De Forest v. Leete

Platt, J. delivered the opinion of the Court. As between these parties, there is no foundation for the objection, that the Master disobeyed the decree, in selling the two lots in question, before he had ascertained that the other eight lots were insufficient to satisfy the mortgage. The plaintiff was not a party to that proceeding in Chancery ; nor does it appear that he knew, that the decree was special in that respect; or that the Master had not complied with it. As to the plaintiff, it must be regarded as a sale on compulsion; and it was incumbent on the defendant as covenantor, and especially, as a party to the suit in Chancery, to look to it, that the -decree was in that respect complied with. He might have applied to the Court to compel the Master to report; and if the fact really were, as it now appears, he could have obtained an order for setting aside the sale of the two lots in question. It may well be likened to the case of a sale of land by a sheriff on fi.fa. which directs him to levy the money of the goods and chattels ; and if sufficient goods and chattels cannot be found, then, of the lands and tenements, &c. A bona jide purchaser of the land, has no concern with the fact, that the sheriff has omitted his duty, in not first selling the goods and chattels. When the plaintiff saw the Master in the act of selling his lands, under the decree of foreclosure, he had a right to redeem; and a fortiori, he had a right to purchase; there being no ground to impute fraud. Whether the Master had a right to exact the 12 dollars for auctioneer’s fees, is very questionable; but that item was not objected to, at the trial; and I am not disposed to scrutinize it, as between these parties. But as to the objection, that the declaration did not aver payment in satisfaction of the incumbrance, and, therefore, evidence of such payment was inadmissible, we are of opinion, that the Judge at the circuit erred in admitting the evidence. If the plaintiff has extinguished the incumbrance, he is entitled to recover the price he has paid for it. The covenantee in such a case, has a right to pay off the incumbrance without compulsion, suit or molestation: (Prescott v. True [128] man, 4 Mass. Rep. 627.) but if he has not extinguished it, and it is still an outstanding incumbrance, his damages are merely nominal. (Delavergne v. Norris, 7 Johns. Rep. 358.) The fact of the plaintiff having removed the incumprance; jSj therefore, a material and traversable fact; and according to the rules of pleading, it ought to be averred and set forth in the declaration. The general rule is perspicuously stated by Chitty on Pleading, (I vol. 386.) “ whenever the damages sustained do not necessarily arise from the act complained of, and, consequently, are not implied by law; in order to prevent the surprise on the defendant, which might otherwise ensue on the trial, the plaintiff must, in general, state the particular damage which he has sustained, or he will not be permitted to give evidence of it.” Upon the declaration in this case, the law implies nominal damages only, no actual payment, or loss, being averred; and the damages proved at the trial were special, and did not necessarily arise from the breach of covenant assigned in the declaration. A new trial must, therefore, be granted, with costs to abide the event. New trial granted.