
    Bertha Stearns, Pl’ff, v. Louisa Hesdorfer, Def't.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 4, 1894.)
    
    1. Deed—Covenant of seizin—Burden.
    The burden of proving the breach of the covenant of seizin is upon the grantee.
    8. Same—What is not-breach.
    Where the grantee is in fact seized of all the lands described in the deed by metes and bounds, the covenant of seizin is not broken, though the front wall of a building thereon slightly encroaches on the street and the side wall on the land of an adjoining owner.
    8. Same—Covenant of warranty—Breach.
    An action for the breach of a covenant of warranty will not lie, in the absence of any payment to discharge or extinguish an incumbrance, or any actual or a constructive eviction from any part of the property, or any disturbance of the title or possession.
    4. Evidence—Parol.
    All prior conversations and negotiations between the parties to a deed are merged in the conveyance and their rights, as between each other, fixed by that instrument.
    
      Case and exceptions heard in the first instance at the general term.
    
      llayman & Rosenthal, for pl’ff; M. A. Kursheest (Joseph Fettreich, of counsel), for def’t.
   Bookstayer, J.

This action was brought to recover $20,000 damages for the alleged breach of the covenant of seizin in a deed made by the defendant and one Joseph Hesdorfer of certain premises therein described by metes and bound with the buildings and improvements thereon erected.” The complaint alleges that the defendant was not seized of the premises conveyed, and did not have good right or power to convey the same by reason of the fact that the northerly wall encroached upon the street, and the easterly wall encroached upon the land of the .adjoining owner, and that the alleged encroachments were a breach of the covenant in the deed against incumbrances, and a breach of the covenant of warranty contained in the deed. The answer of the defendant after admitting the conveyance and the covenants therein contained, was in effect a general denial. Upon the trial, the plaintiff reduced the amount of her claim to $5,000. The evidence, tended to show that the easterly wall of the house in question encroached on the land of the adjoining owner from one and a half inches in front to two inches in the rear, and that the front'wall of the house encroached upon the street line of the premises in front from a half an inch on one side to three-quarters of an inch on the other. After the evidence on the part of the plaintiff was all in, the defendant moved to dismiss the complaint, which, after argument was granted, and the exceptions were ordered to be heard in the first instance at the general term. The burden of proving the breach of the covenant of seizin and of the other covenants alleged in the complaint to have been broken was upon the plaintiff, Woolley v. Newcombe, 87 N. Y. 605, 612, which overrules Potter v. Kitchen, 5 Bos. 556: Abbott v. Allen, 14 Johns. 248, and the earlier cases. In the case first cited Judge Rapallo, delivering the opinion of the court, shows that the reason for the old rule which casts the burden on the defendant in actions of this kind no longer exists, the recording act.having done away with the reason for it. There is no evidence in the case, nor as far as we can see, was it contended on the trial, -that the defendant at the time of the conveyance to the plaintiff, was not in fact seized of all the lands'described in the deed to her, by metes and bounds, and the covenant of seizin is not in our Opinion broken, although the front wall encroached over the line of the street to the extent claimed, or the side wall encroached on the land of the adjoining owner to the extent testified to by Mr. Ford, the surveyor; Saserath v. Metzger, 30 Abb. N. C. 407; Burke v. Nichols, 1 Abb. Ct. App. Dec. 260. Plaintiff's counsel contends that the case of Burke v. Nichols, supra, is not in point, as it did not contain the words, “ together with the buildings thereon erected.” But the absence or presence of these words neither enlarges nor diminishes the plaintiff’s right or in our judgment affects the force of that decision ; Griffiths v. Morrison, 106 N. Y. 169; 8 St. Rep. 585. Plaintiff "also contends that the words, “together with the buildings and improvements thereon erected,” mean, in this instance, and were intended to mean the five story double house, the walls of which encroach upon the adjacent property as we have before stated. But we think that there is nothing in this ease which takes this expression out of its ordinary significance as generally employed in conveyances, which is, “ anything which is built upon the land.” In the Burke v. Nichols case, supra, the opinion was concurred in by all the judges, and is as follows: “ It is a familiar rule that a grant of land eo nomine conveys not only the ground or soil, but every corporate thing which is attached to the earth by the coarse of nature, as trees, herbage and water, or by the hand of man, as houses and other structures. Co. Litt., 4 a; 3 Kent’s Com., 486. The defendant is, therefore, correct in claiming that, under his deed from the plaintiff, his rights in respect to the dwelling house and fence, and the lot thereby conveyed, are the same as if such structures had been specifically mentioned in the grant If the grantor had title to them, it passed by the deed; if he had not title to such structures, or any part of them, his covenant of seizin was broken, to that extent, and the defendant has a remedy for the breach. But the rights of the defendant thus acquired do not extend to such parts of the house and fence as are attached to and rest upon the soil of the adjoining lot. Those structures, by the operation of the very principle upon which the defendant relies, are a part of the land on which they stand, and it is an acknowledged rule that land does not pass as an appurtenance to land.” Ño cause of action can be founded upon any allegation of the complaint for the breach of the covenant against incumbrances; first, because no proof was offered on the trial of any incumbrance which was paid off or discharged by the plaintiff, and, second, because without such proof no 'cause of action would lie for more than nominal damages in any event; Hall v. Dean, 23 Johns. 103. Not only was 'there no evidence upon the part of the plaintiff of any eviction or disturbance to the possession or title of the property conveyed to her by the defendaut and her husband, but on the other hand it appears that from the moment of the delivery of the deed to the plaintiff up to the time of the trial, she was in the actual, undisturbed physical possession of the entire house and land on which it stood. This being the case no action for the breach of the covenant of warranty will lie. Kent v. Welch, 7 Johns. 258. Upon the whole case we think the plaintiff failed to show any failure of the title of the defendant to the lands comprised within the metes and bounds described in the deed to her. She also failed to show any disturbaece of her possession of the building or land or any part of either. And she did not show the payment of any money to discharge or extinguish any incumbrance; nor did she show any actual or constructive eviction from any part of the property, or any disturbance of the title or possession. Nor do we think there was any error on the part of the learned judge who tried this case in the admission or exclusion of evidence. Most of these rulings grew out of and are connected with the contention of the defendant that no cause of action was either alleged or proved or could be under the allegations of the complaint, and if 'we are right in the conclusion to which we have arrived as to the cause of action itself, the exceptions fall with it. It may be proper however to notice a few which do not rest upon this contention. Plaintiff on the trial attempted to show that she had made' a contract for a sale of the property and that the purchaser had refused to accept on the ground of the encroachments before mentioned, and also, the commissions she had to pay the broker for effecting the sale and the loss of profits she would have realized had the sale been- carried out ; to all of which testimony the defendant objected and the same was excluded by the court. Clearly this evidence was inadmissible for if the defendant was liable at all in this action for the breach of the covenant of seizin, the measure of damage was not what profit or loss plaintiff had sustained on any attempted sale of the property, or the amount of any brokerage, or other expenses she had paid in that matter, but was either the difference in value between the house contained within the metes and bounds and its value as it stood, or the proportion which the alleged encroachment would bear to the whole piece, or perhaps the cost of removing the alleged encroaching walls within the metes and bounds of the land described in the deed. - Plaintiff also endeavored to show what was said between the plaintiff and Mr. Hesdorfer at the time the purchase was made by her in regard to the subsequent sale of the property, which was objected to by the defendant and excluded. This we think was inadmissible upon the ground that all the conversations and negotiations between the parties were merged in the conveyance and their rights as between each other fixed by that instrument; and also on the ground that anything Mr. Hesdorfer might have said, in ho way bound the defendant in this action without proof or the offer to prove that the defendant had authorized him to bind her .in any such matter. Certain real estate dealers were called by the plaintiff, and they were asked by the defendant on cross-examination what would be the difference in value between a lot 25 feet wide, and a lót 25 feet If inches wide, to which the plaintiff objected, and the objection was overruled and the evidence admitted. We think it was pertinent for the purpose of arriving at what if any difference there would be in the value of a lot of -land of the size described in the deed, and óf that covered by the house itself according to the plaintiff’s surveyor’s testimony, and was one of the elements of ascertaining whether or not there was any damage, the other element being the difference in value between houses of different sizes. We- therefore think that the exceptions were not well taken and should be overruled, and the decision of the trial justice affirmed and judgment directed in favor of the defendant and against the plaintiff dismissing the complaint upon the merits with costs. Daly, C. J. and Bisohoff, J., concur.  