Partridge v. Hatch

Gilchrist, J. The first question presented by the case is, whether the defendant was seized of the premises which he conveyed to the plaintiff, with the covenants on which he is now sued, at the date of the delivery of his deed. His title was under the will of Noah Hatch, who devised the land to his three sons, the defendant, Alfee and Ira, upon the condition that the two carry on Ira’s part, and support him during his life. This clearly gave the three an estate in common, with the right of the defendant and Alfee to carry on the share of Ira, and the duty of seeing its avails appropriated to his support. On the 19th day of June, 1834, Alfee Hatch conveyed to the defendant all his interest in the estate, so that the latter became seized of two thirds, with the right which he had before held in common with Alfee, to farm the share of Ira, and appropriate its avails to his maintenance ; and as the ease finds, was, at the date of the deed, in the exclusive possession of the whole of it. [498] If it-be assumed that he was also seized of it, and that as a tenant in common his possession, described as exclusive, was' not also the possession of his co-tenant, as in ordinary cases, but that his brother was disseized, then the seizin of the defendant when he made the deed is established as a fact, but it was a wrongful seizin, and the question is, whether that satisfies the covenant that he is well seized. The covenant of seizin, according to the decision of Willard v. Twitchell, 1 N. H. Rep. 178, amounts only to a stipulation that the grantor has such a seizin that the land will pass by his deed. The case decides that if the grantor have actual seizin, whether by right or by wrong, the land will pass by the deed, and the covenant will not be broken. The marginal note it will be pucceived, however, was not the point decided. But this case is overruled by the later case of Parker v. Brown, 15 N. H. Rep. 176, which holds that to answer this covenant the grantor must have title to the land, and that actual seizin alone is insufficient. The action may, therefore, be maintained upon the evidence. What should be the rule of damages ? It is the sum paid for the land, with interest, where the case may render it proper. Greene, J., in Moody v. Leavitt, 2 N. H. Rep. 174. If, upon an action of covenant brought, it appear that the title has failed as to a part of the land conveyed, the damages may be apportioned, and the plaintiff will be entitled to recover a sum of money bearing the same ratio to the whole purchase sum, that the value of the land to which the title has failed bears to the value of the whole that is included in the conveyance. That proportion in this case is very easily and definitely settled. Judgment on the verdict.