nant is limited to the value of the land at the time of his purchase.1

The expenses of defending the title include necessary counsel fees. For improvements made, or for the increased value of the property, no recovery can be had. The fact that the vendee received no rents and profits from the premises cannot be taken into consideration to affect the question of damages, as a person purchasing real estate is presumed to do so because the rents and profits will be equivalent to the interest of the money he pays for it.* That the land was bought for a particular purpose, which was known to the vendor, makes no difference. Upon an exchange of lands, the value of the tract conveyed, and not that of the tract received, is the true criterion of damages. Where the covenantee has purchased the paramount title, or extinguished the encumbrance, the measure of damages is the sum actually and in good faith paid by him for it, and the amount expended by him in defending his possession, provided such sums do not exceed the purchase-money and interest. If the covenantee extinguished the paramount title for a nominal sum, the damages are measured by such sum, with an allowance for trouble and expense. The damages are nominal, though the warrantor had not the title when he made his conveyance, if, before recovery against him, he has obtained the title. If a vendor sells land with war

1 Dickson v. Desire, 23 Mo. 151; 66 Am. Dec. 661.

2 Dalton v. Bowker, 8 Nev. 190; Smith v. Sprague, 40 Vt. 43; Harding v. Larkin, 41 Ill. 413; Robertson v. Lemon, 2 Bush, 301; Andrews v. Davison, 17 N. H. 413; 43 Am. Dec. 606. Contra, Turner v. Miller, 42 Tex. 418; 19 Am. Rep. 47; Gragg v. Richardson, 25 Ga. 566; 71 Am. Dec. 190.

3 Marston v. Hobbs, 2 Mass. 433; 3 Am. Dec. 61; Pitcher v. Livingston, 4 Johns. 1; 4 Am. Dec. 229; Willson v. Willson, 25 N. H. 229; 57 Am. Dec. 320.

8

Spring v. Chase, 22 Me. 505; 39 Am. Dec. 595.

Phillips v. Reichert, 17 Ind. 120; 79 Am. Dec. 463.

Cummins v. Kennedy, 3 Litt. 118; 14 Am. Dec. 45.

7

7 McGary v. Hastings, 39 Cal. 360; 2 Am. Rep. 456; Richards v. Iowa Homestead Co., 44 Iowa, 304; 24 Am. Rep. 745; Price v. Deal, 90 N. C. 290; Walker v. Deaver, 79 Mo. 664; Amos v. Crosby, 74 Ga. 793.

8

Leffingwell v. Elliott, 8 Pick. 445; 19 Am. Dec. 343.

Baxter v. Bradbury, 20 Me. 260; 37 Am. Dec. 50.

ranty of title, and at the time the land has been rented by his agent, without his direction or knowledge, and the vendee is thereby delayed in getting possession, the measure of damages is the fair rental value for the lost time; and, prima facie, the rent agreed to be paid by the tenant is the fair rental value.' So in an action by a grantee of land against the grantor for breach of covenants of warranty in the eviction of the grantee by a mortgagee, the measure of damage is the amount of the mortgaged debt, and interest, if less than the full value of the estate. The measure of damages, where a third person has recovered judgment in partition for an undivided third part of the land, is one third of the purchase-money, with interest.3 Where a grantee with warranty has recovered against the grantor after eviction suffered, the latter may recover upon a prior covenant of quiet enjoyment the amount he has been obliged to pay his grantee.*

But it is held in some of the states that damages for breach of these covenants should be ascertained by the value of the land at the time of eviction.5

6

In an action upon the covenant against encumbrances, the damages are the diminution in value of the estate by reason of the existence of the encumbrances. Only nominal damages are recoverable, unless the covenantee can show actual damage. Where he has had to pay money

1 Moreland v. Metz, 24 W. Va. 119; 49 Am. Rep. 246.

Furnas v. Durgin, 119 Mass. 500; 20 Am. Rep. 341.

3 Wright v. Nipple, 92 Ind. 310. Markland v. Tucker, 1 Dev. & B. 94; 27 Am. Dec. 230.

Horsford v. Wright, Kirby, 3; 1 Am. Dec. 8; Sterling v. Peet, 14 Conn. 245; Drury v. Shumway, 1 Chip. D. 110; 1 Am. Dec. 704; Webber v. Cousey, 12 La. Ann. 534; Coleman v. Ballard, 13 La. Ann. 512; Cushman v. Blanchard, 2 Me. 266; 11 Am. Dec. 76; Hardy v. Nelson, 27 Me. 525; Gore v. Brazier, 3 Mass. 523; 3 Am. Dec. 182; Wyman v. Ballard, 12 Mass. 304;

Smith v. Strong, 14 Pick. 128; Keeler v. Wood, 30 Vt. 242; Smith v. Sprague, 40 Vt. 43; Park v. Bates, 12 Vt. 381; 36 Am. Dec. 347.

6 Leake on Contracts, 1074; Bronson v. Coffin, 108 Mass. 175; 11 Am. Rep. 335. "By the breach of a covenant against encumbrances the purchasemoney becomes instantly revendicable, with interest, except for any time during which the purchaser may have been in the perception of profits, actual or potential, which could not be recovered from": Patterson v. Stewart, 6 Watts & S. 527; 40 Am. Dec. 586.

'Boone on Real Property, 318; Prescott v. Trueman, 4 Mass. 627; 3 Am.

to remove the encumbrance, the measure of his damage is what he paid, or reasonably should have paid, therefor,' provided it is not more than the value of the land." The grantee may remove the encumbrance before it is due, and if he does so, may recover of the grantor the amount necessarily paid to effect such removal. Where the breach of a covenant against encumbrances or for quiet enjoyment consists simply of the existence of an unexpired term or lease, the measure of damages is the value of the use of the premises for the time the grantee has been deprived of the use of them.*

The

The covenant to sell and convey requires the giving a good title to the covenantee free from all encumbrances. On a breach of such covenant, the covenantee may recover the value of certain services, part consideration for the covenant, with interest. On the breach of a covenant to convey, the measure of damages is the value of the land at the time fixed for the conveyance, with interest. measure of damages in an action of covenant on an executory contract for the sale of land by the covenantor, where the former has been put in possession, and has not been evicted, the breach consisting in the covenantor failing to convey and in his not having the legal title, is the purchase-money paid, with interest for the time for which the covenantee may be accountable for the profits of the land to the true owner. On breach of a covenant to con

Dec. 249; De La Vergne v. Norris, 7 Johns. 350; 5 Am. Dec. 281; Willson v. Willson, 25 N. H. 227; 57 Am. Dec. 320; Reed v. Pierce, 36 Me. 455; 58 Am. Dec. 761.

Bronson v. Coffin, 108 Mass. 175; 11 Am. Rep. 335; Schofield v. Iowa Homestead Co., 32 Iowa, 317; 7 Am. Rep. 197; Guthrie v. Russell, 46 Iowa, 269; 26 Am. Rep. 135; Prescott v. Trueman, 4 Mass. 627; 3 Am. Dec. 249; Foote v. Burnet, 10 Ohio, 317; 36 Am. Dec. 90; Reed v. Pierce, 36 Me. 455; 58 Am. Dec. 761; Grant v. Tallman, 20 N. Y. 191; 75 Am. Dec. 384. The reasonableness of the sum

is a question for the jury: St. Louis v. Bissell, 46 Mo. 157.

2 Kelsey v. Remer, 43 Conn. 129; 21 Am. Rep. 638; Foote v. Burnet, 10 Ohio, 317; 36 Am. Dec. 90.

3 Funk v. Voneida, 11 Serg. & R. 110; 14 Am. Dec. 617.

Fritz v. Pusey, 31 Minn. 368. Sibley v. Spring, 12 Me. 460; 28 Am. Dec. 191.

Cock v. Taylor, 2 Over. 49; 5 Am. Dec. 49; Kennedy v. Kennedy, 2 Bibb, 464; 5 Am. Dec. 629.

Thompson v. Guthrie, 9 Leigh, 101; 33 Am. Dec. 225.

vey by a bona fide vendor who believed that he had a good title at the time of making the contract, but afterwards discovered that he had not, and refused to receive any part of the purchase-money, only nominal damages can be recovered.1

Whatever remedy for damages exists under covenants, express or implied, belongs to a court of law, and not to a court of equity.2 But if the vendor acts mala fide, and refuses to convey because the land has increased in value, the vendee may compel a specific performance, or recover as damages the difference between the contract price and the enhanced value.3

$2305. Cancellation of Deeds and Other Instruments. -Equity will compel the surrender of deeds or other instruments obtained by mistake or fraud, or held for fraudulent, inequitable, and unconscionable purposes. "The jurisdiction exercised in cases of this sort is founded upon the administration of a protective or preventive justice, in analogy to the principle quia timet; that is, for fear that such instruments might afterwards be vexatiously or injuriously used, when the evidence to impeach them was lost, or that they might be already clouding the title or interest of the party." Therefore a party has a right to come into equity to have agreements, deeds, or securities canceled, rescinded, or delivered up, where he has a defense to them good in equity, but not capable of being made available at law.5 As to voidable instruments,

1 Baldwin v. Munn, 2 Wend. 399; 20 Am. Dec. 195; Polk v. Rose, 25 Md. Am. Dec. 626.

2 Chesterman v. Gardner, 5 Johns. Ch. 29; 9 Am. Dec. 265.

3 Baldwin v. Munn, 2 Wend. 399; 20 Am. Dec. 627.

Snell's Equity, 516; Pomeroy's Eq. Jur., sec. 1377; Hagar v. Shindler, 29 Cal. 47; Eckman v. Eckman, 55 Pa. St. 269; Downing v. Wherrin, 19 N. H. 9; 49 Am. Dec. 139; Holland v. Mayor, 11 Md. 186; 69

153; 89 Am. Dec. 773; Smith v. Smith, 23 Wis. 176; 99 Am. Dec. 153; Stanton v. Miller, 65 Barb. 58. In such suit it is proper to decree that the deeds constituting the cloud be set aside and removed; but the court should not decree that the holder of such deed convey his title thereunder to the complainant: Rucker v. Dooley, 47 Ill. 377; 95 Am. Dec. 615.

Snell's Equity, 517.

equity will set aside or cancel them in the following cases, viz.: 1. Where there was some actual fraud in the party defendant, in which the party plaintiff had not participated; 2. Where there was some constructive fraud against public policy, and the party plaintiff had not participated therein; 3. Where there was some constructive fraud against public policy, and although the party plaintiff had participated therein, yet public policy would have been defeated by allowing the instrument to stand; 4. Where there was some constructive fraud in both parties, but they were not both of them in pari delicto. And on the same principle, equity will order the cancellation or delivery up of void documents in all cases in which the delivery up of the document might help to prevent the perpetration of some further wrong.2

But equity will not order the cancellation or delivery up of a deed or other instrument which is void on its face;3 nor where the party seeking relief was the sole guilty party or where he had participated equally and deliberately in the fraud; or where the agreement was founded on illegality, immorality, or some unconscionable conduct on his part; nor a mere voluntary agreement not enforceable in a court, but not fraudulent; nor where the complainant has an adequate remedy at law."

A grantee, by destroying his own deed, does not revest the title in his grantor." The cancellation or destruction

Snell's Equity, 518; Hamilton v. Batlin, 8 Minn. 403; 83 Am. Dec. 787. 2 Snell's Equity, 519; Pomeroy's Eq. Jur., sec. 1377; Remington Paper Co. v. O'Dougherty, 81 N. Y. 474; Hamilton v. Cummings, 1 Johns. Ch.

517.

Elliott v. Piersoll, 1 McLean, 11; Piersoll v. Elliott, 6 Pet. 95; Gray v. Coan, 23 Iowa, 344; Ward v. Dewey, 16 N. Y. 519; Vandoren v. Mayor, 9 Paige, 388; Munson v. Munson, 28 Conn. 582; 73 Am. Dec. 693; Scott v. Onderdonk, 14 N. Y. 9; 67 Am. Dec. 106; Simpson v. Lord Howden, 3 Mylne & C. 97; Bromley v. Holland,

7 Ves. 16; Threfall v. Lunt, 7 Sim. 627; Hurd v. Billington, 6 Gr. 145. But aliter, where such deed is prima facie valid if its recitals are sustained: Lyon v. Hunt, 11 Ala. 295; 46 Am. Dec. 216.

* Snell's Equity, 519; Franco v. Bolton, 3 Ves. Jr. 372; St. John v. St. John, 11 Ves. 535; Ayerst v. Jenkins, L. R. 16 Eq. 275.

5 Snell's Equity, 517.

Munson v. Munson, 28 Conn. 582; 73 Am. Dec. 693.

Van Hook v. Simmons, 25 Tex. Supplement, 323; 78 Am. Dec. 573; Howard v. Huffman, 3 Head, 562; 75