
    MAY vs. WRIGHT'S ADMINISTRATORS.
    This was an action of covenant, on a warranty contained in the deed by the intestate, in the county court of Warren, and appeal to this court. The deed containing the warranty the 25th September, 1806. The first count in the declaration, stated, that the deceased, for and in consideration of $600 did give, grant, bargain, sell, and confirm to the plaintiff 460 acres of land, specifying the boundaries. and that he covenanted and agreed with the plaintiff, that he, his heirs, &c. would forever warrant and defend the said land to him his heirs, &c. with an averment, that John Wright the deceased never had any right, or title to the said land, but that the land belonged to John Vining. Another count, in which it was avered that the land belonged to the state of Tennessee. And third count stating a covenant, that the land was free from the lawful claim of any person, with an averment that Thomas Wade had a right to the same. Plea, plene, administravit, and issue. It was proved, that the land was worth eight dollars an acre ; that is $3200 for the 400 acres. There were three valuable improvements on it. That Thomas Vining claimed the land under a title, and was in possession of part of it. That he had claimed it for three years. There were about thirty acres of cleared land on it, and at the three settlements, cabbins of different kinds. There were no improvements on the land on the 25th September, 1806 ; when the deed was made.
    
      What is the measure of damages in actions on covenants to warrant the title to lands. On the plea of plene administravit,the onus pre-bandi lies on the defendant.
    
      Williams for the plaintiff;
    
    previous to the 25th of September, 1806, the state of Tennessee, had the right of eminent domain; she exercised such right. If the title of this land was not in the state of Tennessee, it was in some person. The deceased had no right, and it is incumbent on the defendant to shew in whom the right was vested.
    Haywood, for the defendant ;
    before the year 1789. No. Carolina, had the right of eminent domain, which was then ceded to the United States, reserving the right of perfecting titles for unsatisfied claims. Tennessee never became possessed of a right to perfect titles till the act of 1806. c. 10. all this is admitted ; but he contended, that under such a deed as the one declared on, it was necessary for the plaintiff to prove eviction. Perhaps the state of the pleadings might prevent him from excepting to the declaration. The deed in fact contains no covenant, that the deceased had title to convey. It is only a simple common law warranty : And agreeably to the doctrine of warranty at common law, an eviction must take place. If the feoffee is sued he must vouch, and the warrantor was only bound to recompense in land. Covenants are of modern invention. There is a difference between a warranty and a covenant to warrant. A covenant to warrant is an agreement to defend the posession if attacked by better claims, In warranty at common law, the warrantor, may buy up better claims, and thus be enabled to defend. It is stated in the declaration that the possession is warranted, but no eviction is alledged; the covenant therefore never was broken.
    He mentioned these things principally with a view to move in arrest of judgment; one breach in the declaration is that the title was in the state of Tennessee. This we admit.
    The defendant is not liable as an administrator unless he has assets. It was incumbent on the plaintiff to prove assets; by the best proof, a copy of the inventory. There being no such proof of assets the jury must on plene administravit find no assets. If damages are to be recovered, how are you to assess the value of the land? He insisted, that the value of the land, at the time of the breach of covenant, was the proper measure of damages. It would be unjust particularly in such a country as this, to assess damages in any other manner. A person sells land in the woods without any improvement whatever, of but little value and receives a small consideration, both parties conceiving that a good title existed to the land. The buyor puts a fine house on it, clears a great quantity of land plants orchards; and makes other expensive improvements, the land is lost by a better claim; it surely would be inequitable, that the seller should pay the increase of value, when he was as innocent in the sale, and free from the imputation of fraud as the buyer. Again unimproved land is sold, and there is at that same time a salt spring, or a valuable mine oh it, but unknown to both buyer and seller at the time. These treasures of nature are afterwards discovered, and improved, and the land is lost; ought the seller to pay for all this? Surely not. If the mode of assessing damages be at the time of the breach, there is no proof, what the land was worth at the time. If any of the jury know the value at the time, a verdict may accord with such knowledge.
    
    In covenant to warrant, the personal representatives were only liable when the breach took place, during the life time of the covenantor.
    
      Whiteside, e contra.
    
    Three points seem to be insisted on by the defendants counsel, and involve the, following questions.
    1st. Whether the plaintiff is entitled to recover anything.
    2nd. If he is, what sum.—And 3d. Whether a recovery should be made against the heirs or executors. The plea of plene administravit, admits, that the defendant onee had assets. The onus probandi in this issue lies on the defendant. It is not even insisted, but the plaintiff has a right to recover some thing; and the only real point of difference on this ground is, what amount. Upon such a warranty as is stated in this declaration ; and is not necessary to prove eviction. The covenant here is that the land was clear and free from all legal titles or claims.
    What shall be the measure of damages? Agreeably to the, practice which has long prevailed in the state, the value of thy land at time of the recovery should be the rule, The same practice has obtained in South Carolina; and Kentucky. The court will not change it now; at least without further argument. We do not insist for the the improvements; but the value of the land at this time without the improvements; In the case, cited from 3. N. Y. T. Rep. 111, the court went on the ground, that both parties were equally innocent, and no fraud in the sale. That is not the case here, for it was certainly a fraud in the intestate to sell land, the title of which was in the state. He had no title himself.
    
      
       See 4 Mass. 408, 349. 7 Johns. 258, 376. 2 Bay. 76. 3 Mass. 543.
    
    
      
       See Maryl. R. 275.
    
    
      
       3 Caine Rep. 111.
    
    
      
       1 Bay. 19, 265. Hardin 590. but contra in the case of Coxe vs. Strode. Ct. App. Kentucky Fall. 1810.
    
   Overton j.

The nature of warranty by the common law has been correctly stated by the defendants counsel. In modern conveyancing, covenants have been substituted for warranties, as affording a remedy in practice, more convenient, and redress more complete. Modern conveyances usually contain four different covenants.

1st. That the seller is seized in fee.

2d. Has right to sell.

3d. The extent of the covenant whether general or special.—And fourth for further assurance.

As to the measure of damages on contracts, the cases in the English books fix the measure at the of the breach, unless indeed there is, fraud in the transaction, and then it is left jury to give higher if they think proper. From the adjudged cases in the different states, which he had been able to collect on this subject, it appeared that the English law was pursued in Massachusetts, N. York, Pennsylvania, and Virginia. In fine he never had been able to find an adjudged case from any report, holding a different doctrine, except in Bays South Carolina Reports, where a different rule seems to have obtained. In this state it has been usual for juries under the acquiescence of the courts to assess damages for the value of land, at the time of rendering their verdict. This has been done on bonds for the conveyance of lands; and no instance is recollected, where it was made a point, and argued until of late; it is not recollected, that any case has occurred, of an action upon a covenant to warrant in a deed: in such a covenant, where there was no fraud in the seller, he believing he had a good title, which should afterwards turn out otherwise, the jury should give in damages, the original consideration, with interest, where it can be ascertained; and where it cannot, the value of the land, with interest from the time of eviction or in the case of a covenant for a good title, from the date of the deed It is certainly sound policy, in all free and good governments, that as few, impediments should be thrown in the way of the alienation of property, either real or personal, as possible.—Safe and easy modes of alienation are great encouragements to industry and exertion, and if sellers of uncultivated land, for a small consideration, are to be liable for its increase of value from improvements, and otherwise, but few comparatively speaking would be found to sell. In the ordinary case of eviction on warranty, the opinion of Lord Kaims is, that the person recovering the land should pay for all improvements, after deducting the value of the use of the land, this principle seems conformable to justice and equity, and at once removes all complaints of hardship or injustice on part of the purchaser he will recoverfrom the seller what he paid, with interest; and the value of his improvements of the person recovering, who will reap the benefit of them. In the case before the court, it is probable these principles will not apply. If the jury find, that the deceased when he sold, had no title to the land, it was fraud to sell land he know he had not any right to; and therefore the jury will give such damages as they think will make the plaintiff whole.

Campbell. j.

Said he was not decided in his opinion. He told the jury they were not to apply a large value upon the fancied opinion of any person; and as thore was not much difference between the time the land was sold and now, he did not think it material to give any opinion.

Humphreys j.

Agreed with the opinion delivered by Overton j. except as to the measure of damages. He said that he had understood, it had obtained in practice here, as it respected bonds for the conveyance of lands, to give the value of the land at the time of the judgment, both as to the improvements, and ordinary increase of value. In this case he could not see any distinction as to the measure of damages, between a bond for the conveyance of land, and a covenant to warrant. It was not so important what the law was, as that it should be uniform. The people have understood this to be the law as to bonds ; and they would naturally understand the same thing as to deeds. For the present he was not disposed to disturb this impression. He supposed the ground on which courts and juries have, heretofore gone, was that it was considered the seller should put the purchaser in as good a situation, as if the contract had been complied with.

Verdict for the plaintiff $1100.

Upon arguing a rule for a new trial, Haywood said the court had misdirected the jury, as to the plea of plene administravit, that the onus probandi lay on the defendant. He said that plea admitted something was due, but was not a virtual confession of assets; on this plea the burthen of proof as to assets lies on the plaintiff; and for this he relied on Peake, Ev. 348. 3. T. Rep. 688. 2. Esp. N. P. 263. Bull. N. P. 140. 2. Bl. Rep. 1005.

NOTE—It appears from 1 Johns. Rep. 277. 3. Wil. ed. Bac. Ab. 80. 1 Bay. 463 that on the plea of plene administravit the onus probandi lies on the defendant.

The court for the purpose of having this point settled granted a new trial, so as to give an opportunity for further investigation ; and inclined in favour of Haywoods argument. 
      
       See 3Cr. 360.1Johns. 223. 2Burr 1110, 1111. Bul. N. P. 132 Add. R. 23. 2 Call. 95. Hardin, 41.
     
      
       See 1 Hen & Mun. 202 4 Dall. 441. 4 Johns 1. 2 Mass. R. 433, 455. 3 Mass. R. 512, 523. 4 Mass. R. 109. Hardin’s Rep. 590. In relation to eviction on warrants it is held in 3 Mass. R. 512, 523, that the measure of damages should time of eviction.
     