
    Kelly vs. The Dutch Church of Schenectady.
    To sustain an action for the breach of a covenant for quiet enjoyment, it must appear that the grantee has been evicted by title both lawful and paramount. Accordingly, where the eviction was by title subordinate, which the grantee had precluded himself from contesting by his own acts ,and declarations, and the . recovery against him went clearly on that ground ; held, he could not maintain the action.
    A grantor is not estopped, under such circumstances, from asserting, as against his grantee, a paramount title in himself at the time of conveying, though he had due notice of the suit in which the eviction took place.
    Otherwise, semble, if such notice was given, and the grantor’s title might have , been set up in the suit against the grantee, had the former chosen to defend-The grantee put in evidence a bill of exceptions made and settled in the suit against him, declaring at the time that his only object was to show by what title he was evicted, and that he introduced it for no other purpose: Held that, notwithstanding his disclaimer, the grantor might use the entire contents of the bill for any purpose pertinent to his defence; e. g. to show the ground of recovery against the grantee, and that it was not under claim of title paramount in fact, but because of the grantee having precluded himself from setting up the grantor’s title in that suit
    But the grantor having interposed a demurrer to the evidence against him, without objecting to the restrictions which the grantee thus sought to impose on him in regard to the bill of exceptions, or intimating at the trial any intent or wish to use it himself, whereby the grantee was induced to omit further testimony respecting the nature of the title on which he was evicted, the court ordered the case back for a new trial, on the ground of surprise.
    
    On a demurrer to evidence, the court are to draw every inference in favor of the party against whom the demurrer is interposed, which the jury would have been warranted in making.
    The damages recoverable in an action by a lessee against his lessor, on a covenant for quiet enjoyment, are the costs, &c. incurred by the former in defending the title, together with the rents paid the lessor since the eviction during a period of not exceeding six years before suit brought. He can recover nothing for improvements, rise in value, &c.
    A purchaser, under a general covenant for quiet enjoyment, is entitled to recover back the consideration money paid, with interest for six years; the price agreed upon between the parties being taken as the true value of the land.
    Covenant, tried before Cushman,- C. Judge, at the Schenectady circuit, in October, 1839. The plaintiff declared on a covenant for quiet enjoyment, contained in a lease in fee, of 47¿ morgans of land in the county of Schenectady, made by the defendants on the 10th of December, 1789, to Samuel Bond and Joseph Bond; and averred that the lessees entered and were seised in fee; that on the 28th June, 1810, Joseph assigned all his interest to Samuel Bond, who thereupon became seised of the whole estate, and continued so seised until the 4th of May, 1827, when he sold and assigned to the plaintiff, who thereupon entered and was seised until he was evicted as after mentioned. The plaintiff then averred that the defendants had no right or title to make the lease or convey the premises, and that the plaintiff had not been permitted, nor had he been able quietly to hold and enjoy the property; but on the contrary thereof, Richard Bond the elder, at the time of the making of the lease, had the lawful right and title to the property, and afterwards died seised thereof, when the title descended to his heirs at law. The declaration then proceeded to aver, that certain persons, who were named, were as such heirs seised of three undivided sixth parts of the property; and having such lawful right and title, they entered into the premises, and ejected, expelled, evicted and amoved the plaintiff by due process of law from the possession of the three undivided sixth parts of the property, and still kept him out, <fcc. The plaintiff also averred, that he gave notice to the defendants of the two ejectment suits brought against him by the heirs of Richard Bond the elder to recover the property, in order that the defendants might take charge of the defence of the same; but they neglected to do so.
    The defendants, after craving oyer and setting out the lease, pleaded seventeen pleas, taking issue on all the material allegations in the declaration.
    On the trial, the plaintiff gave in evidence the lease to Samuel and Joseph Bond, and the assignments by which the plaintiff became the owner of the property, as mentioned in the declaration; and it was admitted, that the lessees and their assigns entered under those conveyances, and held the property. The plaintiff also proved a judgment in ejectment against him, docketed January 30, 1836, in favor of Daniel Bond, Richard Bond, junior, and Susannah Van Antwerp, for two equal undivided sixth parts of the premises in question; also another judgment in ejectment against the plaintiff, docketed 1 July 6, 1835, in favor of Frederick Ouderkirk and Elizabeth his wife, for one sixth part of the premises in question. Writs of habere facias possessionem were issued on the judgments, and were executed in the one case on the 29th July, 1835, and in the other, on the 11th February, 1836. It also appeared that the plaintiff gave notice to the defendants of the pendency of those suits, and requested them to defend the same.
    For the purpose of showing that the plaintiffs in the tw;o ejectment suits claimed title by descent from Richard Bond the elder, paramount to the title of the defendants, and not derived from the plaintiff or Samuel or Joseph Bond, or either of them, and not for any other purpose, the plaintiff gave in evidence two bills of exceptions which he took on the trial of the two ejectment suits in which he was defendant. The case, as it appeared by those bills of exceptions, was substantially as follows: Richard Bond the elder was in possession of the farm at the commencement of the revolutionary war, claiming it as owner. On the breaking out of the war in 1775, he left his family on the farm, went to Canada, and never returned. He died, as the family understood, about the year 1795, leaving a widow, and leaving also six children, Richard the younger, Samuel, Joseph, Susannah, Elizabeth and Angelica, his heirs at law. Susannah married Peter Van Antwerp, who died prior to the bringing of the ejectment suits; and Elizabeth married Frederick Ouderkirk. Richard Bond the younger died, leaving two children, Daniel Bond and Richard Bond junior, his heirs at law. The two ejectment suits were brought by Susannah and Elizabeth, (with her husband,) two of the children of Richard Bond the elder, and by Daniel and Richard Bond, junior, who were the children and legal representatives of Richard the younger, also one of the children of Richard the elder; and these parties claimed and recovered three undivided sixth parts of the property as the heirs at law of Richard Bond the elder.
    It further appeared from the bills of exceptions, that all the children of Richard the elder, except Samuel, moved away, and left him and his mother in possession of the property. So far as appeared, none of the other children heard of the lease which Samuel and Joseph took from the Dutch church in 1789, until the year 1814. A witness testified, that after hearing of the death of Richard the elder, and in the year 1796, the children were called to gether by Samuel and the widow to sign off to Samuel, He offered them $40 each; but another of the heirs offered more, and nothing was done. Another witness testified to a meeting of the children in 1796, when Samuel requested them to sign off to their mother, but they refused. It was proved that Samuel had said, on several occasions after his father went away, that the farm belonged to his father; he said he wished his father would come back and take care of the property; he also said that if the farm was so that he could sell it, he would sell and move away. In 1814, he denied the right of his brothers and sisters, and said he had a sufficient title to hold the property. It was also proved that the widow of Richard the elder said, that her husband, owned the property, that he had a deed for 50 acres of the farm from Peter Plaats, and a deed for the remaining 50 acres from the Dutch church. She said she had given the old deed to John Duncan, for safe keeping. Angelica Bond testified, that Richard Bond the elder showed her the deed from Duncan, as he called it. After he went away, his wife took the papers to witness’ house; and after the war, she took them back again. She said they were the deeds for her land.
    It further appeared from the bills of exceptions, that the defendant in those actions, (the now plaintiff,) gave in evidence a patent from the colonial government of New-York to Arent Bradt and Jan Wemp, for a tract of land including the premises in question, which was granted October 16, 1737; also a deed from the patentees to the Dutch church, dated December 27, 1737. The lease from the church to Samuel and Joseph Bond in 1789, and the several assignments thereof until the title passed to Kelly, were also given in evidence.
    In one of the ejectment suits the judge charged the jury, that as Richard Bond the elder had possession of the prem-ises when he left the state, his wife and children while they remained on the land claiming title under him, must be regarded as holding possession under and for him, and after his death as holding possession under and for all his heirs, and could not legally purchase any other title; and that the lease from the church to Samuel and Joseph Bond, was void as to the other heirs of Richard the elder, and the plaintiffs were entitled to recover. In the other action the judge charged the jury, in substance, that Samuel and Jo
      
      seph having entered into or possessed the premises under their father, they could not afterwards deny his title, or set up the title under the lease from the church, and that the plaintiffs were entitled to recover. Verdicts for the plaintiffs were rendered in both actions, on which judgments were afterwards perfected.
    After reading the bills of exceptions, the plaintiff proved that the costs and counsel fees in the ejectment suits amounted, with interest, to $1268,92; and that the annual rent of the premises for six years, with interest, amounted to $38,14. The defendants thereupon demurred to the evidence ; the plaintiff joined in demurrer, and the jury assessed contingent damages in favor of the plaintiff to $1307,06.
    The plaintiff offered evidence and insisted, that in addition to costs, &c. he was entitled to recover the value of the premises at the date of the lease in 1789, vAth interest for six years, or in lieu of such interest, six years actual annual value of the premises ; but the judge decided otherwise, and held that the plaintiff, in addition to costs,- &c. was only entitled to recover the annual rent of one shilling and ten pence for every morgan of land reserved by the lease, for six years, with interest thereon, amounting to $38,14. The plaintiff, upon that point, tendered a bill of exceptions. The demurrer to evidence and the bill of exceptions were now brought on for argmnent.
    
      A. L. Linn Sp D. Cady, for the defendants.
    
      A. C. Paige, for the plaintiff.
   By the Court,

Bronson, J.

It was held at one time that a general covenant for quiet enjoyment extended to a tortious eviction. (Mountford v. Catesby, Dyer, 328, (a).) But it had been decided as early as the Year Book, 26 H. 8, that a covenant of warranty was not broken by the entry of a wrong-doer, because no mischief arises to the lessee, inasmuch as he may have an action of trespass or ejectment against him who ousted him; but if the lessee be ousted by one who has a title paramount, against whom he has no remedy, he may bring covenant against the lessor. (2 Saund. 178, note 7.) And it is now settled, that in an action upon a general covenant for quiet enjoyment, the plaintiff must aver and prove that the person by whom he was evicted had a lawful title to the property; and that he had such title before or at the time of the conveyance by the defendant. It must be both a lawful, and a superior title. (Wotton v. Hele, 2 Saund. 177, and Sergeant Williams’ note (10) to that case. Greenby v. Wilcocks, 2 John. 1. Webb v. Alexander, 7 Wend. 281. Beddoe’s executor v. Wadsworth, 21 Wend. 120.) And for the precedent of a declaration on such a covenant, see 2 Chit. Pl. 546, ed. of ’37, and p. 547, note (i). In the case at bar the plaintiff has properly averred, that Richard Bond the elder had a paramount title to the property at the time the defendants made the lease and covenant to Samuel and Joseph Bond in 1789; and that certain of the heirs at law of Richard, having lawful right and title as such heirs, have entered and evicted the plaintiff from three equal undivided sixth parts of the property by due process of law. The defendants have by their pleas, put in issue the alleged superior title of Richard Bond the elder, and those claiming under him; and the question is, whether the plaintiff has made out his case by proof.

The plaintiff, when he gave the bills of exceptions in the two ejectment suits in evidence, declared that he did so for the sole purpose of showing how the plaintiffs in those actions claimed title; and he insists now, that the defendants cannot use the evidence for any other purpose. I do not see how this position can be maintained. The bills of exceptions show, not only how Daniel Bond and others claimed title, but on what ground they recovered; and the bills are in their own nature as good evidence to prove the one fact, as they are to prove the other. The whole of each of those documents was laid before the jury, and the plaintiff could not, by any preliminary declaration of his object, control the legal effect of the evidence, or prevent the defendants from using such parts of it as might answer their purpose. If the case is to be finally decided on the-demurrer as it now stands, we must either reject the bills altogether—- and then the plaintiff has clearly failed to make out a right of action—or else we must take the whole of the evidence and see how the matter will then stand.

If we look at the whole of the evidence, it appears that the plaintiff has been evicted by persons claiming title as heirs at law of Richard Bond the elder, who was in possession of the property, claiming as owner before the lease was executed. But it-does not appear that they recovered on the ground that Richard Bond the elder, or those claiming under him, had a title superior to that of the defendants. On the contrary, it was proved in the ejectment suits, that the legal title to the property was in the defendants at the time they made the lease in 1789. This was established by the patent from the colonial government to Bradt and Wemp, in 1737, and the deed from the patentees to the defendants two months afterwards. No other paper title was shown. It was proved that the widow of Richard Bond the elder said her husband had deeds of the land from Plaats and the Dutch Church ; but no such deeds were produced. If what the widow had said about her husband’s title was competent evidence against any body, it was, at the most, only evidence to characterize the possession, and show that her husband claimed as owner; and that fact was sufficiently established by other proof.

The title of the defendants had not been barred by an adverse possession at the time the lease was made. No account is given of the possession prior to 1775, and only fourteen years from that time had elapsed before the lease to Samuel and Joseph Bond was executed. It is averred in the declaration, and was admitted on the trial, that the lessees immediately entered under the lease, and that the possession was continually held under that title until the plaintiff was evicted in 1835.

The plaintiff has neither shown that he was evicted on the ground of a superior title in Richard Bond the elder and those claiming under him, nor that there was in fact any such title. Daniel Bond and others recovered in the ejectment suits on the ground that Samuel and Joseph Bond, and those claiming under them, were not at liberty to set up the title which they acquired from the defendants. Having received the possession originally from their father, they were by that fact, and their subsequent acts and declarations, estopped from denying his title when asserted by the other heirs at law. Upon this state of facts, I am unable to see how the present action can be maintained. The defendants had a good title to convey when they made the lease, and it was either the fault or the misfortune of the lessees that they were not in a condition to protect themselves under that title.

The plaintiff has not been evicted on the ground that Richard Bond the elder had a superior title to the property; and although upon this demurrer to evidence, we are to draw every inference in favor of the plaintiff which the jury would have been warranted in making, and to turn doubtful points in his favor, I am unable to say, that in point of fact, Bond had any such superior title. His possession was adverse to the church, because he claimed the property as his own; but he had not held long enough to bar an entry before the lease was executed and possession taken under it. If he had a paper title, that could only be established by producing the deeds or accounting for their absence.

But it is said that as the defendants had notice, and were requested to defend the ejectment suits, they are now es-topped from setting up their title; and that question remains to be considered. Whether the defendants took part and aided the plaintiff in the defence of the suits brought against him, does not appear; but they must at least have furnished him with the means of setting up their title, for it was given in evidence on the trial. And this case is, I think, plainly distinguishable from those to which we have been referred in relation to the effect of notice, fort he reason that the defendant’s title was not only in evidence in the former suits, but it was virtually admitted to be a good title. The plaintiffs in those actions did not recover on the ground that their right was superior to that of the Dutch Church, but on the ground that the defendant in those suits was precluded by the acts and declarations of his immediate grantors from sheltering himself under the good title of the church. If the defendants, on receiving notice of a suit upon a title apparently superior to theirs, had neglected to appear and defend, and their title had not been given in evidence, or if when in evidence it had been adjudged defective, they would probably be estopped from setting it up in answer to an action on the covenant. But that is not this case.

There is a short, and, I think, conclusive view of this question. The plaintiff has necessarily averred that he was evicted by persons having a title paramount to that of the defendants. Upon that averment issue has been joined. The plaintiff holds the affirmative, and the burden of proof lies upon him. He has not only failed to prove the averment true, but in attempting to do so, he has proved it false. It was not enough for the plaintiff to show that he gave the defendants notice of the suits brought against him, for the obvious reason that the claimants may have recovered on a right or title subordinate that of the defendants. It was necessary, therefore, for the plaintiff to go further, and show on what ground the claimants succeeded. He did so; and the evidence has proved fatal to his cause.

Upon this view of the case the defendants are entitled to judgment. But I must recur once more to the circumstances under which the bills of exceptions were given in evidence. The plaintiff’s counsel declared at the time, that the bills were given in evidence for the purpose of showing that the plaintiffs in the ejectment suits claimed title by descent from Richard Bond the elder, paramount to the title of the defendants; and not for any other purpose. To this course no objection was taken on the part of the defendants, nor did they intimate the wish or intentian of making any other use of the evidence. But by after-wards demurring to the evidence, they have spread the whole upon the record; and they now insist that the bills not only show how the plaintiffs in those actions claimed title, but on what ground they recovered. The present plaintiff complains, with some appearance of justice, that this course operates as a surprise upon him, and says he would have given further evidence on the trial if the defendants had taken their ground at the time the bills of exceptions were laid before the jury. We know from another case which has been before us, that the plaintiff could have given further evidence tending to show a paramount title in Richard Bond the elder, if he had supposed it necessary to do so; and under the special circumstances of this case, I think the ends of justice will be better answered by ordering a new trial, than they would be by rendering judgment on the demurrer.

Should the plaintiff ultimately fail in this action, he will not be without the means of redress. The title which he derived through Samuel and Joseph Bond from the Dutch Church has not failed. The point decided in the ejectment suits was, that as Samuel and Joseph Bond had received the possession from their father, neither they, nor their grantee, could set up a title subsequently acquired from a stranger, until the possession had been restored. When the heirs of Richard Bond the elder regained the possession, the estoppel was at an end, and the plaintiff was at liberty to bring a new action founded upon his title. Whether the statute relating to the action of ejectment will present any obstacle to a recovery, is a question not now before us.

The bill of exceptions presents but a single question. I think the judge was right in following the rule of damages which was laid down in Kinney v. Watts, (14 Wendell, 38.) It is there said by Sutherland, J. that as the lessee paid no purchase money, he can recover none back upon eviction; and in .respect to the improvements he may have made upon the premises, and the money expended upon them, he stands precisely upon the same footing with a purchaser, who recovers nothing for improvements or expenditures. (See also Moak v. Johnson, 1 Hill, 99, and Baldwin v. Munn, 2 Wendell, 399.) Under a general covenant for quiet enjoyment, the rule of damages is settled in relation to a purchaser who has been evicted. He recovers back the consideration money paid for the land, with interest on the amount for a period not exceeding six years. The price agreed upon by the parties is taken as the true value of the land without any reference to the actual value. Following that analogy, the rents reserved in a lease, where no other consideration is paid, must be regarded as a just equivalent for the use of the demised premises. The parties have agreed so to consider it. In case of eviction, the rent ceases; and the lessee is relieved from a burden which must be deemed equal to the benefit which he would have derived from the continued enjoyment of the property. Having lost nothing, he can recover no damages. He is, however, entitled to the costs he has been put to; and as he is answerable to the true owner for the mesne profits of the land for a period not exceeding six years, he may recover back the rent he has paid during that .time with the interest thereon. If this rule will not always afford a sufficient indemnity to the lessee, I can only say, as has often been said in relation to a purchaser, he should protect himself by requiring other covenants.

New trial granted, on the payment of costs by the plaintiff. If the costs are not paid, then judgment for the defendants.

Rule accordingly.  