
    Grantier v. Austin.
    
      (Supreme Court, General Term, Third Department.
    
    November 22, 1892.)
    1. Counterclaim—Action on Purchase-Money Note —Breach of Covenant—Evidence.
    Plaintiff’s testatrix united with others in deeding to defendant certain land by warranty deed, defendant giving notes for testatrix’s interest. Ejectment was brought against defendant for part of the land, after which the same grantors executed another deed to defendant for the same premises in place of the first one, for the purpose of properly describing the.land “thereby and hereby intended to be conveyed. ” Defendant served notice on all the grantors of the action against him, and was thereafter dispossessed of part of the land by judgment of ouster. Held, in an action on the notes, that defendant "could counterclaim his damages and costs, and that the judgment roll in ejectment, and evidence showing the value of the land taken therein, and that it was part of the original tract conveyed, were properly admissible to establish defendant’s counterclaim.
    2. Same.
    In such case the testimony of a surveyor is competent to show that the land described in the judgment in ejectment was part of the same tract described in the deeds to defendant.
    Appeal from circuit court, Montgomery county.
    Action by Eugene G. Grantier, as executor of the last will and testament of Margaret Grantier, deceased, against George Austin. From a judgment in favor of plaintiff entered on a verdict directed, and from an order granting plaintiff an extra allowance, defendant appeals. Eeversed.
    Argued before Mayham, P. J., and Putnam and Herrick, JJ.
    
      James W. Tucker, (Albert C. Tennant, of counsel,) for appellant. S. W. Putnam, ( Westbrook & Borst, of counsel,) for respondent.
   Herrick, J.

The plaintiff's testatrix united with others in giving to the defendant a deed of certain real estate, the grantors covenanting that they were the owners and well seised of the same, and that they would warrant and defend the same in the quiet and peaceable possession Of the defendant against any person claiming the same, or any .part thereof. The defendant paid for such premises partly in cash, by the assumption of some existing mortgages thereon, and by two notes for the balance, given by him directly to the plaintiff’s testatrix. The defendant entered into .possession of the premises. ¡jome time thereafter an action in ejectment was commenced against the defendant, to recover from his possession a portion of such premises, and a few days after the commencement of such action the same grantors who had given the first deed executed and delivered another deed to the defendant, which ■ recited that it was given in the place and stead, of the first deed, “which did not properly describe the premises thereby;and. hereby intended to be conveyed.” The deed contained the same covenants of warranty as the first deed. The defendant claims to have given the plaintiff, who was one of the grantors, and all the other grantors except the plaintiff’s testatrix, notice of the suit.in .ejectment. The action in ejectment resulted in favor: of .the plaintiff therein, and .the defendant was ousted from the possession of .a part of the premises alleged to have been conveyed to him by such grantors. Thereafter the plaintiff commenced action upon the notes given by the defendant to plaintiff’s testatrix in her lifetime in part payment of the purchase price of said real estate. The defendant, admitting the execution and delivery of the notes and their nonpayment, set up the facts herein recited in his answer, and asked to recoup or deduct from the amount of the notes the value of that portion of the premises which had been taken from him in the action of ejectment, together with his costs and expenses in defending such action, and offered to allow the plaintiff to take judgment for the balance.

Upon the trial the court excluded the judgment roll in the action of ejectment, excluded evidence as to the money paid by the defendant on the judgment recovered against him in such ejectment action, excluded evidence tending to show the value of the land taken from the defendant in such action, and also evidence tending to prove that the land covered and taken in said action of ejectment was a portion of the land described in the deeds heretofore referred to, and finally directed a verdict for the full amount of the notes. I think the defendant was entitled to recoup or counterclaim from the defendant upon such notes the damages which he had sustained by being dispossessed of the land conveyed to him. Gillespie v. Torrance, 25 N. Y. 306; McKnight v. Devlin, 52 N. Y. 399. The plaintiff’s testatrix had personally covenanted for its quiet possession and enjoyment, had personally warranted the title, and the notes were a part of the purchase price of the premises and of the consideration for such covenants and warranty. It seems to me that the court erred in excluding the judgment roll in the action of ejectment. If the plaintiff’s testatrix had had notice of the action, it would, in the absence of fraud or collusion, have been conclusive. Without notice, it is prima facie evidence, and imposes upon the plaintiff the burden of showing that there was a defense to the action, and that there was no failure of title, and is competent to prove defendant’s eviction, and what premises lie had been evicted from. Comstock v. Drohan, 8 Hun, 373, affirmed in 71 N. Y. 9; Taylor v. Barnes, 69 N. Y. 430; Konitzky v. Meyer, 49 N. Y. 571; Insurance Co. v. Wilson, 34 N. Y. 275; Adams v. Conover, 87 N. Y. 422. The court also erred, I think, in excluding evidence of the value of the land from which the defendant was evicted by the judgment in ejectment; and it was also competent for the defendant to prove the amount of costs and expenses he had paid or been subjected to in defending said action. Where a party has been evicted from a portion of the premises, capable of definite ascertainment, the measure of damages is the ratio which the value of the premises taken bears to the purchase price of the whole, together with the costs and expenses of defending the action. Hymes v. Esty, 133 N. Y. 342-347, 31 N. E. Rep. 105; Staats v. Executors of Ten Eyck, 3 Caines, 111. The last case cited was approved in Corcoran v. Judson, 24 N. Y. 106, and is, I believe, the settled law in this state. It seems to me also that it was perfectly competent and proper for the defendant to prove by a surveyor that the land described in the judgment in ejectment was a portion of-the same premises described in the deed given by plaintiff’s testatrix to the defendant, and that the court erred in excluding testimony tending to prove that such was the ease. Bor these reasons the judgment should be reversed, and a new trial ordered; costs to abide the event. All concur.  