
    Richard Chapel versus Thomas Bull.
    By a law of the state of Ohio, if it appear on a petition of tenants in common of land for partition, that the same cannot be divided without prejudice to the whole property, a writ issues to the sheriff to sell the whole at auction, and divide the proceeds among the tenants in common.—Pending such a petition, one of the tenants in common conveyed his purparty, covenanting against encumbrances. —The whole land being afterwards sold by the sheriff, under an order of court pursuant to said law, the grantor was held liable for a breach of his covenant; and the price paid by the grantee, with interest from the time of the conveyance, was held to be the measure of damages.
    This was an action of covenant broken, brought upon a deed dated May 24th, 1815, whereby, for the consideration of 2000 dollars, the defendant conveyed to the plaintiff in fee, with warranty, 684 acres of land in the Connecticut Western Reserve, in the state of Ohio, being a tenancy in common with Joshua Stowe and others in the 4000 acres reservation in the Salt Spring Township, in the county of Trumbull. The first count in the declaration alleges a breach, as follows, viz., that the whole of the said 4000 acres, including the premises conveyed, were then upon a petition for partition of said Joshua Stowe, the defendant, and one Benjamin Tappan, to the Court of Common Pleas for said county of [ * 214 ] Trumbull, and it was adjudged * and ordered by said court, being of competent jurisdiction, that the sheriff of the county should make sale of the land described in the petition, according to a statute in such case made and provided; and after-wards a writ issued from the same court, and was delivered to the sheriff, commanding him to make sale thereof, agreeably to law, to one Turhand Kirkland, he being the highest bidder for the same; and that said Kirkland has since, by force of said sale to him, entered into possession thereof, and legally holds the same in fee.— The second count alleges that the defendant, at the time of making the deed containing the covenants declared on, was not well seised of the land therein described, as of a good and indefeasible estate in fee simple; that he had not good right to bargain and sell the same as aforesaid ; that the same were not free of all encumbrances ; and that he had not warranted and defended the same against all claims, &c.—The third count states that, at the November term of the Court of Common Pleas for the said county of Trumbull, in the year 1811, the said Stowe, Tappan, and Bull, presented their petition, stating that they were tenants in common of said tract of 4000 acres, and praying that a committee might be appointed to set off and divide to each of them their proportion of the tract, if in the opinion of the committee it ought to be divided; that at the following February term, the court appointed a committee for the purpose; that the court then issued a writ to the sheriff of the county, commanding him, by the oaths of said committee, to set off to each of the petitioners in severalty, their just proportions of the said tract, and to make return forthwith to the court then in session; that the said committee having reported that the land could not be divided with out prejudice to the whole property, and appraised the same at three dollars the acre; and the report being accepted, and no one agreeing to take the land at the appraisal, the sheriff, pursuant to a writ to that effect, sold the same on the 21st day of June, [ * 215 ] 1815, to the said Turhand Kirkland * for 3000 dollars, he being the highest bidder, and having paid the money into court; that the sheriff thereupon, in open court, executed and acknowledged a deed of the land, which the court ordered to be sealed and certified by the clerk of the court, and delivered to 
      Kirkland, who, by force thereof, entered into the premises, and legally holds the same in fee.
    The defendant pleaded performance generally, upon which issue being joined, a trial was had before Wilde, J., at the last September term in this county. The evidence went to support all the allegations in the declaration, except the entry and actual seisin of Kirkland, by force of the sheriff’s deed, and the delivery of that deed to him.
    It was objected by the defendant, that it did not appear that the proceedings upon the petition for partition were a legal encumbrance upon the estate, at the date of the defendant’s deed to the plaintiff; that it did not appear that the sheriff’s deed to Kirkland was ever delivered to him, or that he had ever been in possession of the estate by virtue of that deed, so as to entitle the plaintiff to recover in the action. But the judge was of a different opinion, and so instructed the jury. On the subject of damages the judge instructed the jury, that they might take as a rule the value of the land at the date of the defendant’s deed. The defendant excepted to this direction of the judge, insisting that the plaintiff was in no event entitled to recover more than the land was sold for by the sheriff, or at furthest the price that the plaintiff paid for it.
    The judge certified that the evidence, produced by the plaintiff, was applicable to a breach of the covenant relative to encumbrances. The jury returned a verdict, conformable to the instructions of the judge, for 2667 dollars; which was to be altered, agreeably to such rule of damages as the Court should decide to be proper; or to be set aside, and a new trial to be had, or the plaintiff to become nonsuit, as the opinion of the Court should be.
    * Barnard, for the defendant.
    The only fact, of [ * 216 ] which the plaintiff complains, as a breach of the defendant’s covenant, is the petition for partition, and the proceedings under that petition. But those very proceedings show a seisin in the defendant ; and so the covenant of seisin is not broken. It follows that the covenant of a right to convey is not broken; for he who is seised has a right to convey. On the covenant of warranty there is no right of action, until after eviction ; but there has been no eviction here, nor even an entry, claiming a right under the sheriff’s deed.
    Has the plaintiff set forth and shown such an encumbrance, at the date of the defendant’s deed, as entitles him to recover in the present action, on the covenant that the premises were free of encumbrance ?
    I find no case exactly in point. In the case of Prescott vs Trueman, before cited, the chief justice states what may be an encumbrance, and says that “ a right to, or an interest in, the land granted, to the diminution of the value of the land, but consistent with the passing of the fee of it by the conveyance, must be deemed in law an encumbrance.” Will it be contended in this case, that the court in Ohio, by the preferring of a petition for partition, acquired any interest in the land ? The intent of the parties to that petition was, to give jurisdiction of the subject-matter, and power to make decrees touching the premises, agreeable to the laws of that state; not to vest a right, or grant an interest. Neither can it be said that the value of the land was thereby diminished. Those proceedings might have been discontinued, or the suit might have been abated by the death of one of the parties, pending the petition. In either case the land remains unaltered. If that court acquired no interest in the land, it could impart none, nor create one in any person whatever. All it could do was'to grant a naked power to the sheriff to sell the land, conformably to the provisions of the law of Ohio. This gave no right to, nor vested any [*217 ] * interest in the land itself. The chief justice proceeds— “ A right to an easement, a mortgage, a claim of dower, and lastly a paramount right, are all encumbrances.” Unless the proceedings in Ohio gave or created a paramount right, this case does not come within any of the principles laid down. A paramount right, as is intended in the passage cited, implies a greater or better title than the one conveyed. Now the defendant could not, (taking for granted that these proceedings imparted a right, which 1 deny,) give a greater, or create a paramount title to his own ; unless he parted with it altogether: and this is not pretended. All, then, that can be argued from these proceedings in Ohio is, that a concurrent right may have been created, imperfect until fully and completely executed; and which did not alter or encumber the estate, until the defendant’s interest was wholly extinguished. It is believed too, that a concurrent right has in no case been decided to be an encumbrance.
    But it will perhaps be said, that upon the decree of the court to sell the land, or possibly not until after the delivery of the writ to the sheriff, the land itself was quasi in custodia legis, became bound, and in that way an encumbrance was created. This position seems to be founded upon the doctrine of attachments, and supposes some alteration of the land. It is true, in England, the property of a judgment debtor is so far bound by the delivery of the execution, as to determine the priority of claims between one creditor and another: but no alteration in the property is produced by the delivery of the writ, nor by actual seizure, nor until the writ is executed .
    But the analogy between the process of partition and attachment is not perceived. The process of partition is, most frequently, not an adversary suit, but, as in this case, for the mutual benefit of all parties interested, and has no sort of operation upon the land. Our own statutes relating to sales by authority of law, excepting those of equities of redemption and sales by collectors, presuppose * no seizure whatever. The purchaser derives [ * 218 ] his title from no act antecedently done upon the land; and, with the above exceptions, his title rests upon his deed, and the previous conformity of the vendor with the provisions of the statute on the subject. There is nothing in the law of Ohio which produces the effect supposed. For any thing in that statute, the sheriff may sell, and yet have never seized the land. Nothing like attachment is required. He advertises, sells, and gives his deed; and the purchaser dates his title from its delivery.
    But the sheriff’s deed, in the case at bar, was never delivered ; nor has Kirkland ever been in possession of the land under the supposed sale, so as to entitle the plaintiff to recover in this action. The Court will look critically into the proceedings, and be satisfied that all the requisites of the law of Ohio have been complied with ; otherwise they will nonsuit the plaintiff; or, at the least, send the cause to a new trial. The learned Judge Trowbridge, in a reading upon one of our provincial acts, very distinctly shows the material difference, in effect, between a deed of bargain and sale by one who has an interest in the land, and one who has not  ; from which it would plainly appear, that the defendant could not be divested of his estate in the land conveyed by him, until every essential requisite of the law of Ohio had been strictly complied with. In the present action, the plaintiff must be held to the same degree of strictness in his evidence, as would be required of Kirkland, if the action were between him and the plaintiff for the possession of the land.
    If is submitted that the rule of damages, as laid down by the judge, was not correct. If the Court should think that the evidence shows every thing necessary to defeat the plaintiff’s estate has been shown, there is still no evidence of an entry by the purchaser, or of an ouster of the plaintiff from the possession. The defendant was seised at the date of his deed, and might convey. Of corn se the covenants of seisin and of a right to convey are un- [ * 219 ] broken. * There having been no ouster, the covenant of warranty is not broken. The evidence produced went only to show a breach of the covenant against encumbrances. This covenant is in the nature of an indemnity; and the plaintiff must show the extent of his injury. In this case, he shows no sum paid to discharge the encumbrance, nor that his possession has been disturbed. In the case of Prescott vs. Trueman, it is said, “ The plaintiff shall not recover the value of the land against the grantor, and still hold the land on a contingency that he may never be disturbed in his possession.” The encumbrance in the case at bar, if it be a paramount right, is but a dormant right; and thp plaintiff is entitled only to nominal damages. Should the Court, however, think otherwise, the rule adopted in this case is not strictly correct; for by the case of Marston vs. Hobbs 
      , “ the value of the land must be taken at the time the covenant was broken, which was immediately on executing the conveyance, and the consideration paid by the purchaser will be deemed, as to him, a fair price for the land.”
    
      Sheldon, for the plaintiff.
    
      
       7 Mass. Rep. 476, Bonner vs. Proprietors of the Kenn. Purchase.—2 Mass. Rep 433, Marston vs. Hobbs.—Ibid. 478, Nason vs. Willard.
      
    
    
      
       4 Mass. Rep. 627, Prescott vs. Trueman.
      
    
    
      
       16 East, 278, Rex vs. Wells.—Yelv. 44, and notes.
      
    
    
      
       3 Mass. Rep. 573.—Vide also 4 Wheat. 77, Williams & Al. vs. Peyton, Lesse.
      
    
    
      
       2 Mass. Rep. 433.
    
   Parker, C. J.,

delivered the opinion of the Court.

Upon the facts in this case, the judge instructed the jury, that an encumbrance was sufficiently proved, within the meaning of the covenant that the land was free of all encumbrances; and the verdict of the jury was conformable to this instruction. It was objected at the trial, that no legal encumbrance was proved: and that question was reserved for the consideration of the whole Court.

The counsel for the defendant has rightly insisted, that there is no breach of the covenant of seisin; for notwithstanding all the facts in the case, the legal seisin of the grantor, as tenant in common, continued to the time of his deed, and until actual seisin taken by Kirkland, or at least until the sheriff delivered to him his deed; and that there is no evidence in the case of either of these facts. He has also well maintained his position that [ * 220 ] there*is no breach of the covenant of warranty; for there has been no eviction, and indeed no entry having been made by the plaintiff under his deed, an eviction could not have taken place.

So that the question only remains, whether the covenant respecting encumbrances has been broken; and of this we are well satisfied. For, by the law of Ohio, the land, being held in common, was liable to this process for partition, one legal effect of which is a sale of the land, when it cannot be conveniently divided ; and the purchaser will undoubtedly hold the land under the sheriff’s deed. This is certainly equal, in its effects upon the plaintiff’s title, to a mortgage, or a claim of dower, or a paramount title; all of which have been held here to be encumbrances.

It is an encumbrance, too, which cannot be released without the consent of the statute owner; for it does not appear that any equity of redemption is allowed; and however contrary to our notions of right the provisions of a statute may be, which devests a person of hi® title to real estate without his consent, it was undoubtedly within the legislative authority of the state to pass such a statute, and the effects of it cannot be resisted. The case shows a paramount title in Kirkland, which, although not perfected at the time of the execution of the defendant’s deed, was then inchoate by the proceedings which had then taken place, and the title was afterwards perfected. For the delivery of the deed, by the sheriff to the clerk, was to Kirkland’s use ; and his title was complete from the time of that delivery, although he may not have had possession of the deed until after the defendant executed his deed to the plaintiff.

A deed delivered at the register’s office, in the absence of the grantee, has been held with us to be a good delivery to the grantee, if he afterwards assent and take the deed . On the facts proved in this case, the jury might lawfully have presumed that the deed of the sheriff had * been delivered to Kirkland [ * 221 ] by the clerk, pursuant to the order of the court, if that were necessary to maintain the verdict. But without an actual delivery, it being lodged with the clerk for the use of the purchaser, and he having paid the price, and the antecedent proceedings having been regular; these proceedings constituted an encumbrance, against which the defendant covenanted.

With respect to the damages, the rule should be the consideration money paid, and the interest upon it; because there has been no eviction, in which case the value of the premises, at the time of the eviction, would be the rule. If the encumbrance went only to diminish the value, the amount of the diminution would be the measure; or the sum paid for extinguishing the encumbrance, if reasonable, and the grantee had chosen to extinguish it by purchasing of Kirkland. But it not being in the plaintiff’s power to compel Kirkland to sell, neither should he be obliged to buy; and as he has been deprived of the fruits of his bargain, he should be restored to the price he paid. Certainly he is not to suffer for the diminished value of the land, or for a forced sale of it; because it was owing to the nature of the defendant’s title, against which he covenanted, that the land was exposed to sale.

Viewing the consideration expressed in the deed as the sum really paid, the interest thereof to the present time added to it, will amount, within a few dollars, to the sum found by the jury on a different rule. The verdict then may be so altered, as to stand for the consideration and interest, for which sum let judgment be entered . 
      
       12 Mass. Rep. 456.
     
      
      
        Stewart vs. Drake, 4 Halst. 139.—Prescott vs. Trueman, 4 Mass. 627.—Delaverne vs. Norris, 7 Johns. 358.—Starnard vs. Eldridge, 16 Johns. 254.—Funk vs. Voneida, 11 S. & R. 109.—Wyman vs. Ballard, 12 Mass. 304.—Bennett vs. Jenkins, 13 Johns. 50.— Pitcher vs. Livingston, 4 Johns. 1.—Marston vs. Hobbs, 2 Mass. 433.—Barrett vs. Porter 14 Mass. 143.
     