
    John H. Hilliker, Respondent, v. Emily Rueger and Frieda Rueger, Individually and as Surviving Executrices, etc., of John Rueger, Deceased, and Others, Appellants.
    Second Department,
    December 24, 1914.
    Real property — deed — covenant of seizin—breach — damages.
    A covenant that grantors “ are seized of the .said premises in fee simple and have good right to convey the same ” is not satisfied by possession, but must be construed to mean that the grantor at the time of the conveyance was lawfully seized of a good, absolute and indefeasible estate of inheritance in fee simple and had f uE power to convey the same.
    A covenant of seizin is broken, if at aE, upon dehvery of the deed, and in an action for breach of the covenant proof of eviction or ouster is not essential to the recovery of substantial damages.
    
      An intending purchaser from the grantee refused ,to take title on the ground that it was unmarketable and in an action to recover the money paid on account of the contract to convey it was finally determined that said grantee did not have title to a part of the premises. The consequent judgment was paid. The grantors had notice of said action and opportunity to defend the title. In an action by the grantee against the legal representative of his grantors for breach of the covenant of seizin,
    
      Held, that the plaintiff was entitled to recover the difference between the consideration paid and the proportionate value of that part of the premises of which the grantors were seized at the time of the conveyance to plaintiff, with interest, together with the amount expended by him for counsel fees and for attorney’s services in the other action, but was not entitled to recover any amount paid in satisfaction of the judgment in said action, as such element of damage was too remote and not within the contemplation of the parties.
    Appear by the defendants, Emily Eueger and another, individually and as executrices, etc., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of June, 1914, upon the decision of the court after a trial at the Kings County Trial Term, a jury having been waived.
    
      James Moffett [Robert E. Moffett with him on the brief], for the appellants.
    
      Fred L. Gross, for the respondent.
   Jenks, P. J.:

This action is to recover damages by grantee against the legal representatives of his grantors for a breach of a covenant of seizin. The grantors covenanted that they “are seized of the said premises in fee simple, and have good right to convey the same.” Subsequent to the conveyance the'grantee contracted to sell the premises to Schaefer, who refused to take title, in that it was unmarketable, and brought an action for the money paid on account of the contract. It finally was determined in that action that the said grantee did not have title to a part of the premises. (Schaefer v. Hilliker, 140 App. Div. 173; affd., 206 N. Y. 708.) The consequent judgment was paid. These defendants had notice of the action and opportunity to defend the title then assailed. This present case was tried on consent by the court without a jury. The court as a conclusion of law decided that by reason of the breach of the covenant of seizin the plaintiff had sustained damages for $1,200, being the difference between $7,000, .the consideration paid, and $5,800, the proportionate value of that part of the premises of which the grantor was seized at the time of conveyance, with interest; also for $1,500, the amount expended by plaintiff for counsel fees and fees for attorneys’ services in the said action of Schaefer v. Hilliker, with interest, and also for $823, which represented the sum paid by plaintiff in satisfaction of the judgment recovered in the said action of Schaefer v. Hilliker. The learned counsel for the appellants, conceding that an eviction is not essential to an action of this character (Veil v. McCauslan, 157 App. Div. 335; affd., 213 N. Y. 678; Pollard v. Dwight, 8 U. S. [4 Cranch] 421), insists that there must be an eviction, actual or constructive, to justify the recovery of substantial damages, and we are cited to text books and to decisions in other States. But the covenant in this case is not satisfied by possession. It must be construed to mean that the grantor, at the time of conveyance lawfully seized of a good, absolute and indefeasible estate of inheritance in fee simple, had the full power to convey the same by the conveyance. (Real Prop. Law, § 253. See 2 Reeves Real Prop. 1522, note a, and authorities cited.) That learned author well says: “This is very clearly the covenant of seisin in its broad, general aspect.” It was broken, if at all, when the deed was delivered. And in an action upon such a covenant I think that proof of eviction or ouster was not essential to the recovery of substantial damages. (Le Roy v. Beard, 8 How. [U. S.] 451; Rickert v. Snyder, 9 Wend. 416; Parker v. Brown, 15 N. H. 176, 188; Tone v. Wilson, 81 Ill. 529; Fitzhugh v. Croghan, 2 J. J. Marsh. 429; Brandt v. Foster, 5 Iowa, 287.) There is a discrimination to be made between seizin construed according to our statute and seizin construed to mean but actual possession with assertion of freehold estate, as, e. g., in Massachusetts. (Reeves, supra, 1521. See, too, 4 Kent Com. [14th ed.] *471, notes c and d.) I think that the plaintiff was not entitled to recover the said item of $823, or any other amount that represented the cost of satisfying the said judgment in Schaefer v. Hilliker, inasmuch as such element of damage was too remote and was not within the contemplation of the parties. (Dale v. Shively, 8 Kans. 276; Jewett v. Fisher, 9 Kans. App. 630; Stearn v. Hesdorfer, 9 Misc. Rep. 134.) I think that he was entitled to recover the other items, the first for the reasons stated heretofore, and the second upon the authority of Olmstead v. Bawson (188 N. Y. 517).

The point often urged in many of the cases, that it is inequitable that the grantee should have the land and the consideration as well, is answered in Parker v. Brown (supra, 188).

It is contended that the court erred in the rule of damages relevant to the consideration. When the learned counsel for the defendants addressed a question which correctly stated the rule, the court did make a suggestion which, if adopted, is within the discussion in Hunt v. Raplee (44 Hun, 149,155), but when the counsel objected the court said to counsel, “Take it your way,” and, moreover, I think that the wording of the conclusion in the decision indicates that the court observed the rule.

The judgment is modified in accordance with the terms of this opinion, the interest upon the item of $1,200 is limited to a period of six years from May 1, 1905, and as so modified the judgment is affirmed, without the costs of this appeal.

Thomas, Stapleton and Putnam, JJ., concurred; Carr, J., not voting.

Judgment modified in accordance with opinion, and as so modified affirmed, without costs of this appeal.  