
    Pringle against The Executors of Witten.
    On a covenant that the bargainer is law-'Ifeef thiTbar-of discovery of defect of title, may maintain his action before eviction. Though for peaceable enjoyment, &c. it Deficiency" of great as to"de° feat the oh-jeet oí ths purchase, is good cause for rescinding a £ís.a</jLndit Say*discourrt against the bonds given fbr the con-•¡ley.
    THIS was an action for a breach of a “covenant m a common release for lands.
    It was admitted, that the plaintiff had purchased from the deceased Witten, a tract of 300 acres of land, in St. Mathexds parish, and given bonds for the sum of 600/. being the consideration money agreed upon. And that Wiu ° , . ten had given the usual conveyances of lease and release s - . , , , . , . . and m the release had covenanted, among other things, that he was seised in fee, of in, and to, all and singular the ^an<^s an^premises sold. And that he had good right, and lawful authority to convey, &c. It appeared afterwards, in evidence, that the plaintiff frequently endeavoured to find , , , , out the corners and lines of this tract, but could not. T hat called upon Witten in his life-time, and requested him t0 P°'nt out ^ corners and lines ; but he did not do it. That surveyors were afterwards appointed, who went to u the place where the land was supposed to lie, but could fmd neither corners or lines. Toungblood,, one of the surveyors, however proved, that he was shewn a tree for a corner, from which a few trees had been marked, but that the iparked trees, were about 90 degrees out of the course laid down in the plot. That, however, admitting that tree to have been the true corner, and the course shewn, the real one j and that there might have been a mistake in the plot; yet, according to that course, it would have struck the river so soon, that it would not have left more than about 190 acres in the supposed tract, it being surrounded by elder surveys. But, in his opinion, the tree shewn, never had been marked for a corner •, and that neither the corner, nor lines of the tract, could be traced.
    This testimony of Youngblood's was corroborated by that of another surveyor, and of an old inhabitant in that part of the country.
    On closing the evidence, Read., for the defendants, contended, that the action was not maintainable, because the-plaintiff had sustained no damages, nor could damages be sustained, until there had been an eviction, by suit at law, from the premises. Faugh. 118, 119. 1 Wood's Conv. 405.
    
      Pinckney and Pringle, in reply,
    acknowledged that in cases of deeds, which contain only a covenant for peaceable enjoyment, or a general warranty of title to the bargainee, the action of covenant would not lie, until after an eviction by suit. But in a covenant, where the bargainor stipulates that he is lawfully seised in fee, of, in, and to all and singular the premises, it is otherwise ; and covenant would, lie, before the eviction. That this latter covenant was of a two-fold nature : it went partly to the title, and partly to the quantity. If there appeared to be a defect in the title, or a deficiency in the quantity ; in either case, the action would lie, as soon as such defect or deficiency was discovered. In support of a covenant for defect of title, they quoted and relied on 9 Co. 61. Keb. 58. 1 Wood's Conv. 403, 4. where it is laid down, in covenant, that the bar-gainor was seised of a good estate in fee, &c. The breach assigned by the plaintiff was, that he was not seised of a good estate in fee, &c. This breach was held to be well assigned, and the plaintiff was not obliged to shezv in whom the estate was, to which only the bargainor might be privy. A covenant that the defendant is lawfully seised, &c. is intended as to title; and a covenant for quiet enjoyment, is intended as to possession. In the first case, the plaintiff may take issue on the defect of the title ; but in the second, he must allege and prove a lawful eviction, (that is, by suit at law,) and not a tortious one, before he can support his action. 3 Keb. 755. 1 Wood, 404.
    With regard to covenant for deficiency of quantity, this depends partly upon the principles of the civil law, which agree with the common law. For the covenant for the quantity goes to the whole extent mentioned in the deed, both by the common law and civil law. There is no draw-, ing the line ; for if there be only one acre deficient, it is a breach of covenant. There is, however, this difference in the extent of the remedy or damages, which the party injured is to be allowed. If the extent of the injury arising from the deficiency, is so great as to defeat the object of the purchase, or to'lessen it so considerably, as not to answer the designs the purchaser had in view when he made the purchase ; in that case, the contract ought to be rescinded in toto, and the consideration money, if paid, returned. But if the injury is not so great as to defeat the object of the purchase, then damages ought to be allowed in proportion to the injury. 1 Dom. 80 to 82. Pow. on Con. 147' to 149. 1
    In the present case, they said, it was extremely doubtful whether the land pretended to be sold, really existed or not, as the surveyors could find neither corners nor lines. But admitting even that a part of it did, it was still uncertain how the lines would run, as it would be necessary to ascertain all the boundaries of the surrounding tracts, before they could be known. At all events, the tract would not be found, according to the evidence, to contain more than 190 acres. This, they said, was such a deficiency in quantity, as would entirely defeat the object the plaintiff had in view when he made the purchase; and would justify the jury in rescinding the contract. This, they urged, the jury might do, by giving damages to the full amount of die bonds, principal and interest, which the defendants, as executors of Witten, held in their hands and refused to de-3iveruP”
   The Court

(present, Rutledge, Ch. J. and Bay, J.)

mentioned to the jury, that the law had been very properly-stated to them by the counsel for the plaintiff. That it was true that in a covenant for peaceable enjoyment, or. on a general warranty, in such a case, the action would not lie at common law, without a previous eviction by suit at law. Vaugh. 118, 119. 1 Wood, 405. But, in a case like the present, where title and quantity were both warranted, that doctrine did not apply. In the latter cases, wherevfer there was a covenant for good title, and for the whole quantity — in each of these cases the action of covenant would lie, wherever the defect of title or deficiency in quantity was dissevered.

That the jury, if they were satisfied of the fact of so great a deficiency as one-third of the land being wanting, or of the uncertainty of the locations of the land, they might rescind the contract entirely, by giving damages in the manner recommended by the plaintiff’s counsel ; or, if they thought a reasonable abatement would do justice to the parties, they might make a deduction from the bonds, according to the injury sustained. That a jury, however, ought not to lend too easy an ear to suits of this kind, which tended to the dissolution of contracts, unless the strong and obvious features of the case would justify it. That the present, however, appeared to be one of that nature ; as it would be' extremely unjust, and unreasonable, that the plaintiff should pay so large a sum, unless he had at least so much of the tract remaining, and that with sufficient certainty, as to answer the main object of the purchase.

The jury found for the plaintiff, damages to the whole amount of the bonds and interest, with costs, so as to dissolve the contract in toto, and to oblige the defendants to deliver up the bonds.  