CHAPTER VI. RULE OF DAMAGES IN ACTIONS BROUGHT FOR THE BREACH OF REAL COVENANTS. The Ancient Warranty-Modern Covenants-The Stipulatio Duplex and Edictum Edilium of the Roman Law-Rules of the Modern Civil Law, in cases of Eviction -Of the French Code-Measure of Damages according to the Common Law, in case of Eviction-On the Covenants for Quiet Enjoyment, and of Warranty-Consideration named in the Deed-Measure of Damages on the Covenant of Seisin— On the Covenant against Incumbrances-On Covenants to convey Lands-Covenants in Leases. THE ancient warranty was in substance a covenant, whereby the grantor of an estate of freehold and his heirs were bound to warrant the title, and either upon voucher or judgment in a writ of warrantia charta, to yield other lands to the value of those from which there had been an eviction by a paramount title. Upon eviction of the freehold, no personal action lay at common law upon the warranty. The party had only a writ of warrantia charta upon his warranty to recover a recompense in value to the extent of his freehold.+ For reasons assigned by Blackstone, in modern practice the covenant has totally superseded the warranty; and to this end various statutes have contributed. Such is the statute§ making void all warranties by tenant for life, as against any reversioner or remainderman; and, as against the heir, all collateral warranties by any ancestor who had no estate of inheritance in possession; and these statutes have been generally reënacted in this country. * Co. Litt., 865 a, and Reeves' Engl. Law, vol. i., 448. + Kent's Com., Vol. iv., 469. Bl. Com., Book II., Ch. 20, 800; and see, also, Co. Litt., 384 a, for "divers other diversities between warranties and covenants, which yield but damages." § 4 & 5 Anne, c. 16. It is certainly so, at least, in New York. The statute of 4 & 5 Anne, c. 16, was The usual personal covenants contained in a deed, the rule of damages in relation to which we shall now proceed to examine, are, First, that of seisin, or that the grantor is lawfully seised. Second, that he has good right to convey, which has been called synonymous with the covenant of seisin.* Third, that the premises are free from incumbrances. Fourth, for quiet enjoyment, or that the grantee shall quietly enjoy. Fifth, of warranty, or that the grantor shall warrant and defend the title against all lawful claims; and, Sixth, the covenant for further assurance.t In regard to all these covenants the rule is general, that no substantial relief will be given till the party complaining has actually suffered injury. It is not sufficient that he is menaced by an outstanding title or incumbrance. The covenantee cannot have anything more than nominal damages until he has been damnified in consequence of a breach of the covenant.‡ But it often becomes a question what constitutes a breach, and what a damage, sufficient to found a claim for remuneration. In regard to the three first, if the title is defective, or incumbrances exist at the time of the conveyance, there is a breach as soon as the deed is executed. But those of warranty and quiet enjoyment are prospective, and an actual ouster or eviction is, in general, necessary to constitute a breach.§ It is of the rule of damages for eviction, in a suit brought to enforce these covenants, that we shall first speak. It is apparent that the real covenants are, to some extent, cumulative; thus a covenant for quiet enjoyment is broken by an eviction under a prior mortgage, which would equally be a breach of that against incumbrances. The rules of damages on the various covenants consequently run into each other, but the most intelligible mode of treating the subject will be, as far as possible, to consider them separately. reenacted in New York in 1788; and finally the Revised Statutes of the same State, (Vol. I., 739, § 146,) have abolished both lineal and collateral warranties with all their incidents, and have made heirs and devisees answerable upon the covenant or agreement of the ancestor or testator, to the extent of the lands descended or devised. And it has been further declared, (Sec. 140,) that no covenants shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not. Rickart vs. Snyder, 9 Wendell, 416. + Dimmick vs. Lockwood, 10 Wend., 149. First, however, we will examine the analogies of the Civil Law. The stipulatio duplex was the remedy provided by the Roman law for cases of eviction,* and for the breach of warranties that were sometimes required on the sale of property under the Edictum Edilium.+ * Pothier, Pandectes, par Bréard Neuville, vol. viii. 97. + The Edictum Edilium was applied more particularly to sales of chattels than to real estate; but it will not be considered out of place here. Aiunt ædiles, "qui mancipia vendunt certiores faciant emtores quid morbi vitiive cuique sit; quis fugitivus, errove sit, noxave solutus non sit. Eademque omnia cum ea mancipia venibunt palam ac recte pronuncianto. Quod si mancipium adversus ea venisset, sive adversus quod dictum promissumve fuerit quum veniret fuisset; quod ejus (nomine) præstari oportere dicetur, emptori omnibusque ad quos ea res pertinet judicium dabimus ut id mancipium redhibeatur. Si quid autem post venditionem traditionemque deterius emptoris opera familiæ procuratorisve ejus factum erit; sive quid ex eo post venditionem natum adquisitum fuerit et si quid aliud in venditione ei accesserit, sive quid ex ea re fructus pervenerit ad emptorem; ut ea omnia restituat. Item si quas accessiones ipse præstiterit, ut recipiat. "Item si quod mancipium capitalem fraudem admiserit, mortis consciscendæ, sibi causa quid fecerit, inve arenam depugnandi causa ad bestias intromissus fuerit; ea omnia in venditione pronuncianto; ex his enim causis judicium dabimus. Hoc amplius, si quis adversus ea sciens dolo malo vendidisse dicetur, judicium dabimus.” Dig., Lib. 21, § 1. Ulp. ad Ed. ædil. This edict gave three species of actions: (1.) the actio redhibitoria, which was similar to our action founded on the right to return the chattel and demand the price paid; (2.) the actio estimatoria, or actio quanti minoris, analogous to our action for the difference between the actual value and the value that the article would have had if without blemish, or according to the warranty or representation; and, (3.) the action grounded on the vendor's fraud, given by the last section. And the edict applied to all sorts of animals as well as to slaves. Pothier, Pandectes, edit. de Breard Neuville, vol. viii., 8 and 10. And in certain cases to real estate, 55. As to the rule of damages in the actions redhibitoria et quanti minoris, various cases are stated in the Digest. Labeo scribit, "Si uno pretio plures servos emisti, et de uno agere velis, (inter) æstimationem servorum proinde fieri debere, atque ut fieret in æstimationem boni.. tatis agri, quum ob evictam partem fundi agâtur."-Dig., 22, § 64, Pomp., lib. 17. "Si plura mancipia uno pretio venierint et de uno eorum ædilitia actione utamur, it a demum pro bonitate ejus æstimatio fiat si confuse universis mancipiis constitutum pretium fuerit. Quod si singulorum mancipiorum constituto pretio, universa tanti venierunt, quantum ex consummatione singulorum fiebat, tunc cujusque mancipii pretium seu pluris, seu minoris id esset seque debemus."-Dig., 21, § 36. So interest was to be paid to the buyer on the price given; and if the slave had made anything while in the buyer's possession, but without his means or assistance, such acquisitions were to be returned with the slave to the purchaser. Poth. Pan., vol. 8, 75. And in certain cases both the vender and purchaser were held to give each other guarantees, to which the rule of the stipulatio duplex applied. Poth. Pan., v. 8, 99. The rule of damages in the actio redhibitoria was not, however, always the double value. Redhibitoria actio duplicem habet condemnationem modo enim in duplicem, modo in simplum condemnatur venditor. Nam si neque pretium, neque accessionem solvat And by the stipulatio, the rule of damages was in most cases fixed at double the price of the article in question. Quod autem diximus, duplam promitti oportere, sic erit accipiendum at non ex omni re id accipiamus; sed de his rebus quæ pretiosòres essent; si margarita forte aut ornamenta pretiosa vel vestis serica, vel quid aliud non contemtibile veneat.* Under the system of the civil law, as introduced into modern Europe, as no distinction was made on this subject between real and personal property, or mobiles and immobiles, so the remuneration was the same, whether the claim was founded on the non-delivery of the article, or an eviction after possession.† And in all these cases the price of the article seems to have been the basis of the measure of damages; but as with chattels, so with land, the increased value of the property was taken into account, and for this the party evicted had a right to claim. A distinction was, however, made, to which we have already had occasion to advert, between the seller in good faith and the party who knew he had no title to convey. Thus, if by reason of circumstances, which could not have been foreseen at the time of the contract, the value should be very greatly augmented, the seller in good faith would only be liable for the highest sum to which the parties might have reasonably supposed that the value would rise;‡ in many cases, certainly, a difficult inquiry. So, again, the seller in good faith was only liable for direct damages, while more remote loss would be charged upon the seller in bad faith.. Thus, if after the purchaser entered into possession he should establish an inn on the premises and be subsequently evicted, the seller in good faith was not chargeable for the injury done to the business of the inn. But the seller in bad faith would in such a case be held liable.§ And even the seller in good faith would be held answerable under similar circumstances, if, at the time of the bargain, the property neque eum qui eo nomine obligatus erit, liberet, dupli pretii et accessionis condemnari jubetur; si vero reddat pretium et accessionem, vel eum qui eo nomine obligatus est, liberet simpli videtur condemnari. Dig., lib. xxi., tit. 1, § 45. *Dig., lib. xxi., tit. 2, § 37. Pothier Pan., ed. Brèard Neuville, vol. 8, 146. Pothier, contrat de Vente, Part II., ch. 1, sec. 1. Art. 5, § 69. Pothier, contrat de Vente, Part II., ch. 1, sec. 2. Art. 5, § 180. § Pothier, Vente, Part II., ch. i., § 2. Art. 5, § 136. was intended to be used as an inn. In all these cases much was left to the discretion of the judge.* It was held by the masters of the civil law, that the fortuitous depreciation of the property did not alter the rule; as if, after the contract, buildings were to burn down, and eviction subsequently take place, the measure of damages would still be the price paid, and so it would probably be held with us.† In the French code the subject of evictions is treated with the usual brevity, order, and precision of that great work. The clauses which relate to the subject are as follows: Where a warranty has been given, or where no stipulation has been made on this subject, in such case, if the purchaser is evicted he is entitled to demand from the seller, I. The restitution of the purchase money. II. The restitution of any mesne profits which he may be obliged to pay over to the proprietor who evicts him. III. The expenses incurred on the demand under the warranty of the buyer, and those incurred by the person originally making the demand. IV. The damages and interest as well as the expenses and legal costs of the contract. If, at the time of the eviction, the thing sold proves to be lessened in value or considerably injured, whether by the negligence of the buyer or owing to accidents resulting from superior force, the seller is in either case liable for the entire purchase money. But if the diminution in the value of the article has produced any profit to the buyer, the seller has a right to deduct from the purchase money a sum equal to this profit. In case the thing sold is increased in value at the time of the eviction, and even if such increase be independent of any acts of the purchaser, yet he is entitled to receive from the seller its actual value over and above the purchase money. The seller is bound to reimburse the purchaser, or to cause him to be reimbursed by the party evicting him, for all actual improvements and beneficial repairs that he shall have made to the property. If the seller has sold the lands of a third person in bad faith, he will be * Observez, says Pothier, § 138, que par la liquidation et estimation de ces dommages, on doit user de beaucoup plus de moderation à l'egard d'un vendeur de bonne foi qu'a l'egard d'un vendeur de mauvaise foi. This distinction between the vender acting in bad faith and bona fide, will be found clearly illustrated in Ld. Kaime's Equity, 270; Erskine's Inst., 125, and see, also, Green vs. Biddle, 8 Wheaton, 1. + Pothier, Vente, Art. 69. |