son v.Proprietors of Minot, 2Mass. R. 464. Bearce v. Jackson, 4 Mass. R. 408. In respect to the covenant against incumbrances, it seemed admitted by Mr. Chief Justice PARSONS, in Marston v. Hobbs, 2 Mass. R. 433. that there was no authority directly in point; but he held, that in principle it was analogous to a covenant for quiet enjoyment; and said, that in the entries, the incumbrance is specially alleged in the count. See, also, Bickford v. Page, 2 Mass. R. 455. It does not, however, seem necessary to allege an ouster or eviction, on the breach of a covenant against incumbrances; but only to allege the special incumbrance as a good and subsisting one. Prescott v. Trueman, 4 Mass. R. 629. And a paramount title subsisting in a third person, is an incumbrance within the meaning of the covenant. Prescot v. Trueman, 4 Mass. R. 627. So a public town way is, in legal contemplation, an incumbrance on the land over which it is laid. Kellogg v. Ingersoll, 2 Mass. R. 87. See Ellis v. Welsh, 6 Mass. R. 246. And where the eviction or disturbance is by a stranger, it is further necessary to allege that the eviction was by a lawful title. Holden v. Taylor, Hob. 12. Foster v. Pierson. 4 T. R. 617. Hodgson v. the E. I. Company, 8 T. R. 281. Greenby v. Wilcocks, 2 Johns. R. 1. Folliard v. Wallace, 2 Johns. R. 305. Kent v. Welsh, 7 Johns. R. 258. Vanderkaar v. Vanderkaar, 11 Johns. R. 122. Marston v. Hobbs, 2 Mass. R. 433. But it is not necessary to allege the eviction to be by legal process. 2 Saund. 181. note. Foster v. Pierson, 4 T. R. 617. 620. And where the covenant is that the grantee shall enjoy, without the interruption of the grantor himself, his heirs, or executors, it is held to be a sufficient breach to allege that he or his heirs or executors entered, without showing it to be a lawful entry or setting forth his title to enter. Lloyd v. Tomkies, 1 T. R. 671. and cases cited. 2 Saund. 181. note. Sedgwick v. Hollenback, 7 Johns. R. 376. The covenant of general war. ranty is governed by the same rules; for the grantee must assign as a breach an ouster or eviction by a paramount legal title. Greenby v. Wilcocks, 2 Johns. R. 1. Folliard v. Wallace, 2 Johns. R. 395. Kent v. Welsh, 7 Johns. R. 258. Sedgwick v. Hollenback, 7 Johns. R. 376. Vanderkaar v. Vander kaar, 11 Johns. R. 122. Marston, v. Hobbs, 2 Mass. R. 433. Emer There is some diversity of opin ion as to the damages recoverable upon a breach of these several covenants. Upon the covenants of seisin, and of good right and title to convey, it is held by the courts of New-York and Pennsylvania that the grantee is entitled to the purchase money and interest from 1817. Duvall V. Craig. 1817. Duvall V. Craig. the time of the purchase. Staats v. Ten Eyck's executors, 3 Caines, 111. Pitcher v. Livingston, 4 Johns R. 1. Bender v. Fromberger, 4 Dall. 441. The same rule has been adopted in Massachusetts. Bickford v. Page, 2 Mass. R. 455. Marston v. Hobbs, 2 Mass. R. 433. Caswell v. Wendall, 4 Mass. R. 108. But if the grantee has actually enjoyed the lands for a long time, the purchase money and interest for a term not exceeding six years prior to the time of eviction is given; for the grantee, upon a recovery against him, is liable to account for the mesne profits for that period only. Staats v. Ten Eyck's executors, 3 Caines, R. 111. Caulkins v. Hams, 9 Johns. R. 324. Bennet v. Jenkins, 13 Johns. R. 50. As to the covenant against incumbrances, it seems generally held, that the grantee is entitled to nominal damages only, unless he extinguish the incumbrance; and if he extinguish it for a reasonable and fair price, he is entitled to recover that sum with interest from the time of payment. Delavergne v. Norris, 7 Johns. Rep. 358. Hull v. Dean, 13 Johns. Rep. 105. Prescott v. Freeman, 4 Mass. Rep. 627. And the costs, if any, to which he has been put by an action against him on account of the incumbrance. Waldo v. Long, 7 Johns. Rep. 173. In respect to the covenant for quiet enjoyment and of general war ranty, the rule of damages adopt. ed in New-York and Pennsylvania is to give the purchase money with interest and the costs of the prior suit; but no allowance is made for the value of any improvements. Staats v. Ten Eyck's executors, 3 Caines, 111. Pitcher v. Livingston, 4 Johns. Rep. 1. SPENCER, J. dissenting. Bennet v. Jenkins, 13 Johns. Rep. 50. Bender v. Fromberger 4 Dall. 441. The same rule has been adopted in Tennessee. 5 Hall's American Law Journ. 330. But, in relation to covenants of warranty, the courts of Massachusetts have adopted a different rule, and allowed the damages, or, in other words, the value of the property at the time of eviction. Gore v. Brazier, 3 Mass. Rep. 523. And the same rule appears to be adopted in South Carolina. Liber et ux. v. Parsons, 1 Bay, 19. Guerard's executors v. Rivers, 1 Bay, 265. And in Virginia. Mills v. Bell, 3 Call, 326. Humphrey's administrators v. M'Clenachan's administrators, 1 Munf. 493. And in Connecticut. Horsford v. Wright, Kirby, 3. Where there is a failure of title, as to part only of the land granted, it has been held that the grantee cannot recover back the whole consideration money. If the title has failed as to an individed part of an entire tract, the grantee is entitled to a like proportion of the consideration; but if it be of a specific proportion of the tract, the damages are to be apportioned according to the measure of value between the land lost and the land preserved; that is, the portion of the consideration money to be recovered is to be in the same ratio to the entire consideration that the value of the part, as to which the title has failed, is to the value of the whole tract. Morris v. Phelps, 5 Johns. Rep. 49. In respect to these covenants running with the land, it has been held in New-York and Massachusetts, that if the grantor be not seised, at the time of conveyance, the covenant of seisin is immediately broken, and no action can be brought by the assignee of the grantee against the grantor; for after the covenant is broken, it is a chose in action, and incapable of assignment. Greenby v. Wilcocks, 2 Johns. Rep. 1. Bickford v. Page, 2 Mass. Rep. 455. But in a recent case in England, a different doctrine was held; and it was adjudged that such a cove nant runs with the land, and though broken in the time of a tes tator, is a continuing breach in the time of his devisee, and it is sufficient to allege for damage, that thereby the lands are of less value to the devisee, and that he is prevented from selling them so advantageously. Kingdon v. Noble, 4Maule & Selw. 53. And see Kingdon v. Noble, 1 Maule & Selw. 355. Chamberlain v. Williamson, 2 Maule & Selw. 408. King v. Jones, 5 Taunt. 418. S. C. 1 Marshall's Rep. 107. By the Roman law, and the codes which have been derived from it, in case the vendee is evicted he has a right to demand of the vendor, 1st. The restitution of the price. 2d. That of the fruits, or mesne profits, in case the vendee has been obliged to account for them to the owner. 3d. The costs and expenses incurred both in the suit on the warranty and the prior suit of the owner, by whom the vendee has been evicted. 4th. Damages and interest with the expenses legally incurred. Pothier, De Vente, Nos. 118. 123. 128. 130. Code Napoleon, Liv. 3. tit. 6. art. 1630. De la Vente. The vendee has likewise a right to recover from the vendor, not only the value of all improvements made by the former, but also the increased value, if any, which the property may have acquired independently of the acts of the purchaser. 1 Domat. 77. sec. 15. 16. Pothier, De la Vente, Nos. 132, 133. Code Napoleon, Liv. 3. tit. 6. art. 1633, 1634, De la Vente. Digest of the Civil Laws of Louisiana, 355. 1817. Duvall V. Craig. VOL. II. 1817. Coolidge V. Payson. Feb. 21st. (COMMON LAW.) COOLIDGE et. al. v. PAYSON et. al. A letter, written within a reasonable time before or after the date of a bill of exchange, describing it in terms not to be mistaken, and promising to accept it, is, if shown to the person who afterwards takes the bill on the credit of the letter, a virtual acceptance binding the person who makes the promise. THIS cause was argued by Mr. Swann, for the plaintiff in error, and by Mr. Winder, for the defendant. Mr. Ch. J. MARSHALL delivered the opinion of the court. This suit was instituted by Payson & Co., as endorsers of a bill of exchange, drawn by Cornthwaite & Cary, payable to the order of John Randall, against Coolidge & Co. as the acceptors. At the trial the holders of the bill, on which the name of John Randall was endorsed, offered, for the purpose of proving the endorsement, an affidavit made by one of the defendants in the cause, in order to obtain a continuance, in which he referred to the bill in terms which, they supposed, implied a knowledge on his part that the plaintiffs were the rightful holdThe defendants objected to the bill's going to the jury without further proof of the endorsement; but the court determined that it should go with the affidavit to the jury, who might be at liberty to infer from thence that the endorsement was made by Randall. To this opinion the counsel for the defendants ers. in the circuit court excepted, and this court is divided on the question whether the exception ought to be sustained. On the trial it appeared that Coolidge & Co. held the proceeds of part of the cargo of the Hiram, claimed by Cornthwaite & Cary, which had been сарtured and libelled as lawful prize. The cargo had been acquitted in the district and circuit courts, but from the sentence of acquittal, the captors had appealed to this court. Pending the appeal Cornthwaite & Co. transmitted to Coolidge & Co. a bond of indemnity, executed at Baltimore with scrolls in the place of seals, and drew on them for two thousand seven hundred dollars. This bill was also payable to the order of Randall, and endorsed by him to Payson & Co. It was presented to Coolidge & Co. and protested for non-acceptance. After its protest Coolidge & Co. wrote to Cornthwaite & Cary a letter, in which, after acknowledging the receipt of a letter from them, with the bond of indemnity, they say, "This bond, conformably to our laws, is not executed as it ought to be; but it may be otherwise in your state. It will therefore be necessary to satisfy us that the scroll is usual and legal with you instead of a seal. We notice no seal to any of the signatures." "We shall write our friend Williams by this mail, and will state to him our ideas respecting the bond, which he will probably determine. If Mr. W. feels satisfied on this point, he will inform you, and in that case your draft for two thousand dollars will be honoured." On the same day Coolidge & Co. addressed a let 1817. Coolidge V. Payson. |