
    ELIZABETH L. PETRIE, Appellant and Respondent, v. FREDERIC FOLZ, Appellant and Respondent.
    
      Constructive eviction, action based on may be maintained. Original covenantor, action will lie against. Damages, measure of in such an action against original covenantor. Beeitals in instrument when not evidence against persons not parties to it.
    
    
      In this case defendant Folz had purchased at the sale in the partition action referred to in the preceding case, the locus in quo ; he conveyed to one Marshall for the consideration of $55,000, with a covenant of quiet enjoyment and a warranty; Marshall conveyed to A. W. and C. P. for $1.00 with a similar covenant and warranty; A. W. and C. P. conveyed to R. M. P. for $40,000 with a similar covenant and warranty; R. M. P. conveyed to the plaintiff for $1.00 with a similar covenant and warranty. An action of ejectment by one claiming a life estate in the one twenty-fourth part of the premises was brought against the plaintiff and resulted in a recovery for the possession of said one twenty-fourth part and for $227.10 damages and $234.18 costs, amounting in the whole to $461.28. This plaintiff read in evidence a satisfaction piece for the money j udgment and a release from the plaintiff in that action, expressing a consideration of $800. The jury under the direction of the court rendered a verdict for the plaintiff for $1,547.65.
    Held, 1st. That an action for a breach of the covenant for quiet enjoyment, and of the warranty based on a constructive eviction, could be maintained on proof that there was a valid outstanding title which could be enforced by "legal ejectment.
    2d. That such an action would lie against Folz, the first covenantor and warrantor.
    3d. That a recovery could be had against such first covenantor and warrantor for the amount which the plaintiff was obliged to pay to maintain her possession and quiet the outstanding title, not exceeding the value of that title, ascertained by the technical rules on the subject, and not exceeding such part of the consideration specified in the deed given by such first covenantor and warrantor as represented the value of the land to which he gave no title.
    4th. That plaintiff’s recovery was not limited to the one dollar consideration mentioned in the deed of her immediate grantor.
    5th. That the recital of the consideration of $800, was not proof against the defendant that that amount was paid.
    6th. As to whether the satisfaction of the money judgment in the ejectment action was proof that the amount of the judgment had been paid, queere.
    Before Sedgwick, Ch. J., Teuax and O’Gormar, JJ.
    
      Decided February 14, 1887.
    Cross appeals from judgment entered in favor of plaintiff, upon a verdict of jury for plaintiff.
    
      The facts sufficiently appear in the opinion and the head note.
    I. Charles C. Nadal, attorney, and of counsel for plaintiff, on the questions considered in the opinion, argued:
    I. —The property in question having passed by mesne conveyances from defendant to plaintiff, the plaintiff has become the assignee of the covenants in the defendant’s deed. Spencer’s Case, 1 Smith Leading Cases, 102 and note.
    II. —Mrs. Elizabeth L. Manolt’s recovery in the ejectment suit against this plaintiff under a title paramount to that of the defendant, and plaintiff afterward purchasing her life estate, and taking from her a deed and thereby acknowledging her title, was an eviction. It was as complete an eviction from the undivided interest as could possibly take place.
    A physical expulsion is not necessary to constitute an eviction. Cowdrey v. Coit, 44 N. Y., 382 ; Tucker v. Cooney, 34 Hun, 227; Hunt v. Amidon, 4 Hill, 345 ; Dyett v. Pendleton, 8 Cow. 727; Bordwell v. Colie, 1 Lans., 141.
    IH.—The measure of damages on breach of covenants of warranty and quiet enjoyment, is the consideration named in the deed containing the covenants, with interest from the time plaintiff loses the mesne profits and the costs of the ejectment suit. Staats v. Ten Eyck, 3 Cai. R., 111; Kent’s Com., Vol. 4, pp. 474, 475, 476. Greenleaf’s Ev., Vol. 2 § 264. Greenleaf on Real Estate, Vol. 1, p. 13, note. Pitcher v. Livingston, 4 John, 1; Bennett v. Jenkins, 13 Id. 50 ; Baldwin v. Munn, 2 Wend., 399 ; Dimmick v. Lockwood, 10 Id., 142 ; Kinney v. Watts, 14 Id., 38 ; Wagner v. Schuyler, 1 Id. 553; Baxter v. Ryers, 13 Barb. 267, 283 ; Adams v. Conover 22 Hun, 424.
    Some of the cases say that the measure of damages is the consideration paid, but all of these were actions between the immediate grantor and grantee.
    The plaintiff, having been evicted by a person having a life estate in a part and having lost the rents and profits from March 14, 1877, she was entitled to recover under the authorities, interest at 6 per cent, on ^ of $55,000 (the consideration in defendant’s deed), for the time that Mrs. Manolt had a probable expectation of life, which was years, and which amounts to
    $1,153.88
    $655.37
    234,18
    38.63
    2,082.06
    The court below refused to direct a verdict for this amount, and the plaintiff excepted.
    The court made a computation which was exactly like the above, except that the court computed the value of Mr. Manolt’s life estate at 5 per cent, under Rule 71, and limited the period for which interest might be recovered, to six years.
    In these two respects the plaintiff claims that the court erred.
    IV. The court erred in computing the value of the life estate at 5 per cent. It should have been computed at the legal rate of interest, 6 per cent. Wagner v. Schuyler, 1 Wend., 553.
    ' Rule 71, under which the court held that the computation should be made at 5 per cent., does not apply to such a case. It applies only to money in the hands of the court.
    The court has no -power to make rules for computation of damages.
    Also, interest on this amount from March 14, 1877 (the time from which she lost the rents and profits) to January 1, 1880, at 7 per cent., and from this date to date of trial at 6 per cent.
    Costs.of the ejectment suit Interest on the last amount
    
      V. The court erred in limiting the period for which plaintiff could recover interest, to six years.
    Plaintiff should have had interest at 7 per cent., up to January 1, 1880, and from that date up to date of trial, at 6 per cent. Sanders v. The Lake Shore, &c., R. R., 94 N. Y., 641.
    
      George H. Foster, attorney, and of counsel for defendant, on the questions considered in the opinion, argued :
    I. The plaintiff failed to show any damage sustained by her. She only paid one dollar for the property. Having paid only a nominal price she could only sustain nominal damage. No damage whatever was proved. She gave no proof that she had paid one cent to Mrs. Manolt. Neither the acknowledgment of satisfaction of the judgment, nor the consideration expressed in Mrs. Manolt’s release, are competent evidence against defendant of any payment or any damage sustained. Ramy v. Hardy, 1 Western Rep., 54 ; Rose v. Taunton, 119 Mass. 99.
    The party recovers what he has paid, with interest, no more. Pitcher v. Livingston, 4 John 1; Delavergne v. Norris, 7 Id. 358.
    H.—The court improperly refused to limit the damages to the amount of consideration of the deed to the plaintiff. Dimmick v. Lockwood, 10 Wend. p. 156 Staats v. Executors of Ten Eyck, 3 Caines, 111; Pitcher v. Livingston, 4 John., 1, 17 ; Bennett v. Jenkins, 13 Id. 50; Dimmick v. Lockwood, 10 Wend., 142; Moak v. Johnson, 1 Hill, 99 ; Kelly v. Dutch Church, 2 Hill, 113 ; Furnis v. Ferguson, 15 N. Y., 437; Kinney v. Watts, 14 Wend., 38 ; Morris v. Phillips, 5 J. R., 49 ; Guthrie v. Pagsley, 12 J., 126 ; Bingham v. Weiderwax, N. Y., 509.
   By the Court.

Sedgwick, Ch. J. The action was for damages for breach of a covenant of warranty. The supposed breach was a constructive eviction of plaintiff by the owner as claimed by plaintiff, of a life estate in a twenty-fourth part of the fee. There was no actual eviction. The plaintiff went into possession after the conveyance to her, and remained in possession down to this action. There was therefore no actual eviction, there being no actual disturbance of possession. If however, to maintain her possession, it was necessary to quiet the outstanding title, and she was obliged to buy it in, she could recover from the covenantor the amount she was obliged to pay, if she could also prove that the outstanding title was valid and could be enforced by legal ejectment. The measure of damages is compensation. The amount that she was obliged to pay would be the amount of the recovery, not exceeding however, the° value of the title ascertained by the technical rule on the subject.

In the present case it appeared that an action of ejectment against the plaintiff by the person claiming to be the owner, had resulted in a judgment against the present plaintiff, for the recovery of the premises of said one twenty-fourth part and for $227.10 damages for withholding the possession, and $234.18 costs. She satisfied the judgment for costs, and the owner made a deed to the plaintiff, releasing to the latter all the former’s interest. This deed recited a consideration of $800. There was however, no proof of what was in fact paid by the plaintiff. The plaintiff recovered an amount greater than the sum of the judgment for costs in ejectment and the consideration named in the release. The recovery was based upon a calculation of the value of the undivided interest, the value of the land being taken at the amount of the consideration of the deed made by the defendant. Any question as to the method of calculation is immaterial to this appeal when the result shows that, at all events, it was a larger amount than the plaintiff was entitled to recover, inasmuch as it was greater than the plaintiff was obliged to pay, to buy in the outstanding title. There remains to be said, that the defendant was not correct in his claim, that the value of the land was to be deemed the amount of consideration recited in the deed to plaintiff, that is, $1. The warrantor is liable according to the value of the land at the time of the warranty, which is conclusively fixed at the amount of the consideration of the sale. Rawle on Cov., 243; Sedgwick om Dam., 5th Ed., 168, and the cases cited in these books from the state of New York. Evidently the warrantor should at least return such part of the consideration as he appropriated, as represents the value of the land to which he gave no title.

My opinion is that the recital of the consideration of $800 in the release to plaintiff was not proof against this defendant that that amount was paid. It is not absolutely necessary to determine that proof of the satisfaction of the judgment in ejectment for the costs, was not proof that the amount of the judgment had been paid, yet it is proper to say that on another trial it will be expedient to show what was paid for the satisfaction.

The result of what has been said is, that there should be a new trial. There were other important questions on the trial which should have attention now, if the case clearly presented the means of answering them. The real title of the plaintiff in the former ejectment action, was of first importance. No original proof as to this was given. The judgment in ejectment was not evidence for this purpose in this case, although it was relevant as to the fact of a constructive conviction. When it was offered in evidence the defendant objected that he, not being a party to it, was not bound by it, and it was only admitted as evidence after the plaintiff disclaimed that the defendant was bound by it.

It is supposed by counsel for plaintiff, that a judgment in partition, under which the defendant bought the premises, was an adjudication against him, that a conveyance, apparently in fee, through which he claimed the title, was in fact a mortgage. The judgment roll was probably put in evidence. The findings embrace a doubtful kind of declaration that by agreement between some of the parties to the partition the conveyance referred to was a mortgage. But the condensed description of the judgment makes no reference ‘to the result of their agreement. Mere findings or verdict, without judgment upon them, do not make an adjudication. As the case is made up, there is no judgment in the partition action that the conveyance was a mortgage. If, in fact, the judgment made some disposition of this, a case should show it.

The plaintiff takes an appeal on the ground that the learned judge directed the verdict for the plaintiff to be in an amount less than it should be. What has already been said, indicates that the amount was in excess of the plaintiff’s right of recovery.

On the plaintiff’s appeal the judgment is affirmed with costs. On the defendant’s appeal the judgment is reversed, and a new trial ordered, with costs to abide the event.

Truax and O’Gorman, JJ., concurred. .  