
    Thomas Harris and Others versus Eliphalet Newell.
    The covenantee in an action upon the covenant of warranty in a conveyance is entitled to nothing beyond the consideration paid and interest, until after eviction.
    This was an action of covenant broken, in which it appeared, from the plaintiff’s declaration, and the deed declared on, that the defendant, by his deed dated February 28th, 1792, for the consideration of three hundred dollars, conveyed a certain parcel of land described in the declaration to Aaron Putnam in fee, whose assignees the plaintiffs are; and that the defendant covenanted with the said Putnam, his heirs and assigns, that he, the defendant, was seised in fee of the premises; that they were free of all encumbrances ; that he had good right to convey the same ; and that he would warrant them against all persons. — The plaintiffs, .n assigning the breaches, aver that the defendant *was never seised in fee ; that he had at no time any right to convey the premises ; tnat they were encumbered by a right to be seised thereof in fee, which was then vested in the heirs of one 
      Thomas Maudlin, then deceased ; and that the said Newell has not warranted and defended the said premises to the plaintiffs; but that Israel Jenkins and Abigail, his wife, which said Abigail was one of the heirs of the said Thomas Maudlin, deceased, have since prosecuted a plea of land in her right against the plaintiffs, to recover against them one tenth part of the premises; against which suit the plaintiffs have no lawful right to contend, because the right to be seised in fee was in the heirs of the said Thomas Maudlin.
    
    The defendant pleaded non est factum, on which issue was joined
    At the trial of this issue, which was had at the sittings here after the last October term, before the Chief Justice, the execution of the deed being proved, the only question remaining was the rule, by which the damages ought to be assessed ; the plaintiffs insisting upon the present value of the premises, after deducting the value of their improvements, which they could recover against the right owner by the statute of 1807, c. 74, <§> 3. — But the chief justice, intending to save this question, directed the jury to consider the covenants to be broken as soon as they were made, as there had been no ouster or eviction, and that the consideration money, with the interest, were the rule of damages; and the jury assessed the damages accordingly; the plaintiff reserving leave to move for a new trial without costs, or to discontinue, if the verdict should not be set aside.
    And now', at this term, the cause having stood over for the consideration of the Court, Bigelow, of counsel for the plaintiff, suggested that it has never been settled that, upon the issue of non est factum, the plaintiff shall not be permitted * to go into equitable considerations as to the amount of damages due him. In this case the plaintiffs proved, that there w'as a valid title paramount to that derived from the defendants, and that this title had already given rise to an action at law, by which the plaintiffs must inevitably lose the land. It would be a very great evil to persons thus situated, if they must lie by until an actual eviction from all the land took place, and in the mean time their warrantor might become insolvent, and so their legal remedy against him would be fruitless.
    
      Gorham, for the defendant,
    was stopped by the Court.
    The plaintiffs’ counsel, perceiving that the Court were not inclined to set aside the verdict, had leave to discontinue, in order to bring their action after they should be evicted from the premises con veyed. 
    
    
      
      
         [Vide Sumner, Administrator, vs. Williams & Al, ante, 162. — Ed.]
    
     