
    J. W. CAMPBELL et als. v. L. W. SHAW et als.
    (Filed 24 November, 1915.)
    Deeds and Conveyances — Warranty—Breach of Part — Measure of Damages.-
    Where land is sold and conveyed and the title to a part thereof fails, in an action for breach of warranty and seizin the damage recoverable-is the value of the proportionate part of the lot to which the title failed, based upon the consideration paid for the whole thereof; and the fact that the land was worth greatly in excess of the purchase price can have no bearing on this issue.
    Appeal by defendants from Lane, J., at March Term, 1915, of Meok-LENBURG.
    
      Osborne, Ooolce & Robinson for plaintiffs.
    
    
      Brevard Nixon for defendants.
    
   Clark, C. J.

This is an action for damages for breach of warranty and covenant of seizin. The purchase price paid for the whole lot, 198 feet by 56 feet, was $1,900. There was a failure of title and breach of covenant of seizin as to a part- thereof, 38 feet in length by 56 feet in width. The contention of the defendant is that, inasmuch as the purchase price paid was $1,900 and that part of the lot as to which the title is uncontroverted is worth $2,650, therefore the plaintiff suffered no damages. This argument hardly requires consideration. It is true that in an action of damages for breach of warranty and of covenant of seizin as to the whole lot the measure of damages is the purchase price. It follows, therefore, that if there is a defect as to any part of the lot the measure of damages is that part of the purchase money which was-paid for that part of the lot the title of which was defective. West v. West, 76 N. C., 46, 48.

"Where there is a failure of title to a part of the land, or a partial breach of the covenant of seizin, the rule is thus stated: “The measure-of damages for breach of warranty of title to land is the proportion that tbe value o£ tbe laud to wbicb title fails bears to tbe whole consideratiou paid. Tbat i.s, tbe proportion of tbe value of tbe land as to wbicb tbe-title fails bears to tbe whole, estimated on tbe basis of tbe consideration paid.” Lemly v. Ellis, 146 N. C., 221. If tbe vendee has procured a good title'to remedy tbe defect bis damages are tbe amount reasonably paid for buying tbe outstanding title, not exceeding tbe original pro rata of tbe purchase money for tbat part of tbe land. It would be error to-take tbe basis of tbe present actual value of tbe land when there is evidence tbat tbe actual value exceeds tbe consideration. Price v. Deal, 90 N. C., 291; Banks v. Glenn, 68 N. C., 36; Dickens v. Shepperd, 7 N. C., 526.

Tbe jury, in consideration of all tbe evidence, found tbat tbe value of' tbe proportionate part of tbe lot as to wbicb tbe title failed, on tbe basis of tbe $1,900 purchase money for tbe entire lot, was $450. This was based, not upon tbe proportion of tbe area, but upon tbe proportion in value of tbat part of tbe lot to wbicb tbe title is defective to tbe entire purchase money. Though no witness fixed tbe exact amount of damages at $450, tbe jury bad to draw their own inferences from all the evidence. We do not find it necessary to consider tbe other exceptions, wbicb are-based more or less upon tbe proposition already discussed.

No error.  