subsisted between the
parties when suit was instituted.^' A deed conveying land as
a gift, there being no valuable consideration whatever, will not
support an action on the covenant of warranty.^' The only
remedy open to the covenantee is to sue for a money judgment
on the covenant ; ^^ he cannot have other lands owned by his
grantor set aside to make up a deficiency in those to which he
was entitled.*"

84 Hardy v. Pecot, 113 La. 350;
Quick V. Walker, 325 Mo. App. 257;
Leet V. Gratz, 124 Mo. App. 394;
Wiggins V. Pender, 132 N. C. 628,
61 L.R.A. 772 (though "assign" not
used in deed) ; Rindskopf v. Farm-
ers' L. & T. Co., 58 Barb. 36; King
V. Kerr, 5 Ohio, 154, 22 Am. Dec.
777; Thomas v. Bland, 91 Ky. 1,
11 L.R.A. 240; Walton v. Campbell,
51 Neb. 788; Rutherford v. Mont-
gomery, 14 Tex. Civ. App. 319;
Beasley v. Phillips, 20 Ind. App.
182; Loving v. Groomer, 142 Mo. 1.

The parties to a partition, wheth-
er coparceners, joint tenants or ten-
ants in common, are liable upon an
implied warranty of title if a loss
occurs; but such warranty does not
run with the land. Jones v. Big-
staff, 15 Ky. L. Rep. 821.

35Prpstwood V. McGowin, 128
Ala. 267.

86Newbum t. Lucas, 126 Iowa
85, citing local cases ; Wadhams v.
Swan, 109 111. 46; Edwards v.
Clark, 83 Mich. 246, 10 L.R.A. 659;
Demars v. Koehler, 62 N. J. L.
203; Jones v. Jones, 87 Ky. 82.
But in Saunders v. Rowe, 20 Ky.
L. Rep. 1082, it is held that one
who bought land knowing that the
mineral rights therein had been sold
could not recover on the coven-ant
of warranty.

S' Harrington v. Bean, 89 Me.
470; Hardy v. Nelson, 27 Me. 526;
Hubbard v. Norton, 10 Conn. 422.

38 Calcote V. Elkin, 3 Tenn. Cas.
319. But see Hanson v. Buckner,

4 Dana 251, 29 Am. Dec. 401.

39 Smyth V. Boroff, 156 Mo. App

40 Willbarger County v. Robinson,

5 Tex. Civ. App. 10; Doyle v. Brun-
dred, 187 Pa. 113, 120.



[§ G04

§ 604. What is a breach. These covenants are only broken
by an eviction or something cqnivalent thereto.'*^ Formerly
they were not broken unless there was an expulsion by the as-
sertion of a paramount title and by process of law. The rule
now is that there is a breach whenever there is an involuntary
loss of possession by reason of the hostile assertion of an irre-
sistible title. The eviction may be constructive, as where the
purchaser is unable to obtain possession by reason of the para-
mount title being in a third person,*^ or where the holder of
that title demands his interest in such a way and under such

41 Callahan v. Goldiiian, 216 Mass.
238; Burns v. Vereen, 132 Ga. 349;
Mauzy v. Flint, 42 Ind. App. 386;
Brooks V. Mohl, 104 Minn. 404, 324
Am. St. 629, 17 L.R.A.(N.S.) 1195;
Smyth V. Boroff, 156 Mo. App. 18;
Werner v. Wheeler, 142 App. Div.
(N. Y.) 358; Overby v. Johnston,
42 Tex. Civ. App. 348; Sav-
age V. Cauthorn, 109 Va. 694;
Durbin v. Shenners, 133 Wis.
134; Oliver v. Bush, 125 Ala.
534; Jones v. Jones, 87 Ky. 82;
Wagner v. Finnegan, 54 Minn. 251 ;
Watkins v. Gregory, 69 Miss. 469;
Pence v. Gabbert, 63 Mo. App. 302;
Griffin v. Thomas, 128 N. C. 310;
Bostwick v. Williams, 36 111. 65,
85 Am. Dec. 385; Owen v. Thomas,
33 111. 320; Giddings v. Canficld, 4
Conn. 482, 10 Am. Dec. 162; Mc-
Gary v. Hastings, 39 Cal. 360, 2
Am. Rep. 456; Woodward v. Allan,
3 Dana 164; Rickets v. Dickens, 1
Murph. 343, 4 Am. Dec. 555; Nor-
ton V. Jackson, 5 Cal. 262 ; Booker
v. Merriweather, 4 Litt. 212; Rick-
ert V. Snyder, 9 Wend. 416; Innea
V. Agnew, 1 Ohio 179; Post v. Cam-
pau, 42 Mich. 90; Davis v. Smith,
5 Ga. 274, 48 Am. Dec. 279; Han-
nah V. Henderson, 4 Ind. 174;
Woodford v. Leavenworth, 14 id.
311 ; Simpson v. Hawkins, 1 Dana
303; Stewart v. Drake, 9 N. J. L.

139; Sisk V. Woodruff, 15 111. 15
Crutcher v. Stamp, 5 Hayw. 100
Meek v. Bearden, 5 Yerg. 467 ; Gil
man v. Haven, 11 Cush. 330; Pari
V. Bates, 12 Vt. 381, 36 Am. Dec
347; Noonan v. Lee, 2 Black 499
Swazey v. Brooks, 34 Vt. 451
Knapp V. Marlboro, id. 234; Evans
V. Lewis, 5 Harr. 102; Stewart v.
West, 14 Pa. 336; Patton v. Mc-
Farlane, 3 P. & W. 419; Fulwciler
V. Baugher, 15 S. & R. 45; Ivnepper
V. Kurtz, 58 Pa. 480; Clark v. Mc-
Nulty, 3 S. & R. 364; McCoy v.
Lord, 19 Barb. 18; Greenvault v.
Davis, 4 Hill 643; Hamilton v.
Cutts, 4 Mass. 349, 3 Am. Dec. 322;
Curtis V. Doering, 12 Me. 499 ;
Mitchell V. Warner, 5 Conn. 497;
Witty V. High tower, 12 Sm. & M.
478; Carter v. Dennian, 23 N. J.
L. 260; Tufts v. Adams, 8 Pick.
547; Flanagan v. Ward, 12 Tex.
209; Peck v. Hensley, 20 id. 673;
McCormick v. Marcy, 165 Cal. 386;
Brooks V. Winkles, 139 Ga. 732;
Grant v. Mc Arthur, 153 Ky. 356;
Mathews v. Sylvester, 15 Ohio C. C.
(N. S.) 237.

A public easement is not a breach.
Burke v. Trabue, 137 Ky. 580.

42 Sarrls v. Beckman, 55 Ind.
App. 638; Mahoney v. Simms, 86
Misc. (N. Y.) 484; Simons v. Dia-
mond M. Co., 159 Mich. 241; Kcyes

§ C04]



conditions that the purchaser is compelled to jleld and buy the
outstanding paramount title to avoid an ouster.*^ If possession
is yielded to such person the vendee assumes the risk of showing
his right thereto.** The eviction must be alleged and shown to
be by a paramount title existing before or at the time the
defendant made his covenant.*^ Where the grantor had title at
law and in equity to the land conveyed and the breach assigned
was the making of a subsequent conveyance which, by being
first recorded, enabled the grantee under the registry laws to
hold the land, the court held that ''the covenant of warranty
relates solely to the title as it was at the time the conveyance
was made; that it merely binds the grantor to protect the

& M. Realty Co. v. Trustees, 146 App.
Div. (N. Y.) 706; Cain v. Fisher, 57
VV. Va. 492; Butt v. Riffe, 78 Ky
352; Pryse v. :>JcGuire, 81 Ky. 608
Cheney v. Straube, 43 Neb. 879
Jennings v. Kiernan, 35 Ore. 349
Eustis V, Cowherd, 4 Tex. Civ. App
343; Fritz v. Pusey, 31 Minn. 368
Murphy v. Price, 48 Mo. 247 ; Clarlv
V. Conroe's Est., 38 Vt. 469; Russ
V. Steele, 40 id. 310; Sheffey v.
Gardiner, 79 Va. 313; Duvall v.
Craig, 2 Wheat. 62, 4 L. ed. 185;
Prestwood v. McGowin, 128 Ala.
267, 272.

43 Shaw Bros. v. Guthrie, 14 Ga.
App. 303; Ecasley v. Phillips, 20
Ind. App. 1C2, 191; West Coast
Mfg. & I. Co. V. West Coast I. Co.,
25 Wash. 627, 62 L.R.A. 763; Leet
V. Gratz, 92 Mo. App. 422, 431;
Hayden v. Patterson, 39 Colo. 15;
Joyner v. Smith, 132 Ga. 779;
Brooks V. :\rol:l, 104 Minn. 404,
124 Am. St. 620, 17 L.R.A. (N.S.)
1195; Morrow v. Baird, 114 Tenn.
552; Morgan v. Haley, 107 Va. 331,
13 L.R.A. (X.S.) 732. See Cotting
V. Commonwealth, 205 Mass. 523.

44 Cheney v. Straube, 35 Neb. 521 ;
Lambert v. Estes, 99 Mo. 604;
Clark V. Munford, 02 Tex. 531,

45Seldon v. Jones, 74 Ark. 348;
McKillop V. Burton, 82 Vt. 403;
Bedell V. Christy, 62 Kan. 760;
Ravenal v. Ingram, 131 N. C. 549;
Wade V. Comstock, 11 Ohio St. 71,
and cases cited in first note to tliis

In Knapp v. Marlboro, 34 Vt. 451,
the plaintiff and his grantors had
been in possession of the premises
in controversy for more than half
a century, when he was evicted by
a third person; in an action against
his covenantor such long continued
possession raised a conclusive pre-
sumption that he was not evicted
by title paramount.

In Woodward v. Allan, 3 Dana
164, while the necessity of eviction
by a paramovmt title is admitted, it
is held that an allegation that the
eviction was by an adverse superior
title was sufficient, and that it need
not be averred to be an older title
if stated to be adverse and not de-
rived from the plaintiff himself.
See Pence v. Duvall, 9 B. Mon. 48;
Curtis v. Dcering, 12 Me. 499;
Staples V. Flint, 28 Vt. 794; Lukens
V. Nicholson, 4 Phila. 22; Maodcr
V. Carondelct, 26 Mo. 112; Scott v.
Scott, 70 Pa. 244.


grantee and his assigns against a lawful and better title existing
before or at the date of the grant," and that an action would
not lie on a general covenant of warranty in such a case.^^ The
decisions are not entirely in accord as to what shall be deemed
an eviction for the purpose of recovery on these covenants ; but
an eviction, or what is deemed equivalent, by paramount title is
essential to the right to damages and is universally required.*'
An outstanding title in either the federal or state government
is generally held to constitute an eviction,*^ If land is actually
occupied by another at the time of the execution of the convey-
ance under an adverse and better title the covenant is broken
without action by either party.^" But if the gTantee permits the
possession of another to ripen into a good title by lapse of time
he has no remedy on the covenant.^^ If a purchaser does not
investigate the title to vacant laud Avhich is already occupied
and fails to take possession of it until the occupier has acquired
title he cannot recover on the covenant of warranty although he
sues thereon immediately after his failure to establish his title,
and no superior title was theretofore asserted.^^ A vendee can-
not claim damages because of an eviction which was the result
of his acts.^^ A judgment merely establishing an adverse para-
mount title does not constitute an eviction unless, at least, the
land is vacant and unoccupied.^* It is otherwise where a judg-
ment is rendered against the covenantee in possession of the
land for its recovery, notice of the pendency of the action hav-

*6 Wade V. Cornstock, swpra; 85 Wis. 427; Pevey v. Jones, 71

Duroe v. Stephens, 101 Iowa 358. Miss. 647, 42 Am. St. 486; Harring-

But compare Curtis v. Dcering, ton v. Clark, 50 Kan. 644.

supra; Maeder v. Carondelot, 26 50 Sliattuck v. Lamb, 65 N. Y.

Mo. 314. 499, 22 Am. Rep. 656, overruling

*7 See Larkin V. Trammel, 47 Tex. Kortz v. Carpenter, 5 Johns. 120;

Civ. App. .548. Moore v. Vail, 17 111. 185.

49 Mahoney v. Simms, 86 Misc. 61 Rindskopf v. Farmers' L. & T.

(N. Y.) 484; Seldon v. Jones, 74 Co., 58 Barb. 36.

Ark. 348 ; Jackson N. S. Co. v. 62 Claflin v. Case, 53 Kan. 560.

Tootle, 96 Miss. 486; Holloway v. 63 Sarrls v. Bcckman, 55 Ind.

Miller, 84 Miss. 776; Green v. Irv- App. 638; Hester v Hunnicutt, 104

ing, .54 Miss. 402; McGary v. Hast- Ala. 282.

ings, 39 Cal. 30(1 ; Brown v. Allen, 64 Wagner v. Finnogan, 54 Minn.

57 Hun 219; McLennan v. Prentice, 251.

§ C05]



ing been given tlic grantor." If the action is based on the cove-
nant against incumbrances and also on the covenant of warranty
the exercise of an outstanding right to flow a portion of the
land which was covered with water, the plaintiff being thereby
deprived of its use and possession, constitutes a substantial
eviction, and is an ev.iction pro tanto}^ Eviction under a para-
mount title may not be shown unless the warrantor had notice
of the proceedings in which it was established and an oppor-
tunity to defend."

§ 605. The rule of damages; what law controls; remote losses.
The measure of compensation is not the same in all the states.
In a majority the consideration, or the value of the land at the
time of the sale as then agreed upon by the parties or as deter-
mined by the price paid, with interest for such time as the pur-
chaser has been deprived of, or is accountable to the superior
owner for, the meme profits, together with the costs and

Online LibraryJ. G. (Jabez Gridley) SutherlandA treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 2) → online text (page 94 of 135)