
    John Bickford versus Samuel Page.
    It one grant land, and by his deed covenant that he has good right to convey, when in fact he had no such right, such covenant is broken immediately on executing the deed.
    Such a covenant does not pass with the land to the assignee.
    The measure of damages, in an action for the breach of such a covenant, is the consideration paid, and interest thereon.
    When the Court establish a new rule of assessing damages, full costs are allowed, although the damages do not exceed four pounds, on the ground that the plain tiff had reasonable expectation of recovering a larger sum.
    Covenant broken on a collector’s deed of conveyance of a nonresident proprietor’s land, for the neglect of the proprietor to pay a tax assessed upon it. " The declaration alleges that the defendant, for a valuable consideration, by his deed, sealed, &c., as collector for the town of Parsonsjield, pursuant to the law authorizing collectors of taxes upon non-resident proprietors of land, to sell the same, and directing how such land should be sold, and by virtue of an assessment committed to him, did give, grant, sell, and convey, to the plaintiff, and his heirs and assigns, a certain lot of land in said Parsonsjield, (describing the same,) to have and to hold the same in fee simple ; and that the defendant, in his said capacity, covenanted with the plaintiff, his heirs and assigns, to warrant and defend the premises to them against the lawful claims and demands of any person or persons whomsoever, saving only the legal right of the proprietors to redeem the same ; and further, that the taxes aforesaid were assessed and published, and notice of the intended sale of the land was given according to law, and that in all respects he had observed the directions of law ; that he had good right and [ *456 ] full power to sell and convey the premises to the * plaintiff, to hold as aforesaid, and that they were free and clear of all encumbrances. The breach of the covenants is assigned in the following words : “ Now, the plaintiff in fact saith that the said Samuel, though requested, hath not warranted and defended the premises to the plaintiff against the lawful claims and demands of any person or persons whomsoever; that said taxes were not assessed and published, nor notice of the intended sale of the said lands given according to law, and that in all respects he had not observed the directions of law ; that he had not good right nor full power to sell and convey the premises to the plaintiff, to hold as aforesaid, and that they were not free and clear of all encumbrances.”
    The defendant pleads in bar, acknowledging that, for the consideration of six shillings and five pence, equal to one dollar six'cents and five mills, he made the deed described in the plaintiff’s declaration, and further alleging that the plaintiff afterwards, and before the commencement of this action, and not having improved the premises, or added to their value, or incurred any expense on account of the same, for the consideration of 100 dollars, by his deed duly executed, assigned to one Thomas Roberts, and his heirs and assigns forever, without any covenants rendering him, the plaintiff, liable for any defect of title in the premises, all the right, title, and interest, of the plaintiff in the said premises, and in the covenants contained in the above-described deed : — by force whereof the said Roberts acquired all the estate, right, and interest, in the premises, which the plaintiff ever had, in virtue of the said deed, and in the covenants therein contained : — wherefore he prays judgment, &c.
    The plaintiff replies by setting forth his deed to Roberts at full ength, and prays judgment, &c.
    The defendant demurs to the replication, and the plaintiff joins in demurrer.
    
      Mellen,
    
    for the plaintiff. The plea in bar states that the plaintiff had assigned all his estate in the premises previous to the commencement of this action, and the defendant would thence infer that all the plaintiff’s interest in the covenants [ * 457 ] * was also assigned with the land, and that, if there is any right of action arising out of these covenants, it is rested in Roberts, the assignee. But we contend that this covenant, that the defendant had good right and full power to sell, if ever broken, must be broken at the instant it was made.  It then became a mere chose in action, and of course not assignable. Such a covenant does not pass with the land, as a covenant for quiet enjoyment does — and for this plain reason, that this latter covenant may be broken at any indefinite period after it is made. Covenants which run with the land are always expressed in future time.  There is no action by an assignee to be found in the books, on a covenant made in the present tense. If, as the declaration avers, no land passed by the defendant’s deed to the plaintiff, then was there nothing to support the assignment of covenants to Roberts. The possession of the plaintiff was tortious from its commencement, and the assignment of that possession to another could not, consistently with any principle, transfer a legal right. From the time this covenant was executed, it was merely personal, and in this regard did not differ from any other personal covenant which may be imagined, — as that the land was purchased of A B, and the like, which would certainly not be contended to pass with the land. 
    
    
      The Solicitor-General, for the defendant,
    introduced his observations by saying that he had had little leisure to look into the case, having been first applied to since his arrival in town, and having had no opportunity to look into the authorities relating to the subject; [Note. —■ Parker, J., had heretofore been of counsel for the defendant:] but upon reading the papers, the action appeared to him to be singular in its kind. In the course of his practice he did not recollect a similar one. It seemed to be a mere speculation of the plaintiff’s to recover of the defendant a sum of money in damages, when in fact he had sustained no damage, and, as appeared by the case, was not liable to suffer *any. [ *458 ] For 1 dollar and 7 cents paid by him, he had already received 100 dollars of Roberts, and this without any covenants on his part, and he now claims of the defendant another sum, of 1600 dollars, for a breach of covenants which were, to say the least of them, very improvidently and needlessly made by the defendant, as an officer in the execution of his duty, and by a breach of which the plaintiff’s damages are but imaginary.
    
      The breaches of these covenants are improperly assigned. The covenant that the grantor had good right and full power to sell, &.C., which in principle and effect is a covenant of seisin, is simply negatived in the assignment of the breach; whereas the plaintiff ought to have shown who had the right to sell, who was in fact seised in fee. It is conceded that, generally, the assignment of the breach is not required to be more particular than the covenant. But this has been held not to extend to the covenants of seisin, to warrant and defend, &c. No actual eviction is shown in this case, but the contrary appears from the papers. Roberts is now in the quiet and undisturbed possession of the premises.
    But if the defendant were answerable in an action on these coy enants, we contend that, by the conveyance to Roberts, the right of action went with the land to him. All covenants real, whether express or implied, pass to the assignee whenever the land passes, and that this is a covenant real, appears from the case of Noke vs. Awder. 
      
    
    To this it is answered, that the land itself never passed to the assignee, and consequently these covenants did not pass. But it appears that some kind of estate did pass, for Roberts, the assignee, took possession, and still retains it. To say that his estate may be defeated is not material. When it shall be defeated, the damage will arise to the assignee in possession, and to him the defendant will be liable. Can it be that he is liable for the value of the land to both these parties? The argument.of Judge Livingston, who differed from the rest of the Court in the case of Greenby [ *459 ] vs. Wilcox, appeared to the Solicitor-General * to be very conclusive. The distinction respecting covenants broken the instant they are made, and those which may be broken in future, is indeed “ fanciful.” There is no sound reason why a covenant broken should not pass to the assignee as well as others. The authorities produced on the other side do not support such a distinction. The Solicitor-General concluded by observing that, if the plaintiff is to recover but the original consideration paid by him, the demand was not worth contesting. But if judgment is to be rendered in this action for the present value of the land, and the defendant is liable at a future time to the action of Roberts, the assignee, the injury will be flagrant.
    
      Mellen, in reply,
    was stopped by the Court, whose opinion was, at another day in the term, delivered by
    
      
      
        Robert Bradshaw's case, 9 Co. 60. —Cro. Jac. 304, S. C. — Jones, 195. — Hob 12
    
    
      
      
        Sheppard's Abr 455.
    
    
      
       See Lewes vs. Ridge, Cro. Eliz. 863. — St. Saviour's Church-Wardens vs. Smith 3 Burr. 1271.— Walker vs. Reeves, Doug. 461. — Northcote vs. Underhill, 1 Salk. 199 —2 Bac. Abr. Executors, N. — 3 Wils. 27.— Greenby & Al. vs. Wilcox, 2 Johnson N. Y. Term R. 1. — 3 Com Dig. Covenant, B. 3
    
    
      
      
        Cro. Eliz. 373, 436, cited in 1 Bac. Abr. Covenant, E
      
    
   Parsons, C. J.

In this case there is an issue in law, arising on a general demurrer to the plaintiff’s replication, and a joinder in demurrer.

In an action of covenant, the plaintiff declares on a deed of the defendant to him, in which, for the consideration of .six shillings and jive pence, the defendant sold him the lands described in the ' declaration, to hold in fee simple, and that the defendant in substance covenanted that he had good right to sell the same, that they were free of all encumbrances, and that he and his heirs would warrant the same to the plaintiff, his heirs and assigns, against all lawful claims. The plaintiff then assigns a breach of each covenant generally, by negativing the words of the covenant.

The defendant pleads in bar that, before the plaintiff commenced this action, and before he had improved the premises, or added any value to the same, for the consideration of 100 dollars, he assigned and transferred to one Thomas Roberts, in fee, but without any warranty or covenants rendering the plaintiff answerable for any defect of title in the premises, all the plaintiff’s right, title, and interest, therein, and in the covenants contained in the deed declared on, which passed to the said Roberts accordingly.

The plaintiff, in his replication, sets forth his deed to Roberts in hcec verba, by which it appears to have been a release of all * his right, with a warranty against all persons claim- [ * 460 ] ing under him and his heirs.

To this replication there is a demurrer and joinder.

In looking into the replication, to which the demurrer is immediately applied, it appears neither to traverse, nor to confess and avoid, any material allegation in the bar. The deed therein recited is substantially the same, as to its legal operation, as is supposed in the bar. The replication is therefore ill, if the bar be good. To support the bar, the defendant supposes that the conveyance by the plaintiff, under the circumstances there alleged, is a discharge, as to him, of the covenants contained in the deed declared on. It is a general rule that, when a feoffment or demise is made of land, with covenants that run with the land, if the feoffee or lessee assign the land before the covenants are broken, and afterwards they are broken, the assignee only can bring an action of covenant to recover damages, unless the nature of the assignment be such that the assignor is holden to indemnify the assignee against a breach of the covenants by the feoffor or lessor. This rule is founded on the principle that no man can maintain an action to recover damages, who can have suffered no damages.

To apply this principle to the defendant’s plea in bar, we must examine the nature of the covenants contained' in the deed, and of .he breaches assigned. One of these is a covenant that the defend ant had good right to convey the premises, in fee simple, to the plaintiff; and a breach of this covenant is well assigned. As the defendant, in his bar, has not traversed this breach, nor confessed and avoided it, we must consider this covenant as having been broken by him. It must, therefore, have been broken immediately on the execution of the deed containing it; and the damages accruing from the breach must have been suffered by the plaintiff before his release to Roberts. This covenant, having been broken before the release, was at that time a mere chose in action not assignable. Neither could it have passed by the release — because, no estate passing to the plaintiff by the defendant’s deed, there was no land to which this covenant could be annexed so as to pass to the releasee. The plea in bar is therefore bad and insufficient in law, and the plaintiff must recover his damages, if the declaration be good.

[ *461 ] *The covenants against encumbrances, and to warrant and defend, we lay out of the case : as no particular encumbrance is shown, and no ouster by a title paramount is alleged, the plaintiff cannot recover damages for any supposed breach of these covenants. But he is entitled to his damages for the breach of the defendant’s covenant that he had good right to convey. The rule for assessing the damages arising from this breach is very clear. No land passing by the defendant’s deed to the plaintiff, he has lost no land by the breach of this covenant; he has lost only the consideration which he paid for it, amounting to 6s. 5d. This he is entitled to recover back, with interest to this time.

After this opinion was delivered, Mellen moved the Court that they would authorize the taxing full costs for the plaintiff in this case, on the ground that “ the plaintiff had a reasonable expectation of larger damages than four pounds.” The principle which has governed the Court in the decision just had, has been now first declared. The actual value of the land at the time of the judgment has heretofore uniformly been received as the rule or measure, in assessing damages, in actions of this kind. It is submitted, therefore, to the Court whether the plaintiff had not a most reasonable ground of expectation that he should recover more than four pounds damage in the present suit.

The Solicitor-General observed that the plaintiff himself could have no reasonable expectation of recovering more damages than he had actually sustained loss. The statute referred to was not predicated on the shrewdness and acuteness of practitioners, who might have formed an expectation — perhaps, from the looseness of practice heretofore, not in itself unreasonable—of recovering extravagant damages for an imaginary injury.

Thatcher, J.

As the principle has not been before settled, I think the plaintiff’s expectation of larger damages than four younds not unreasonable. I am therefore in favor of allowing full costs.

* Sewall, J.

As a different principle has heretofore [ * 462 ] governed the Court in assessing damages in actions of this kind, the plaintiff might reasonably expect a greater sum. My opinion therefore is, that full costs should be taxed.

Parsons, C. J.,

gave no opinion, 
      
      
         Vide Marston vs. Hobbs, ante, 433, and the cases cited there in the notes.
     
      
       Vide Stat. Feb. 13, 1787
     
      
      Note.—The Chief Justice afterwards informed the reporter that he gave nu opinion on the motion for full costs, because he doubted whether a misapprehension of the law, however excusable, could be considered as a reasonable cause of expecting greater damages than four pounds, within the tiue intent of the statute which gives this limited discretion to the Court. But on further considering the motion, he was satisfied that full costs ought to be allowed, because the action could not originally have been commenced before a justice of the peace. The statute of March 11, 1784, describing the jurisdiction of justices of the peace in civil actions, excludes all actions in which the title to real estate is in question ; and the statute of February 13,1787, limits the costs to one fourth part of the damages in actions where the title to real estate does not come in question. But an action of covenant broken, on a deed conveying land, in which a breach is assigned that the defendant was not seised, or had no right to convey the land, brings the title to real estate directly in question. And in a conversation between the Chief Justice and the Judges Sewall and Thatcher, they were all of opinion that, on this last ground, the plaintiff was entitled to full costs.
     
      
      
        b) Vide Toppan vs. Atkinson, ante, 365.
     