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The opinion of the Court, Shepley J. not being present at the argument, and taking no part in the decision, was drawn up by

Whitman C. J.

— The subject matter of the action of which this review was granted, is now before us upon an agreed statement of the facts. Neither the original writ, nor a copy of it has been furnished us; but from the arguments of the counsel we understand, that the suit was founded upon the breach of the covenant of seizin in a deed of warranty of land. The only question presented was as to the amount of damages to be recovered; the plaintiff contending that he had a right to recover the amount of the original consideration paid for the land, with interest thereon from the time of payment; while the defendant insisted that he should have recovered no more than he has been compelled to pay to extinguish the adverse title, and interest thereon from the time of payment. The general rule is as- contended for by the plaintiff; and is predicated upon what is ordinarily true, viz. that the covenantee has never been able to derive any advantage from his purchase ; *509or, if he has, that ho is answerable therefor to the owner in fee. In this case the grantor, at the time of his sale to the grantee, was tenant at will or sufferance under the owner ia fee ; and without the reservation of rent therefor ; and under a contract, upon the performance of certain conditions, that the premises should be released or conveyed to him. This tenancy at will or sufferance, without liability to pay rent, the owner of the fee would seem to have been content, that the grantor should transfer to the defendant in review, who was allowed to continue the tenancy for seventeen years, without any claim of rent on the part of the owner in fee. In Caulkins v. Harris, 9 Johns. 324, it was held, that a grantee, on being evicted, was entitled only to six years interest on the consideration, although lie had been a longer time in possession ; because the party evicting him could only recover mesne profits for that length of time ; and in Tanner v. Livingston, 12 Wend. 83, it was held, that a purchaser, who has entered into possession of the premises purchased, and enjoyed the rents and profits from the time of the conveyance, is not entitled, upon a breach of the covenant of seizin, to recover the whole consideration and interest, he having enjoyed the premises under a right existing for the time under the grantor. It must be immaterial how such right arises, so that it be a tenancy, without liability to pay rent. In the case at bar the vendor had such a tenancy, and his grantee, the original plaintiff, enjoyed it under his conveyance till the eviction took place in 1831, without any claim for rent or for mesne profits. If then the original plaintiff’ had recovered judgment only for his purchase money, with interest from the time of his eviction to the time when judgment was rendered in his favor, he would have recovered a full indemnity ; and we think he should have been content with such a judgment. The former judgment must therefore be reversed in part, viz, for the sum of one hundred and seventy-three dollars and ten cents; and be affirmed for the residue ; and the plaintiff in review having paid more than such residue, towards satisfying said former judg*510ment, is entitled to recover the balance remaining after deducting said residue therefrom.

It has been urged, that the original plaintiff derived no rents and profits from the premises; but we think that cannot be taken into consideration to affect the rights of the parties. If a person purchases real estate, it is to be presumed, that he does so because the rents and profits of it will be equivalent to the interest of the. money he may be content to pay for it. This may be in the continual rise in value of the land, or from the growth of timber on it, ok from its accommodating him in some way or another ; and it is. to be presumed also, that the vendor would not have parted with it but upon the consideration that the interest of the money received for it would be a fair equivalent for the income he could have derived from the land. Whether the vendee turns his purchase to a profit or not is no concern of the vendors.

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