majority">By the Court, Gould, J.

The only point to be here decided is, what is the true rule of damages, in a suit for the breach of a contract to convey lands. Is the plaintiff in such a suit to recover his actual loss, (the value of the land agreed to be conveyed ;) or is he to he confined to getting back the price he paid, and interest 1 Upon principle, there would seem to be no question about it; for mere justice requires that his recovery should be equal to his loss. That there is any doubt on the subject, is owing to the uniform current of the decisions in this state, which have fixed the rule of damages in suits on the covenants of seisin, warranty, &c. in deeds ; and to the general, though not uniform, transferring of that rule to suits where no deed has been given; but the contract for giving one has been broken by reason of inability, or refusal, to convey.

I cannot say that I have ever been satisfied with the rule that in an action on a covenant for quiet enjoyment, I am entitled to recover, not what the premises I enjoy are worth •when I am evicted, but merely what I paid for the land; without any reference to my improvements. In the leading case in this state, (4 John. 3,) although the opinions which so hold are very able, and entitled to profound respect, my reason has ever been better satisfied with the dissenting opinion of Mr. Justice Spencer. He says, “ In actions for a breach of covenant, the damages are to be estimated according to the value of the thing when the covenant was broken.” And, (in reply to the *104ground taken by the majority of the court, holding that the covenant of seisin is the greater covenant, and covers or includes the covenant of warranty, so as to govern the damages recoverable on the latter,) he says: “These covenants, wherever they occur in a deed, seem to me to indicate, beyond ,all question, that the purchaser did not mean to rely on the title of the vendor alone ; but that he meant to have his personal liability, as a guaranty.” Nor does that latter remark seem to me to be covered or met by the opinion, (3 Caines, 118,) where it is said, “ If a grantee be desirous of receiving the value of land at the time of eviction, he may by apt covenants in the deed, if a grantor will consent, s.ecure such benefit to himself.” What those “apt covenants” would be, when in 4 John. 3, the same court say that a covenant for further assurance is, also, in' subordination to the superior covenant of seisin, and cannot go beyond it in a rule of damages, it might be difficult to imagine. If neither a covenant that I shall enjoy the property, nor a covenant to make my title good, goes beyond the bare covenant that the grantor has title, at the time he conveys, what form of personal promise (or covenant) would relieve me from the incubus of that paramount covenant of seisin ?

These remarks are, of course, made not with any idea of there ever being any change in our rule of damages in suits on those covenants, but merely to show that there is no reason for extending that rule beyond the line of the decided eases.

It is truly said, in the case at bar, if the defendant had given a deed, (which, as he had no title, would not have conveyed the land,) nothing beyond the purchase money and interest could possibly have been recovered from him. Still that is not this casé. And it by no means follows, because such would have been the rule of damages had he kept his contract, that such is the rule now that he has broken his contract, in a suit for that breach.

The cases cited for the defendant (2 Wend. 399, and 4 Denio, 546) are hardly parallel with this case. They are cases where, by mistake or misfortune, the party was unable to keep his contract. In this case he knew his exact position, and ventured *105So make this contract; and (as in 13 Eng. Com. Law, 101,) “ I think he must be responsible for the damage sustained by a breach of this contract.” This is not a new rule (in such a case) in this state. The doubt suggested in 6 Barb. 650, “ whether a more stringent rule might not have been adopted, and the plaintiff - been allowed to recover the value of the land, at the time of the refusal to convey,” has, in 4 Selden, 115, ripened into an affirmative ruling. This latter case seems to me to cover the principle involved in the one before us. Phelps either made a contract which he knew he had no right to make, or he arbitrarily refused to fulfill when he found he could get more than twice the price for his land that the plaintiff had agreed to pay. And the latter is, neither in morals nor in law, any better reason than the former. The rule of damages, as against him, should be the value of the land, at the time of the breach, and interest since then.

[Albany General Term,March 2, 1857.

New trial granted.

W. B. Wright, Harris and Gould, Justices.]

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