grantee, such fact may be considered in estimating the damages, and as a general rule will prevent the recovery of more than nominal damages.1 Title Acquired After Eviction of Grantee. But when the paramount title is not acquired by the covenantor until after the grantee has been evicted, the covenantor cannot compel the grantee to accept such after-acquired title in satisfaction of the covenant or in mitigation of damages for the breach thereof. 9. EFFECT OF FRAUD ON MEASURE OF DAMAGES. — Though it has been intimated that fraud on the part of the covenantor will affect the measure of damages in an action on the covenants in the deed,3 yet the better doctrine is that where the action is brought on the covenants the damages are not affected by the question of fraud on the part of the covenantor, but if the See, however, Lowry v. Hurd, 7 Minn. In Burke v. Beveridge, 15 Minn. 205, it was held that the right of action for breach of the covenant of seizin was not affected by the covenantor's subsequently acquiring title, if such title was defeated by his failure to record the deed to him until after his grantor had conveyed to a bona fide purchaser, whose deed was first recorded. Supplying Link in Chain of Title. A person who was the actual owner of a farm and in possession thereof, traded the same, subject to a mortgage of eight hundred dollars, but the grantee, in consequence of the omission of a deed in the grantor's chain of title on the record, was unable to effect a loan on the farm, in consequence of which the mortgage was foreclosed and the grantee evicted. No fraud was charged against the grantor, and he afterwards procured a second deed to supply the missing link in his chain of title. It was held that damages for the loss of the farm were too remote and could not be recovered against the grantor. Lamb v. Buker, 34 Neb. 485. 2. Title Acquired After Eviction of Grantee Indiana. - Burton 7. Reeds, 20 Ind. 92; Bethell. Bethell, 92 Ind. 328. Resser v. Carney, 52 Minn. Bingham v. Weiderwax, I N. Y. 513; Shattuck v. Lamb, 65 N. Y. 499, 22 Am. Rep. 656; M'Carty v. Leggett, 3 Hill (N. Y.) 134; Morris v. Phelps, 5 Johns. (N. Y.) 49, 4 Am. Dec. 323. Washington. Wash. 558. Wisconsin. Rombough V. Koons, 6 Nichol v. Alexander, 28 Wis. 118; McInnis v. Lyman, 62 Wis. 191. See also Lacey v. Marnan, 37 Ind. 168; Fritz v. Pusey, 31 Minn. 368. See, however, Looney v. Reeves, 5 Kan. App. 279; Knowles 7. Kennedy, 82 Pa. St. 445; Reese v. Smith, 12 Mo. 344: Singleton v. Allen, 2 Strobh. Eq. S. Car.) 166; Boulter v. Hamilton, 15 U. C. C. P. 125. Unoccupied Lands. In case of a conveyance of unoccupied lands there is a constructive eviction as of the time of the grant, and any subsequent acquisition of title by the covenantor cannot affect the recovery of damages by the grantee. Nichol v. Alexander, 28 Wis. 118; McInnis v. Lyman, 62 Wis. 191. Rule in Equity. In Tucker v. Clark, 2 Sandf. Ch. (N. Y.) 96, the assistant vice-chancellor, in speaking of the right of the grantor to compel the grantee to accept an afteracquired title after an action had been commenced on the covenant of seizin, said: "If the lots had become worth two or three times the price which the defendant paid for them, then they could set up the outstanding title, deprive the defendant of his speculation, and throw him upon the covenants in his deed, which would restore to him the consideration paid. If, on the other hand, the lots should depreciate very much, the complainants would procure the outstanding title for him and retain the price which he paid. There is no equity or fairness in this, and the court cannot grant the relief prayed by the bill without first making such a contract for the parties; a contract which they never did make, and I presume never would have made if any failure of title had been supposed probable when the conveyance was executed." See also Woods v. North, 6 Humph. (Tenn.) 309, 44 Am. Dec. 312. See, however, Reese v. Smith, 12 Mo. 344. 3. Fraud of Covenantor. Clark . Zeigler, 79 Ala. 346; Phillips v. Reichert, 17 Ind. 120, 79 Am. Dec. 463; Pitcher v. Livingston, 4 Johns. (N. Y.) 1, 4 Am. Dec. 229; Bender v. Fromberger, 4 Dall. (Pa.) 442; King v. Pyle, 8 S. & R. (Pa.) 166. covenantee wishes to take advantage thereof he should bring an action on the case for fraud.▲ r. CONSIDERATION EXPRESSED IN DEED AS EVIDENCE OF CONSIDERATION PAID. — The consideration expressed in the deed, though prima facie evidence of the true consideration,2 is not, as a general rule, conclusive between the parties where the damages are to be assessed on the basis of the consideration, but the true consideration may be shown either for the purpose of increasing or decreasing the damages to be recovered.3 Action by Remote Grantee. Where, however, the action is by a remote grantee, it has been held that the consideration expressed in the deed is conclusive and cannot be questioned. There are, however, decisions which hold that in the absence of fraud the true consideration may be shown even in an action by a remote grantee. And of course where the remote grantee at the time of his purchase was aware of the true consideration, the consideration expressed in the deed is not binding on the covenantor. 4. Action by Remote Grantee Consideration Expressed in Deed Conclusive. - Illinois Land, etc., Co. v. Bonner, 91 Ill. 114; Hunt v. Orwig, 17 B. Mon. (Ky.) 73, 66 Am. Dec. 144; Greenvault v. Davis, 4 Hill (N. Y.) 643. See also Suydam v. Jones, 10 Wend. (N. Y.) 180, 25 Am. Dec. 552. Connecticut. Belden. Seymour, 8 Conn. 304, 21 Am. Dec. 661. Georgia. Harwell Grantee. v. Fitts, 20 Ga. 723; Martin v. Gordon, 24 Ga. 533. 46 In Greenvault v. Davis, 4 Hill (N. Y.) 643, Bronson, J., said: 'Many titles have been received upon the strength of covenants running with the land, and whatever may be the rule as between the immediate parties to the deed, it would work the grossest injustice to allow the covenantor to go into the question of how much was actually paid for the land when the title has failed in the hands of an assignee." 5. Consideration Shown in Action by Remote Martin v. Gordon, 24 Ga. 533: Fields v. Willingham, 49 Ga. 352. See also Gavin v. Buckles, 41 Ind. 528, wherein it was held that the true consideration could be shown in an action by a remote grantee as well as in an action brought by the immediate covenantee. This decision, however, seems to have been based to some extent on the statute 2 G. & H. 38, § 6, which provided that all actions by assignees should be without prejudice to any set-off or other defense existing at the time of or before notice of the assignment, except actions on promissory notes. The court stated that while the statute might not in terms apply to actions on covenants, still the analogy to be drawn therefrom justified the conclusion that, in an action for breach of covenants, the real consideration might be shown as well where the action was brought by an assignee as where brought by the immediate covenantee. 6. Where Remote Grantee Aware of True Consideration. Clippenger v. Hastings, 19 Kan. 403. s. EFFECT OF RECOVERY OF DAMAGES IN ACTIONS ON COVENANTS FOR TITLE. — It has been said in a number of cases that a recovery of the con sideration paid, with interest, for a total breach of the covenant of seizin or warranty, though it may not have the effect of revesting the title in the grantor, will yet estop the grantee from claiming title, and will thereby overcome the hardship of allowing the grantee to recover such amount and at the same time hold under other covenants in his deed a title subsequently acquired by the grantor, and may entitle the grantor to a reconveyance, which, if refused, a court of equity would enforce; 2 or where the circumstances are such as to require a reconveyance by the grantee, it might be enforced at law by imposing terms upon the grantee as to the receipt of the fruit of his judgment." - 2. Actions on Covenants in Leases and Mortgages. The rules as to the measure of damages for breaches of covenants in mortgages and deeds are not within the scope of this article, and are treated elsewhere under appropriate titles. VIII. MATTERS OF EVIDENCE- 1. Burden of Proof as to Breach-a. GENERALLY Covenant of Seizin. - Under the common-law rules of pleading the plaintiff might, in an action on a covenant of seizin, assign the breaches generally by negativing the words of covenant; the defendant might plead that he was seized, and issue might be joined by a replication reiterating the denial of seizin without specifying defects of title or averring a title paramount. In this state of the pleadings it was held that the affirmative of the issue was with the defendant, who was bound to prove performance of the covenant, and if no evidence was introduced the plaintiff was entitled to judgment.5 This rule was in harmony with the system of conveyancing under which it grew up, and according to which land titles were not matters of public record, but each landowner had in his own hands his muniments of title not accessible to any but the owner of the estate. The rule thus established, that the burden 1. Effect of Recovery of Damages as an Estoppel. Blanchard . Ellis, 1 Gray (Mass.) 202, 61 Am. Dec. 417; Porter v. Hill, 9 Mass. 36, 6 Am. Dec. 22; Stinson v. Sumner, 9 Mass. 143, 6 Am. Dec. 49; Parker v. Brown, 15 N. H. 188; Utica Bank v. Mersereau, 3 Barb. Ch. (N. Y.) 528, 49 Am. Dec. 189; Bowne v. Wolcott, 1 N. Dak. 415; Kincaid v. Brittain, 5 Sneed (Tenn.) 124; Noonan v. Ilsley, 21 Wis. 148. See also Johnson v. Simpson. 36 N. H. 96; Gibson v. Boulton, 3 U. C. C. P. 407. It appears that recovery of judgment without satisfaction thereof does not create an estoppel. Foss v. Stickney, 5 Me. 390 Limited to Cases of Total Failure of Title. — In Bowne v. Wolcott, 1 N. Dak. 415, Bartholo mew, J., after stating the rule as to the effect of the recovery of the consideration, said: "This doctrine has been sometimes announced by the courts, but it is strictly limited to one class of cases, and those are cases wherein there has been a total breach of the covenant wherein nothing, in fact, passed to the grantee; and while it would be true that the grantor could not aver against his own deed, yet the grantee could do so, and if the grantee avers that there has been a complete breach of the covenant, and that nothing in fact passed to him by the conveyance, and if such averments are verified by the decision of the court and thereby become matters of record, the grantor can thereafter take advantage of the record, and can re-enter, and the grantee will not be heard to set up the conveyance by way of estoppel." 2. Reconveyance Enforced by Court of Equity. - Park v. Cheek, 4 Coldw. (Tenn.) 28. See ย. also Recohs v. Younglove, 8 Baxt. (Tenn.) 387. Issue Framed to Throw Burden on Plaintiff. Even at the common law the issues might be so framed as to throw the burden of proof upon the plaintiff. Thus if the plaintiff's replication, instead of denying seizin generally, avers who in fact is seized or sets up a particular breach, he has the affirmative and the burden of proof. Wilford v. Rose, 2 Root (Conn.) 14; Sedgwick v. Hollenback, 7 Johns. (N. Y.) 376. See also Hancock v. Field, Cro. Jac. 170; Ingalls 7. Eaton, 25 Mich. 32. 6. Common-law Rule Dependent on System of Conveyancing. "The reason for thus permitting the plaintiff to drive the defendant to the affirmative of the issue in an action upon this particular covenant is to be found in the system of conveyancing prevalent in England when these rules were established. The owner of a landed estate depended for his title upon his title deeds and muniments of title; these were not matters of public record, but is on the defendant, has been extensively adopted in the United States.1 Under Reformed Procedure-Burden Held to Be on Plaintiff. Under the reformed system of code procedure prevailing in many of the United States, and under a system of conveyancing wherein land titles are matters of record, it has been held that these rules are no longer applicable, and that a plea of the general issue throws upon the plaintiff the burden of proving a breach of the covenant of seizin.2 Covenant for Right to Convey. · The same principles of pleading, and doubtless the same rules as to the burden of proof, govern under common-law pleadings the covenant for right to convey.3 Covenants of Freedom from Incumbrances and Quiet Enjoyment. With regard to covenants of freedom from incumbrances and quiet enjoyment, the rule of pleading is that breaches must be specifically set forth by the plaintiff, and the burden of proof is always, therefore, upon him to prove such breaches.4 b. BURDEN OF PROVING TITLE PARAMOUNT. Where the covenantee in a deed of warranty buys in an outstanding title as being older and better than his own, he assumes the burden of proving that it is paramount to that conveyed to him by the covenantor. So the burden of proving paramount title is on the covenantee where he voluntarily surrenders to an adverse claimant without suit, or where the covenantor was not notified by the covenantee of the pendency of the suit in ejectment against the covenantee under which the * * * were accessible only to the owner of the estate, 1. Breach of Covenant of Seizin Burden Held to Lie on Defendant - Illinois. - Baker v. Hunt, 40 Ill. 264, 89 Am. Dec. 346. latter was evicted, or where by reason of an adverse holding under paramount title the covenantee has not taken possession.2 But the Form of the Pleadings may shift the burden of proof to the defendant.3 2. Admissibility of Parol Evidence-a. AS TO SIMULTANEOUS OR PRIOR AGREEMENTS OR WARRANTIES. - In accordance with the familiar rule excluding parol evidence varying written instruments, parol evidence of simultaneous or prior agreements is inadmissible either to enlarge or to restrict a warranty in a deed. Independent Verbal Agreements. But parol evidence of an independent verbal agreement, made contemporaneously with the deed, but disconnected with the written contract, may in some cases be admissible; or there may be an Where Conclusive Proof of Paramount Title. the burden of proof of paramount title is cast upon the grantee, by reason of surrendering possession without suit, he is not bound to prove it conclusively. In all civil cases the measure of proof is that which produces in the minds of the jury a reasonable conviction. Copeland v. McAdory, 100 Ala. 553. 1. Where Covenantor Not Notified of Suit Against Covenantee Illinois. - Sisk v. Woodruff, 15 Ill. 15; Harding v. Larkin, 41 Ill. 414; Claycomb v. Munger, 51 Ill. 373. -- Indiana. - Walton v. Cox, 67 Ind. 164. Maine, Ryerson v. Chapman, 66 Me. 557. Massachusetts. Hamilton v. Cutts, 4 Mass. 349. 3 Am. Dec. 222. Texas. Maverick v. Routh, 7 Tex. Civ. App. 669; Clark v. Mumford, 62 Tex. 531. 2. Where Covenantee Has Not Taken Possession Illinois. — Beebe v. Swartwout, 8 Ill. 162. 3. When Burden of Proof on Defendant to Establish His Title. Where the breaches assigned were that the defendant did not have title, that the legal and paramount title at the time the deed was made was in a third person, and that by reason thereof the plaintiff was unable to obtain possession; to which the defendant pleaded that at that time the title was not in such third person, but in the defendant, and that he had effectually conveyed the same to the plaintiff; it was held that the defendant by his plea took upon himself the burden of proving that he had conveyed the fee-simple title to the plaintiff. Owen v. Thomas, 33 Ill. 320. 4. Parol Evidence Inadmissible to Enlarge or Restrict Warranty. — Bigham v. Bigham, 57 Tex. 238; Beach v. Packard, 10 Vt. 100, 33 Am. Dec. 185. See also Henderson v. Henderson, 13 Mo. 151. Parol evidence that the covenantee had knowledge of the title by which he had been evicted, and agreed that the defendant should not be charged in the event of such an eviction, is inadmissible. Townsend v. Weld, 8 Mass. 146. Nor is it competent for the grantor to prove, by oral testimony, that at the time he executed 5 the deed he assigned to the grantee a judgment against a third person, which the covenantee accepted as his sole security, agreeing never to hold the grantor liable on the covenant. Col- . lingwood v. Irwin, 3 Watts (Pa.) 306. Nor is parol evidence admissible to prove the making of an agreement, a few days before the deed was executed, that the covenantee was to patent the land. McKennan v. Doughman, I P. & W. (Pa.)417. Nor to show that part of the premises included within the description was intended to be excepted from the grant. Nutting v. Herbert, 35 N. H. 120. Where Verbal Warranty of Quantity of Land. a deed described the quantity of land conveyed, but contained no warranty of the quantity, it was held that parol evidence that, during the negotiation and before the delivery of the deed, the vendor verbally warranted the quantity of the land, is inadmissible as tending to vary the terms of the deed. Cook v. Combs, 39 N. H. 592, 75 Am. Dec. 241. But in Frederick v. Campbell, 13 S. & R. (Pa.) 142, 14 S. & R. (Pa.) 293, evidence that the vendor declared that he had a good title to the quantity conveyed was held to be admissible, although the deed contained no such warranty, on the ground that it did not restrain or narrow the conveyance, and that it was a part of the res gesta, necessary to show the real character and design of the transaction. 5. Parol Agreement as to Possession of Land by Third Persons. Page v. Lashley, 15 Ind. 152. In this case it was held that where land is in possession of a tenant at the time the covenant is made, a parol agreement to accept the deed and the tenant's possession as the possession of the purchaser is valid, the purchaser having full knowledge of the tendency and the rights of the tenant. So also where the land is in possession of third persons, parol evidence is admissible to prove that an agreement was made between the parties that the covenantor was to give possession at a future time when the then possessors could be removed. But as the possession of real estate within a certain statutory period may be the subject-matter of a valid parol contract, it would seem that if such a contract was made between the vendor and the vendee, a suit as to the possession would necessarily have to rest upon a breach of the parol contract, and not upon the covenants of the deed. Lindley v. Dakin, 13 Ind. 388. Quality of Land. Parol evidence is admissible to show that a warranty as to the quality of land was a part of a prior or contemporane |