292 (27 S. E. Rep. 987). In an action for a breach of cove. nant against incumbrances on account of the existence of an easement of right of way for the obstruction of which by the erection of buildings the plaintiff has been compelled to pay damages, bad faith is not shown on his part by proof that the wife of one interested in the easement told the plaintiff at the time he began the building that he was encroaching on the easement, to whom he replied that he was within the calls of his deed, as he actually was. Richmond v. Ames, 167 Mass. 265 (45 N. E. Rep. 919). In order for unpaid taxes to consitute a breach of the covenant against incumbrances, it must appear that they were lawfully assessed and this fact is not established by the introduction of a collector's tax deed of the premises reciting that the land was sold for unpaid taxes "assessed agreeably to law," the statutes (Me. Rev. Stat.,ch. 6, § 205; Stat. 1894, ch. 314; Stat. 1895, ch. 70) creating a presumption in favor of the validity of tax sales upon the production of the collector's deed having no application to an action of this character. Maddocks v. Stevens, 89 Me. 336 (36 Atl. Rep. 398). By the statute of North Dakota "the term 'incumbrances' includes taxes, assessments and all liens upon real property;" and one who conveys land with covenant "that it is free from all incumbrances " is liable for all damages sustained in removing any incumbrance of record, whether known to him or not. Rev. Codes § 3549, amended, Laws 1899, p. 116.

Sec. 142. Covenants against incumbrances-Outstanding lease as a breach. Where a grantee in a conveyance of lands and premises in fee simple, which contains a covenant against incumbrances, before he enters into negotiations for the purchase, and before the execution and delivery of the deed of conveyance has actual knowledge of the existence of a lease of said lands made between the grantor in said conveyane and the tenant, in which the rent is reserved to the grantor and his assigns, the tenant being in actual possession of the premises, the grantee cannot maintain against his grantor an action for the breach of such covenant. Demars v. Koehler, 60 N.J. L. 314 (38 Atl. Rep. 808). The court say: "There can exist no question in law

but that an outstanding term or an unexpired lease on the premises conveyed is an incumbrance, within the covenant against incumbrances contained in a deed of conveyance. Fritz v. Pusey, 31 Minn. 368 (18 N. W. Rep. 94); Jarvis v. Butterick, 1 Metc. (Mass.) 480; Batchelder v. Sturgis, 3 Cush. 201; Carter v. Denman's Ex'rs, 23 N. J. L. 261-272; Grice v. Scarborough, 2 Spears 545 (42 Am. Dec. 391); Maupin, Real Est. p. 293, § 125. * * * But when the conveyance is taken with the knowledge that the land is in possession of a lessee, the existence of the lease will not, under a statute transferring the constructive possession to the grantee without attornment by the tenant, operate as a breach of the covenant. Kellum v. Insurance Co., 101 Ind. 455. Nor is it apprehended that it will so operate, independently of statute, where there is an actual attornment by the tenant, or an apportionment of rent between the parties. Rawle Cov. (5th Ed.) § 78; Haldane v. Sweet, 55 Mich. 196 (20 N. W. Rep. 902). And generally it may be said that if the purchaser knows that the premises are in the possession of a tenant, and no special contract is made, the occupant becomes the tenant of the purchaser, and there will be no breach of covenant against incumbrances. Lindley v. Dakin, 13 Ind. 388; Page v. Lashley, 15 Ind. 152; Maupin Real Est. p. 293; Weld v. Traip, 14 Gray 330.”

Sec. 143. Breach of warranty-Eviction. A covenant of warranty is broken at the time of the execution of a conveyance containing it, where at that time a portion of the land conveyed is in the adverse possession of another claiming paramount title. Ilsley v. Wilson, 42 W. Va. 757 (26 S. E. Rep. 551). An action cannot be maintained on a covenant of warranty or for quiet enjoyment, unless there has been an eviction or surrender by reason of the paramount title. Troxell v. Johnson, 52 Neb. 46 (71 N. W. Rep. 968). If the paramount title is only an outstanding right to an easement in the premises conveyed, which naturally impairs the value of the estate, and interferes with the use and possession of some portion of it, the covenant for quiet enjoyment or of warranty is held to be broken, although there is not a technical, physical ouster from the actual possession of any portion

of it. It is deemed an eviction pro tanto. Harrison v. Bean, 89 Me. 470 (36 Atl. Rep. 986). Citing, Lamb v. Danforth, 59 Me. 322 (8 Am. Rep. 426); Clark v. Conroe's Estate, 38 Vt. 469; Russ v. Steele, 40 Vt. 310; Scriver v. Smith, 100 N. Y. 471 (3 N. E. Rep. 675).

Sec. 144. Breach of covenants-Measures of damages. Only nominal damages can be recovered for breach of warranty in a deed conveying standing timber, where the grantee has cut all the timber which stood on the land when the deed was made. Britton v. Ruffin, 120 N. C. 87 (26 S. E. Rep. 642). The measure of damages for a breach of warranty in a deed, is the amount of consideration paid for the premises, with interest, and reasonable costs and expenses in resisting the eviction. Webb v. Holt, 113 Mich. 338 (71 N. W. Rep. 637). For application of this rule in particular case, see Walton v. Campbell, 51 Neb. 788 (71 N. W. Rep. 737). Where, prior to a conveyance of land by warranty deed, at a certain price per foot frontage, a considerable portion of the land conveyed was taken for a public highway, the grantee is entitled to recover from the grantor, as for failure of title, the agreed price per foot frontage, for the number of feet taken by the road, with interest from the date of his final payment on the land. Haynie v. American Trust Inv. Co., Tenn. (39 S. W. Rep. 860). The right of a covenantee to recover attorney fees on account of a previous action in which a judgment of ouster was rendered against him, is limited to the fees actually paid by him. Cullity v. Dorffel, 18 Wash. 122 (50 Pac. Rep. 932). Where the breach of the covenant of warranty and the covenant against incumbrances is the existence of a perpetual easement which the covenantee cannot remove, he is entitled to recover as damages the difference between the value of the premises with and without the easement, with interest from the date of the conveyance to him. Harrington v. Bean, 89 Me. 470 (36 Atl. Rep. 986). Damages for breach of a covenant of title to buildings sold by a purchaser from a lessee, should be assessed upon the basis of a total failure of title, where the original lessee who erected the buildings had only a right to be re-imbursed as to part of their cost. Handy v. Aldrich, 168

Mass. 34 (46 N. E. Rep. 429). A grantee can recover only nominal damages for a breach of covenant against incumbrances arising from the existence of a mortgage which has not disturbed his possession and which he has not paid, where his title has been extinguished by a foreclosure sale in pursuance of his subsequent mortgage, it not appearing that the existence of the mortgage constituting the breach, injuriously affected his interests in the making of such foreclosure sale. McGuckin v. Milbank, 152 N. Y. 297 (46 N. E. Rep. 490).

Sec. 145. Breach of covenant of seisin-Measure of damages. A covenant of seisin, if broken at all, is broken the instant it is made, and an immediate right of action accrues to the purchaser to sue for the breach. His measure of damages is the consideration paid with interest, where there is an entire failure of title. Haynie v. American Trust. Co., Tenn. (39 S. W. Rep. 860). The covenant is personal and if broken is broken the instant it is made and an immediate right of action accrues to the vendee for its breach without and before eviction. If the breach be total, or such that the vendee may so treat it, ordinarily the measure of damages is the amount of consideration paid with interest thereon, subject to a deduction for rents during the vendee's possession, when it appears that he cannot be made liable therefor to the owner of the paramount title. A decree awarding damages for a total breach should provide for the restoration of the possession of the land; and where possession is surrendered to a grantor who had only a life estate, the vendee is entitled to recover for improvements to the extent that they have permanently enhanced the rental or usable value of the life estate. Curtis v. Brannon, 98 Tenn. 153 (38 S. W. Rep. 1073). On a partial breach of the covenant of seisin, where the possession of the covenantee has never been disturbed, as a general rule, subject to certain exceptions, he will be entitled to recover as damages that proportion of the whole consideration (without interest) which the part lost bears to the full title attempted to be conveyed. Bolinger v. Brake, 57

Kan. 663 (47 Pac. Rep. 537).

Sec. 146. Action for breach of covenant-Pleading and practice. In an action on a covenant of warranty, a

judgment of ouster rendered against the covenantee, is not admissible in evidence against the grantor to show paramount title, where the complaint does not allege that the grantor was notified and requested to defend the title in the former action. Cullity v. Dorffel, 18 Wash. 122 (50 Pac. Rep. 932). A subsequent incumbrancer may prosecute a cross complaint based upon his grantor's covenant against incumbrances in an action brought to foreclose a mortgage which constitutes a breach thereof, where such grantor is a party to the action. Duroe v. Stephens, 101 Ia. 358 (70 N. W. Rep. 610). Va. Code 1887, § 2415, construed and applied-action on covenant in a deed by one not a party to it. Newberry Land Co. v. Newberry, 95 Va. 119 (27 S. E. Rep. 899).

CROPS AND EMBLEMENTS.

EPITOME OF CASES.

Sec. 147. Title to growing crops. A purchaser at a foreclosure sale who has an adequate remedy at law, is not entitled to an injunction against a tenant in possession at the expiration of the period of redemption, to prevent him from moving crops off the land. Marks v. Jones, 71 Minn. 136 (73 N. W. Rep. 719). During the pendency of an appeal by a tenant in possession contesting the right to sell, the purchaser of land at administrator's sale is not entitled to the crops and rents. Pearson v. Gillenwaters, 99 Tenn. 446 (42 S. W.-Rep. 9; 63 Am. St. Rep. 844). Where, after the commencement of an action to foreclose a mortgage given by one cotenant upon his interest in the common estate and the filing of a lis pendens, another cotenant in possession of the premises mortgages the crops raised thereon, it is held that the rights of a purchaser at a foreclosure sale in the crops is not affected by the mortgage given thereon. Moreland v. Strong, 115 Mich. 211 (73 N. W. Rep. 140). Under the laws of Tennessee, the growing crops of any year cannot be levied upon by creditors before November 15th of the year, and they cannot complain of any disposition made of the crop before that time by