
    Calvin Leffingwell et al. versus Samuel D. Elliott.
    Where a grantee of land with warranty, being evicted by a paramount title, extin* guislies such title, he is entitled to recover, in an action upon t'ne warranty, the amount paid by him to extinguish such title, as well after as before the commencement of the suit, together with a reasonable compensation for the trouble and expenses to which he may have been put in procuring such extinguishment; but he cannot recover for money paid for advice and services of counsel.
    This was an action for breaches of covenants against incumbrances and of warranty, contained in a deed of land, dated January 13th, 1825, given by the defendant to the plaintiffs. The land was formerly owned by one Eddy and fifteen other persons, who constituted a manufacturing corporation, and" who conveyed to the defendant their shares in the stock of the corporation, embracing, as it was supposed, the land in question ; but in fact, the land belonged to them as tenants in common, and therefore did not pass by the transfer of their shares. Subsequently to the defendant’s conveyance to the plaintiffs, Eddy entered upon the land for the purpose of regaining seisin and possession to the use of himself and others as tenants in common ; whereupon the plaintiffs yielded the possession, and afterwards paid divers sums to the original proprietors for the purpose of obtaining from them acquittances of their interests in the land.
    An auditor, appointed in the case, to ascertain the amount of damages, made a report, which came before the Court at this term.
    The plaintiffs presented before the auditor three classes of claims. The first was for expenses incurred, and money paid, to extinguish the outstanding titles, previously to August 18th, 1826, the time of the service of the writ.
    Under this class, the auditor stated an account, in which, besides the sums paid to"extinguish adverse titles, with interest from the time of the payments, there were charges for the plaintiffs’ time employed in extinguishing the titles, with interest from the service of the writ, for incidental expenses for horses and carriages, board and lodging while the plaintiffs were from home, with interest from the time the same were paid, and for sums paid for advice and services of counsel.
    The second class was for expenses incurred and payments made, similar to those of the first class, subsequently to the service of the writ, not however including counsel fees.
    The third class was for expenses and charges incurred in preparing this case for trial, including the summoning of witnesses, attendance at court, personal services of the plaintiffs, and counsel fees, since the commencement of the suit.
    The defendant excepted to the whole of the auditor’s re port, except such part thereof as allows to the plaintiffs the several sums actually paid before the commencement of this action, to extinguish titles then subsisting, adverse to the plaintiffs’ title.
    
      Oct 7th,
    
    
      Davis and Allen, in support of the exception,
    now cited Prescott v. Trueman, 4 Mass. R. 627 ; Wyman v. Ballard, 12 Mass. R. 304; Barrett v. Porter, 14 Mass. R. 143.
    
      Newton and Barton, for the plaintiffs,
    referred to this same case of Leffingwell v. Elliott, 8 Pick. 457, and Sumner v. Williams, 8 Mass. R. 162.
    
      April term 1831.
   The Court

held, that the plaintiffs were entitled to recover in full the sums reported by the auditor in the first and second classes of the claims, except the sums paid to counsel; and that in the third class the counsel fees must be disallowed, and the other charges be placed upon the same ground in this as in other actions, trespass for example ; and that the fees of the auditor were to be allowed in the costs. 
      
       See Barnard v. Poor, 21 Pick. 378; Brooks v. Moody, 20 Pick. 474; Wetmore v. Green, 11 Pick. 462; Richardson v. Dorr, 5 Vermont R. 9.
      In an action in Maine, founded on a breach of the covenant of warranty in a deed of conveyance, the true measure of damages, where there had been an eviction by judgment of law, was held to be the value of the land at the time of the eviction, and expenses incurred in defending the suit, including fees paid counsel. Sweet v. Patrick, 3 Fairfield, 9.
     