#### *Thompson’s Ex’or v. Guthrie’s Adm’r.

December, 1837,

Richmond.

[ 33 Am. Dec. 225.]

(Absent Bbooke, J.)

Contract to Convey Land — Breach—Measure ot Damages.* — In covenant on an executory contract for sale and conveyance of land, where covenantee has been put in possession, and has never been evicted, and where the breach consists in the failure of covenantor to convey and in his not having the legal title in himself, and no fraud proved or imputed, the covenantee is not entitled to more damages, at the utmost, than the purchase money he has actually paid, with interest for the time for which he may be accountable for the profits to the true owner.

This was an action for breach of covenant, brought in' the circuit court of Augusta, as early as October 1817, by John Guthrie against Robert Thompson ; and both parties having died pending the suit, it was revived in the name of Guthrie’s administrator against Thompson’s executor.

The declaration set forth a covenant of Thompson to and with Guthrie, dated in September 1786, whereby Thompson covenanted to sell Guthrie a parcel of land within certain boundaries therein described, containing 50 acres, more or less, for ^50, and to make him a title to the same, upon his paying the purchase money; and then averred, that Guthrie had paid part of the purchase money, and had tendered the balance with interest ; and assigned the breach, that Thompson had refused to convey the land to Guthrie, and had admitted that he had no title.

Thompson took oyer of the covenant, and then pleaded, 1, that he had performed it: and 2, that Thompson being in possession of the land at the date of the covenant, delivered possession thereof to the plaintiff John Guthrie, who thenceforth continued to hold the possession till the year 1817, when he transferred his interest *in the land, and in the covenant, to James Guthrie, for whose benefit this action was brought and prosecuted ; and that one Huff-mire having set up a claim to the land, James Guthrie, with intent to defraud Thompson, purchased and procured a conveyance from Huffmire of his adversary claim ; and after-wards conveyed the land to one Clarke, by deed of trust, to secure certain debts ; under which deed of trust the land had been sold by the trustee to another John Guthrie, who now held it under that sale; and so, James Guthrie, for whose benefit this suit was brought and prosecuted, had disabled himself from restoring the land to Thompson, and had, by a fraudulent combination, prevented Thompson from regaining possession, as he was entitled to do, upon the election of the plaintiff to claim damages for breach of the covenant, instead of the land.

Issues were made up on both pleas. But upon the trial, the jury found a verdict for the plaintiff upon the issue joined on the first plea (that of performance) only, without noticing the issue on the second plea : they assessed the plaintiff’s damages to 650 dollars. The defendant moved for a new trial; which motion the court overruled ; and then gave the plaintiff a judgment for the damages assessed by the verdict.

The court, at the instance of the defendant, certified the facts proved at the trial; which were, in substance, as follows — 1. The covenant was produced; it was set out in haec verba in the record, and corresponded with the statement of it in the declaration. 2. It was proved, that John Guthrie, the plaintiff, in the year 1797, being then in possession of the land under his purchase thereof from Thompson, offered to sell the same to John Guthrie junior, who, in consequence of that proposal, mentioned the subject to Thompson ; upon which Thompson told him to have nothing to do with it, if he wished to avoid difficulty; that he Thompson would not make a title. 3. That in September 1817, James Guthrie, son *of the plaintiff John Guthrie, made a tender to Thompson of 178 dollars 50 cents, being the full balance with interest then due to him on account of the purchase money of the land, which Thompson refused to receive, and he also refused to make a title to the land ; whereupon an arbitration of the difference was agreed upon, but Thompson afterwards declined to proceed in the arbitration. 4. That in 1805, a suit was brought by Peter Beverley against the plaintiff John Guthrie, for the land, in which Beverley was cast, but on a point not affecting the merits; and in 1817, another suit was brought by Beverley’s heirs against him for *48the land, and this suit was still pending. 5. That the quantity of land included within the .boundaries described in Thompson’s covenant for the sale and conveyance of land to the plaintiff, was, in fact, about 90 acres, instead of 50 acres as mentioned in the covenant. 6. That in 1817, when the balance of the purchase money was tendered to Thompson, the land was worth from 15 to 20 dollars the acre. 7. That the plaintiff John Guthrie had cleared about 50 acres of the land, and made some valuable permanent improvements on it. 8. That he had held the land from the date of the covenant till he transferred the same to James Guthrie, for whose benefit this suit was brought; and that James Guthrie and those claiming under him, had ever since, and still, held it; nor had there been any other disturbance of the possession, but the suits of Beverley above mentioned, and the claim of Huffmire mentioned in the second plea. 9. It was admitted, that the legal title of the land which Thompson covenanted to sell to Guthrie, was still in Peter Beverley. In addition to the facts above stated, the court certified sundry documents and proofs adduced for the defehdant at the trial, for the purpose of sustaining the defence set up in his second plea ; and the facts alleged in that plea seemed fully made out; but there is no occasion for any further notice of this *part of the case here, since it did not at all affect the point on which this court decided the cause.

Thompson’s executor applied by petition to this court for a supersedeas to the judgment ; which was allowed.

In the argument of the cause here, by Stanard for the plaintiff in error, and Johnson for the defendant,

many points were debated; but the opinion and judgment of this court determined only one of the questions argued at the bar.

Stanard insisted, that the defendant was certainly entitled to the new trial .he asked, on the ground that the damages assessed by the verdict exceeded any just measure properly .applicable to the case, and were, in truth, enormous and vindictive. Under the circumstances o'f the case, he thought, the plaintiff, if entitled to a verdict at all, ought to have had only nominal damages. But supposing him entitled to more, the utmost he could justly recover was the purchase money he had actually paid, with interest thereon from the date from which the plaintiff could be held responsible to the owner of the title for rents and profits. Ror that would undoubtedly have been the proper measure of damages, if this had been an action on a covenant of warranty, or any other covenant for assurance of title, in a deed executed for the conveyance of the land, and the breach alleged and proved had been an actual eviction of the purchaser : much more was it the proper measure of damages in this action on an executory contract for the sale of land and conveyance of title. Stout v. Jackson, 2 Rand. 132, Threlkeld’s adm’r v. Fitzhugh’s ex’x, 2 Leigh 451, Mills v. Bell ex’or, 3 Call 320, 326, Flureau v. Thornhill, 2 W. Blacks. 1078. Here, where only a part of the purchase money had been paid by the purchaser, and where he and those claiming under him had held and enjoyed the possession for more than thirty years before the action was brought, *and still continued in possession, with little danger too of ever being deprived of it, the damages given by the verdict (as he shewed) far exceeded the amount of the whole purchase money with interest.

Johnson contended, on the other hand, that, in an action for the breach of an executory contract for the sale and conveyance of land, the proper measure of damages was the actual loss which the covenantee sustained by the breach, to be estimated, of course, with reference to the value of the land at the time of the breach. And if that was true, it nowise appeared, that the damages given by the verdict in this case were excessive. He put the case of a covenant to sell and convey land for a consideration to be afterwards paid; the covenantee making a tender of the purchase money at the time appointed for the payment of it, and the covenantor refusing to receive it, and to go on with the contract: in such case, if the purchase money paid, with interest, was the measure of damages, the purchaser would be entitled to no damages at all; and the vendor (for any remedy which the law afforded the person he had wronged) might violate his contract at pleasure. In actions upon covenants of warranty, and the like, contained in deeds of conveyance of land executed, the measure of damages had been settled upon technical reasons, which were not more applicable to executory contracts for the sale of land, than to executory contracts for the sale and delivery of personal estate ; and he insisted, that there was no good reason for a distinction, in this respect, between contracts for real and contracts for personal estate.

*

Contract to Convey Land— Breach— Measure of Damages. — in Butcher v. Peterson, 26 W. Va. 454, it is said: “It is the settled law of this State that, where there is a sale of land with covenant of general warranty, and the purchaser is evicted by a third person holding a paramount title, the measure of damages to which the purchaser is entitled, where the vendor sold in good faith and without fraud, is the purchase money paid for the land with interest thereon from the date of the actual eviction. Threlkeld v. Fitzhugh, 2 Leigh 451; Stout v. Jackson, 2 Rand. 132; Lowther v. The Commonwealth, 1 H. & M. 202; *Thompson v.*Guthrie, 9 *Leigh*101. The same rule obtains when the eviction is of only a part of the land sold. In such case the measure of damages is, such a portion of the purchase money, as the relative value of the land lost bears to the price of the whole land. Humphreys v. McClenachan, 1 Munf. 493.’'

Though in general, for the breach of an executory contract to convey land, the vendee is not entitled to more damages than the purchase money he has actually paid, and interest thereon, yet this rule will not be applied where the fraudulent conduct of the vendor makes it unreasonable to limit the vendee to that measure of damages. If, for example, a vendor who has the title in him at the time of sale, shall, after his contract, disable himself to perform it by conveying the land to another, he will be held liable for the value at the time of the breach; and interest may be allowed on such value from that time. Wilson v. Spencer, 11 Leigh 261, 276, 277, basing its decision upon the principles laid down in the principal case. See further, monographic *note*on “Covenants” appended to Todd v. Summers, 2Gratt. 167.

PARKER, J.

I am of opinion, that the circuit court ought to have granted a new trial in this case, on the ground, if upon no other, that the damages were excessive and vindictive. [Here, the judge recapitulated the leading facts of the case.] Although Thompson had not the legal *title, there is no evidence to shew that he had not such an equitable one, as, combined with his possession and the long possession of those holding under him, would have enabled his assignee to defend himself against the claim of Beverley. No eviction had taken place ; no offer had been made to Thompson to cancel the bargain, yield the possession to him, and remit him to his original rights. The purchase money was but *£50,*and only part of it had been paid. The verdict of the jury for so large a sum as 650 dollars in damages, must have been rendered in consequence of its being proved that in 1817, when the balance of the purchase money was tendered, the land was worth from 15 to 20 dollars per acre in cash, and that the boundaries of the track, which was sold for 50 acres, more or less, really contained about 90 acres. A regard to both these elements, in connexion with the return of the purchase money advanced, must have influenced the *49jury. But throwing out of view the probability that the title of the covenantee had been perfected by the lapse of time; disregarding the fact of his neglecting for so many years to tender the balance of the purchase money, and ask for a title; and supposing him to have been actually evicted by Beverley’s heirs; the jury went greatly beyond the damages to which the plaintiff was entitled.

In the case of actual eviction from land for which the purchaser has a conveyance, he can only recover the purchase money, with interest for such time as he is liable to be called on for rents and profits, and the costs of defending the title. This is the settled rule by which the damages are measured .in cases of eviction under an executed contract, “whether they be claimed in an action upon a warranty, or covenant of seisin, or of power to convey, or for quiet enjoyment:” see Stout v. Jackson, and Threlkeld’s adm’r v. Fitzhugh’s ex’x. The same rule applies, at least with equal force, to executory contracts for land. In Mills v. Bell, president *Pendleton, who delivered the opinion of the court, seemed to think it applied, a fortiori: for whilst he inclined to the opinion, that if a conveyance was made with warranty, the purchaser upon eviction was entitled on the covenant to the increased value of the estate, he declared, that as in that case the contract was executory, a court of equity would adjust the damages upon equitable principles; and, accordingly, he decreed the value at the time of the agreement. So in Flureau v. Thornhill, on covenant to convey a tract of land at a future time, which had increased in value, and the vendor had no clear title, the vendee was only allowed the purchase money and interest, for that was his real loss. And judge Green, in Stout v. Jackson, says, that “in all cases of executory contracts, the compensation in case of failure, when the property sold has in the mean time increased in value, should be the same as in case of an executed contract with warranty, and an eviction ; for the real loss to the purchaser is the same.” Judge Cabell too, in the case of Threlkeld’s adm’r v. Fitzhugh’s ex’x, draws the distinction between contracts to deliver personal property, and contracts to convey lands, at a future period, in these words : “In all executory contracts for the delivery of personal property at a future day, the established standard of damages is the value of property at the time and place when and where it ought to be delivered. In all executory contracts for the conveyance of land at a future time, the established measure of damages is the purchase money.” On a covenant to make a good title, where there is no fraud on the part of the vendor, and he sells believing his title to be a good one, or that it can be made so, the rule must be the same. The vendee’s loss, in case of failure, is the purchase money ; the profits, as long as he receives them, standing in lieu of interest, unless so far as they are recovered. Ror this loss he ought to be compensated, if the land falls in value ; and no more than Compensated, if it rises. Such a rule offers no temptation to the vendor bo violate his contract; because, if he has a good title, the vendee can claim specific performance in a court of chancery, instead of bringing his action at law. As to the additional quantity of land over and above that sold, the vendee has no claim whatever to compensation ; and with respect to loss sustained by having put improvements on the estate, he cannot recover, for the reasons assigned by judge Green in Stout v. Jackson.

Hence, the plaintiff here, in case of actual eviction, would seem to have been entitled to little more than 100 dollars, which he had paid, with some interest. Under the actual circumstances of the case, I am strongly inclined to think, his damages should have been nominal: but as (if my opinion prevails) the cause must be sent back for a new trial, and its aspect may be changed by new pleadings and new evidence, I forbear to give any opinion on this point.

The other judges concurred. Judgment reversed, and cause remanded for a new trial.