
    Dean Wyman versus Jonathan Ballard.
    A., having mortgaged land to B., conveys the same to C. with a covenant against incumbrances. C. conveys the same land to D. B. recovers possession under the mortgage, and the equity of redemption is foreclosed. C. brings his action against A. And it was holden that he was entitled to damages ; but, as A. was also liable to D., and might thus be twice charged, and as he had not paid off the mortgage, and had not been called on for damages by D., he was entitled to nominal damages only.
    * This was an action of covenant broken upon a deed [*304] dated January 28th, 1806, by which the defendant conveyed to the plaintiff a parcel of land in Augusta, in fee simple, with a covenant that the premises conveyed were free from all incumbrances.
    The breach alleged is a prior conveyance by the defendant to the President, Directors, and Company of the Hallowell and Augusta Bank, dated the 30th of December, 1805, for securing the payment of $ 400, with interest, on the 30th of December, 1806, which the plaintiff avers remained unpaid on the 3d of May, 1808, the day of the purchase of his writ in this action.
    The parties agreed to submit the action to the decision of the Court upon the following facts.
    v On the 30th of December, 1805, the defendant mortgaged the premises described in the plaintiff’s writ, with other land, to the President, Directors, and Company of the Hallowell and Augusta Bank, to secure the payment of $ 400 in one year.
    On the 28th of January, 1806, the defendant conveyed the same premises to the plaintiff, and covenanted that the same were free of all incumbrances, and that be would warrant and defend the same to the plaintiff, his heirs, and assigns for ever, against all persons.
    On the 24th of November, 1807, the plaintiff conveyed the same premises to one Thomas Dickman, in fee, for a valuable consideration, by a deed containing the usual covenants of warranty. At the same time the said Dickman gave to the plaintiff a writing under his hand, reciting that the plaintiff, being indebted to him in the sum of $ 165.55, in payment thereof had conveyed to him by deed of that date, (describing the same premises,) and promising to reconvey the same to the plaintiff at the expiration of a year, provided the plaintiff should pay him that sum with interest within the said term of one year.
    [*305] * The plaintiff remained in possession of the premises until August 11th, 1809, when the said President, Directors, and Company took possession thereof. But he has never paid the said sum to Dickman, nor any part thereof.
    At the May term, 1809, of the Common Pleas for this county, the said President, &c., sued their mortgage, and obtained judgment for possession, unless, &c., and afterwards took possession under said judgment, and the right of redemption is foreclosed.
    If the Court should be of opinion upon these facts, that the plaintiff was entitled to nominal damages only, then judgment was to be so rendered. If the opinion of the Court should be, that the plaintiff was entitled to recover in this action the amount of the consideration mentioned in the defendant’s deed to him, with interest, judgment was to be rendered for that sum. And, if the Court should be of opinion that the present value of the premises should be the measure of damages, then it was agreed that certain commissioners named should estimate the Just value thereof, and report their opinion in w ‘iting of such value, and that judgment should be rendered for the sum so by them reported, and costs.
    The cause was argued by Wilde, for the plaintiff, and by Williams, for the defendant.
    And, the action being continued nisi for advisement,
   Parker, C. J.,

delivered the opinion of the Court, at the sue ceeding term in Berkshire.

The defendant objects, that the plaintiff cannot maintain this action, because he has parted with his interest in the land, and also with the covenants contained in his deed.

But the covenant, upon which this action is brought, was broken at the time of the conveyance, and so could not pass to the grantee of the plaintiff, He is therefore entitled to recover damages for the breach.

The conveyance which constitutes the incumbrance being a mortgage, he is not entitled to recover in damages the value * of the incumbrance, unless it were in evidence that he [* 3061 had relieved it by paying off the mortgage, which he has not done. On the contrary, he has suffered the equity of redemption to be foreclosed, and all estate, legal as well as equitable, to be vested in the mortgagees.

It is true that the plaintiff is liable on his covenants to Dickman. But Dickman, also, has a right of action, as assignee, upon the general covenant against the defendant ; and it is not known but he may resort to him, rather than to the plaintiff. If he were now permitted to recover against the defendant the full value of the incumbrance, Dickman, having a right of action upon the general covenant, there having been an eviction, might also sue the defendant; and then he would pay twice for the same thing.

The only proper course is, for the plaintiff now to recover nominal damages, because the covenant against incumbrances was broken before he conveyed to Dickman, and because he has suffered no actual damage ; and for Dickman to sue upon the covenant of warranty as assignee, because he has been evicted ; and he will then recover the value of the premises at the time of the eviction.

Dickman has also a right of action against the plaintiff as his immediate covenantor ; and, if he should resort to that remedy, and recover his damages, the plaintiff may then be entitled to his action, on the general covenant, against the defendant; the eviction of his assignee, if properly averred, being a breach of the covenant to warrant and defend, and the recovery of damages by Dickman being proper evidence to estimate the damages in such action by the now plaintiff against the defendant. ' At present, he has suffered nothing ; for he has not paid off the mortgage ; nor has his grantee called upon him for damages on account of his eviction.

The written promise of Dickman, which appears in the case, has no effect upon the question ; for there does not appear to [*307] have been any tender of the sum, which was to * have been paid by the plaintiff, to entitle him to a reconveyance.

Let judgment be entered for the plaintiff, for one dollar damages, and costs of suit. 
      
      
        Marston vs. Hobbs, 2 Mass. Rep. 443. — Bickford vs. Page, 2 Mass. Rep. 445 — Vane vs. Lord Barnard, Gibb. 7. — Shep. Touch. 170.— Greenby et al. vs. Wilcox 2 Johns. 1. — Lewis vs. Ridge 9 Cro. Eliz 863. — Sed vide Sprague vs. Baker, 17 Mass Rep. 586.—Kingdom vs. Nottle, 1 M. & S. 355. — 4 M. & S. 57. — King vs Jones 5 Taunt. 418, 1 Marsh. 107.— Mascal's case, M. 242, 1 Leon. 62. — Platt on Cow 526.
     
      
      
        Kelleran vs. Brown, 4 Mass. Rep. 443. — Holbrook vs. Finney, 4 Mass. Rep 566. - Flint vs. Sheldon, 13 Mass. Rep. 447. — Barrell vs. Joy, 16 Mass. Rep. 221. — Black vs Block, 4 Pick. 234. — Lund vs. Lund, Adams, 39. — Bickford vs. Daniels, 2 N. H. R 71 —Runlett vs. Otis, 2 N. H. R. 167. It is provided by the statute of 1785, ch. 22, $ 2, “ that all real estate conveyed or pledged by mortgage, or bargain and sale with defeasance, shall be redeemable by the mortgagor or vendor, his heirs, executors, administrators, or assigns.” The above decisions in Massachusetts are founded on a very narrow construction of the statute Vide Clark vs. Henry, 2 Coto 332. — Strong vs. Stewart, 4 Johns. Ch. R. 167. — James vs. Johnson, 6 Johns Ch. R. 417. — Marks vs. Pell, 1 Johns. Ch. R. 594. — Day vs. Dunham, 15 Johns. R. 555. —Ross vs Norwell, 1 Wash. 15. — French vs. Lyon, 2 Root, 59. — Anon., 2 Hayw. 26.— Watkins vs. Stockett, 6 Bar. & M'Hen. 24. — Wilcox's Heirs vs. Morris et al, 1 Murph. 117. — Washburn vs. Merrill, 1 Day, 139. —Wilcox vs. Carver, 4 Hayw 93. —Wheeland vs. Swartz et al., 1 Yeates, 579. — Wharf vs. Howell, 5 Binney, 499. — Bolton vs. Avery, 2 Root, 279. — 13 Serg. & Rawle, 279. — Conway's Ex'rs. vs. Alexander, 7 Cranch, 218. It would certainly have been more consistent with the principles of equity and justice, and with the spirit of the act, which is entitled, “ An act giving remedies in equity,” to have held every conveyance to be a mortgage which is treated as such in a court of equity.
     