
    John Tufts versus Nathan Adams.
    Land granted by A to T with covenants against all incumbrances and of general warranty, was nevertheless subject to a mortgage to C, on which C subsequently recovered the conditional judgment, and obtained possession of the land. While the land continued in T’s possession, lie mortgaged it for a smaller amount than C’s mortgage. After C liad thus obtained possession, T brought an action against A for a breach of the above covenants, in which It was held ; 1. That the covenant against incumbrances was broken when the deed was execuied, but that T could only recover nominal damages, as he had not paid any thing to remove the incumbrance. 2. That the covenant of warranty was broken ; that T, by his mortgage, had assigned this covenant, to the extent of the sum due on this mortgage, to the mortgagee ; that the damages recoverable in this action were the amount of C’s judgment for debt and costs, deducting the amount of the mortgage which T had made himselfj and that if before judgment T paid oft' the mortgage made by himself, lie could recover in this action the whole amount due to C.
    This was an action of covenant, on a deed of land made by the defendant to the plaintiff,- in which the defendant covenanted, that at the time of the conveyance the premises were free of all incumbrances, and that he would warrant and defend the same to the plaintiff, his heirs and assigns, against the lawful claims and demands of all persons.
    The plaintiff alleged as a breach of the first covenant, that at the time of the conveyance the land was subject to a mortgage before that time made by John Harris, a former owner of the land, to Mrs. Esther Clarke, which was outstanding and unpaid. He alleged as a breach of the other covenant, that Mrs. Clarke, in an action brought on her mortgage, recovered at the October term of this Court in 1827, the conditional judgment, that she should have her writ of possession, unless the liquidated amount due on the mortgage should be paid in two months ; and be further averred, that the amount was not paid, and that Mrs. Clarke thereupon took out execution on the judgment, and was put into possession of the land under it on January 25, 1828, by which means the plaintiff was evicted.
    The defendant pleaded that he had not broken his covenants , upon which issue was joined.
    On the trial, before Morton J., the plaintiff produced and proved the deed, dated March 19, 1817, containing the covenants declared on. He also offered the record of the candi tional judgment recovered by Mrs. Clarke, as stated in the declaration, the amount of the debt being 3323 dollars 3 cents, and costs 74 dollars 48 cents, and also the writ of possession, executed January 25, 1828, by which Mrs. Clarke was put in possession of the land, which she still held, the sum due on the mortgage not having been paid. It was also proved that the plaintiff, after the conveyance to him by the defendant, had made three mortgages by deeds in the usual form, with warranty, which were outstanding and unpaid at the time of the trial, viz. 1. To Elizabeth Ingraham, March 13, 1822, for securing 700 dollars and interest: 2. To Rufus Wyman, August 19, 1825, for 500 dollars and interest: 3. To George B. Lapham, August 24, 1826, for 700 dollars and interest. The plaintiff is liable on his covenant of warranty to each of these mortgagees.
    The jury were directed to return a verdict for the plaintiff for the value of the land on January 25, 1828, when Mrs. Clarke’s writ of possession was executed. The jury accordingly returned a verdict for 4300 dollars, which was to be subject to the opinion of the Court on the following questions reserved, to wit, first, whether, upon the facts, the action would lie upon either of the covenants and the breaches assigned and proved ; and if so, secondly, what is the measure of damages upon either or both of the breaches. And judgment was to be entered on the verdict, or the verdict was to be set aside and a new trial granted, as the Court might order.
    
      Shaw and Phinney, for the defendant.
    The plaintiff, by his mortgages of the land, assigned the covenants of the defendant to ihe mortgagees, and therefore has now no interest in them, and can maintain no action for the breach of them. The mortgagees of the plaintiff can now sue the defendant for the breach of the covenant of warranty. Bickford v. Page, 2 Mass. R. 455. It is true that by paying off these mortgages the plaintiff may entitle himself to sue for the breach of the covenant of warranty, but he cannot sue until he has done so.
    
      Ott. 16th,
    
    The taking possession of the land by Mrs. Clarke as mortgagee, is not such an eviction as will enable the plaintiff to maintain this action. Emerson v. Proprietors of Land in Minot, 1 Mass. R. 464; Prescott v. Trueman, 4 Mass. R. 631; 
      Bearce v. Jackson, 4 Mass. R. 408; Gore v. Brazier, 3 Mass. R. 523. Notwithstanding the mortgagee has obtained possession, the plaintiff has- not lost the land, which still remains only a security for the mortgage debt. Goodwin v. Richardson, 11 Mass. R. 469; Ballard v. Carter, 5 Pick. 112.
    The damages for the eviction, if any are recoverable, can be only nominal. Certainly the whole value of the land cannot be recoverable, for if it were, by paying off Mrs. Clarke’s mortgage, the plaintiff’s title would become good, and he be enabled to pocket the difference between the value of the land and the amount of the mortgage money. Wyman v. Brigden, 4 Mass. R. 150.
    No damages are recoverable on the covenant against incumbrances, for the plaintiff, by assigning to his mortgagees, has given them the right to sue on this covenant. Sprague v. Baker, 17 Mass. R. 586. At any rate he can only recover nominal damages, until he extinguishes the incumbrance. Prescott v. Trueman, 4 Mass. R. 627; Chapel v. Bull, 17 Mass. R. 213; Wyman v. Ballard, 12 Mass. R. 304.
    
      Hoar and Tufts, for the plaintiff.
    To show that the plain tiff, being liable on the covenants in the mortgages made by him, could maintain an action against the defendant on his covenants, they cited Niles v. Sawtell, 7 Mass. R. 444.
    The opinion of the Court was drawn up by
    
      April term 1830,
   Parker C. J.

There can be no doubt that the plaintiff is entitled to his action for the breach of the covenant against incumbrances, for the incumbrance existed before the execution of his deed from the defendant, and so the right of action did not pass to the plaintiff’s assignee. But for this breach he could recover only nominal damages, it not being averred or proved that he had paid any thing towards relieving the land from the incumbrance.

With regard to the breach assigned, of the covenant of warranty, it is averred and proved that Mrs. Clarke, the mortgagee )f John Harris, had obtained the conditional judgment on her mortgage, and, the debt not having been paid, that a writ of habere facias had issued, by virtue of which she had been duly put into possession by the officer. This is certainly an eviction, and therefore proves the breach of the covenant of warranty ; but it does not necessarily follow, that the damages should be assessed to the value of the land, because the right of redemption is open, and the plaintiff may discharge this incumbrance and restore himself to possession, by paying the debt and the interest and the costs of suit. Indeed, there seems to be no reason why, on such an eviction, which at the election of the plaintiff may be defeated, any more damages should be recovered than will indemnify the plaintiff; for if the whole value of the land should be assessed in damages, the plaintiff might pay the debt secured by the mortgage, and thus hold an indefeasible title ; which is all he has a right to exact from the defendant.

It appears reasonable, therefore, that for this breach of the covenant of warranty, the proper rule of damages should be, to give the amount due upon the mortgage, with the costs of the suit upon the mortgage against the plaintiff, and thus he will be enabled to redeem the land from the funds of the defendant. If he should not redeem, but suffer the equity to be fore closed, then, if there shall be any loss, he will have no right to complain.

Thus the case ought to stand, if there had been no conveyance or assignment by the plaintiff of his interest in the land. But he has made three several mortgages ; one of which, to Wyman, is discharged, but the others, to Mrs. Ingraham and to Lapham, are outstanding. As these conveyances were made before the defendant’s covenant of warranty was broken, that covenant passed with the land to the extent of the sum secured by the mortgage, and if the plaintiff now should recover the whole sum due on Mrs. Clarke’s mortgage, Mrs. Ingraham and Lapham may have their actions on the covenant against the defendant, so that he may have to pay twice for the same breach. According to the doctrine in Wyman v. Ballard, 12 Mass. R. 304, the mortgager of an estate under a previous incumbrance, may recover the value of the incumbrance, he has been made to pay to his grantee on his covenants. Here oeing an actual eviction, if he pays off the incumbrance before judgment, why may he not recover a full indemnity, instead of being put to another action ?

.Note. It was stated by the plaintiff’s counsel at the argument, that the mortgages to Lapham and Mrs. Ingraham had been paid off; and judgment was rendered for 388G dollars 55 cents, being the amount due on the mortgage of John Harris to Esther Clarke. 
      
       See Chapman v. Holmes, 5 Halsted, 20; Mitchell v. Warner, 5 Connect R. 497, Dams v. Lyman, 6 Connect. R. 249; Stewart v. Drake, 4 Halsted. 139; Bean v. Mayo, 5 Greenleaf, 94; Potter v. Taylor, 6 Vermont R. 676; Richardson v Dorr, 5 Vermont R. 9; Funk v. Voneida, 11 Serg. & Rawle 109.
     