¶1By the Court —
¶2— In 1858, the defendant conveyed to the plaintiff, Maria B. Dayton, by deed with covenants of seizin and warranty the south-west quarter of section 21, town 29, range 23. The deed (in which the consideration was stated to bo $8,000,) contained the following recital or stipulation: “It being expressly understood between the parties hereto that the consideration expressed above, to-wit: eight thousand dollars, is the estimated value of certain lots in Lyman Dayton’s addition to St. Paul, in exchange for which lots the above described premises are hereby conveyed as aforesaid. The deed for the conveyance of said lots in Lyman Dayton’s addition to St. Paul from said Maria B. Dayton to John E. Warren bearing even date herewith.”
¶3The title to the land conveyed by defendant having failed, this action is brought to recover the damages which the plaintiffs have sustained on that account.
¶4The principal question arising in this case is whether the measure of damages is varied by the aforesaid stipulation or recital.
¶5It is not necessary for us here to inquire whether it is competent for the parties by an express stipulation in the deed, to fix the measure of damages for a breach of any of the covenants, as we see no evidence in the language here used of any intention to fix or vary the liability of either party in the event of a breach of the covenants.
¶6The language above quoted seems to have been inserted from abundant caution for the purpose of clearly, showing the facts of the case, and excluding the conclusion that would otherwise necessarily have followed from the language used — that the- consideration was money. It is a mere recital of the consideration, and is therefore susceptible of explanation.
¶7What- the parties estimated the value of the property to be is wholly immaterial, so long as they have not covenanted to abide by that estimate,
¶8*238What the value was as a matter of fact is the question to be tried in this case, and what defendant admittéd in the deed or said may be evidence, but it is not conclusive of the fact.
¶9The exception taken by defendant’s counsel to the jurors summoned on the special venire, can not be sustained. The ruling of the Court in that respect .was correct.
¶10Judgment of Court below reversed and cause remanded for new trial.