
    RICHARD EAMES v. C. A. ARMSTRONG.
    (Filed 13 November, 1907).
    1. Deeds and Conveyances — Covenants—Seizin—Estoppel—Title, as Between Parties — Third Persons.
    The covenant of seizin in a deed extends only to guaranty the bargainee against any title existing in a third person, and which might defeat the estate granted. In an action upon a covenant of seizin in a deed from defendant to plaintiff, the plaintiff is estopped to set up his own title, which he knew he possessed at the time the deed was made.
    2. Same — Tax Deeds — Tender—Owner—Husband and Wife — Tenant by Courtesy — Third Persons.
    Under Revisal, sec. 2894, it is immaterial, for the purpose of a valid tax deed made by the Sheriff, that the land sold was listed in the name of some other person than the owner, unless the true owner listed and paid the taxes on it. Therefore, when the land had been listed in the name of the husband, which belonged to L the wife, and the husband °had no interest therein, the tender to redeem made by the husband, notwithstanding birth of issue, when he is not acting for her or claiming under her, is not a sufficient one to invalidate the tax deed.
    3. Same — -Tax Deeds — Validity Attached — Notice to Owner — Husband and Wife.
    Under Revisal, sec. 2903, the notice required to be given before the expiration of the time of redemption is to be given by the purchaser, etc., at a tax sale of land to the owner; and Revisal, sec. 2909, provides, among other things, that “No person shall be permitted to question the title acquired by this chapter without first showing that he, or the person under whom he claims, had title to the property at the time of the sale,” etc. Hence the husband, in whose name the wife’s land was listed, cannot, in his own right, attack the Sheriff’s deed for taxes given to the purchaser.
    4. Husband and Wife — Purchaser of Tax Title — Action upon Warranty — Damages-—Reconveyance.
    When it appears that the plaintiff and his wife conveyed certain lands of the latter to a third person, which he had acquired from defendant, a purchaser at a sale for taxes, under a deed with covenants and warranty of title, he may not, in an action upon the warranty, recover the purchase price of -the defendant, not being in a position to reconvey the land to him. (Assuming a breach of defendant’s covenant, the measure of damages would be such sum as was required to perfect his title, with interest from date of payment).
    Civil actioN, tried before Moore, J., and a jury, at February Term, 1907, of tbe Superior Court of Mooke Oounty.
    Tbis was au action for breach of covenant of seizin. The facts, in regard to which there is no controversy, are as follows :
    The tract described in the deeds and in the complaint as the “Russell Gold Mine,” containing 356 acres, was, prior to 5 May, 1902, the property of Mrs. Elizabeth Eames, the wife of plaintiff. The tract described as the “Coggins Meeting House,” containing three acres, was, at said date, the property of plaintiff. On 6 May, 1903, W. D. Clark, Sheriff of Montgomery County, executed to defendant a deed, conveying, by the same metes and bounds set out in the complaint, the “Russell Gold Mine,” containing 359 acres. The preamble to the deed is in the following words: “Whereas, at a. sale of real estate for the nonpayment of taxes, made in the county aforesaid, on the 5th day of May, 1902, the following described real estate was sold, to-wit: Three hundred and fifty-nine acres in Eldorado Township, listed by Richard Eames,” etc. In this, and all other parts, the language of the deed conformed to the provisions of the statute (Eevisal, sec. 2906). The deed was duly proven and recorded 7 May, 1903.
    • On 7 May, 1903, defendant O. A. Armstrong and his wife, in consideration of $2,300, executed a deed to plaintiff,- conveying, by metes and bounds as in the deed to them, the “Bus-sell Gold Mine,” containing 356 acres, and, by a separate description, the “Coggins Meeting House,” of three acres. This deed was duly proven and recorded, and contains the following covenant: “To have and to hold the aforesaid tracts of land; * * * and the said parties of the first part covenant that they are seized of said premises in fee and have a right to convey the same in fee simple; that the same are free and clear from all encumbrances.”
    On 9 May, 1903, plaintiff and his wife conveyed both said tracts to George T. Whitney in consideration of $5,000. Plaintiff paid to defendant the consideration of $2,300 named in his deed. Plaintiff alleges that, at the time defendant executed the deed of 6 May, 1903, and made the covenant therein, he was not seized of either of the tracts therein conveyed, and had no title thereto, and for breach of said covenant demands as damages the amount of the purchase money. Defendant denies the allegation, and alleges seizin, etc.
    In response to issues submitted, the jury found that, at the date of the deed, the “Coggins Meeting House” was the property of plaintiff, and, under the instructions of the Court, found that plaintiff was not entitled to recover any damage on account thereof; that defendant was seized of the “Kussell Gold Mine,” and that there had been no breach of the covenant in respect thereto.
    It was in evidence that plaintiff was desirous of selling both tracts to one Whitney, and had entered into a contract to do so for the sum of $5,000; that his attorney, residing in Salisbury, went to the town of Troy, Montgomery County, for the purpose of examining the title; that a few days thereafter plaintiff met defendant in Troy, and, after some negotiation, agreed to pay him $2,300 for deed with, full covenants; that some question was raised in regard to whether the Sheriff’s deed covered the “Coggins Meeting House,” whereupon plaintiff said that, while the land was his, defendant could put it in the deed to satisfy Mr. Whitney, and that no trouble would ever come to him on account of it. Upon the execution of the deed by plaintiff and wife to Whitney, he went into and has continued in the unmolested possession of the land.
    His Honor instructed the jury to answer the issues. Judgment was thereupon rendered for defendant. Plaintiff’s exceptions are noted in the opinion. Plaintiff appealed.
    
      J. 8. Henderson for plaintiff.
    
      T. F. Kluiiz, L. H. Clement and T. J. Jerome for defendant.
   CoNNOR, J.,

after stating the case: We were of the opinion, when this case was here at the Fall Term, 1906, that the covenant of seizin extended to the “Coggins Meeting House” tract. 142 N. C., 506. It appears that, at the time the deed was made by Armstrong to the plaintiff, the title to that tract was in the plaintiff, and that this was well known to him. It further appears that plaintiff immediately conveyed the same land toWMtney,who went into possession and remains therein. In Fitch v. Baldwin, 17 Johnson, 166, it is said: “The covenant of seizin extends only to guaranty the bargainee against any title existing in a third person, and which might defeat the estate granted.” In Furness v. Williams, 11 Ill., 229, Treat, C. J., says: “It is attempted on the part of defendant to establish a breach of the covenant by proving that he was himself seized, instead of his grantor. The laAV does not allow this to be done. The covenant of seizin extends only to a title existing in a third person. It does not embrace a title that may be already in the grantee. The grantee is estopped from setting up’ the title previously acquired against his vendor.” Tiedeman on Eeal Prop., sec. 851; Rawle on Cov., 431; Jones Real Prop., 444; 11 Am. and Eng. Enc., 442. His Honor, therefore, correctly instructed the jury to answer the issue in regard to that tract.

For the purpose of showing that defendant was not seized of the “Eussell Gold Mine” tract, plaintiff sought to attack the deed executed by the Sheriff to the defendant of 6 May, 1903. To this end he offered to show that a tender of the taxes, interest, cost, etc., was made by his attorney and the attorney of Mr. Hambley to the defendant, on 5 May, 1903, and declined. He further offered to show that plaintiff tendered the amount to both the defendant and the Sheriff, and that both were declined. He further offered to show that defendant had not given the notice required by the statute before calling for the deed. To each of the questions bearing upon these contentions defendant objected. His Honor ruled “that plaintiff not having shown that he had title to the ‘Eussell Gold Mine5 tract of 356 acres at the time of the sale of the same for taxes, on 5 May, 1902, and not having shown that he now claims the same under the person who had the title at the time of such sale, and not having shown that all taxes due upon the property had been paid to him or the person who had the title at the time of the sale, the Court held that the plaintiff could not be permitted to question the title which had been acquired by the defendant under the Sheriff’s tax deed, nor could the plaintiff question the validity of the deed.” The objection was sustained, and plaintiff excepted. It will be observed that the land conveyed by defendant to plaintiff was, at the time it was listed for taxation, sold and the deed executed by the Sheriff, the property of Mrs. Eames. The deed recites that it was listed by Eichard Eames. This, we think, in view of the-provisions of section 2894 of Eevisal, immaterial. It is therein expressly provided that the fact that the land is listed in the name of some one other than the owner shall not invalidate the deed, unless it is shown that the true owner listed and paid the taxes on it. No evidence was 'offered that Mrs. Eames did either. The tender to redeem was not made- by Mrs. Eames or any one acting for her or claiming’ under her. That her husband had no “estate or interest” in the land, notwithstanding birth of issue, is settled. Tiddy v. Graves, 126 N. C., 622; Hallyburton v. Stagle, 132 N. C., 948. Plaintiff, however, insists that he had a right to show that the defendant failed to give the notice required by section 2903 of Revisal, being sections 15-17, chapter 558, Laws 1901, and thereby invalidated the deed, under the decision of this Court in King v. Cooper, 128 N. C., 347, and Matthews v. Fry, 141 N. C., 586. It will be observed that in both of those cases the 'controversy was between the owner of the land' and the purchaser, whereas section 2909 of Revisal, which is the same as section 20, chapter 558, Laws 1901, provides: “In all controversies, actions and pro-, ceedings involving the title to real property claimed and held under and by virtue of a deed made substantially as required by this chapter, the person claiming title adverse to the title conveyed by such deed shall be required to prove, in order to defeat the title which such deed purports to convey, either that such real property was not subject to taxation for the year or years named in the deed, or that the taxes had been paid before the sale, or that the property had been redeemed from the sale according to the provisions of this chapter, and that such redemption was had or made for the use and benefit of the persons having the right of redemption under the laws of this State, or that there had beefi. an entire omission to list or assess the property, or to levy the taxes or to sell the property. No person shall be permitted to question the title acquired by a sheriff’s deed, made pursuant to this chapter, without first showing that he, or the person under whom he claims, had title to the property at the time of the sale, and that all taxes due upon the property have been paid by such person under ■whom he claims title.” It is clear that the plaintiff never bad any title to tbe property and never bad any claim thereto under tbe owner thereof. lie is, in contemplation of law, an absolute stranger to tbe title. If - any effect is to be given to the plain language of tbe statute, it is manifest that bis Honor’s ruling is correct. It is difficult to see bow or why plaintiff should be permitted, as a volunteer, to come into tbe Court to attack a deed, tbe validity of which can in no possible contingency affect him. Mrs. .Eames, tbe owner of tbe property, assuming for tbe sake of tbe argument that tbe defendant’s title wa§ not good as against her, has parted with her title, and there is no person in existence who can attack the title of her grantor or disturb bis possession. Tbe facts presented upon tbe record are peculiar. At tbe time tbe land was listed for taxation it was tbe property of Mrs. Eames. Tbe tax not having been paid on 5 May, 1902, tbe Sheriff sold it for nonpayment of taxes, when tbe defendant Armstrong became tbe purchaser. It appears that plaintiff bad entered into a contract to sell tbe land to Mr. Hambley, who represented'Mr. Whitney. On 5 May, 1903, Mr. Henderson, who bad gone to Troy to investigate tbe title “in behalf of Kichard Eames and Hambley,” offered to pay defendant “all tbe taxes, interest, cost and penalties,” which offer was declined. Tbe same offer was made to tbe Sheriff and declined. A few days after Mr. Henderson’s visit to Troy plaintiff went there and, after some negotiation with defendant and his attorneys, agreed to pay him $2,300 and take the deed. Pursuant to this agreement, tbe deed containing tbe covenant was delivered and the money paid on 7 May, 1903. Plaintiff, before taking tbe deed, offered to pay defendant and tbe Sheriff tbe taxes, etc., which offer was declined. On 9 May, 1903, tbe plaintiff and bis wife, Mrs. Elizabeth Eames, conveyed tbe land to Whitney for $5,000, and be went into possession and has remained therein, unmolested. This action was brought 4 March, 1904. If plaintiff should recover, as be seeks to do, tbe purchase money paid defendant, be should be required to reconvey to bim sucb title or interest as be acquired by tbe deed. This be cannot do, because, assuming bis contention correct, tbat tbe title was not devested out of Mrs. Eames by tbe tax deed, be bas joined with ber in conveying bis rights to Whitney. While it is true tbat usually tbe purchase money is tbe measure of damages for breach of covenant of seizin, it is equally true tbat, if tbe covenantee perfect bis title for a less amount, be will recover only tbe amount paid by bim therefor. In this case be and bis wife sold to Whitney for $5,000. It does not appear tbat be paid Mrs. Eames any sum whatever for ber interest -or title, or whether tbe whole of tbe purchase money went to bim. It does appear tbat bis contract was to sell tbe land to Ilambley, representing Whitney, for $5,000, and tbat by reason of acquiring defendant’s title be was enabled to carry out bis contract. It is certain tbat be and Mrs. Eames have conveyed to Whitney a perfect title, and tbat plaintiff cannot put defendant back in tbe position which be occupied when be made tbe covenant. This be should be able to do. Rawle Covenants, sec. 184. Is it not clear tbat, if plaintiff should recover tbe purchase money upon tbe theory tbat defendant bad no title, be should reconvey to tbe defendant? In Stinson v. Sumner, 9 Mass., 150, Parker, J., says: “It would certainly be manifestly against tbe principles of justice tbat a grantee should recover either bis purchase money or tbe value of tbe land against tbe grantor upon an alleged breach of covenant tbat nothing passed by tbe deed, and tbat be should be considered tbe owner of tbe land under tbe very deed which be bad alleged to be inoperative.” The plaintiff bas conveyed tbe land to Whitney for an amount more than double tbe purchase money paid by bim to defendant. Tbe fact tbat bis wife joined in tbe deed, from this point of view, does not affect tbe question. He cannot restore to defendant tbe title which be got from bim. How, then, can be call upon bim to restore tbe purchase money? It may be, assuming that there was a breach of tbe covenant, tbat be could recover sucb sum as be was required to pay out to perfect bis title. In Bank v. Glenn, 68 N. C., 35, it is said: “If there be an outstanding paramount title, which the covenantee purchases, he is not entitled to recover the whole of the purchase money, with interest, but only the amount paid to perfect'the title, with interest from date of payment. In other words, when the loss has heen less than the purchase money and interest, the plaintiff can recover only for the actual injury sustained.” The language of the Court in that case is applicable here. “The plaintiff does not stand in a very graceful attitude before the Court when it seeks to recover the purchase money after its title to the land has been perfected and when it has by a deed in trust conveyed the same land to secure its debts. The bank is seeking to have the land and the purchase money.To allow it to do so would he grossly inequitable.” The purpose of the covenant is indemnity, not speculation. The defendant, in addition to the defenses to which we have adverted, urges us to reverse the former rulings of the Court that a covenant of seizin does not run with the land. He cites a number of cases in which it is held that the breach is continuing and the right to sue passes with the title and may be prosecuted whenever the paramount title is asserted to- the disturbance of the possession of the grantee under the deed containing the covenant. From this position defendant concludes that Whitney is the owner of the covenant and the real party in interest, who alone can sue. It is true, as contended by the learned counsel, that the law has been so held 'by a number of highly respectable courts. The other view has always been held by this Court, and we are not disposed to reverse these decisions. Mr. Eawle, in his excellent work on Covenants (5th Ed.), 205, discusses the question, reviews the authorities and concludes that the weight of authority is with the opinion of this Court. We noted the cases upon the subject in Eames v. Armstrong, 142 N. C., 506. We are of the opinion that his Honor’s ruling upon the admissibility of the evidence offered by plaintiff for the purpose of attacking the Sheriffs deed was correct. This renders it unnecessary to discuss a number of the plaintiffs exceptions. The constitutionality of our revenue and machinery acts is not presented.

The judgment must' be affirmed.

No Error.  