7 Johns. 358 | N.Y. Sup. Ct. | 1811
The verdict ought to be entered for the 1,165 dollars and 14 cents only. If the plaintiff, when he sues on a covenant against encumbrances, has extinguished the encumbrance, he is entitled to recover the' price he has paid for it. But if he has not extinguished it, but it is still an outstanding encumbrance, his damages are but nominal, for he. ought not to recover the value of an incumbrance, on a contingency, where he may never be disturbed by it. This is the reasonable rule; for if he was to recover the value of an outstanding mortgage, the mortgagee might still resort to the defendant, on his personal obligation, and compel him to pay it; and if the purchaser feels the inconvenience of the existing encumbrance, and the hazard of waiting until he is evicted, he may go and satisfy the mortgage, and then resort to his covenant. This is the rule as laid down by the supreme court of Massachusetts, in Prescott v. Trueman, (4 Tyng's Rep. 627.) and it is entitled to the highest respect.
Judgment accordingly.