
    John Spring versus Richard Tongue.
    The liability of a pew in a meeting-house recently built, for the expenses of building the meeting-house, was held not to be such an encumbrance as that the vendor thereof was held to answer in damages, on a covenant that it was free from all encumbrances.
    Covenant brolcen on the defendant’s deed, conveying to the plaintiff one undivided moiety of a pew in the new meeting-house in Saco, warranting it free from all encumbrances. The plaintiff assigns as a breach, that the same was under encumbrance to the proprietors of the said meeting-house, in the sum of 36 dollars 53 cents, for expenses incurred in building the house, before the execution of the deed declared on; which sum he paid to the collector of the proprietors, to prevent the said half pew from being sold therefor.
    * The action came before the Court, and was submitted without argument upon a case stated, wherein it was agreed that Tongue was an original proprietor of the half pew mentioned in the declaration, and on the 10th of October, 1806, conveyed it to Spring, covenanting that he was seised thereof in fee, that the same was free of all encumbrances, that he had good right to sell it, and would warrant and defend it to the plaintiff, &c.; — that, on the 2d of January, 1811, the proprietors of the meetinghouse duly assessed on said half pew the sum of 36 dollars 53 cents, which the plaintiff paid to prevent the sale of it; — that the said assessment was for an alleged deficiency of funds for building the meeting-house, the pews being, by the act incorporating the proprietors, and by their votes, liable for any assessment it might be necessary to make thereon; — that the assessment was necessary to make up a deficiency, by which the proceeds of the sale of the pews fell short of the cost of building the meeting-house; — that the defendant had paid his proportion of the said cost, as it was originally estimated and assessed on the several pews ; and no part of the sum paid by the plaintiff was for any expense arising on the house after the deed declared on was made.
    If, upon these facts, the Court should be of opinion that the plaintiff had maintained his action, the defendant was to suffer judgment to go by default; otherwise the plaintiff was to become nonsuit, and the defendant recover his costs.
   By the Court.

We cannot consider this as an encumbrance, for which the defendant is liable in damages. The facts must have been equally known to each of the parties, The damage to the plaintiff arose from the diminished value of the pews in the general estimation. Had the proceeds of the sale of the pews exceeded the cost of the house, the plaintiff would have had his proportion of the benefit. The loss, therefore, is properly his.

Plaintiff nonsuit. 
      
      
         [Vide Ingersol vs. Jackson (post, 495,) where it is said the fact of knowledge of the vendee “ cannot operate to protect the vendor from the consequences of his own voluntary contract." And in Townsend vs. Weld, (8 Mass. Rep. 146,) the law was laid down in like manner by the Court, who said, u Suppose the encumbrance known ; it was still competent to the defendant to covenant with his grantee to save him harmless from its effects; and if such was not his intention, he should have excepted it out of his general covenants." — Vide Ogilvie vs. Foljambe, 3 Meriv. 65. — Ed.]
     