
    Guthrie against D. and J. Pugsley.
    In an actionfor a breach of Uie^Tovenant deédis'it in¡tPa reared, that the title of the defendants was derived from the win. of who detfeedto'" lows': “Lgive unto bmy'two SH’andTmíy die possessed of m the town of in.” which in-raises convey-J to tile plain-Md, that'by and d<took’oniy a life es-tote; but that enft!'T Wtas heirs at iaw,^to lands convey-theirbMveianr broken'oniy in p?amtiffwoubd be entitled to ges only proportion to the .value . whicifthe title isl four' sixths ration.linohey| bútbasintÍS defendants1 in -passed rt?the plaintiff, by their deed, the value of such life estate- must be deducted ; ñor was ‘interest to’ be allowed-¿during the lives of the defendants, as during that time' the. plaintiff could, not be called on for mesne profits; and, under the special circumstances of the* cas,e, the court awarded a ventre, to á jury to assess the damages of the plaintiff on those principles. . - ‘ v - - • *-
    THIS was an action of covenant for a breach of the covenant °.f seisin in a'deed. The defendants, by their deed, November, 1807, conveyed to the plaintiff, in fee, a lot of land, in the town of 'Normich, in the county of Chenango.' The ? • . • - . ■ - • deed contained the usual full covenants of seism, power to sell,' 0 x . .. ccc. and warranty. - :
    ' The title of the defendants tó the premises so conveyed, was'' claimed under the will of' their father, who died in July, 1804, soon aftef making ,his will, whicli was dated 21st July, 1804. tw° sons, the defendants, ánd four daughters. ■ The de--" vise to his sons Was as ftillóws.:" «, I give and bequeath ‘unto my ' . ■' ' . • . ' f two sons, 'David aña John, all land'T.máy die possessed of in t'ne town of Stanford, and county aforesaid; likewise all,land I may' die possessed of'.in the town of Norwich, countyof Chenango,' and state aforesaid?, The premises conveyed by the defendants were admitted’ to be part of the land included in this devise. ';
    The cause was noticed for trial at the Stíto/zess circuit, ¡rí • •, , ... . . f Í 814,' when'á .cape- Was agreed"tin,' containing the facts above stated., ' And it 'was, agreed, that if the court should be of opinion that the plaintiff was entitled to recover, a judgment should be entered, as upon a. verdict, for such sums as thexcourt". should awárd; but that if the court should -be of opiriioti that the plaintiff was not; entitled’to recover, then judgment should be entered for the defendant as upon* a verdict. : ' • -
    The'cáse Was submitted to'the court, without' argument.' ' ‘ °
   Thompson, Ch. J.

delivered the opinion of the court. There is no othe.r part of the Will that can be called in aid of .this devise, and explanatory of the intention of the testator. It is very clear, that' the devisees took only an estate for dfe.Tliey had not, consequently, an estate of inheritance,- in fee S^mples according to the covenant,in their deed. The covenant has, therefore, been broken. But the defendants, as appears by thecase, are entitled, as heirs at law, to two sixths of the land conveyed by them. Their covenant is, therefore, only broken in part; and the question is, what shall be the measure of damages where there is a 'part failure of title only ? The rule of damages, as settled by this court in the case of Morris v. Phelps, (5 Johns. Rep. 49.) is, to recover damages in proportion to the value of the part for which the title has failed, which in this case would be four sixths of the consideration money and the interest, was it riot for another circumstance which attends this case, which . is, that the defendants, under the will of their father, took a life estate in the whole of the land, and this estate will pass to the plaintiff under their deed. He, therefore, has a title in fee to two sixths of the land, and an estate, for the lives of the defendants, in the whole ; so that no rule adopted in any of the cases on this subject heretofore decided by this court, will reach the present case. Ñor is there any settled rule of law by which the damages are to be ascertained, without having recourse to a jury to assess them, as they must depend, principally, upon the value of the estate during the lives of the defendants, which must be deducted from the four sixths of the consideration money. Nor Ought interest to be allowed during these lives; for no one, during that time, will have a right to turn the plaintiff out of possession, or call upon him for the mesne profits, which is the reason why interest is allowed to be recovered. A venire must, therefore, be awarded, for a jury, to assess the damages, under the special circumstances of this case. . '  