
    Thankful Wade, Administratrix, versus David H Merwin.
    if in a deed of sale with covenants, the sale appears on the face of the deed to be void, the covenants which are relative and dependent are void, but not those which are collateral and independent.
    Thus, where an officer sold on execution an equity of. redemption, and in his deed to the purchaser covenanted that he had obeyed all the directions of law relative to such sales, it was held, that even if the grant was void on the furs of the r deed, this covenant was binding, it being collateral to the grant.
    
      Held, also, that the purchaser had a right to rely for his security on such express covenant, although by a recital in the deed it appeared that the grantor's proceedings in such sale had not been regular.
    Where such grantor covenanted that he had obeyed all the directions of law relative to such sates, but afterwards neglected to return the execution, it was held, that the covenant was broken.
    The measure of damages in an action of covenant for such breach, is the sum pata by the purchaser for the equity of redemption, and interest thereon.
    Where therefore the debtor against whom the execution was issued, was insolvent, and the purchaser bid at the auction a much larger sum than the equity of redemption was worth, and part of the sum so bid was paid in satisfaction of the execution, and the residue was applied towards the satisfaction of another execution in favor of the purchaser himself against the debtor, it was held, that the sum bid, (and which was the consideration stated in the deed,) with interest thereon, was not the measure of damages, but that the value of the equity of redemption, to be determined by a jury, with interest thereon, was the measure of damages.
    The land, of which the equity of redemption was thus sold and conveyed, was under a second mortgage made as collateral security for a note payable in labor upon materials to be furnished within a limited time by the mortgagee, but such materials were not furnished until after the time had expired ; and it was held, that the mortgager might waive the agreement as to the time, and that in estimating the value of the equity of redemption as a measure of damages for the breach of the covenant, the jury had a right to consider whether there had been such a waiver.
    This was an action of covenant broken, upon a covenant in a deed from the defendant, who was a deputy sheriff, to William Wade, the plaintiff’s intestate, conveying to the intestate the right in equity of Thomas Fry to certain land.
    At the trial, the plaintiff produced the deed, dated January 7, 1824, which sets forth a sale, on that day, of the right in equity, as on an execution in favor of R. Whitney against Fry, and contains the covenant declared on, that the defendant had obeyed all the directions of law relative to such sales. The plaintiff produced also the execution of Whitney against Fry, which was issued on December 22, 1823, and on which there was no return of the sale, and he relied thereon as conclusive evidence of the breach of the covenant in the deed. The defendant denied that a breach was proved.
    On the subject of damages, the plaintiff offered to prove that her intestate had commenced a bill in equity to redeem the mortgages on the land, and that the bill was dismissed, because, owing to the informality of the deed and execution above mentioned, the intestate did not own the right in equity ; and that in that suit he expended about $ 350. This was objected to by the defendant, and was rejected by the judge.
    The plaintiff then claimed as damages $970, as the consideration paid for the deed, with interest; and there rested the case.
    The defendant then offered to prove, that in January 1823 the right in equity was attached on three writs against Fry, the first, in favor of Whitney, the second, in favor of Hooker & Taylor, and the third, in favor of the intestate and E. Dwight ; — on all which judgment was rendered for the respective plaintiffs at November term, 1823, and executions were issued and put into the defendant’s hands ; that prior to the sale he obeyed the directions of law for the sale of rights in equity on execution, by advertising &c., and made a return of his proceedings on the sale, on the execution in favor of Hooker & Taylor, and applied the proceeds to pay that and Whitney’s execution, amounting to $ 210, and the balance he applied to the execution of Wade and Dwight; that prior to the sale, Fry became insolvent, and Wade had said, “ he might as well bid the amount of his execution, as he should get nothing else ; ” that several bids were made by the creditors, the highest of which not made by Wade was about $450, when Wade bid $970, and the right in equity was struck off to him ; and that the land was subject to two mortgages, and was not worth more than the amount of the mortgages.
    To this evidence the plaintiff objected ; but the judge ruled, that the plaintiff’s evidence proved a breach of the covenant and that the issue must be found for her, but that the defendant might introduce the evidence proposed, in mitigation of damages ; and he produced evidence to all the above facts.
    The judgment in favor of Wade and Dwight, for $ 898-22, was proved, but the execution was not to be found, and was said by the defendant to be lost. The plaintiff objected to the judgment as evidence to show the application of a part of the $ 970, without the production of the execution, but it was admitted.
    The defendant proved that the land was subject to a mortgage originally made to one Gould, on which was due, at the time of the sale, $462-61, and he then offered another deed of mortgage by Thomas Fry to Nathaniel Fry, dated March 12, 1821, to secure the note of Thomas to Nathaniel of that date, for $ 1000, payable in spinning cotton yarn, Thomas to begin in nine months and to spin 2500 skeins a week at one cent a skein, and Nathaniel to furnish the cotton. The plaintiff objected to the validity of this mortgage and note as a subsisting incumbrance in January 1824, without proof that the cotton had been furnished by Nathaniel as required by the note. The defendant admitted that the cotton was not delivered at the time when it was due according to the terms of the note, but he contended that a delivery within such time was waived by Thomas, and he proved that a quantity oí cotton was delivered to Thomas in 1822 and 1823, to be spun, and that the yarn was returned.
    As to the value of the equity of redemption, the defendant produced testimony showing that the land was not worth much more than the amount due on the mortgages.
    The plaintiff then offered to prove, that after the sale, her intestate paid,to the holder of the first mortgage the amount then due thereon, being about $ 529. To this evidence the defendant objected, but it was admitted.
    The jury were instructed, that the plaintiff’s evidence proved a breach of the defendant’s covenant; that the rule of damages was not, as in the case of a deed by a private individual, the consideration paid and interest, but as the defendant was an officer, he must be held to put the purchasei 
      m as good a situation as he would have been in if the defendant had made him a good title to the equity of redemption, and the rule was the same as if the action were against a sheriff for a breach of duty ; that the proof of the defendant’s proceedings prior to the sale, tended to show that there was no wilful neglect; that if at the time of the sale the land wa - worth more than the amount of the incumbrances, they should give the surplus in damages ; and in regard to the second mortgage and note, if the cotton was not furnished by the holder of the note at the time specified in it, this did not discharge the maker from paying it, but the holder might in a reasonable time furnish the cotton and demand the spinning, and the maker would then be held to pay the note, deducting any reasonable allowance to be made to the maker for injury sustained by him in consequence of the neglect of the holder , that no allowance was to be made to the plaintiff for any expenses of the bill in equity ; that the amount of the first mortgage was paid by the intestate in his own wrong, as he then knew, or might have known, as much about his rights as the plaintiff now knew. And as to the sum bid. by Wade for the equity of redemption, it was left to the jury to say how much was paid by him to the officer, and the jury were instructed, that the consideration mentioned in the deed was not conclusive ; that if the balance of the $ 970, after the payment of the executions in favor of Whitney, and of Hooker and Taylor, was applied on the execution in favor of Wade and Dwight, the jury would judge whether Wade, at the sale, was not acting for Wade and Dwight; and that if their execution was discharged for that amount, it might be revived on scire facias, in the same manner as if it had been levied on land not belonging to the debtor. The plaintiff requested the judge to instruct the jury, that the plaintiff was at all events entitled to recover the amount of the two first executions which her intestate had paid in cash, and the fees of the officer on the third, but they were instructed that they should not give even mat amount to the plaintiff, unless they judged the equity of redemption to be worth it.
    A verdict was found for the plaintiff for $ 341 "96 ; and if the Court should be of opinion that the directions at the trial were wrong, a new trial was to be bad ; others ise judgment was to be entered upon the verdict.
    
      Oct. 2d, 1830, at Northampton.
    
    
      J. H. Ashinun and G. Bliss, for the plaintiff.
    The defendant’s covenant having been broken at the time when it was made, the damages are the consideration money paid for the equity of redemption, and interest. Marston v. Hobbs, 2 Mass. R. 433 ; Caswell v. Wendell, 4 Mass. R. 108; Nichols v. Walter, 8 Mass. R. 243 ; Chapel v. Bull, 17 Mass. R. 213 ; Jenkins v. Hopkins, 8 Pick. 346 ; Mitchell v. Hazen, 4 Connect. R. 496. The circumstance that the sale and covenant were by an officer, maltes no difference. Sumner v. Williams, 8 Mass. R. 162; Bickford v. Page, 2 Mass. R 455. If the action were case for the tort, the rule oí damages would be the same. And this rule is most beneficial for the officers themselves, for property sold on execution usually brings less than its actual value, and if the Court hold the officer liable only for the actual value in the present case, he must be liable in like manner for the actual value, where the property is sold for less than its value. But if a different rule of damages-would apply in an action on the case against an officer, it is sufficient to say, that this action is not against an officer, but against a covenantor, and the plaintiff had her election to sue in covenant. Slade's Case, 4 Co. 92 ; Lamb v. Clark, 5 Pick. 192. Part of the consideration was paid for the covenant, and the defendant received a percentage on the whole sum bid by the plaintiff’s intestate.
    The second mortgage should have been laid out of the case, for the mortgagee having neglected to furnish the cotton within the time stipulated, which was a condition precedent, the mortgager was discharged.
    
      Willard and Boise, contra.
    
    The plaintiff has failed to prove a breach of the defendant’s covenant. The statute of 1798, c. 77, § 4, which requires thirty days’ notice to be given previously to the sale of an equity of redemption on execution, does not require that the execution shall have been issued or be in the hands of the officer before he publishes such notice. Nor was the defendant bound by law to return Whitney’s execution before he gave the deed to Wade ; and tus neglect to return it afterwards within the period fixed by the statute, only laid a foundation for an action on the case.
    
      Sept 22d, 1831.
    But if the defendant ought not to have given notice of the sale until the execution had been delivered to him, and he had no right to sell until it had been in his hands thirty days, it appears on the face of the deed that the covenant was impossible and void. Shep. Touch. 164 ; Bac. Abr. Covenant, G ; Soprani v. Skurro, Yelv. 19 ; Kerrison v. Cole, 8 East, 231.
    The covenant is likewise void, there being a mistake in the recital, of a material fact; inasmuch as it is- recited, that the sale was made on the execution in favor of Whitney, instead of the one in favor of Hooker and Taylor. Shep. Touch. 77 ; Williams v. Reed, 5 Pick. 480.
    With respect to damages, the rule in covenant is always an equitable rule, depending on the circumstances of each case. Here the incumbrances exceeded the value of the land, and consequently the plaintiff’s intestate was not damnified by the defect in his title to the equity of redemption. Wyman v. Bridgen, 4 Mass. R. 150 ; 4 Kent’s Com. 464 ; Morris v. Phelps, 5 Johns. R. 49 ; Prescott v. Trueman, 4 Mass. R. 627 ; Wager v. Schuyler, 1 Wendell, 553.
   Wilde J.

delivered the opinion of the Court. Both parties are dissatisfied with the verdict, and on different grounds severally move for a new trial. We think, however, that substantial justice has been done, and that no sufficient reason appears for sending the cause to another trial.

It is contended on the part of the defendant, that this action cannot be maintained, because, in the first place, the covenant declared on is void in law ; and secondly, if not so, that no sufficient breach haá been proved.

The plaintiff maintains that she is entitled to further damages, and that the rule for assessing damages was not corréctly stated to the jury.

In support of the first objection, the defendant’s counsel have cited divers authorities to establish the position, that if in a deed of sale with covenants, the sale appears to be void on the face of the deed, all the covenants are void also.

This is no doubt true in respect to all covenants which are relative and dependent; but in respect to collateral and independent covenants the rule is not applicable. 2 Bac. Abr. Covenant, G. That the rule is thus limited, appears from the current of the authorities cited by the defendant’s counsel. In the case of Soprani v. Skurro, Yelv. 19, the point decided is, that if the lessor does not sign the indenture of demise, as well as the lessee, no interest passes, and the covenants do not bind ; and the reason given is, that the covenants depend on the demise.

The next case cited by the defendant’s counsel is the cast) of Kerrison v. Cole, 8 East, 231, in which it was decided, that though a bill of sale of a ship by way of mortgage may be void for want of reciting the certificate of registry therein, yet the mortgager may be sued upon his personal covenant contained in the same instrument, for the repayment of the money lent. This is a very strong case to show that the rule in question is applicable only to dependent covenants. All dependent covenants,” says Lord Ellenborough, “ must share the fate of the principal covenant.” But the court sustained the action, on tire ground that the covenant was collateral and independent, and was valid, notwithstanding the sale or mortgage was declared void to all intents and purposes by statute, and although the defect in the bill of sale was apparent on the face of it.

The same point was in the same manner decided in the case of Mouys v. Leake et al. 8 T. R. 411. In that case a grant of a rent charge had been made which was void by the St. 13 Eliz. c. 20, and in the deed of grant there was a personal covenant rby the grantor to pay the rent charge. The court held that the personal covenant was binding. In that case also the defect appeared on the face of the deed. '

The same principle is laid down in the case of Gaskell v. King, 11 East, 165. In that case it was decided, that although one of several covenants in a deed be void by statute, yet that it shall not avoid the other covenants, unless they be dependent. The case of Northcote v. Underhill, 1 Salk. 199, is also an authority in support of the same general principle, that where a deed of sale is void, so that no estate passes, all dependent covenants are void also ; otherwise of independent covenants.

From a review of these cases it appears very clear that the principle assumed by the defendant’s counsel cannot be maintained, except in relation to dependent covenants, and is not applicable to the covenant in question, which is collateral to the grant, and not depending on its validity, within the meaning of the rule laid down in the cases referred to. It is similar to the usual covenant of seisin, which does not depend on the passing of the estate ; on the contrary, it is only intended to operate when the estate does not pass. It is not like a covenant for quiet enjoyment, which is a dependent covenant, as was decided in the case of Capenhurst v. Capenhurst, T. Raym. 27 ; nor like the case of a covenant to perform an award, which would be void, if the award were void ; as was neld in the case of Johnson v. Wilson, Willes, 252. Nor is it like a warranty on a sale of personal property, against defects that are plainly and obviously the objects of one’s senses ; because the supposed defect in this case is not clear and obvious to every understanding, and cannot be ascertained without a degree of skill and knowledge of the law which no one but a lawyer can be presumed to possess.

The objection to the validity of the deed is, that the estate was not advertised for sale thirty days before the time of sale, and this, it is contended, appears on the face of the deed In the recital it appears, that the execution issued within thirty days before the time of sale ; but a recital does not imply absolute verity, but may be explained or contradicted ; and besides, notice of sale might have been given before the execution issued, and the defendant’s counsel have contended in support of their other objection to the verdict, that such a notice would have been legal. But whether it were legal or not, the grantee was not bound to inquire ; he had a right to rely for his security on the defendant’s express covenant, that his proceedings in making sale had been regular.

As to the defendant’s second objection, we think a breach of the defendant’s covenant was sufficiently proved. The defendant covenanted that he had obeyed all the directions of ’.aw relative to the sale. Now one of the directions of law is, that the execution should be returned. The return of the execution relates to the sale, and the sale is void without it. The sale therefore was not completed by giving the deed. At that time the defendant had not complied with all the diiections of law relating to the sale, and so the covenant was broken. It is true the return might have been made after-wards, and it would have related back so as to confirm the title, but this was neglected to be done, and the defendant remains liable for the breach of his covenant. .

As to the rule of damages, the plaintiff was undoubtedly entitled to recover the sum her intestate actually paid for the estate, with interest; but the question is, what sum did he actually pay, and how is this to be ascertained ? It does not conclusively follow that the sum mentioned in the deed as the consideration was the sum actually paid. It might be proved that a less or a larger sum had been paid. Now it appears by the evidence, that all the plaintiff’s intestate gave for the estate was a demand he had against an insolvent debtor, who had no other property liable to attachment, and that he declared, that “ he might as well bid the amount of his debt, as he should get nothing else.” This evidence authorized the jury to infer that the sum bid was merely nominal, and that his demand against his insolvent debtor was worth no more than the value of the estate attachedso that the value of that estate was the true measure of damages.

It is, however, objected that the jury ought not to have taken into the estimate of damages the mortgage deed from Thomas Fry to Nathaniel Fry, because the note secured by it was payable within a limited time, in spinning cotton, the cotton to be furnished by the mortgagee, and that it was not furnished within the time limited. On this point evidence was given tending to show that the agreement as to time had been waived by the mortgager. Of the weight of this evidence the jury were the proper judges, and the evidence seems to be sufficient to support the verdict.

The plaintiff therefore must abide by the verdict in her favor, which appears to give her all the indemnity she is entitled to, either by law or equity.

Judgment according to verdict. 
      
       See Norton v. Babcock, 2 Metc. 510; Comings v. Little, 24 Pick. 266; Thayer v. Clemence, 22 Pick. 490; Brooks v. Moody, 20 Pick. 474 ; Harlow v. Thomas, 15 Pick. 66; Wetmore v. Green, post, 462; Leffingwell v. Elliott, 10 Pick. 204; S. C. 8 Pick. 457; Hooey v. Newton, 11 Pick. 421; Smith v. Strong, 14 Pick. 128; Tufts v. Adams, 8 Pick. 547; White v. Whitney, 3 Metc. 81.
     