(p) Staats v. Ten Eyck, 3 Caines, 117; Pitcher v. Livingston, 4 Johns. 13, per Spencer, J.; Bender v. Fromberger, 4 Dall. 442; Martin v Atkinson, 7 Ga. 238. See ante, p. * 223, note (c). But there seems to be no adjudication in favor of applying the distinction referred to in the text to this class of cases.

(q) in most of the cases cited supra, note (n), the consideration-money with interest and the costs were held to be the measure of damages, but in Threlkeld v, Fitzhugh, 2 Leigh, 451. it was suggested, that in some cases it might be shown that the actual val ie of the land was greater than the price paid. See 4 Kent, Com. 476. See also on this question Kennison v. Taylor, 18 N. H. 220; Flint v. Stead-man, 36 Vt. 210; Fettrech v. Leamy, 9 Bosw. 510; King v. Gilson's Adm'x, 32 111. 348.

(r) In Morris v. Phelps. 5 Johns. 49, the title to a part of the premise* failed, and it was nrged that the plaintiff ought to recover the whole consideration-money,

1 The value of improvements made in good faith even after notice of the superior title was held to he an element of damage in Cecconi v. Rodden. 147 Mass 164.

2 This is the rule adopted in most States. Kingsburv v. Miller, 69 Ala. 502; Carvill v. Jacks, 43 Ark. 439; McGary v Hastings, 39Cal. 360; Martin r. Gordon, 24 Ga. 533; Harding v Larkin. 41 111. 413; Rhea v. Swain, 122 Ind. 272; Fawcett v. Woods, 5 la. 400, Stebhins v. Wolf, 33 Kan. 765; Robertson v. Lemon, 2 Bnsh, 301 ; Hale v. New Orleans, 13 La. An 499 (conf. Coleman v. Ballard, 13 La. An. 512); Crisfield r Storr, 36 Md. 129,150 ; Devine v. Lewis, 38 Minn. 24; Lambert v. Estes. 13 Southwestern Rep. 284 (Mo. 1890); Hoffman v. Bosch, 18 Nev. 360; Winnepiseogee Paper Co. v Katon, 65 N. H. 13 ; Morris v. Rowan, 17 N J. L. 304 ; Kelly v. Dutch Church, 2 Hill, 105; West v. West, 76 N. C. 45; Wade v. Comstock, 11 Ohio St. 71; Stark v. Obey, 3 Ore. 88; Allison v. Montgomery, 107 Pa. 455 ; Lawrance r. Robertson, 10 S C 8: McGuffey v. Humes, 85 Tenn. 26; Glenn v. Mathews, 44 Tex. 400; Sheffey v. Gardiner, 79 Va. 313; Butcher v. Peterson, 26 W. Va. 447 ; Conrad v. Grand, etc. Order, 64 Wis 258.

But in England and a few States the value at the time of the eviction is held to be the measure of damages. Jenkins v. Jones, 9 Q. B. 1). 128; Sterling v. Peet, 14 Conn. 245; Williamson v Williamson, 71 Me. 442; Furnas v. Durgiu, 119 Mass. 500, Eaton v. Knowles, 61 Mich. 625; Keeler v. Wood, 30 Vt. 242.

(s) In Morris v. Phelps, 5 Johns, 49, of the court, said: "Another question in 56, Kent, C J., in delivering the opinion this case is, whether the defendant ought grantee may recover from his grantor with warranty, the costs and expenses fairly incurred in a suit to maintain his title, (uu)

*If the action is brought upon the covenant that the land is free from incumbrances, it will be necessary to consider the nature and effect of the incumbrances. If they consist of mortgages or attachments, or other liens of like kind, it seems to be well settled that the grantee may pay off these incumbrances, and may then recover all that he necessarily expended in this way, from the grantor; (t) and may even recover the amount of money paid by him to remove these incumbrances, after the action has been commenced, (u) And it has been held that the but the court laid down the rule in the text. Kent, C. J., said: "This is an old and well settled rule of damages; thus, in the case of Beauchamp v. Damory, Year-Book, 29 Ed. III. 4, it was held, by Hill J., that if one be bound to warranty, he warrants the entirety, but he shall not render in value but for that which was lost. In 15 Ed. IV. 3 (and which case is cited in Bustard's case, 4 Co. 121), the same principle was admitted, and it was declared and agreed to by the court, that in exchange, where a want of title existed as to part, the party evicted might enter as for a condition broken, if he chose; but if he sued to recover in value, he should recover only according to the value of the part lost. Though the condition be entire, and extends to all, yet it was said that the warranty upon the exchange might severally extend to part. So, in the case of Gray r. Briscoe, Noy, 142, B covenanted that he was seised of Blackacre in fee, whereas in truth it was copyhold land in fee, according to the custom; and the court said, that the jury should give damages according to the difference in value between fee-simple land and copyhold land." See also Guthrie v. Pugsley, 12 Johns. 126. In Johnson v. Nyce, 17 Ohio, 66, it was said, that in an action on a covenant of warranty, broken by the assignment of dower, damages would be given to the extent that the value of the estate is diminished by carving out the life-estate, taking one-third of the consideration-money to be the value of one-third of the fee-simple interest. See Rickert v. Snyder, 9 Wend. 416; Michael v. Mills, 17 Ohio, 601; Gray v. Briscoe, Noy, 142; Rawle on Coven, for Title (2d ed.), p. 113 et seq.

(t) Delavergne v. Norn's, 7 Johns. 358; Hall v. Dean, 13 id. 105; Stanard v. Eldridge, 16 id. 254; Prescott v. Trueman, 4 Mass. 627; Henderson v. Henderson, 13 Mo. 151.

(u) Leffingwell v. Elliott, 10 Pick. 204; Brooks v. Moody, 20 id. 474; Kelly v. Low, 18 Me. 244; Pomeroy v. Burnett, 8 Blackf. 143; together with reasonable expenses incurred in extinguishing the incumbrance, exclusive of counsel fees. Leffingwell v. Elliott. But the grantee not to have been permitted to show that the lands, in the deed of 1795, of which there was a failure of title, were of inferior quality to the other lands conveyed by the same deed. This appears to be reasonable; and the rule would operate with equal justice as to all the parties to a conveyance. Suppose a valuable stream of water, with expensive improvements upon it, with ten acres of adjoining barren land, was sold for 10,000 dollars, and it should afterwards appear that the title to the stream with the improvements on it failed, but remained good as to the residue of the land, would it not be unjust that the grantee should be limited in damages, under his covenants, to an apportionment according to the number of acres lost, when the sole inducement to the purchase was defeated; and the whole value of the purchase had failed? So, on the other hand, if only the title to the nine barren acres failed, the vendor would feel the weight of the extreme injustice, if be was obliged to refund nine-tenths of the consideration-money. This is not the rule of assessment. The law will apportion the damages to the measure of value between the land lust and the land preserved." See also Cornell v. Jackson, 3 Cush. 509; Dickens v. Shepperd, 3 Murph. 526. In King v. Pyle. 8 S. & R. 166, this rule was applied where the sale was fraudulent, but the court did not decide what would be the rule if the sale were fair. There are cases which hold that the average value is to be recovered for the part to which the title has failed. Nelson v. Matthews, 2 Hen. & M. 164; Nelson v. Carrington, 4 Muni. 332.