Smith v. Jefts , 44 N.H. 482 ( 1860 )

Bellows, J.

Assuming that there was a covenant against incumbrauces, as an implication from the statement that the conveyance was with full covenants of warranty, the question simply is, whether, as the incumbrance which existed at the time of the conveyance was extinguished by the defendant, or his grantor, before the commencement of this suit, the plaintiff’ is entitled to recover any thing.

This covenant, being in presentí, was broken as soon as it was made, and a right of action at once arose to the plaintiff to recover such damages as he sustained. If he extinguished the incumbrance by the payment of a reasonable sum, he might add that to his damages, even though paid after the commencement of his suit; but if not extinguished at the time of the assessment of the damages, he could not so add the amount, but would be entitled to nominal damages only. Osgood v. Osgood, 39 N. H. 209; Wilson v. Wilson, 25 N. H. 235; Brooks v. Moody, 20 Pick. 474; Thayer v. Clemence, 22 Pick. 493; Clark v. Swift, 3 Met. 390; 4 Kent. Com. 471, 472; 2 Wash. R. P. 649. The right of action, then, was perfect in the plaintiff immediately on the delivery of the deed, and the subsequent extinguishment of the incumbrance by either party could only affect the damages, and not the right of action. This is apparent from the fact that there might be other grounds of claim for actual damages beside the amount paid to extinguish the incumbrance ; such as being deprived for a time of the use of the land.

There must, then, be

Judgment for the plaintiff for nominal damages.