109 Mass. 299 | Mass. | 1872
It appears from the report, that the only incumbrance which the plaintiff proved was the existence of an inchoate right of dower in a part of the estate conveyed by the deed. It was decided by this court, after full consideration, in Shearer v. Ranger, 22 Pick. 447, that an inchoate right of dower is an existing incumbrance amounting to a breach of a covenant against incumbrances; and that decision was approved in the recent case of Bigelow v. Hubbard, 97 Mass. 195. It follows that the plaintiff is entitled to maintain this action.
But we are of opinion that the ruling of the presiding judge, directing a verdict for the plaintiff for fifty dollars, was erroneous. The plaintiff offered no evidence of damage, except that he had paid an auctioneer fifty dollars for selling the estate at auction, and that the purchaser refused to complete the purchase upon discovering this incumbrance. Such an expense to the covenantee is not the immediate consequence of the breach of the covenant. It is too remote and indirect to be an element of damages.
The covenant was broken as soon as the deed was delivered to the plaintiff, and an action then accrued to him for such breach. Clark v. Swift, 3 Met. 390. The general rule of damages is, that, if the covenantee has extinguished the incumbrance, he may
Exceptions sustained.