
    Richard Caswell versus Oliver Wendell.
    For the breach of a covenant of seism, the damages due are the value of the land at the time of the conveyance, and interest thereon to the time of the j udgment.
    This was an action of covenant broken, on a deed, by which the defendant, as surviving executor of the last will of JohnErving, Esq., deceased, conveyed several parcels of land to the plaintiff, and one William Tyler, deceased, in fee. The defendant covenanted that Erving, in his lifetime, and at the time of his death, was lawfully seised in fee of the premises; that they were free of all encumbrances ; that he had good right to convey the same by virtue of said last will; and that he would, in his said capacity of executor, warrant and defend the same against the lawful claims and demands of all persons.
    *The breaches assigned by the plaintiff are, that Er- [ * 109 ] ving was not lawfully seised, &c.; that the premises were not free of all encumbrances ; that the defendant had not good right to convey, &c.; and that he hath not warranted and defended the same to the plaintiff. But one Robert Rand and others, being rightful owners of one of the parcels conveyed, have entered upon and taken possession thereof, and evicted and amoved the plaintiff therefrom, and still continue lawfully to hold and enjoy the same.
    The defendant pleads in bar, 1. That Erving was lawfully seised, upon which issue is joined. 2. That the premises were free of all encumbrances at the time of the execution of the deed declared on, upon which issue is also joined. 3. The third plea sets forth the seisin of the testator, the making of the will, the death of the testator, the probate of the will, the authority given by it to the executors to sell the real estate, the death of the other executors, and concludes that the defendant, as surviving executor, had, by virtue of the power given in the will, good right to sell, &c., according to the true intent and meaning of his covenant in that behalf made, &c.; and this he is ready to verify; wherefore, &c. In his replication to this plea, the plaintiff denies the seisin of the testator, on which issue is taken. 4. The fourth plea alleges that the said Robert Rand and others did not lawfully enter, &c.; upon which issue is joined.
    These four issues were tried at the last November term, before Parker, J., who directed the jury, if they found that John Erving was never seised of the land in his lifetime, so that the executor, at the time of entering into the covenant, had no right to sell, they would give such part of the consideration money with interest in damages, as they should find applied to the piece of land in question, one moiety thereof belonging to the plaintiff; but if'they found the second and fourth issue for the plaintiff, viz., that he had been- evicted by superior title, according to the allegation in the declaration, or that the estate had been encumbered by Erving before the execution of the deed, as there was a covenant to warrant and defend in the deed, they would consider the value of the land at the time of the eviction as the proper [ *110 ] * measure of damages. The jury found the first and third issues for the plaintiff, and assessed damages according to the judge’s direction ; the other issues were found for the defendant. The judge certifies that in his opinion the verdict is conformable to the evidence in the case, and refers to the decision of the Court the question whether his direction was right on the subject of damages ; and whether this action can be maintained against the defendant in his private capacity, is reserved at the request of the defendant’s counsel.
    And now at this term the defendant waived all objections to the verdict, and is content that judgment be rendered upon it. [Note. It was understood that the heirs of Erving, the testator, had, engaged to indemnify the defendant.]
    
      
      G. Blake for the plaintiff.
    
      C. Jackson for the defendant.
   Curia.

As to the plaintiff’s objection, we are satisfied that the direction of the judge, as to the rule of assessing damages, was right. No covenant appeared to be broken, but the covenant that Erving, the testator, was lawfully seised. That covenant was broken at the time the conveyance was executed ; and the value of the land at that time, as agreed by the parties, with interest, is the measure of damages.

Let judgment he rendered according to the verdict.

See the cases of Marston vs. Hobbs, ante, vol. ii. 433, and Bickford vs. Page, ibid. 455. 
      
      
         [See the cases referred to in the notes to Marston vs. Hobbs, and Bickford vs Page, 2 Mass. Rep. 433—455. — Ed.]
     