Mitchell v. Hazen

The grantor of a deed, acting as administrator of the estate of A., under a general order of sale for the payment of debts from the court of probate, and being in fact in possession of the land described in the deed, covenanted in such deed, that he, at the execution thereof, was well seised of the premises in fee-simple, and had good right to sell the same. The premises were parcel of a farm of land owned and held in common by C., the heirs of A., and the heirs of B in unequal proportions; and the deed purported to convey, by metes and bounds, a part only of the estate so held in common. Held, that no title passed, by such deed, the grantor being legally capable of conveying only an undivided proportion of the whole estate held in common; and consequently, that the covenants were broken instantaneously on the execution of the deed. To constitute a breach of the covenants of seisin and of good right to convey, an eviction is not necessary. A general power of sale, for the payment of debts, given, by the court of probate, to an administrator, authorizes him to execute such an instrument only, as is legally proper for the conveyance of the estate to be sold. Whenever a person undertakes to stipulate for another, by an instrument under seal, without authority, or beyond his authority, he is answerable personally, for the non-performance of the contract. If a person choose to bind himself, by a personal covenant, he is legally liable for a breach of it, although he describe himself as covenanting as trustee, agent, executor or administrator. Therefore, where the grantor of a deed, purporting to convey the estate of an intestate, described himself as "administrator of the estate” of such intestate, stated his power to sell as derived from an order of the court of probate for that purpose, and signed the deed with the addition of “administrator” to his name; in which deed he covenanted as follows: “I, the said grantor, do, for myself, my heirs, executors and administrators, covenant with the said grantee, his heirs and assigns, that I am well seised,” &c. it was held, that the grantor, by such covenant, bound himself personally. Where land was held in common, by A. B. and C., and after the death of B. and C., distributions of their respective interests were made, by order of the court of probate; it was held, that such distributions were irrelevant and inadmissible to establish a title in severalty. The rule of damages for a breach of the covenants of seisin, and of good right to convey, is, consideration paid, with the interest. The rule is the same, whether the grantee has been in possession of the land, or not; for the money due to the owner for rents and profits, constitutes a distinct and separate claim.

This was an action on the covenants of seisin and of good right to convey in a deed, alleged to have been executed by the defendant, “by the name and description of Elijah Hazen, administrator of the estate of David Mitchell, late of Washington, deceased.” The cause was tried, on a general plea of performance, at Litchfield, August term, 1822. before Brainard, J. The plaintiff produced and read in evidence the deed mentioned in the declaration; the material parts of which were as follows: “Know ye, that I, Elijah Hazen, of Washington, administrator on the estate of David Mitchell, late of Washington, deceased, agreeable to an order of the court of probate for the district of Woodbury, thereunto enabling and empowering me, for the consideration of one thousand thirty-seven dollars, and fifty-two cents, received to my full satisfaction of Timothy Mitchell, of Washington aforesaid, give, grant, bargain, sell and confirm unto the said Timothy the following pieces of land lying in Washington; the first piece is the one half of thirteen acres of land lying in common with Samuel Leavitt, with half the barn thereon standing, bounded, &c. part under incumbrance of widow’s dower; the second piece is the one half of about thirty-six acres, lying part in common, and is bounded, &c. and is to contain all the land belonging to the estate of David Mitchell in the homestead that lies west of the road, except, &c. with one equal half of two dwelling-houses thereon standing, part of land and old house being under incumbrance of widow’s dower; the third piece is the one equal half of eight acres and one hundred and ten rods of land, lying in common with Daniel N. Brinsmade and David Whittlesey, Esqrs. bounded,” &c. Habendum in common form. “And also I, the said Elijah Hazen, do, for myself, my heirs, executors and administrators, covenant with the said Timothy Mitchell, his heirs and assigns, that at and until the ensealing of these presents, I am well seised of the premises, as a good indefeasible estate in fee-simple, and have good right to bargain and sell the same, in manner and form as is above written, and that the same is free from all incumbrances whatsoever, except as above. And furthermore, I, the said Elijah Hazen, do, by these presents, bind myself and the heirs of David Mitchell, forever, to warrant and defend the above granted and bargained premises to him, the said Timothy Mitchell, his heirs and assigns, against all claims and demands whatsoever. In witness whereof, I have hereunto set my hand and seal, the 21st day of April, Anno Domini 1812. Elijah Hazen, Administrator.” [L. S.] At the time of the execution of this deed, the lands therein described, were part of a farm, owned and held in common, by Simeon Mitchell, the heirs of Samuel Mitchell deceased, and the heirs of David Mitchell deceased, in unequal proportion; the heirs of Samuel owning one third, and one quarter of a third, and Simeon and the heirs of David owning the residue, unless the proceedings touching the estate of Samuel, about to be mentioned, had vested all the rights of his heirs in David and Simeon. The plaintiff, therefore, claimed, that the deed conveyed to him no title to the lands therein described; because, by the terms thereof, it purported to convey an undivided interest in a part only of the estate so held in common, by metes and bounds, and not a proportional interest in the whole of the farm in common. The heirs of David and the heirs of Samuel were the same persons; David and Samuel being brothers, and having died without issue. The defendant, in order to shew, that the heirs of Samuel, as such heirs, had no interest in the lands described in the deed, and that David and Simeon, at the death of David, were joint tenants of those lands, offered in evidence the following documents: 1st, an exemplification of the record of the court of probate for the district of Woodbury, within which Samuel died, shewing the granting of letters of administration on his estate, to his brother David, in 1799; an inventory of said estate, containing the interest of the intestate in the lands in controversy; an appraisement of the estate; a list of debts, amounting to 545 dollars, 93 cents; an order of sale of so much of the intestate’s real estate as would amount to that sum; an order for the distribution of the residue of said estate; and a distribution, by metes and bounds, to the brothers and sisters of the intestate. 2nd, a copy of a deed from David Mitchell, as administrator on Samuel’s estate, to Elisha Hicock, dated the 27th of April, 1799, purporting to convey, for the consideration of 550 dollars, four pieces of land, described by metes and bounds, including the lands in controversy: 3rd, a copy of a deed from Hicock to David and Simeon Mitchell, dated the same day, purporting to convey the same lands: 4th, an exemplification of the record of said court of probate, shewing a suggestion of the death of David, and the granting of letters of administration on his estate to the defendant, in January, 1811, a representation of insolvency, and appointment of commissioners; an inventory of said estate, containing the supposed interest of the intestate. viz. one half, in the lands in controversy; a report of commissioners; an order for the sale of so much of the real estate of the intestate, as would amount to 1800 dollars; an order for the distribution of the residue of said estate; and a distribution, accepted May 11th, 1812, to the brothers and sisters of the intestate, by metes and bounds. It was admitted, that the plaintiff was one of the heirs of Samuel and David; that no appeal had ever been taken from any of the orders mentioned in said records; and that the time for taking such appeal had expired before the commencement of the present action. The plaintiff objected to the admission of the deed from David Mitchell to Hicock, and of that from Hicock to David and Simeon Mitchell; and also, to the admission of the distribution of the estates of Samuel and of David respectively, as contained in the records exhibited by the defendant. To the admission of the other parts of such records, no objection was made. The judge rejected the documents to which the objection applied: the others were read in evidence to the jury. The defendant claimed, that David Mitchell died about seventeen years before the trial; and that Simeon had been in the sole use and occupancy of the lands in question from the death of David until the time of the defendant’s taking administration on David's estate; when Simeon became a bankrupt, and absconded. And the defendant offered evidence to shew, that immediately on his taking administration on said estate, and about one year before the date of said deed, he, entirely in virtue of his office of administrator, and as agent for Simeon, entered upon said lands, and used and occupied them. It was admitted, that the plaintiff, immediately on the execution of the deed to him from the defendant, entered upon the lands therein described, and remained in the undisturbed use and occupancy thereof. On this ground, the defendant claimed, that he had not broken any of the covenants contained in his deed; and prayed the judge so to instruct the jury. The defendant also claimed, that if in law there was a breach, yet in consequence of such possession of the plaintiff, he was entitled to recover only nominal damages; and the defendant prayed the judge so to instruct the jury. The judge instructed the jury as follows: “The breach of covenant alleged consists in this, that the defendant sold the lands in severalty, by metes and bounds, whereas it was an estate in common; that of such an estate in severalty he was not seised; and that such an estate he had no right to convey. And here, the rule of law is, that if a tenant in common sells a portion of the estate in severalty,-i. e. by metes and bounds,-with covenants of seisin and warranty, and that he has good right to sell and convey the same, the deed conveys no title, and the grantor is liable on his covenants. He is not so seised; neither has he right to sell and convey in manner and form. Of consequence, the covenants of seisin and of right to convey, are broken. But it is said, in this case, on the part of the defendant, that he acted by authority, and executed the deed as administrator, under an order from the court of probate. And here the law is so, that if a person executing a trust, and acting under authority of law, keeps within the lines of his trust and the limits of his authority, he cannot be answerable for such acts; but if he exceeds them, by making covenants in behalf of others, or for himself, beyond the powers given, he must be personally responsible. The power of an administrator, under an order of a court of probate to sell, is only to convey the estate: he is the mere agent of the law to transfer the title of the deceased: he can bind no body, by covenants, except himself and his heirs. Although the grantor, at the commencement of the deed, take the character of administrator, yet if he covenants for himself and his heirs, that he is well seised of the premises in fee-simple, and that he has good right to sell and convey the same; the law is so, that on these covenants he is personally liable for a breach. But the great question is, has the defendant broken his covenants of seisin and of good right to convey? It is said, by the defendant, that he has not; for that, at the time of the execution of the deed, he was in possession of the premises, both in law and in fact, claiming an authority to sell; that under an order of the court of probate, he was so possessed; and that he had a right to convey, by authority of law, for that purpose; and being so seised, at the time of the execution of the deed, no action on the covenants will lie until the plaintiff is evicted-until he is turned out of possession, by superior title. And here the law is so, that if a man is in possession of land, claiming it as his own,-claiming under his own title,-and conveys, with covenants of seisin and warranty, no action can be maintained against him until eviction-until the grantee is turned out of possession, by a better and higher title-notwithstanding, at the time of the execution of the deed, the grantor had no title. And here, Gentlemen, if you find, that at the time of the execution of the deed, the defendant was seised of the lands in question in severalty, by metes and bounds, as he has covenanted; that he was in possession thereof, claiming them as his own in fee-simple, exclusively and adversely to all others; then you will find the issue for the defendant, that he has fully kept and performed his covenants, and find for him his costs. But if you do not find, that the defendant was thus seised and possessed, at the date of the deed, but that his claim and possession was that of an administrator, and in right of David Mitchell, the intestate; then you will find, that the defendant has not fully kept and performed his covenants, and find for the plaintiff to recover the sum of money paid as the consideration, with the interest thereon, together with his costs; for in actions on covenants of seisin, when the title fails, this is the rule of damages.” The jury returned a verdict for the plaintiff; and the defendant moved for a new trial. contended, 1. That the charge of the judge, before whom the cause was tried, in that part of it which states, that if the defendant, when he conveyed, was in possession under colour of title, and claiming the land as his own, the covenant of seisin was not broken, was correct. The cases relied on as establishing this position, were Marston v. Hobbs, 2 Mass. Rep. 437. 439., Prescott v. Trueman, 4 Mass. Rep. 631. and Twombly v. Henley, 4 Mass. Rep. 442. If the grantor was seised, the covenant of seisin is not broken; nor is the covenant of a right to convey broken; for a man seised has a right to convey. But the other part of the charge, which relates to the possession of the defendant as administrator, it was insisted, was incorrect. David Mitchell owned a part, at any rate, and died possessed of it, and might have conveyed it. The administrator represents him, and might sell as he might. 2. That the charge was incorrect in this, that it stated, that no title passed, because the conveyance was by metes and bounds, and that the covenant, on this account, was broken. The covenant of seisin does not extend to the formal correctness of the deed, nor to its sufficiency, but only to the fact of possession, and the consequent right to convey. Marston v. Hobbs, 2 Mass. Rep. 437. Prescott v. Trueman, 4 Mass. Rep. 631. If a deed be ineffectual to convey the land, for want of any of the statute requisites; or is so vague in the description of the land as to be void; or attempts to convey an estate which the law forbids; any such defect does not falsify the fact of seisin, and is no breach of the covenant of seisin. But the deed in question was not void: it conveyed a title: it devested the grantor of his interest, and forever prevented his regaining it. If effect cannot be given to it, in this form, on account of interfering with the rights of the co-tenant, it will take effect in any other form in which it lawfully can, ut magis valeat quam pereat; e. g. it may operate to give an undivided interest in the whole estate. Harrison v. Austin, Carth. 38. It has never been decided, by the supreme court of this state, by the courts in Great Britain, or by the courts of any neighbouring state, except in a solitary instance, (Porter v. Hill, 9 Mass. Rep. 34.) and that under peculiar circumstances, and in no degree binding here, that a deed by one tenant in common by metes and bounds, is void. The cases of Hinman v. Leavenworth, 2 Conn. Rep. 244. n. and Starr v. Leavitt, 2 Conn. Rep. 243. are clearly distinguishable from this. They were cases of the levy of execution-a proceeding in invitum-an attempt to wrest the property of one man from his hands against his will, and give it to another, by virtue of legal process, without any mutual agreement between them. In such case, the person who would acquire the property, must strictly observe every legal requisite, or another creditor, who has equal justice on his side, will have a right to seize the property, or the owner to dispute the validity of the proceedings. But can this be the case, where there is the mutual agreement that subsists between grantor and grantee? Let the assertion that nothing passes, by such a deed, be tested by this simple enquiry-in whom does the title to the property, after the conveyance vest? It must be either in the grantee or grantor, or it becomes derelect, and open to the first occupant. The latter surely cannot be the case; and can the title be in the grantor? A. and B. own a tract of land in common; to-day, B. conveys the one equal half of that tract, by metes and bounds, to C.; to-morrow, he conveys the other half, in the same manner, to the same person: has C. got no interest in this land, and does B. still own it? Should C. go into possession, as joint occupant with A., could B. eject him in the face of his deeds? Again, suppose B., to-day, conveys the undivided moiety of one half, by metes and bounds, to C., and to-morrow, the other half, in the same manner, to D.; would not A., C. and D. be now the owners; or would it still be the property of A. and B.? Or suppose, again, that A. should convey to C., by metes and bounds, an undivided moiety of one half of the farm, and then B. should, in like manner, convey to C. the moiety of the other half; would C. obtain no interest, by means of these deeds from each of the joint proprietors? Let it be kept in mind, that here the question as to the validity of the deed, is merely between grantor and grantee; there being no claim, by a subsequent grantee, under a more perfect deed from the grantor, as was the case in Porter v. Hill, 9 Mass. Rep. 34. 3. That the deed containing the covenants in question having been made by the defendant as administrator, and purporting to convey, not his own land, but that of the intestate, the covenants are to be construed with reference to his character as an administrator, and do not bind him personally. The deed correctly sets out the office of the grantor, and his authority to sell, derived from the decree of probate; and although in the covenant of seisin, the grantor states himself to be seised, in lieu of a more proper allegation, that the deceased was well seised at the time of his death, and that he, the grantor, in the capacity before mentioned, has good right to sell; yet this language must be construed secundum subjectam materiem, and so as to be consistent with the preceding declaration that he acts and sells as administrator. The covenants in the deed related to the land conveyed by the deed, and to that only; but the understanding of the parties was not that the defendant was conveying his own property, but the property of the intestate, whom he represented. 4. That the deeds and distributions offered in evidence by the defendant, and rejected by the judge, in connexion with the several orders of the court of probate relative to the estates of Samuel and David Mitchell, not having been appealed from, ought to have been admitted. First, the orders of the court of probate, being unappealed from, were conclusive evidence of title in severalty in David to the land in question. Bush v. Sheldon, 1 Day 170. Rockwell v. Sheldon, 2 Day 305. Goodrich v. Thompson, 4 Day 215. Judson v. Lake, 3 Day 318. Browe. & al. v. Lanman, 1 Conn. Rep. 467. Secondly, the deed to Hicock and that from him to David and Simeon, although deemed insufficient to convey the land to David, ought to have been admitted, to shew the nature of David’s possession and seisin, viz. that his possession was with colour and claim of title; for, if so possessed, he was seised, either by right or by wrong, and his administrator, standing in his place, was seised, and could convey. In Rogers v. Hillhouse, 3 Conn. Rep. 398. an unacknowledged deed, conceded to be incompetent to establish a title, was admitted to shew the nature of the occupancy then in question, and that it was adverse. 5. That that part of the judge’s charge, which related to the rule of damages, was incorrect; no more than nominal damages being recoverable for the breach of the covenants of seisin and of right to sell, where there has been no eviction or disturbance. The rule last suggested is founded in the highest reason; for why should damages be given for a mere technical breach of covenant, where it is entirely uncertain whether an injury will be sustained? And the last clause of the covenant, viz. that the grantor had good right to convey in manner and form, stands precisely upon the same ground; for why should informality in the deed be the ground of giving damages, until actual loss has been sustained thereby? It is a general rule in all actions upon contract sounding in damages, that the plaintiff is to recover such damages as he can prove he has sustained. 1 Swift's Dig. 672. In relation to the covenant against incumbrances, it is distinctly laid down in Prescott v. Trueman, 4 Mass. Rep. 627. 630, 1. Delavergne v. Norris, 7 Johns. Rep. 358. in 1 Swift’s Dig. 674. and elsewhere, that nominal damages only can be recovered, where the grantee has neither been evicted, nor paid off the incumbrances-and, in the latter case, to the exact amount only of such payment-although the covenant, from its nature, must be broken as soon as made. And no reason exists why a different rule should be adopted in the present case. In De Forest v. Leete, 16 Johns. Rep. 122. which was an action on the covenants in a deed, and, among others, the covenant of seisin, the plaintiff was allowed to recover only nominal damages, although the breach of that covenant was well assigned, there being no ouster. The only ground on which more than nominal damages can be claimed, is the liability of the grantee to be evicted, and thus to sustain future damage. But mere liability is no ground of action. Booth v. Starr & al. 1 Conn. Rep. 244. Further; it appears in the case, that the plaintiff is heir to one eighth of Samuel's estate, and one seventh of David's; and if the deed of the defendant conveyed nothing, the plaintiff is the legal owner of one undivided seventh part of the land attempted to be conveyed, and is in peaceable possession of it, and has been so, ever since the execution of the deed. It also appears, that the money for which the land was sold, was raised in pursuance of an order of the court of probate, received in evidence, for the purpose of disincumbering the estate of David, so that the heirs could enjoy the residue of it-that this plaintiff might enjoy his distributive share. This he does enjoy, together with a seventh part of the very land attempted to be conveyed. The rents and profits of the land, during the period that the plaintiff has been in possession, and a seventh part of the purchase money, paid for his own benefit, with the interest thereon, ought, therefore, to be deducted from the damages. contended, 1. That the conveyance, by one tenant in common, of a part of the estate in severalty, by metes and bounds, is, of course, a breach of the covenant of seisin, and action lies immediately in favour of the grantee. This results from the nature and legal import of the covenant of seisin; which is, that the grantor, at the time of the execution of the deed, is lawfully seised, in fee-simple, of all the premises conveyed; that he is the sole owner of the premises; and that he has good right and full power to convey the same. The covenant is, of course, broken, if there is any existing incumbrance; it is broken, if the grantor did not own the premises in fee-simple; if he did own the whole premises; if he did not own them solely and absolutely; if he had no legal power to convey them. Sedgwick v. Hollenback, 7 Johns. Rep. 376. 4 Cruise's Dig. 77, 8. Howes v. Brushfield, 3 East 491. Pitcher v. Livingston, 4 Johns. Rep. 10. Varnum v. Abbot & al. 12 Mass. Rep. 474. 476. Bartlet v. Harlow, 12 Mass. Rep. 348. 352, 3. Porter v. Hill, 9 Mass. Rep. 34. The fallacy of the argument of the opposing counsel consists in supposing that there is no breach of the covenant of seisin, until the grantee is disturbed in the enjoyment of the premises; whereas the correct rule on this subject, is, that as the covenant is an agreement that the grantor is the sole owner, at the time of the conveyance, if he was not, there is a breach of the covenant, for which action lies. The case is not like that where an imperfect title is conveyed with warranty, and the grantor afterwards procures a good title; the covenant of seisin being broken immediately, if at all. The levy of an execution in this form, would have been void. Hinman v. Leavenworth, 2 Conn. Rep. 244. n. Starr v. Leavitt, 2 Conn. Rep. 243. The same reasons, which shew, that the levy of an execution in this form is void, equally apply to a deed. A tenant in common cannot make partition for himself. Each has a right to a partition of the whole estate; not to a partition in different parts of it. 2. That the defendant was personally liable for a breach of the covenants in question. First, the words of the covenant purport to bind the defendant personally. His language is, “I, the said Elijah Hazen, do, for myself, my heirs, &c. covenant, that I am well seised,” &c. His describing himself as the administrator of David Mitchell, in the same instrument which contains the covenant, does not affect the rights or remedies of the other party. Appleton v. Binks, 5 East 148. King & al. v. Thom, 1 Term Rep. 487. 489. Barry v. Rush, 1 Term Rep. 601, 2. Thacher & al. v. Dinsmore, 5 Mass. Rep. 299. 301. Duvall v. Craig, 2 Wheat, 45. 56. Secondly, the defendant had no power, as administrator, to make any covenant at all. He could bind no one by it, but himself. He was the mere agent of the law to dispose of the property. The order of the court of probate, which was general in its terms, gave him no authority to bind the intestate, or his heirs, by a covenant of seisin. Thirdly, if he had no power, as administrator, to make such a covenant, then he is personally bound. The rule is universal, that where a person attempts to execute a power, for which he has no authority, he is personally bound. Tippets v. Walker & al. 4 Mass. Rep. 595. Thacher & al. v. Dinsmore, 5 Mass. Rep. 299. Gill v. Brown, 12 Johns. Rep. 385. White & al. v. Skinner, 13 Johns. Rep. 307. Coe v. Talcolt, 5 Day 88. 92. 3. That the deeds and distributions offered in evidence by the defendant, were properly rejected. The distributions were properly rejected; first, because they only tended to shew, that there was one co-tenant less in interest than there appeared to be without them. If they had been received, the premises conveyed would still have been a tenancy in common; and it can make no difference, in principle, whether there are two tenants in common, or two hundred; for, as has been shewn, a deed in severalty, in either case, would of itself pass no title. In addition to this, the distribution of David's estate was made after the execution of the deed, which is the foundation of the present action. Secondly, the distributions were void, upon the same principles as the deed in question; being of a tenancy in common, by metes and bounds. But it is claimed, that the proceedings before the court of probate, not having been appealed from, are now to be considered as conclusively valid: that the deeds and distributions having been made under orders from a court having jurisdiction of the subject matters, and having been accepted and approved, there has been a virtual partition of the tenancy in common, which it is too late for the present plaintiff now to dispute. To this we answer, in the first place, that the plaintiff, as a purchaser, under the deed of the defendant, is a stranger to the subsequent distribution, and cannot be affected by it. As between him and his grantor, he stands in the same relation, as any third person having no interest in the property by descent. In the next place, the sale to the plaintiff does not appear to have been returned to the court of probate, and accepted; nor was any order or decree passed by the court, upon the acts of the administrator touching the sale: of course, no appeal could be taken from it. Thirdly, these distributions could have no operation in causing a partition virtually to be made, because, notwithstanding them, Simeon, in his own right, and as heir to his brothers, had an interest, which could not be affected by them. Fourthly, the court of probate had no jurisdiction over that part of the estate owned by Simeon; and, of course, could do no act by which it could be affected. If that court accepted a distribution, which, by making a partition of a tenancy in common, would alter the rights of Simeon, it was coram non judice, and void. Fifthly, the order of distribution was void, because there was no acceptance of the report of sale. Distribution is to be made after deducting debts; but the court cannot know what debts, without knowing what amount of real estate has been sold; and for this purpose, there must be a return accepted. Griffin v. Pratt, 3 Conn. Rep. 513. As to the rejection of the deeds, most of the previous observations apply, with equal, if not with greater force, to these instruments. 4. That in this case, neither the possession of the grantor, at the time of the conveyance, claiming a right as administrator of one co-tenant, and agent for another, nor the undisturbed possession of the grantee after the conveyance, prevented a breach of the covenant of seisin. The only cases which can be considered as in the least establishing the doctrine that an eviction is necessary, are those of Marston v. Hobbs, 2 Mass. Rep. 433. and Prescott v. Trueman, 4 Mass. Rep. 627. But even there the court held, that the party must be in possession, claiming the property as his own; claiming under his own title. The defendant had the benefit of this law, on the trial, in the charge of the judge; and the jury have found the fact against him. If an eviction is necessary, there can never be a remedy on the covenant of seisin; it is a mere dead letter; for if the grantor is out of possession when the conveyance is made, the deed is void, and, of course, the covenant. The covenant of seisin is, that the grantor owns the property, and has right to convey it. If this be not true in fact, there is a breach, without reference to the circumstance of possession. Seisin and possession are not synonimous terms. 5. That the judge, in his charge, adopted the correct rule of damages. 1 Swift’s Dig. 673. Horsford & al. v. Wright, Kirb. 3. Smith v. Pitkin, 2 Root 46. Castle v. Pierce, 2 Root 294. Pitcher v. Livingston, 4 Johns. Rep. 1. Morris v. Phelps, 5 Johns. Rep. 49. Staats v. Ten Eyck's exrs. 3 Caines 111. Delavergne v. Norris, 7 Johns. Rep. 358. Marston v. Hobbs, 2 Mass. Rep. 433. Caswell v. Wendell, 4 Mass. Rep. 108. Prescott v. Trueman, 4 Mass. Rep. 627. Chapel v. Bull, 17 Mass. Rep. 213. Bender v. Fromberger, 4 Dall. 441. This rule is not only established by authority, but is reasonable in itself. If the grantor gets no title, he ought to be indemnified to the extent of his damage; and that is, what he advanced for the property, and the interest upon it.