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“thing bought, and the seller for the recovery of his money: in the “fourth case where earnest is given, we may have reciprocal remedies “against each other: and in the last case, the seller may sue for his “money.” Sheph. Touch. of Comm. Ass. 222. But, notice of readiness to receive the goods, and to pay the price at the time and place agreed on, is equivalent to tender ; and will be a sufficient averment to support the declaration: for the terms on each side are concurrent contracts. Rawson v. johnston, 1 East, 203, and the cases therein cited. Bargain and sale may be rescinded by mutual consent before the rights of other persons are colcerned, but not afterward, Smith v. Field, 5 Term Rep. 403. In Cooke v. Oxley, 3 Term Rep. 653. it was determined that though the seller give time to the proposed buyer to deliberate upon the purchase, and the latter within the time agrees to buy, yet, if no consideiration intervene, the seller may refuse to sell. The same principle in Hanson v. Meyer, 6 East, 614. - - - See further on this subject, the cases digested by the compilers Sug- . den, 174. 1 Com. Contr. 83.89 90. 2 Com. Contr. 210. Bailey and Bogert v. Ogden and Ogden, 3 Johnston, N. Y. Rep. 399, also contains a good investigation of some of the points first above noticed. The doctrine of sales dependant upon market overt, is not adopted in New-York state, so as to give title to a bona fide purchaser to goods which he bought of A, but which at the time belonged to B, and A had no title to, or right to sell. So that here, where there is no market overt, a bonā fide sale does not change the property as against the rightful owner. See Kent’s observations in Wheelwright v. Depeyster, 1 Johnson’s N. Y. rep. p. 479, 480, who cites the civil law maxim, nemo plus juris in alium transferre potest quam ipse habet; Pothier traite de vente, part 1. 7. 2 Erskine's Inst. of the law of Scotland, 481. and Lord Kaime's Hist, law tracts. tit. History of Property. I am not at present aware of any other case on this point, in this country. In Pennsylvania, by act of 28 May, 1715. §6. The words grant, bargain, sale, shall be adjudged an express covenant to the grantee, that the grantor was seized of an indefeasible estate in fee, freed from incumbrances done or suffered from the grantor, and aiso for quiet enjoyment against the grantor, his heirs and assigns. These words however do not amount to a general warranty. 2 Binney 95. Lesse of Gratz v. Ewalt. I have already stated the civil law, and our law on the general sub

ject of the sale of chattels, under the Ædilitian regulations. The case of eviction from real property under an ejectment with verdict and judgment in favour of title paramount, is by no means settled by uniformity of decision in this country. As to the measure of damages to be allowed to a bonā fide purchaser of land under a warranty, or covenant of seizin in the seller, or covenant for quiet enjoyment, where the purchaser is afterward evicted by title paramount, and where no fraud is alledged against the seller, different courts have considered the subject differently. Neither in Pennsylvania or in England, has it ever been held that the real owner recovering his possession, was in any way liable te pay for the improvements made on his land. If indeed he lay by, and concealed his title, while those improvements were carrying on with his knowledge, he ought not to recover at all. East India Company v. Vincent, 2 Atk. 83. Anonymous, Bunb. 53. Savage v. Forster, 9 Mod. 37. Hanning v. Ferrers, 2 Eq. Ca. ab. 357. Anonymous, 3 Eq. Ca. ab. 522, 523. Rex v. Inhabitants of Butterton, 6. Term rep. 554. Doe on demise of Winckby v. Pye, 1 Esp. rep. N. P. 364. Fowkes v. joyce, Prec. Ch. 7. Keech v. Hall, Doug. 22. Weakley v. Bucknell, Cowp. 473. I suspect we do not know enough of the circumstances under which the successful owner was held liable to the ivalue of improvements under the civil law. In England, the measure of damages, was the value of the land at the time when the deed with warranty was executed. For which in our American cases, the following authorities have been cited: Bracton, 384. 19 Hen. 6.46. a. 61. a. Bro. ab tit. Voucher, pl. 69. Ib. tit. Recouver in value, pl. 59. 22 Vin. Ab. 144, 145, 146. Ib. pl. 1, 2, 9. Ib. 1, 2, 3. 1 Reeves’ history of the English law, 448. - Glanville, G. 3. ch. 4, Ballot v. Ballot, Godbold, 151. Such was the determination in New-York; (to wit, that however the land might have risen in value, or whatever improvements the purchaser might have made, yet that) the measure of damages was the purchase money and interest. Staats v. Executors of Ten Eyck, 3 Cains 111. Pitcher v. Livingston, 4 Johns. rep. 1. Morris v. Phelps, 5 Johns. rep. 49. From this doctrine Judge Spencer dissented, 4 Johns. rep. 18; holding that the purchaser was entitled to the value of the land with the improvements at the time of eviction. In Massachusetts, Marston v. Hobbs, 2 Mass. rep. 407. and in Blackford v. age, Ib. 455. Parsons, Ch. J. lays down the old English method of proceeding by vouching the warrantor, or bringing warrantial charte upon the warranty ; and declares the law to be, in the case before the eourt, that the measure of damages was the consideration money paid and interest; that being the amount of the plaintiff’s actual loss, who received no estate by the conveyance to him : but gave no opinion what the damages would be, where a grantee actually seized by virtue of the conveyance, was ousted by a paramount title: probakly in that case a different rule would obtain. This question after

ward came before the court in Caswell v. Wendell, 4 Mass. rep. 108.

(Anno 1808) Park'r, Judge on the circuit, on covenant for breach of warranty, had directed the jury, that the measure of damages was the value of the land at the time of eviction. The supreme court say, the df. rection was right; and that the value of the land at the time when the covenant was broken, (to wit, when the conveyance was executed,) as agreed by the parties, was the proper measure of damages: wherein there is something like a dissonance. That the value of the land at the time of the eviction, is the measure

of damages in an action of covenant broken, was also determined in

Massachusetts, in Gore v. Brasier, 3 Mass. rep. 523. The same point was also determined in Connecticut, Kirkby's Conn. rep. 3. The same point was determined in South Carolina, Liber and Wife v. Parsons, 1 Bay's, 19. and in Guerand’s Executors v. River, Ib. 265. Domat also assents to this being the doctrine of the civil law. 1 Dom. 77. sect. 15, 16. In Pennsylvania, the supreme court have decided in conformity to the New-York cases, in Bender v. Fromberger, 4 Dail. rep. 441. An. 1806, which settles the law in this state. . In 1804, a case came before me at Chambersburgh, in Franklin county, of the same kind; wherein I charged the jury, that the measure of damages was the improved value of the land, together with the value of such improvements as had been made for the better and more effectual enjoyment of the land itself, as fences, barn, stables, &c. conceiving, that a man being evicted after having spent some of the best years of his life in directing and superintending reasonable and suitable improvements, was entitled to all the increase of value, which was little enough too. . So thought the jury, and brought in a verdict accordingly: and the decision was acquiesced in. But in Glen's Executors v. Washmood, tried in Cumberland county, 9th May, 1806, the Court (whose opinion was not given till above a twelve month after) adopted the rule in Fromberger's case, and on special verdict whereby the measure of damages was left as a legal point for the court to decide on, directed the average purchase money per acre, with inter

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est from the time of eviction to be allowed for 23 acres, 128 perches, recovered by title paramount. The purchase money was 31.15s. per acre, and the land would have sold at the time of eviction, for four times as much. Upon the rule of caveat emptor, adopted by the English, and some of the American states, all this is just. No man ought to be bound beyond the value he receives for a commodity, valued by the mutual consent of buyer and seller He cannot, it is said, be bound by possibility for £1000, in consequence of selling that for which he receives but a hundred. The answer is, that he ought not to warrant generally that which he is not quite sure belongs to him. Every body who buys in this country, buys with an expectation that his land will rise in value, and is capable of improvement. These are qualities attached to every American purchase ; and if a man is induced to spend much time and much money in confidence of the title conveyed to him, and warranted to him, he ought to be remunerated, as I think, at the expence of the negligent or dishonest seller, I do not know a more goodly and comfortable doctrine for the land-jobbers of this country than caveat emptor. Doubtless, if the purchaser can taint the sale with fraud, or prove a scienter of bad title on part of the seller, the latter would be liable to full damages in covenant, in this state, and to an action on the case for deceit, where the English law prevails. Co. Litt. 384. 1 Fonb. 366. Com. Dig. 236. a. 8. 4 Johns. rep. 12. But how seldom can this be done, in Pennsylvania at least, where a patent itself is nothing more than prima facie evidence of title 3 In Virginia, Nelson v. Matthews, 2 Hen. and Munford, 164, the same measure of damages is adopted as in New-York and Pennsylvania. .(See in that case a discussion of the meaning of the words smore or less, in a deed.) De emptione pura. 271. In is autem.] vid. Cod. 4. t. 21. De fide instrumentorum. By the civil law all covenants of sale were good, whether written or unwritten, to whatever value they extended. But in England, it hath been enacted by 29 Car. cap. 3. sect. 17. “That no contract for “the sale of any goods, wares, and merchandize for the price of ten “pounds sterling or upwards, shall be allowed to be good, except the “buyer shall accept part of the goods so sold, and actually receive the “same, or give something in earnest to bind the bargain, or in part “of payment, or unless some note, or memorandum in writing of the “said bargain be made and signed by the parties to be charged by “such a contract, or their agents thereunto lawfully authorized.” 29 Car. 2. § 1. De pretic certo. p. 272. Sed nostra decisio. Cod. 4.38. 15. § 2. In quibus pretium consistat. p. 273. In nostris digestis. Dig. 18. 1. De contrahenda emptione - .* § 3. De periculo et commodo rei vendita', p. 274. The doctrine here laid down as to the purchaser bearing the risk, is acknowledged in Phillimore v. Barrey, 1 Camp. N. P. Rep. 513. Sugd. L. of Vend., and Purch. 176. 177. Tit XXV. De locatione et conductione, p. 276 This contract is more extended than our letting and hiring ; including as in the next section, a quantum meruit, for work and labour. § 1 De mercede collata in arbitrium alienum. p. 276. * Actio prescriptis verbis. p. 277 Dicta est actio PREscRIPTIs verBIs, ex eo quod prescriptis verbis rem gestam demonstrat. Ob eandem quoque causam, hoc actio dicitur IN FACTUM ; et interdum plena oratione AcTIo UTILIs PRAEscRIPTIs verBIs IN FACTUM. Vinn. § 3. De emphyteusi. p. 277. Emphyteuseos contractus. An emphyteusis (from tutorsvely to plant} is a contract made by consent, by which houses or lands are given to be possessed forever, or at least for a long term, upon condition, that the land shall be improved, and that a small yearly rent or pension shall be paid to the proprietor. And this pension, rent, or canon, may be paid-in money, grain, or any other thing. The perpetuity, or long term, granted, distinguishes this contract from letting and hireing: for an emphyteusis was originally made on account of barren lands, which no person would take for a short time, through a fear of the charge of cultivation; but afterwards the best lands were often granted out upon this emphyteutical contract; the nature of which was first fixed by the emperor Zeno, who determined it to be a distinct contract from buying and selling, letting and hireing.vid Cod. 4. t. 66 De jure emphyteutico. For some thought it to be the contract of hireing, when they considered, that a rent was paid for it to the proprietor; and others imagined it to be the contract of buying, when they saw the tenant had a perpetuity, or at least a very long time, and a sort of property in it: but the tenant had only utile dominium, not a direct dominion; and therefore the contract was distinct from buying and selling. The tenant is called emphyteuta, being under an obligation to plant and improve the land : and he has such an interest, that he may sell the profits of his right in the estate to another, with the consent of the

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