The opinion of the Court was delivered by
McIver, A. J.
On the 24th of March, 1851, John Caldwell, the defendant’s testator, in consideration of five thousand dollars paid to him by one Samuel Pearse, conveyed to said Pearse a certain lot of land in the city of Columbia, with full covenants of warranty. On the 27th of August, 1869, Miller, as the Clerk of the Court of Common Pleas, under an order passed in proper proceedings for the settlement of the estate of Samuel Pearse, in the Court of Equity and Court of Common Pleas, conveyed, without warranty, the same lot to the plaintiffs for the consideration of four thousand dollars. On the 12th of May, 1873, Olivia R. McGowan and others recovered by title paramount this lot from the plaintiffs in an action of which the defendant was duly notified. This action is now brought on Caldwell’s warranty, and the plaintiffs claim that the true measure of damages is the amount of the purchase money paid to Caldwell, with interest thereon from the date of his alienation, together with the costs of the action of ejectment brought by the McGowans.
The defendant, on the other hand, contends that the measure of damage is the amount of the purchase money contracted to be paid by the plaintiffs, with interest from the date of the alienation to them, together with the costs of the action of ejectment. The defendant also claims that he has liquidated the damages to which the plaintiffs were entitled to a partial extent, and, therefore, that they are only entitled to recover the balance, in support of which *29they produce a receipt to the defendant, dated 2d of March, 1876, signed by the attorneys of the McGowans, for “ one thousand dollars, in full of all claims for mesne profits, rents and damages of every kind against the said John Caldwell, deceased, and all others claiming title immediately and subsequently, directly and indirectly, as his grantees and as grantees in succession of his grantees,” of the premises in question, and the bond to Miller as Clerk, which, after sundry credits, bears the following endorsement:
“$1,500. This bond is this day satisfied in full by the payment of fifteen hundred dollars by T. J. Robertson, executor John Caldwell, who was the grantor and warrantor to Samuel Pearse of the land which was the consideration of this bond, the same being so received in accordance with the order of Court of date March 10th, 1876.
“W. S. MONTEITH,
“ Attorney for D. B. Miller, Clerk, and Solicitor of Estate.
“MARCH 11th, 1876.”
Both parties appeal from the judgment of the Circuit Court on grounds which are distinctly set out in the “ case ” as presented here, to which reference must be had for a detailed statement of the facts and of the grounds upon which each of the parties appeal. The questions raised by the appeal are: First. What is the measure of the defendant’s liability? Second. Whether any offsets or payments are to be allowed defendant; and if so, how much ?
As to the first question, it may be stated in a more precise form, thus: Is the defendant liable for the amount of the purchase money ($5,000) mentioned in the deed from Caldwell to Pearse, or is he liable only for the amount of the purchase money ($4,000) mentioned in the deed from Miller, Clerk, to the plaintiff? It is conceded, and very properly conceded, that Caldwell’s warranty runs with the land, and, therefore, that his estate is liable to respond in damages to the plaintiffs, who have been ejected by paramount title, and the only question is as to the measure of those damages.
The question as to what should be the proper measures of damages in an action like this is one which has troubled the Courts of this State from the commencement of our judicial history down to the time when the Legislature took the matter in hand and passed an Act which it was supposed, vainly as the event has proved, would finally settle the controversy. In the earlier cases our Courts *30seemed disposed, in analogy to the civil law rule, to adopt the value of the land at the time of the eviction as the measure of the damages. — Liber vs. Parsons, 1 Bay, 19 ; Eveleigh vs. Stitt, 1 Bay, 92; Guerard vs. Rivers, 1 Bay, 265; Witherspoon vs. Anderson, 3 DeS., 245. Subsequently, however, in the case of Furman vs. Elmore, (2 N. & McC., 189,) the common law rule that the purchase money and interest was the true measure of damages was adopted; and although this case seems to have been followed in a number of subsequent cases cited in the argument of this case, yet the question continued to be the subject of discussion until the passage of the Act of 1824, (6 Stat., 238,) incorporated in the General Statutes, Chapter CXXI, Section 18, page 562, in the following words, which are practically identical with those used in the original statute : “In any action or suit for reimbursement or damage upon covenant or otherwise, the true measure of damages shall be the amount of the purchase money at the time of the alienation, with legal interest.” So that the precise question in this case is, what alienation is referred to ? — the alienation by Caldwell to Pearse or the alienation by Miller (practically Pearse) to the plaintiffs? We are not aware of any case in which this question has been decided; and inasmuch as no such case has been cited in the very elaborate and able argument made in this case, it will be safe to assume that no such case can be found. The case from Ohio and Wisconsin and the New Hampshire cases, cited by the Circuit Judge, are, as he says, not directly in point; and if they were, they could scarcely be authority upon the construction of our Act of 1824, for, after all, the question turns upon the proper construction of the terms of that Act. We are left, therefore, to determine this question without the aid of any direct authority.
When we recollect that this is an action upon a contract, and that it is upon the contract of Caldwell and not that of Miller, it would seem necessarily to follow that we must look alone to Caldwell’s contract for all its terms, and hence that the measure of damages would be the amount mentioned in Caldwell’s deed and not the amount mentioned in Miller’s deed. It is difficult for us to understand how, in searching for tlie measure of Caldwell’s liability, we can go outside of the contract which he has made. Again, we presume there could be no doubt but that if Pearse had been the party evicted and had brought this action against Caldwell, that the measure of damages would have been the amount of the purchase *31money mentioned in Caldwell’s deed, with interest from the date of that deed. Now, by what right alone do these plaintiffs bring this action ? Certainly as the assignees of Pearse, for, though the deed was not made to them directly by Pearse, yet Miller, as Clerk, under the order of the Court, conveyed to the plaintiffs all the right, title, interest and estate of Pearse, and this invested them with all the rights of Pearse, including the right of action on Caldwell’s covenant, upon its breach, as fully and completely as if Pearse himself had conveyed directly to the plaintiffs. This was distinctly decided in the case of McCardy ads. Brisbane (1 N. & McC., 104,) as to a purchaser at Sheriff’s sale, and the doctrine has been repeatedly recognized since, down to the case of McKnight vs. Gordon, (13 Rich. Eq., 222); and if this be true as to purchasers at an involuntary sale made by the Sheriff under execution, how much more true it would be as to a purchaser 'at a sale made by the proper officer, under an order of the Court for partition or some other purpose necessary to the settlement of an estate, where all the parties in interest are before the Court. The plaintiffs, therefore, were invested with all the rights which Pearse had ; and if he could have recovered the sum of five thousand dollars, with interest from the date of Caldwell’s deed, we see no reason why the plaintiffs, who stand in his shoes and are entitled to his rights, cannot do the same thing. Suppose the condition of things were reversed, and that the amount of the purchase money mentioned in Caldwell’s deed had been one thousand dollars and the amount mentioned in Miller’s deed had been two thousand dollars, would any one for a moment pretend that Caldwell could be made liable for the larger sum ? Why not? Simply because it is outside of and beyond the terms of his contract. It seems to us that this is absolutely conclusive; for the question being what alienation is referred to in the statute, the moment it is admitted that under a reversed state of facts the plaintiffs could not recover the full amount of the purchase money which they paid, it necessarily follows that the construction contended for by the defendant, that the alienation referred to in the .Act is the alienation to the person who brings the action, will, under some circumstances, not at all unlikely to happen, be in conflict with the terms of the Act, and cannot, therefore, be the proper construction. If, as the defendant contends, the words “ amount of the purchase money at the time .of alienation ” refer to the purchase money paid by the plaintiffs when *32they bought, then, in the case supposed, the result necessarily would be that the plaintiffs would be entitled to recover two thousand dollars ; for that, according to the supposition, is the amount of the purchase money which they paid at the time of the alienation to them, whereas the defendant is obliged to concede that this could not be done, and hence it follows that this cannot be the proper construction of the terms of the Act. But if the construction contended for by the plaintiffs, which we think is the proper one, be adopted, then we have exactly what the Act was designed to furnish — a fixed and invariable standard, applicable alike to all possible cases; for under the civil law rule the measure of the covenantor’s liability was of an altogether uncertain character, dependent upon a variety of circumstances over which neither he nor his covenantee in many cases would have any control, or be in any wise responsible for, and the main object of our Act of 1824 was to make that fixed and certain which was otherwise variable and uncertain, so that a person, when he first put his name to a covenant of warranty, might know precisely the extent of the liability which, under any possible circumstances, he was assuming. We think, too, that the rule established by this Act is, perhaps, the fairest and most just that could be adopted ; for though, like all general rules, owing to the infirmities of human nature, not by any means perfect, and liable sometimes to operate some injustice, yet it has this very great advantage: that while it may sometimes, as in this very case, give to the covenantee more than in equity and good conscience he ought to have, it Dever takes from the covenantor more than he ought to lose. For if a person sells land for which he has no title to another, there is certainly no injustice, so far as he is concerned, in taking from him the purchase money and interest for the time which he has had the money, for it is simply taking from him that which, in equity and good conscience, was never his and which he ought never to have had. And, on the other hand, it is an entire mistake to suppose that the loss which the purchaser sustains is correctly represented by the purchase money which he pays.
What he really loses is the land. He may have been fortunate enough to buy it under circumstances which enabled him to procure it at a price much below its real value, or he may have greatly added to the value of it- since his purchase, or it may have been given to him by a relative. We are, therefore, of opinion that “ the true measure of damages” in this case is the amount of the pur*33chase money mentioned in Caldwell’s deed to Pearse, with interest from the date of that deed, together with the costs of the action by which the plaintiffs were ejected.
As to the second question, we are at a loss to perceive how the payment of one thousand dollars to the McGowans or the extin-guishment of the bond of the plaintiffs to Miller can be regarded as either offsets to or payments on the claim of,the plaintiffs under Caldwell’s warranty. The rule of law is that “ no man can by a voluntary payment of the debt of another make himself that man’s creditor.” — Richardson ads. McCrady, 1 Tr. Con. Rep., 473. Or, as it is stated in Lewis vs. Lewis, 3 Strob., 532: “No one by paying an account against another can maintain an action for the amount without a promise, express or implied, of the original debtor.” And as it is said by Lord Kenyon in Exall vs. Partridge, (8 T. R., 310,) it is an entire mistake to suppose “ that when one person is benefited by the payment of money by another, the law raises an assumpsit against the former; for, as is said in the same case by Lawrence, J., “one person cannot by a voluntary payment raise an assumpsit against another.” Test this case by these propositions of law, and take first the money paid by defendant to the attorneys of the McGowans in satisfaction of their claim for mesne profits. It will be remembered that this payment was made March 2, 1876, nearly three years after the judgment in the action of ejectment, in which no damages were recovered against the plaintiffs.; there was, therefore, then no debt due by the plaintiffs, for, as the Circuit Judge very properly says: “The recovery by the owners of the fee in that action concluded any further claim against these plaintiffs for rents and profits. — Sumter vs. Lehre, 1 Tr. Con. Rep., 102; Colman vs. Parish, 1 McC., 264. There was, therefore, nothing due by them at the time of such payment.”
In addition to this, we may say that there was no evidence whatever showing the value of the mesne profits during the period for which the plaintiffs had possession of the premises, and hence this was not only a voluntary payment of what was not then a debt due by the plaintiffs, but, for aught that appears, may have been a payment of much more than the plaintiffs ever were liable for. Nor do we see any propriety in setting off, as the Referee has done, this payment against the interest which accrued on the purchase money from the time of Caldwell’s sale to Pearse to the time of the purchase by the plaintiffs; for, besides the fact that the one very largely *34exceeded the other, we are at a loss to discover any principle upon which the claim which the McGowans may once have had against Caldwell and Pearse for mesne profits during the period the premises were in their possession, (though no such claim, so far as we are informed, seems ever to have been asserted in any legal form,) for which' it cannot for a moment be pretended that the plaintiffs were ever liable, could be set off against or extinguish the interest to which, as we have seen, the plaintiffs were clearly entitled under a proper construction of the Act of 1824. To this we may add that though Nott, J., in Bond vs. Quattlebaum, (1 McC., 584,) did intimate an opinion in somewhat doubtful terms that “ there may, perhaps, be cases where the rents and profits in the meantime will take away the claim of the party to interest,” yet, in the subsequent cases of Earle vs. Middleton, (Cheves, 129,) O’Neall, J., comments on and disposes of this dictum of Nott, J., saying: “ There is no case of eviction, actually or constructively, by paramount title, where the party’s right to interest would be defeated by reception of rents and profits.” His conclusion is based upon the terms of the Act of 1824; and as Bond vs. Quattlebaum was decided before, and Earle vs. Middleton after the passage of that Act, it is but fair to conclude that the latter furnishes the true rule.
As to the effect of the extinguishment of the plaintiffs’ bond to Miller, it must be borne in mind that the defendant did not purchase the bond and take an assignment of it, but by his payment he cancelled the bond. How can this give him any claim against the plaintiffs any more than if he had'voluntarily extinguished a note for a horse or any other debt due by the plaintiffs? It may have benefited the plaintiffs, but that, as we have seen, in the opinion of Lord Kenyon and of Lawrence, J., supra, gave him no legal claim against the plaintiffs. He was under no sort of obligation to pay this debt, and was under no compulsion whatever so to do. It was a purely voluntary act, without consultation, with a request from the plaintiffs, — indeed, so far as appears, without even their knowledge. The right of the plaintiffs to recover in this action in no wise depended upon the payment of this bond. In fact, if the holder of the bond had entirely released the plaintiffs from all liability on the bond, their right to bring this action would not have been in the least affected thereby. Nor did the amount of their recovery — the measure of their damages — depend upon the amount of money they may have paid out or were liable for, or whether *35they had paid or were liable for anything at all; for that measure was, as we have seen, fixed by the terms of the statute, and neither the bond nor money due or paid thereon constituted any of the elements which went to make up the amount of their damages. These damages were due by the defendant to the plaintiffs, and, under the principles of law above stated, the defendant cannot be allowed to liquidate them by paying them to any one else but the plaintiffs, or their order, or by volunteering to pay debts which the plaintiffs may have owed to others, and for which the defendant was not, and could not, be made responsible.. The judgment of the Circuit Court, together with the report of the Referee, must be set aside, and a new trial had according to the principles established by the decision.
Motion granted.
Willard, C. J., and Haskell, A. J., concurred.