| Vt. | Jan 15, 1831
after stating; the case, pronounced the opinion of the Court. — The defendant’s counsel object, that the plaintiff has no right of action, upon the facts, which appear in the exceptions. The issue being taken on the alleged breach of the covenant of seizin, and found for the plaintiff, that establishes the plaintiff’s right to recover something if the instructions to the jury were correct. That breach existed at the date of the deed from the defendant and Boardmanto the plaintiff; and the plaintiff’s right of action for that breach could not be assigned to Lynde Catiin, so as to enable him to maintain an action at law, except in the name of the present plaintiff. According to repeated decisions, that covenant does not run with the land, because, if ever broken, it is broken at the date of the deed containing that covenant.
The defendant’s counsel next urge, that the plaintiff if he recovers, is entitled to nominal damages only, when in fact the instructions to the jury warranted, and the jury have found, full damages; that is,the amount of the consideration of the purchase, and interest on the same to the time of trial. It is said, in support of this objection, this covenant of seizin is satisfied by a sei-zin in fact or in law ; arid the decisions in the neighboring states are produced as authorities in point. These are applicable on a covenant of seizin only. It is probable that covenant was anciently introduced into deeds, to guard against such an adverse possession as would render the deed void; as would have been the case at common law, and is now the case by virtue of our statute, if there be an adverse possession. While we had no such statute in this state,.and there was no special reason for inserting that covenant, except to follow existing forms, the phraseology of that covenant has been varied ; and it has generally been considered synonymous with the covenant of title, and frequently has been so worded as necessarily to be a covenant of title. The covenant in this case never could have received its exact form from any supposed danger of adverse possession. Hence the authorities adduced do not exactly apply ; nor are we called upon to say, what we should decide, if the covenant were only, that the grantors were seized. The present covenant declared upon is, “ that the grantors were well seized of the same land in fee simple, and had in themselves good right to bargain and sell the same in the manner in said deed mentioned.” These expressions, and those of similar import, have always been considered, in this state, as amounting to a covenant of title. They have been inserted,
This alteration might as well be incorporated, by construction, into all the covenants, that decidedly relate to title in the whole deed. That they were well seized in fee simple, means, that they were actually in possession, claiming to hold in fee simple. That they had good right to sell and convey, means, that they claim to have such right. That the premises are free from all in-cumbrances, means that they claim, that they are thus free. This is not the most natural and obvious meaning of the usual expressions in deeds of warranty. They say nothing about claiming. They speak of realities. Fee simple denotes a permanent estate. Well seized in fee simple, denotes a seizin of a permanent estate. Such would be the most rational construction, without the aid of concurrent circumstances. But when we recollect that this deed was made and executed at a time and place, when and where such expressions were universally understood to relate to title, it would do injustice should we give to them a different construction.
There is, however, a difficulty, against which we must guard, to prevent injustice in this particular case. The deed from the defendant and Boardman to the plaintiff, and the deed from plaintiff to Lynde Catlin, contain alike the usual covenants of warranty, which run with the land. Now, if the plaintiff should recover the whole damages on this covenant of seizin,and he had sold to Lynde Catlin with warranty, and Lynde Catlin should be evicted, and sue defendant in his own name upon a covenant that runs with the land, the defendant might be exposed to be twice charged for the same damages. This also may be viewed in connection with the idea suggested by the defendant’s counsel, that, it not appearing but that the plaintiff, or his assignee, enjoy the'peaceable possession of the premises, they may never be disturbed, but the inchoate title, derived from the defendant, may grow into a perfect title. We think these possibilities must not form a de-fence to this action. The defendant, having conveyed that, to which he had no title, should make his grantee good in some way. Nothing appears that any other remedy is yet matured except the one sought in this action. Probably this action is brought in the name of the plaintiff for the benefit of his grantee, Lynde Cat-lin. We know not how that may be. Should it be so, and should he receive the money comprised in this verdict, that would operate as a defence in whole or in part to any action Lynde Catlin
The defendant has urged one more point as important to reduce the damages. It appears there was evidence tending to show, that the plaintiff, and also Lynde Catlin, had cut and taken off timber from this lot; and the county court erred in not instructing the jury to deduct from the damages the value of this timber. This would be correct, if the subject could only be stirred between the plaintiff and defendant; but this is not the case. The actual owner of the land has a right to treat all as trespassers, who have cut timber on the premises. The plaintiff is liable to such owner for what he has cut, and Lynde Catlin is holden for what he has cut, and the defendant has no more right to this timber, than he has to the land itself. The exceptions urged are all overruled, and thejudgement of the county court is affirmed. But, to secure the defendant against all possible injury from the other covenants, that run with the land, to Lynde Catlin, the Court order a stay of execution until the plaintiff procures from Lynde Catlin, and lodges with the clerk, for the benefit of the defendant, either a quit-claim deed of the premises, or a suitable discharge of all the covenants of warranty, contained in the defendant’s deed to the plaintiff.