
    Thomas Wetmore versus William E. Green et al.
    
    The defendant conveyed land to the plaintiff in mortgage, and gave a bond with condition that he would discharge all incumbrances. The plaintiff having entered for foreclosure, a prior mortgagee recovered judgment for possession for the non-payment of a sum found due on his mortgage, and afterwards entered upon the plaintiff and evicted him. The plaintiff commenced an action upon the bond before the eviction, and upon a hearing in equity after the eviction, it was held, that the measure of the plaintiff’s damages was the amount of the first mortgagee's judgment and costs, with interest computed thereon to the time of rendering the judgment for the plaintiff.
    Debt upon a bond, dated September 21, 1824, made to the plaintiff by Green as principal and Eaton, the other defendant, as surety, in the penal sum of 6000 aollars. The condition, after reciting that the plaintiff has lent to Green the sum of 5000 dollars and taken as security a mortgage of a parcel of land in Providence, Rhode Island, bearing even date with the bond, and that Green has agreed to pay and discharge all attachments, liens, mortgages or incumbrances, which may be upon the estate, provides, that if Green shall well and truly discharge all attachments, liens and mortgages upon the estate, and shall render the estate free and clear of all incumbrances, within one year from the date, then the obligation shall be void.
    It was agreed by the parties, that at the time of making the mortgage to the plaintiff, there was an incumbrance on the land by means of a prior mortgage to one Martin, and that it had never been removed. In consequence of the non-payment of the interest and principal which had become due on the notes which the mortgage to the plaintiff was given to secure, the plaintiff, by judgment duly obtained, entered and took possession of the land, for condition broken, and claimed to hold' it for the purpose of foreclosing the right in equity to redeem. After he had thus obtained possession, and while he was taking the rents and profits, Martin commenced an action of ejectment upon the prior mortgage, and thereupon judgment was rendered that Martin should have possession of the land for the non-payment of $ 1790-35, found due on the mortgage to him; and afterwards, under due process of law, Martin, since the commencement of the present action, entered and took possession of the land to foreclose the right in equity of redeeming the same, and has ever since held the plaintiff out. The amount due on the mortgage to Martin, was, on November 3, 1830, $1790-35, and the costs of his suit were $35-58.
    
      Oct 12th
    
    
      Oct. 10th.
    
    It is also said in the statement of facts, (but not consistently with a previous allegation,) that this action was not commenced until after the plaintiff had lost his possession as above mentioned.
    It was submitted to the Court to determine whether the action was maintained, and if so, how much the plaintiff might now recover.
    
      Merrick, for the plaintiff,
    cited Waldo v. Fobes, 1 Mass. R. 10.
    
      J. Davis and C. Mien, for the defendants,
    cited St. 1785, c. 22: Prescott v. Trueman, 4 Mass. R. 627 ; Wyman v. Ballard, 12 Mass. R. 304.
   Shaw C. J.

delivered the opinion of the Court. It is admitted that the incumbrances on the estate mortgaged to the plaintiff, were not extinguished within one year from the date of the bond upon which this action is brought, and so that the bond is forfeited at law ; and on a hearing in equity the question is, for what sum damages shall be assessed.

The facts find that the plaintiff was in possession of the premises mortgaged to him, taking the rents and profits, and that under a judgment upon a paramount title, to wit, the mortgage to Martin, the latter entered and evicted the plaintiff.

There is some inconsistency in the facts agreed, it being first stated that Martin, since the commencement of the present action, entered, and afterwards, that this action was not com menced by the plaintiff till after he had lost his possession as above mentioned. But in this cased; is not material, because, it being conceded that the condition was broken when the action was commenced, the damages on a hearing in equity, are to be taken according to the damage actually suffered, at the time of entering the judgment.

Both parties have very properly considered the case as depending upon the same rules, in most respects, as those which regulate the assessment of damages, on a breach of covenant ; to which this contract is most analogous.

On the one hand it is contended, that the full amount of the value of the outstanding mortgage is to be recovered ; on the other, that the outstanding mortgage is a mere incumbrance, and so, according to the well known rule in covenant, no more than nominal damages are to be recovered, till the incumbrance has been removed by the covenantee, it being truly said, in such case, that the incumbrance may never be •enforced, or the covenantee damnified.

In covenants in the future, as for quiet enjoyment and warranty, the rule of damage is the value of the land at the time of ■eviction, with interest thereupon to the time of the judgment.

The present obligation is much more like a covenant of warranty or of quiet 0 enjoyment, than of seisin or good title. It is in the future. It is an undertaking that the obligor will remove all incumbrances within a limited time. The breach happened by the lapse of time, without removing the incumbrance sybsisting in Martin’s mortgage.

Still, had it remained a mere dormant incumbrance, it is very questionable whether, in analogy to the rule in cases of covenant against incumbrances, any thing more than nominal damage could be recovered. But this is not the condition, of the plaintiff. He has been actually evicted, by a paramount title, and his legal title turned into a mere right to redeem.

That this is an actual eviction, which would warrant the assessment of full damages in covenant, is settled by a recent case, in which the subject was fully considered. Tufts v. Adams, 8 Pick. 547. There it was held, on great consideration, that an entry to foreclose, under a prior mortgage, though not yet foreclosed, was an eviction upon which the covenantee was entitled to recover full damages. But as the right of redemption was still open, the common rule of damage, giving the value of the land at the time of eviction, should be so far modified as to give the amount of the mortgage. This ■ is a rule calculated to do precise equity ; such as will enable the plaintiff to do that which the defendant undertook to do, to wit, to discharge the prior mortgage, and thus relieve the plaintiff’s title.

We are all of opinion that the rule adopted in that case is applicable to the present. The plaintiff, instead of a legal seisin in the land, has a mere right to redeem ; but as the estate is held against him by a defeasible title, the proper measure of his damages is such a sum as will enable him to pay off the incumbrance and defeat the adverse title.

It has been objected that the plaintiff may thus be overpaid, as he may receive the damages to be recovered in this action, and yet hold the whole land for the whole of his debt. But we think this would not be so. We have no doubt that any sum received on this obligation, would operate as payment of his debt pro tanto. This is one of the collateral securities for his principal debt; and all moneys received from any pledge or security, would enure as a payment.

If after such payment pro tanto, the mortgager does not pay the balance and redeem his land, it will probably be, because the land is not worth more than such balance. At all events, he will have a right so to redeem, and of course can suffer no injustice if he fails to exercise it.

Judgment is to be entered for the amount of Martin’s judgment and costs, with interest computed thereon to the present time. 
      
       See Leffingwell v. Elliott, 10 Pick. 204; Brooks v. Moody, 20 Pick. 474
     
      
       See White v. Whitney, 3 Metc. 81; Norton v. Bahcock, 2 Metc. 510; Comings v. Little, 24 Pick. 266; Thayer v. Clemence, 22 Pick. 490; Harlow v. Thomas, 15 Pick. 66; Honey v. Newton, ante, 421; Bean v. Mayo, 5 Greenl. 94; Danis v Lyman, 6 Connect. R. 249; Richardson v. Dorr, 5 Vermont R. 19
     