Hodges v. Thayer , 110 Mass. 286 ( 1872 )

Wells, J.

We think the construction given, by the court below, to the deed from Rogers to Robertson, was the correct ana The general phrase applied to the premises is, “ All those tracts or parcels of land situate,” &c., “ described as follows.” The first particular- description is of “ one equal and undivided one half part” of certain tracts, defined by number of township, range, section and lot, or fraction of section, indicated by points of compass. Then, after a semicolon, the description proceeds, “ also, lots three and four,” &c.

The fact that the statement of the undivided half interest is contained only in one of the clauses of particular description, and that the whole is preceded with the general phrase, “ All those tracts or parcels,” indicates that the statement of partial interest was not also applicable to all the tracts contained in the deed; or, to state it differently, the absence of the qualifying words, in the general terms of the description, indicates that they were not applicable generally to all the tracts.

There is not an exact identity of description of the parcels in controversy, in the two deeds. But the question of identity of the lands was one of fact, to be settled at the trial. We do not find, upon the exceptions, any question of law for our consideration, upon that point.

The only other question relates to the proper measure of damages for breach of the covenant of seisin and right to convey. The general rule is well settled that the measure of damages for breach of this covenant is the consideration paid, or price agreed upon for the conveyance. The actual consideration may be proved for this purpose by paroi evidence, even in contradiction to the recital thereof in the deed itself. It does not modify the rule, if the actual consideration was paid in other commodities than money, or even in other real estate. It only requires that the value of such other property be ascertained. Nor does it matter that the consideration is in fact paid or delivered to another person than the grantor ; or that it is itself, before delivery, the property of another than the grantee; provided it is agreed upon between the grantor and the grantee as the consideration upon which the deed is given. Their contract creates the privity between them in relation to the consideration, and .‘.onstitutes it as the price of the agreed conveyance. It thereby becomes the measure of the grantee’s loss. In the case of Byrnes v. Rich, 5 Gray, 518, there was no consideration or price agreed on between the grantor and grantee. So far as that was concerned, each had a separate arrangement with a third party. The deed passed as the result of two different agreements, and was made directly from the grantor to the grantee as a matter of convenience, and not in execution of an agreement between them. Each was a stranger to the consideration by which the other was affected. There being no price agreed upon as between them, the value of the land attempted- to be conveyed was resorted to as the proper measure in the absence of any other.

A like exception is made in Smith v. Strong, 14 Pick. 128, where the actual consideration was incapable of proof.

In the present case there is no reason for departing from the general rule, because the bill of exceptions finds that the consideration was settled by an arrangement between the grantor and grantee. It was only necessary, therefore, to determine its amount by ascertaining the value of the property in which it was rendered or procured to be rendered. Exceptions overruled.