
    *Rosenberger v. Keller’s Adm’r & als.
    September Term, 1880,
    Staunton.
    Sale of Ileal Estate — Breach of Warranty —Rift-lit of Vendee to Equitable Relief.—
    K’s administrator files bill against R to subject land to satisfy a judgment for purchase money of land conveyed by K to R, with covenant against encumbrances. R answers claiming that there were encumbrances on the land, arising out of a previous division of a larger tract, when it was provided that the owners of other parcels of the land should have the right to use water out of a well on the lot sold to him, and also to pass along a lane through his land. This partition was made in 1833, and R had never heard of these encumbrances until since this suit was brought in 1875, and R asks his answer may be taken as a cross-bill, and his damages may be ascertained by a jury. Upon demurrer by the plaintiff — Held:
    1. The easements never having been used, and R not having suffered any injury from them, he is not entitled to relief in equity.
    This was a suit in equity in the circuit court of Shenandoah county, brought by John Keller’s administrator to subject the land of William Rosenberger to satisfy a judgment for $850, with interests from the 1st of February, 1869, and $28.43 costs, which the plaintiff had recovered against the defendant Rosenberger for the balance of the purchase money of land which Keller in his lifetime, had sold to Rosenberger. Rosen-berger answered the bill admitting the judgment, and that it was for the purchase money of the land, and was unpaid except as to the sums of fifty dollars and twenty dollars; but insisting that Keller had conveyed to him by deed with covenant against encumbrances; *and he alleged there were encumbrances arising from parties holding other lands with certain rights to take water from his well, and pass over his land to their other land. And he prayed that his answer might be taken as a cross-bill, and the plaintiff might be required to answer it.
    Keller’s administrator demurred to the cross-bill, and also answered, and the cause coming on to be heard, the court sustained the demurrer and dismissed the cross-bill; and referred the cause to a commissioner for an account of the liens upon the defendants land, and its annual and fee simple value. And on the coming in of this report there was a decree for the sale of the land; and an appeal to this court. The only part of the decree of the court below considered by this court is that in relation to the decree upon the demurrer to the cross-bill; and the facts are stated in the opinion of Staples, J.
    M. Walton and Williams & Bro., for the appellant.
    S. S. Turner, for the appellee.
   STAPLES, J.

The original bill in this case was filed to enforce the lien a judgment recovered by the appellee against the appellant, for the balance of unpaid purchase money due upon the sale of a tract of land made by John Keller, the appellee’s intestate. The appellant filed an answer which he asked might be treated as a cross-bill, and it was so treated in the court below. To this bill, the appellee demurred, the demurrer was sustained, and the bill dismissed. From that decree an appeal was taken to this court. In passing upon the questions arising in the case, we must of course, take all the material averments of the bill to be true.

*The facts appear to be, that upon the death of George Koontz, in 1833, his real estate was divided among his four children and heirs. The commissioners who made the partition, designated the four tracts or parcels as lots Nos. 1, 2, 3, 4. In making the partition, they assigned to the owners of lots Nos. 1 and 2, the privilege of getting water from the well on lots Nos. 3 and 4, and the use of the lanes running from the main road across the tract, on both sides, to get to their wood land, and to drive the stock of each lot respectively to the water. ,

In the year 1837, William Koontz, the owner of the tract known as lot No. 4, conveyed it to John Keller, and in the year 1860, John Keller conveyed it to the appellant, by a deed_ with covenants of general warranty, of quiet possession, and that the premises are free from incumbrances.

The appellant in his bill, avers that since the rendering of the judgment against him, and indeed since the institution of this suit, he has ascertained that his vendor John Keller did not have a good and perfect title to the land, for the reason that the tract so conveyed is charged and burdened with certain water rights and privileges in favor of other parties, of a character extremely detrimental to the use and value of the same. That the tenements known as lots No. 1 and No. 2, have been sold in sundry parcels, to different purchasers, and that the injury to the appellant’s land and the depreciation .of its value, has increased, and will continue to increase in proportion to the number of subdivisions and families located upon the same, the number of stock owned by them, and other circumstances attending the ownership of said parcels entitled to such privileges.

He further avers that said circumstances so seriously affect and interfere with the ownership of the land, as to induce him to desire the rescission of the contract, *and the return of his money, subject to any proper deductions for rent, &c., and if that cannot be properly done, he prays an issue to ascertain his damages growing out of the breach of warranty, and that the same may be set off against the claim of the appellee.

This is the whole case made by the bill, so far as is material to the present enquiry.

Taking every allegation of the bill as true, the question is, whether the appellant is entitled to relief, upon his own showing?

It will be observed, the appellant does not aver any eviction or disturbance of his possession, or the exercise of the water rights and privileges by the. owners of lots Nos. 1 and 2. The appellant does not even allege a claim asserted on their part to the exercise of such rights and privileges, or any action pending or threatened to enforce the same. From the silence of the bill on this point, it is a matter of great doubt whether indeed there has ever been any such exercise of the water privileges as would amount to a disturbance, during the time the land was owned by John Keller, from 1837 to 1860. Certainly there was nothing of the kind from the year 1860, down to the time of the institution of this suit in 1875.

If the owners of the dominant, tenements had exercised, or -claimed to exercise, the alleged water privilege, whilst the appellant has been in possession, it is impossible to suppose he could have been ignorant of the fact. It’is equally impossible to suppose that any damage or even inconvenience results from an easement the existence of which was unknown to the owner of the serviant tenement for fifteen years, and the enjoyment of which, it does not appear has ever been asserted or insisted upon, and may never be insisted upon. The sole question therefore is whether the mere existence of the easement of encumbrance is *such a breach of covenant as entitles the .appellant to stay the collection of the purchase money, and to demand an enquiry of damages by a court of equity?

There is no doubt, a covenant against encumbrances is broken immediately upon the execution of the deed, if there be an existing encumbrance upon the property. Nor is the covenantee compelled to wait until he is ousted or disturbed in his possession. Where the encumbrance is in the nature of a mortgage, or other security for money, the covenantee may himself pay it off, and call upon the covenantor for compensation. But if the encumbrance has not been paid off. and no eviction or disturbance has taken place, the covenantee can recover nominal damages only; for he may never be disturbed in his possession. 2 Lomax Digest 352, side p. 271; Rawle on Covenants of Title 89, 93. On the other hand, if the encumbrance be of such a character, that it cannot be removed by the covenantee, as in the case of servitude or easement, he may sue on the covenant for damages; but if he has not been disturbed, or sustained some real injury from the easement, his damages will be merely nominal.

As was said by Judge Woodward, of the supreme court of Pennsylvania, in Beaup-land v. McKeen, 4 Casey R. 130, "It is a delicate matter to interfere between vendor and vendee; for in determining the possibilities of an eviction we have not before us the paramount claimant on whose will and rights the liability to eviction depends. Possibly he has no rights, as would appear the moment he attempts to assert them; or if he have rights, it is possible he may never attempt to assert them; and in either case it would be against conscience and equity to allow the purchaser to keep the land on which so unsubstantial a cloud rests, and also the- money he agreed to pay as the price of the property.”

*And so, in the present case, it may be as stated by the circuit judge, the several alienations of the lands Nos. 1 and 2, to different purchasers, in different parcels, may have operated to extinguish the encumbrance upon the lands of the appellant, and the right may never be asserted. However that may be, it is manifest, if the appellant is entitled to any recovery upon the facts set out in his -bill, his recovery would be merely nominal damages, and no more.

The numerous adjudged cases on this subject will show that this court has gone very far in staying the collection of the purchase- money for land upon proof of a defect of the title where no suit is pending, or even threatened. But even here a distinction has always been made between an injunction to a judgment for the purchase money and an injunction to a sale under a deed of trust. In the latter case the court interferes the more readily upon the ground of removing a cloud upon the title, in order to prevent a sacrifice of the property; whereas, in a like case, the court will not interfere with the vendor in enforcing his judgment, since the doubt about the title may eventually turn out to be frivolous and groundless. Miller v. Argyle’s ex’or, 5 Leigh 460, 508; Koger v. Kane, Ibid. 606.

But apart from all these considerations, the present bill is a mere suit for damages. It is true there is a sort of conditional prayer for a rescission of the contract; but by common consent this is abandoned as untenable, and the case therefore stands simply as an action for damages in a court of chancery.

In this respect, it is almost identical with that of Robertson v. Hogshead, 3 Heigh 667. In that case Judge Tucker said, (and the other judges concurred). "As the form of proceedings then excludes the possibility of '’‘rescission, the bill can only be looked on as a bill for an injunction to restrain the payment of an unpaid balance of purchase money, until a claim for unliqui-dated damages shall have been settled by an issue to be directed by the court. But it has long been settled that unliquidated damages cannot be set off in equity. Duncan v. Lyons, 3 John. Ch. R. 351; Webster v. Couch, 6 Rand. 519. The party aggrieved should have instituted the proper proceedings at law, and ascertained his damages, before he attempted to arrest the payment of the instalment of the purchase money remaining due.”

These observations of Judge Tucker, apply with peculiar force to the present case. The only difference between the two cases is that in Robertson v. Hogshead, the controversy was between vendor and vendee, whilst here, the contention is between the vendee and the personal representative of the vendor.

It is suggested by counsel, that great injustice may be done in requiring appellant to pay over the purchase money whilst there is an incumbrance ujion it. to the dis-tributees of the vendor; and take his chances of recovering it back.

The bill, howevpr, does not contain any allegation of insolvency, or any other equitable consideration justifying a court of equity in taking jurisdiction of the case, and awarding damages.

If the money should be paid over to the distributees of the vendor, it will be only upon the execution of refunding bonds to the administrator, which will afford ample security to the appellant.

Tor these reasons, and without goinginto a consideration of the other grounds of the circuit court, for its decision, we think that court did not err, in sustaining the demurrer, and dismissing the bill.

*But such dismissal ought to have been without prejudice to any action at law, the plaintiff may bring for damages on account of a breach of contract, or any bill in equity, he may be advised to file upon a proper case for the jurisdiction of that, court.

Decree affirmed, but without prejudice-  