
    Waldo against Long.
    NEW-YORK,
    Nov. 1810.
    In anact¡dl)0fe6 tenant brought by the grantee againstthegrantor for a breach of the covenant IfvncL Tu“”^ ffj1’ of ejectment brought against the grantee by a mortgagee on a prior mortgage of the same land by the grantor, is sufficient evidence to support the action; and the plaintiff is entitled to recover, not qnly the consideration-money in his deed, and the interest, bat also the casts of the ejectment ?uit against, him.
    THIS was an action of covenant, brought on the co-. ..■venant against encumbrances, and on the covenant of power to sell, contained in a deed from the defendant „ to the plaintiff. Flea, non est factum. The cause was tried at the Washington circuit, the 13th of June, 1810, before Mr. Justice Van Ness.
    
    
      The plaintiff produced a mortgage, executed prior tá the deed from the defendant to him, from the defendant to William Porter, which covéred the land conveyed by the deed. The plaintiff also offered in evidence the postea in the cause of Jackson, ex dem. William Porter and others, against him, brought on the said mortgage, and previously tried on the same day, as evidence of a suit against him. He also offered in evidence the bills of costs which had accrued, and which the plaintiff in . this- cause was liable to pay in consequence of the, recovery against him in the action of ejectment. The judge reserved the point, -as to the admissibility of the postea in evidence, and the plaintiff took a verdict for the consideration-money mentioned in' the deed, and the interest, subject to a case on the point reserved.
    The case’ was submitted to. the court without argument.
    The only point was, whether the postea ought to have been received in evidence ? It was agreed, that if the court should be of opinion it ought, then the bills of costs were to be added to the verdict, otherwise the verdict to remain for the sum it was taken.
   Per Curiam.

The postea was competent evidence for certain purposes. This point has been just now decided, in the case of Kip v. Brigham and others, (ante, 168.) who were bail on Steward’s execution. In this case it was evidence of the existence of.the ejectment suit upon the mortgage, and of the fact of a verdict in such a cause. For that purpose it ought to have been received; and that fact being proved, the bills of costs . were an item of damages proper for the consideration of the jury, for they were part of the damages produced by the encumbrance.

■ This opinion is an answer to the only question submitted. The plaintiff has taken a verdict for the consideration-money and interest, and no objection is raised to it, and of course we have no concern with the amount of the recovery.

' Judgment for the plaintiff. 
      
       See Prescott v. Trueman, (4 Tyng's Mass. Rep. 627.) Pitcher v. Livingston, (4 Johns. Rep. 1.) S Caines, 112. 2 Mass. Rep. 453.
      
     