Smith v. Strong

delivered the opinion of the Court. Upon the facts reported, there can be no question that a breach of the defendant’s covenant of seisin and title was well proved The defendant covenanted, that he was seised of a perfect, absolute and indefeasible estate of inheritance in fee simple, and he clearly had no such title ; so that this covenant was broken on the delivery of the deed. He undertook to convey, and the grantee agreed to purchase, .an indefeasible estate ; and the defendant had no such estate to convey. The intended purchase, therefore, has wholly failed. Indeed it may well be doubted whether the defendant had any title sufficient to sustain a common covenant of seisin. He showed, it is true, a deed from Billings and Williams, purporting to convey a half of one of the lots, but there was no evidence that Billings and Williams were ever seised ; and a deed from a stranger having no seisin, will not convey a seisin to the grantee. But it is not necessary to give any opinion on this point. It is sufficient for the plaintiff to prove that the defendant was not seised of the estate, and had not the title he undertook to convey. For although the issue was joined on the seisin of the defendant, and his right to convey, without adverting to the quality of the estate, and the plea is not a full answer to the breaches assigned, yet as the plea was filed by consent, with the reservation of a right *133to give any special matter in evidence, the form of the issue is not material, and the finding of the jury and the judgment of the Court must conform to the merits of the case as proved on the trial. If then the evidence objected to by the defendant’s counsel was rightly admitted, there can be no question that the plaintiff is entitled to judgment.

For there is clearly no foundation for the argument, that the plaintiff is estopped by the deed of Smith, the intestate, to deny the defendant’s seisin and title. The object and legal effect of that deed cannot be misunderstood. It was merely to reassign all the title he had acquired under a prior deed from the defendant; it contained no warranty, and was equivalent to the cancelling of the first deed, thus restoring, matters to the state they were in before that conveyance. Nor can it be maintained, that the two lots in question would not have passed by the defendant’s deed if his title had been good, although they were not included in the general description of the granted premises, for the- words of general description are controlled and rendered certain by the particular description of the two lots in question. And it is perfectly clear that these two lots were intended to be conveyed.

The only remaining question to be considered, except the question of damages, is, whether the evidence reported was competent evidence to go to the jury ; and we are of opinion that it was. The copy of the plan annexed to the deposition of James Geddes, the surveyor, was proved by the deposition, and was in truth, by reference, made a part of the deposition.

The original survey or map was in the secretary’s office in the State of New York, and the copy being verified by the oath of the surveyor, was properly admitted. If it had not been thus verified, it would clearly have been incompetent, and so would the original have been. The copy of a plan offered by the defendant’s counsel was not thus verified, and was for that reason rejected, and as we think, rightly.

On the question of damages we have found it difficult to lay down any certain rule, it being hard to ascertain the value of the land at the time of the intended conveyance, or the price given by the intestate. If that could be ascertained. *134it ■ w ould undoubtedly be the proper measure of damages.But the opinion of witnesses, after such a lapse of time, will differ much as to the value of the land ; and it is even more difficult to estimate the value of the notes which were given up to Hurlbert, as the consideration of the deed. It is not to be expected that on these points any additional and more satisfactory evidence can be obtained. Such being the intrinsic difficulty of ascertaining the actual consideration of the deed, we think the most certain rule of assessing the damages is, to take the price paid by Hürlbert to the defendant as the true value of the land. He was allowed one dollar per acre for the whole tract. There is no evidence that the lots in question are over or under an average value. So that' we think one dollar per acre would be a fair estimate of the value of the land at the date of the defenSant’s deed. This amount, with interest from the date of the deed to the present time, the plaintiff is entitled to recover, as the defendant’s covenant of seisin and title was broken on the delivery of bis deed, and the intended conveyance has wholly failed.

Judgment for the plaintiff.