¶1delivered the opinion of the Court. This is an *493action of covenant, by an assignee of the covenantee, against the covenantor. It is contended, that the words of exception in the deed of the defendant, do not constitute a covenant.
¶2As we understand the case, the words of covenant declared on, are the general words of warranty, and as these refer to the exception before made, it becomes necessary to go back to the description, to see what was the extent of. the exception The words in the descriptive part are, “ with the incumbrance on a mortgage deed to Salem Towne, for the payment of $ 500.” Now the facts find, that, at that time, there was a mortgage on the estate, held by Salem Towne, on which there was due $ 800 or $ 900. If this was not the mortgage alluded to, then this mortgage was not excepted, and the defendant would be liable for the whole .amount. But the case finds that there was no other mortgage, and then it must be held to apply to this. Then as the $ 500 was not descriptive, it was not intended to identify the mortgage, which was for a larger sum ; the necessary construction is, that it is a mortgage, constituting an incumbrance to the amount of $ 500, and the covenant being general, with this exception, it is a covenant against any greater incumbrance. But it is said, that on application to Towne, they might have ascertained, that there was more due, and might have known the exact state of it. Suppose they might and did, the grantor might well have covenanted, that the incumbrance did not exceed a certain amount, intending to make that warranty good, by paying the difference himself. Suppose there is a conveyance with a covenant of warranty against all incumbrances, and both parties know perfectly well, that there is an outstanding mortgage ; when the covenantee sues on the covenant, is it any defence to show, that both parties knew of the mortgage, when the covenant was made ? No ; the construction, we think, must be, that the grantor took that upon himself, and he can only save himself on his covenant, by extinguishing the incumbrance.
¶3It is then said, that the covenant against incumbrances does not run with the land, and cannot be sued by an assignee. This is no doubt so. But here are several covenants, the usual covenants in a deed of warranty, to wit, “ that I am seised,” &c. “ that I have good right,” &c. “ that the premi*494ses are free of all incumbrances.” These are all in prcesenti, and if the facts covenanted to be true, are not so, the covenants are broken when made, the right to enforce them is a chose in action, and cannot be so assigned as to enable an assignee to bring an action in his own name. But there is also a covenant that “ I will warrant and defend ” ; this is in futuro and runs with the land ; and whenever the assignee of the land is evicted by a title paramount, he has his remedy against the covenantor. Here the plaintiff was so evicted by a judgment on the mortgage, against which the covenant was intended as an indemnity.
¶4The last ground is, that this covenant relates to a personal matter, the amount of a debt, and so does not run with the land. Again, it is necessary to consider what is the covenant on which the suit is brought. It is the covenant to warrant and defend the land conveyed. The effect of the covenant in this case is, to warrant and defend the granted premises against any incumbrance upon the land, beyond $ 500. But the plaintiff has been evicted upon a mortgage, which he could only remove by paying a much larger amount. The debt is a personal thing ; but the pledge for it was the land, and it is this charge upon the land, which gives it the character of realty, and brings it within the operation of the covenant.
¶5As to the measure of damages, we think the defendant is to make good his warranty, that is, he is to pay a sum of money, which will put the plaintiff in as good a situation as if he had kept his covenant. Now if there had been but $ 500 due on the mortgage, when Clemence sold to Newell, according to the covenant, then when Newell paid $ 100 and then sold to the Coopers, if that warranty had been kept, the plaintiff would have been liable to pay the balance of $ 400 only, to redeem his estate. All that he has paid over is a damage under this breach of covenant. The sum paid by Newell, in effect, therefore, enures to the benefit of the plaintiff. And further, Newell received so much more on the sale, and the plaintiff paid so much more on the purchase, in consequence of this payment of $ 100. On every view, therefore, we think that the $ 100 is to be included in the plaintiff’s damages.