
    William Clark v. Samuel Parr.
    On a covenant of warranty of title, where plaintiff has been evicted by title paramount, and the whole premisos lost, the rule of damages is the consideration paid, with interest. But, when the plaintiff has enjoyed the rents and profits, he can only recover interest for a period of four years ; and he is allowed to recovor during this period, beoause he is liable to account for them to the plaintiff in ejectment, in an action for mesne profits.
    This is an action of covenant, reserved in the county of Licking.
    On April 30, 1834, the plaintiff was in possession of fifty-three acres of land, in right of his wife, by a former husband, one Richard Parr, a brother of the defendant. The defendant was the administrator on his brother’s estate; and, under an order of the eourt of common pleas, conveyed the land to one Emery, who conveyed it back to the defendant. On the same April 30, 1834, the defendant executed a conveyance of eighty acres of land, including this dower estate to the plaintiff, and this conveyance contains a covenant of warranty. The heirs oí Richard Parr afterward filed their hill in chancery against the administrator, Emery, the plaintiff and wife ; and such proceedings were had in the chancery suit, that the title of Samuel Parr, the defendant, was decreed fraudulent, and the plaintiff and wife, to release their title to the land conveyed, except the dower estate of the wife. The balance of *the lot, not included in the fifty-three acres, is wild land, and unproductive. This action is covenant on the warranty of title. A default was taken in the Supreme Court for Licking county, and the case reserved here, to determine the rule of damages.
    Shyti-ie & Sprague, for the plaintiff:
    This action is on the covenants of the deed. The defendant is in default, and the question-submitted to the court is, as to the amount of damages for which the plaintiff shall take judgment. From what time is he entitled to interest on the purchase monev paid ?
    Among the- conflicting decisions of courts, in the actions on these covenants, from the old judgment in warrantia ehartce in England, to the establishment of certain rules in this country, I find no ease precisely like this; and, of course, no rule strictly applicable to the question.
    In general terms, on covenants of seizin, and for quiet enjoyment, the rule in Massachusetts, New York, and Ohio is settled — the measure of damages is the consideration money and interest. 2 Mass. 455; 4 Mass. 108; 8 Mass. 162, 243; 10 Mass. 459 ; 3 Caine, 3; 4 Johns. 1; 9 Johns. 324; 3 Ohio, 211.
    The same rule has been held in Ohio to apply to covenants of warranty. 5 Ohio, 154. In Massachusetts an.d Maine, the rule of damages on covenants of warranty, is the value of land at the time of eviction. 3 Mass. 523; 4 Mass. 108, 512.
    In 3 Caine, the rule was restricted to the recovery of interest for such time as the plaintiff was liable, or had accounted for mesne profits, being six years, tho limitation of the action of trespass therefor. This rule was followed in Caulkins and Harris, 9 Johns. The reason given for this restriction is, that the rents and profits received by the warrantee, for which he is not accountable, form a just compensation for the use of the consideration, money for such time — it is because “the premises had been enjoyed, and the profits taken by the covenantee.”
    *This court, in King v. Rees’ Adm’rs, 5 Ohio, 154, followed the spirit of this equitable rule. It is there said: ‘ Interes* is not recoverable when the premises have been occupied by the warrantee, and he has not accounted, nor is accountable for the rents and profits. He who buys a farm, or house and lot, agrees to part with the use of the consideration forever, for the use of the farm, or house and lot forever. As long as he has the use of the farm, or house and lot, so long should the seller have the interest of the consideration.”
    I take no exception to the restriction thus established. It is right and just; its reason, however, does not apply to this case. The plaintiff has not “ enjoyed ” the premises intended to pass by the deed. He had an estate, before the conveyance, in all the land capable of enjoyment, which has not yet expired, viz: the dower estate of his wife. He has received no additional benefit from the conveyance of the defendant. Had he not purchased, or parted with his money, he would, nevertheless, have enjoyed all the benefit from the premises that he has received. His purchase, as to the part of the land covered with the dower estate, was a purchase of a reversion merely, which has not vested as a present interest in the land, and could not so inure, until the decease of his wife. The advantage of the purchase, had a good title, been procured thereby, would have been to secure to the plaintiff the enhanced value of the land to himself, or his heirs. In the ouster of the reversionary title, this advantage is lost to him. He can only look for the money with which he has parted, without benefit or consideration, and such interest thereon, as by the rules of law, he may be entitled to. The defendant has had the use of his money from the time of the purchase, without prejudice to any interest of defendant, or benefit to-the plaintiff.
    Suppose the plaintiff to have had no connection with the dower estate, this would not vary the ease; yet, could there be a doubt of his right to the consideration and interest for the whole time, for so much of the land as is embraced by the dower ? He could not then have “ enjoyed ” the premises and received *the rents and profits, nor would he be accountable for them. The case of Chappel v. Bull, 17 Mass. 213, would apply. The defendant conveyed to the plaintiff 684 acres of land in Ohio, ponding proceedings in partition under which the lands were sold, the plaintiff having never entered into possession. The damages awarded by the court were the consideration money and interest to the time of the verdict. It ia a general rule of law, respecting the measure of damages, that the remedy should be commensurate with the injury sustained. 7 Mass. 254. Such is the effect of the rule in the cases cited; but its application to this case would work manifest injury to the plaintiff, and put him in a worse condition than if ho had become the purchaser of a present unincumbered foe simple estate. ■ The only way that the reason and equity of the rule can be applied, is by awarding the purchase money and interest thereon irom the time of payment. This is the plaintiff’s injury, and he is at least entitled to it so far as relates to that part of the lane’ embraced in the dower estate. This may be awarded him without the violation of any rule of law. As to the twenty-four and a half acres not embraced in the dower, he is entitled, under the rule in 3 Caine, to interest on the consideration for such time as he would be liable for mesne profits, had any been received.
    It is suggested that the doctrine of merger applies, and that the dower estate became merged in that derived from the defendant. This can not be. To constitute a merger of the leáser estate in the greater, they should both unite in the same person; whereas, the one is in the wife, and the other in the husband solely. Besides, no estate did, in fact, pass by the defendant’s deed; the mere execution of a fraudulent deed can not absorb an existing estate.
    No argument was submitted for the defendant.
   Wood, C. J.

In actions on covenants of seizin and quiet enjoyment, the rule of damages, though it has exceptions, has been ^adjudged to be the consideration money and interest, and this rule has been applied to suits on the warranty of title. 5 Ohio, 12, 154. But in the case at bar, the plaintiff occupied the premises from the date of the conveyance, and such’enjoyment is considered as equivalent to the interest on the consideration paid. 5 Ohio, 154. As the plaintiff may, however, be compelled to account for the rents and profits to the plaintiff in ejectment, in an action of trespass for mesne profits, and as such action is barred by the statute in four years, and the plaintiff in trespass for mesne profits can not recover beyond that period from the ejectment, the plaintiff, on the account of warranty, ought not to recover interest lor any longer period on the consideration.  