
    Conklin, Trustee, v. Hancock.
    
      Breach of covenant and seizin — Measure of damages — Consideration with interest from date of conveyance — Recital of consideration not conclusive — 'Written agreement of vendor and vendee — Evidence as to consideration — Land of irregular value — Damages in proportion of entire value as part to whole land — Unless uniform price per acre or foot agreed upon — Sales—Damages—Action to recover — Consideration.
    1. In an action to recover damages for a breach of a covenant of seizin and of good right to convey, the measure of damages is the consideration, with interest from the time of the conveyance. Backus v. McCoy, 3 Ohio 222, approved and followed.
    2. The recital in the deed of the consideration paid is not conclusive. The deed is prima facie evidence of the consideration, and, although the actual consideration, if valuable, may be different in kind or amount from that recited in the deed or although the deed recites no consideration at all, it may be shown by evidence dehors the deed.
    3. A written agreement between the vendor and vendee for the sale, purchase and conveyance of land is not executed by, and merged in the deed, as to the stipulations of the vendee therein concerning the consideration to be paid for the property; and such written agreement is competent evidence to show the actual consideration. Brumbaugh v. Chapman, 45 Ohio St., 368, distinguished.
    4. Where the land conveyed is not all of the same quality or value, the general rule is that the measure of damages is such proportion of the entire consideration as the value of the land of which the grantor was not seized bears to the value of the whole premises, with interest; but where the land conveyed is all of the same quality or value, the measure of damages is such proportion of the entire consideration as the quantity of the land lost bears to the whole quantity conveyed, with interest.
    5. Whether the land described in the deed is or is not of the same quality or value, if the parties have agreed upon a fixed and uniform price per acre, or per front foot, or any other standard of quantity, the measure of damages is such price multiplied by the quantity of land as to which the covenant fails, with interest.
    (Decided February 3, 1903.)
    Error to the Circuit Court of Butler county.
    The plaintiff in error, as trustee of an express trust, sued the defendant in error to recover damages for breach of the covenants of seizin and title in a deed made September 22, 1890, by the defendant in error. The petition alleged the conveyance in consideration of one hundred and thirty-three thousand dollars, described by metes and bounds, expressed in the deed as “containing 272-53-100 acres.” From this there was excepted 6 53-100 acres, making the tract conveyed, 266 acres. The covenant was that the grantor “was the true and lawful owner of said premises and had full power to convey the same;” and the breach that at the time he made and delivered the deed the grantor “was not the true and lawful owner, and did not have full power to convey and was not in the actual possession, either in fact or in law” of two parts of the premises described in the deed, which parts the petition specifically described and averred to contain together, 3 24-100 acres. The petition averred that these two parts were occupied and used by the state of Ohio at the time of the conveyance adversely and under paramount title. The petition also averred that the deed was executed and delivered in compliance with and in accordance to the terms of an agreement between the grantor and the trustee, which terms are set out; that on May 1, 1890, Hancock, the defendant in error, agreed to sell and convey “the above described tract of 266 acres of land (the exact number o,f acres to be thereafter determined by the survey of a competent surveyor), for the sum of $500 per acre.” Such survey was had and the exact number of acres found to be 266, which multiplied by five hundred makes the consideration named in the deed. The petition avers that by reason of the addition of the said 3 24-100 acres of land to the survey as described, the consideration money paid for the premises was increased by the sum of $500 for each and every acre so added, to the damage of the plaintiff in the sum of $1,620, for which judgment was asked.
    The ansAver expressly admitted the conveyance, the covenants, the occupancy by the state of the 3 24-100 acres, and the making of the contract, and did not deny, either specially or generally, that the deed was made in compliance with and in accordance to the terms of the contract. The ansAver further denies that the tract of 3 24-100 acres known as “canal land” was to be paid for at the rate of $500 per acre, and avers that, in fact, the land Avas notpaid for at that rate, nor Avas the same sold by the defendant for the sum of $500 per acre. The answer further shows the condition of the whole tract of 266 acres, alleging that part of the property was well adapted for laying out and sale of town lots, and was very valuable, and worth more than $500 an acre, but averring that other parts of the tract were not so favorably located, consisting of bluffs and gulleys and that said tract of 3 24-100 acres was covered by the banks and waters of said canal as above stated; and that it was agreed by and between the defendant and the purchaser that the tract of 266 acres, as a whole, was fairly worth, in view of all the circumstances, the sum of $500 an acre, as the gross value of said land, but that the said grantees never agreed to pay, and, in fact, did not pay to this defendant, the sum of $500 an acre for the tract of 3 24-100 acres, and, in fact, did not pay anything wdiatsoever for that tract.
    The reply denied the existence of any other agreement or understanding than the written contract set up in the petition. At the trial the plaintiff offered the contract with certain modifications, and the deed, and rested. The only proof offered by the defendant was his own testimony to the effect that the value of the 3 24-100 acres occupied by the state “was almost, if not quite, nothing.” This was excluded. The defendant excepted. The common pleas court, a jury being waived, gave judgment for plaintiff for the amount claimed, with interest. The circuit court reversed this judgment for the following reason, as stated in the journal entry:
    “That the only evidence that the sale was by the acre of- the lands, the subject of said action in the court of common pleas, was the contract for such sale, mentioned in the petition in said action and set forth in said bill of exceptions; that said contract was merged in the deed of conveyance thereof, which deed recites the consideration as a gross sum, and said contract was therefore not competent evidence to show that such sale was by the acre, so that there urns no evidence to sustain the said judgment.”
    This petition is to reverse the judgment of the circuit court, and affirm the judgment of the court of ■common pleas.
    Mr. Judson Harmon, for plaintiff in error, cited and commented upon the following authorities:
    
      Backus v. McCoy, 3 Ohio, 222; King v. Kerr, 5 Ohio, 155; Clark v. Parr, 14 Ohio, 118; Lloyd v. Quimby, 5 Ohio St., 262; Flynn v. Coal Co., 72 Ia., 738; Haynie v. Am. Trust Investment Co., 39 S. W. (Tenn.), 860; Kempner v. Lumber Co., 20 Tex. Civ. App., 307; Hynes v. Packard, 92 Tex., 44; Devore v. Sunderland, 17 Ohio, 60; Stanbaugh v. Smith, 23 Ohio St., 588; Stock Co. v. Saas, 24 Ohio St., 542; Bickford v. Page, 2 Mass., 461; Griffin v. Reynolds, 17 How., 609; Nelson v. Matthews, 2 Hen. & Mun., 164; Nelson v. Carrington, 4 Munf., 332; Stow v. Bogeman, 29 Ala., 376; Blessing v. Beatty, 1 Rob. (Va.), 287; Blanchard v. Hoxie, 34 Me., 376; Johnson v. Nyce, 17 Ohio, 70; Ela v. Card, 2 N. H., 178; Brumbaugh v. Chapman, 45 Ohio St., 368; Guinotte v. Chouteau, 34 Mo., 154; Meeker v. Meeker, 16 Conn., 383; Gully v. Grubbs, 1 Marsh. (J. J.), 388; Harlow v. Thomas, 15 Pick., 70; Martin v. Endon, 24 Ga., 533; Morse v. Shattuck, 4 N. H., 229; Seed v. Hinton, 76 Ala., 298; Stringfellow v. Ivie, 73 Ala., 209; Drury v. Tremont Co., 13 Allen, 168; Bank v. Aull, 80 Mo., 199; Bourne v. Bourne, 92 Ky., 211; Fraley v. Bentley, 1 Dak., 25; Miller v. Fechthorn, 31 Pa. St., 252; Jackson v. Railway Co., 54 Mo. App, 636; Dobyns v. Rice, 22 Mo. App., 448; Frey v. Vanderhoof, 15 Wis., 397; McDill v. Gunn, 43 Ind., 315; Nickerson v. Saunders, 36 Me., 413.
    
      
      Messrs. Murphy & Williams and Messrs. Belden & Fitton, for defendant in error, cited and commented upon the following authorities:
    
      Brumbaugh v. Chapman, 45 Ohio St., 368; King v. Kerr, 5 Ohio, 155; Backus v. McCoy, 3 Ohio, 222; Faure v. Martin, 7 N. Y., 210; 8 Am. & Eng. Ency. Law (2 ed.), 184; Rawle on Covenants of Title (5 ed.), section 297; 4 Kent’s Com., 564, 567 (11 ed.), section 67; Morris v. Phelps, 5 Johns., 49; Cornell v. Jackson, 3 Cush., 506; Smith v. Strong, 14 Pick., 128; Hymes v. Esty, 133 N. Y., 347; Myers Fed. Dec., Vol. L, 1, 686; Semple v. Wharton, 32 N. W. Rep., 690; Merser v. Oestreich, 52 Wis., 696; Cincinnati v. Brachman, 35 Ohio St., 289; Whitbeck v. Cook, 15 Johns., 483; Cent. L. J., 428; Smith v. Hughes, 12 Cent. L. J., 17; Gest v. Kenner, 2 Handy, 87; Bricker v. Bricker, 11 Ohio St., 240; Devlin on Deeds, 899; Baker v. Harris, 9 Ad. & E., 532; Kempner v. Lumber Co., 20 Tex. Civ. App., 307; Griffin v. Reynolds, 17 How., 609.
   Davis, J.

In an action upon a breach of a covenant ' of seizin and of good right to convey, the measure of damages is the amount of the consideration, when it can be ascertained, and the interest. This is the rule in this state, as elsewhere; but the consideration expressed in the deed is not conclusive. The deed is only prima facie evidence of the consideration. Although the actual consideration may be different in kind or amount from that named in the deed, or although the deed may contain no expressed consideration, the consideration may be proved by evidence de hors the deed. This is the well settled rule in this country. Rawle on Covenants, sections 173, 174, 175; 2 Sutherland on Damages, section 595; 2 Devlin on Deeds, section 895. 'For this reason the circuit court erred in reversing the judgment of the court of common pleas upon the ground that the contract of sale alleged in the petition and set forth in the bill of exceptions was not competent evidence to show that such sale was for a fixed price per acre, instead of a gross sum as expressed in the deed. The judgment of the circuit court is defended on the authority of Brumbaugh v. Chapman, 45 Ohio St., 368. This application of the decision in that case apparently results from a misconception of the point decided, which point is that a stipulation for the sale and conveyance of land is executed by the delivery of a deed for the land by the vendor and an acceptance of it by the vendee as a performance of the stipulation. The contract, “so far as it embraced this particular stipulation,” was held to be “merged in the deed, and, to use the language of the books, became executed by it. And it was held “that the execution and delivery of the deed was intended by the one, and accepted by the other, as a performance of the stipulation of the agreement to convey whatever by its terms was to be conveyed.” The court, in the opinion by Minshall, J., carefully distinguishes Brumbaugh v. Chapman, supra, from Reid v. Sycks, 27 Ohio St., 285; Whitbeck v. Waine, 16 N. Y., 532; Vail v. McMillan, 17 Ohio St., 617; and Burckhardt v. Burckhardt, 36 Ohio St., 261, all of which cases involved the same principle as that in issue in this case, namely, that the deed is not conclusive as to the consideration paid or agreed to be paid by the purchser; and it was tersely said that “As a rule the deed does not execute any of the stipulations of the vendee as to the consideration to be paid for the property. Its office is to execute the agreement on the part of the vendor.” Thus the theory upon which the circuit court held that the contract should have been excluded from the evidence is shown to be untenable. The trial court, however, not only admitted the contract in evidence, but also held that it conclusively showed that the consideration for each and every acre of land was five hundred dollars, and that such is the measure of damages, without regard to the relative or actual value of the land. Is this the correct view? If so the judgment must stand, otherwise it should be reversed.

It is the contention on the part of the plaintiff in error that Avhere lands have been sold at a uniform price per acre, the measure of damages on a breach of the covenant of seizin as to a part only is the actual value of the land to which the title has failed, and not the price paid per acre. It must be admitted that where there has been a breach of the covenant as to a part of the land conveyed, the general rule, as recognized in this state and in most other jurisdictions, is that if the land is not all of the same quality, the measure of damages is such proportion of the consideration as the value of the land of which the grantor was not seized bears to the value of the whole premises. Backus v. McCoy, 3 Ohio, 222. On the other hand it must be conceded that where the land conveyed is all of the same quality the measure of damages is such proportion of the consideration as the quantity of the land lost bears to the whole quantity conveyed; for it must be obvious that when a deed conveys a stated quantity of land Avhich is uniform in quality or value, for a consideration expressed in gross amount, the actual loss upon a breach of the covenant of seisin as to a part would be a part of the consideration determinable by the proportion which the part of the iand to which the title failed bears to the whole quantity conveyed. In such case the covenantee recovers for the lost land exactly what he paid for it, with interest. But in the case which we now have under consideration there is no occasion for resort to these artificial rules for ascertaining the consideration paid for the part of the land as to which the covenant of seisin and of good right to convey was broken. The parties themselves have put it beyond dispute. When the contract of sale and purchase is read in connection with the deed we ascertain, beyond cavil, that the vendor conveyed two hundred and sixty-six acres of land, neither more nor less, for the price of five hundred dollars for each and every acre without exception, aggregating the gross amount of one hundred and thirty-three thousand dollars, as expressed in th* deed. Therefore, the consideration which was actually paid for the three and twenty-four hundredths acres deficient is conclusively shown to be sixteen hundred and twenty dollars, for which, with interest from the date of the conveyance, which was also th* time of the breach of the covenant, the plaintiff was entitled to judgment. This is in fact a recovery of the value of the land as estimated by the parties at the time of the purchase.

The judgment of the circuit court is reversed, and that of the cotort of common pleas affirmed.

Buricet, C. J., Spear and Price, JJ,, concur.  