and not the relative value. But in cases of eviction of a specific part, justice evidently requires that the *478 relative, instead of *the average value, be taken

as the rule of computation; for though the part lost may not be one-tenth part of the quantity of land purchased, it may be nine-tenths of the value of the whole; or it may be one-half part of the land sold, and yet it may be the rocky or the barren part of the farm, and not one-hundredth part of the value of the remaining moiety.

The French law, prior to the revolution, gave to the buyer a compensation for improvements, and the increased value of the land, in addition to the restitution the price, with interests and costs. It was founded on the Roman law; but the provision was destitute of fixedness and precision. The Code Napoleon has rescued the rule from the guidance of loose and arbitrary discretion, and reduced it to certainty. It allows the purchaser, on eviction, to recover the price, and the mesne profits which he is obliged to pay to the owner, and his costs and expenses, and the increased value of the lands, independent of the acts of the purchaser, and also the beneficial improvements which he may have made. The rule in the French law does not operate with equality and justice. The vendor is bound to pay for the increased value of the land; and yet if it happens to be diminished in value at the time of eviction, the vendor is not less bound to refund the purchase money. The

2 Harr. & Munf. 178. 4 Munf. 332.

b Pothier, Traité du Cont. de Vente, No. 132-141. Inst. Droit François, par Argou, tom. ii. liv. 3, c. 23. It was declared in Edwards v. Martin's Heirs, 19 Louis. Rep. 284, on a learned discussion of the Roman law, that by that law the purchaser in a case of warranty must be indemnified to the extent of the interest he had in not being evicted, but the damages were not to exceed the value of the subject-matter of the contract, or the highest damages within the contemplation of the parties at the time of the contract. Art. 1630-1641.

Civil Code of Louisiana has closely copied the general provisions of the French code on the subject; but it has omitted this inequality of regulation; and it likewise confines the recovery to the price, mesne profits, costs, and special damages, (if any,) and beneficial improvements. Both the French and Louisianian codes make the seller pay even for the embellishments of luxury expended on the premises, if he sold in bad faith, knowing his title to be unsound.

*The rule of the common law, and the one most *479 prevalent in this country, appears to be moderate, just, and safe. The French rule in the code is manifestly unjust. I cannot invent a case, said Lord Kames, where the maxim cujus commodum ejus debet esse incommodum is more directly applicable. If the price at the time of the eviction be the standard for the buyer, it ought to be equally so for the seller. The hardship of the doctrine, that the seller must respond, in every case, for the value of the land at the time of eviction, and for useful improvements, consists in this, that no man could ever know the extent of his obligation. He could not venture to sell to a wealthy or enterprising purchaser, or in the vicinity of a growing town, without the chance of absolute ruin. The want of title, in cases of good faith, is a matter of mutual error; for the buyer investigates the title when he buys; and the English rule would appear to be the most practicable, certain, and benign in its application.

The manner of assigning breaches on these various covenants, depends upon the character of the covenant. In the covenant of seisin, and in the covenant that the covenantor has good right to convey, it is sufficient to allege the breach by negativing the words of the cove

nant. But the covenants for quiet enjoyment, and of general warranty, require the assignment of a breach by a specific ouster or eviction by a paramount legal title. So, in the case of the covenant against encumbrances, the encumbrance must be specifically stated. These are some of the general and universally acknowledged rules, that apply to the subject; and it has been held not to be necessary to allege an ouster, or eviction, on a breach of a covenant against encumbrances, but only that it is a valid and subsisting encumbrance. A paramount title, in a third person, or a public highway over the land, are held to be encumbrances within the meaning of the covenant; though the existence *480 *of such a public highway would not be a breach of the covenant of seisin.d

It has been held in some of the states, that the covenant of seisin was satisfied, if the grantor was seised in fact claiming a fee. Manton v. Hobbs, 2 Mass. Rep. 433. Twambly v. Hinkey, 4 ibid. 441. Prescott v. Trueman, ibid. 627. Willard v. Twitchell, 1 N. H. Rep. 177. But other decisions hold that there must be a legal seisin in fee to answer the covenant. Lockwood v. Sturdevant, 6 Conn. Rep. 305. Richardson v. Dorr, 5 Vermont Rep. 1; and these latter decisions contain, it is apprehended, the true rule of the common law.

b Kortz v. Carpenter, 5 Johns. Rep. 120. Norman v. Wells, 17 Wendell, 160. Mitchell v. Warner, 5 Conn. Rep. 497. 522. Beddoe v. Wadsworth, 21 Wendell, 120. But a judgment of eviction, or a decree divesting the grantee of his right, is sufficient to sustain the action upon the warranty, without showing an actual removal from the land. Hanson v. Buckner, 4 Dana's Ken. Rep. 254.

• Prescott v. Trueman, 4 Mass. Rep. 627. Kellogg v. Ingersoll, 2 ibid. 97. Prichard v. Atkinson, 3 N. H. Rep. 335.

Whitbeck v. Cook, 15 Johns. Rep. 483. In a note to 10 Ohio Rep. p. 317-335, the editor Mr. Wilcox has given a condensed and accurate view of the ancient law of warranty and of the modern covenants as a substitute. Mr. Sedgwick in his very learned Treatise on the Measure of Damages, has laboriously and fully collected the decisions in the several states on the local rules of damages in actions for breach of real covenants, (ch. 6, p. 150– 204,) and to that Treatise I must refer, for it would be quite foreign from this work to notice, analyze, and criticize the numerous diverse decisions on the subject. I have noticed many of them and as minutely as the plan of these Commentaries would permit.

5. Of the several species of conveyances.

Sir William Blackstone" divides conveyances into two kinds, viz. conveyances at common law, and conveyances which receive their force and efficacy from the statute of uses. The first class is again subdivided into original or primary, and derivative or secondary con

veyances.

As some of those conveyances have grown obsolete, and as the principles which constitute and govern all of them have been already discussed, it will not be requisite to do more than take a cursory view of those which are the most in practice, and of the incidental learning connected with the subject.b

(1.) Of feoffment.

Feoffment was the mode of conveyance in the earliest periods of the common law. It signified, originally, the grant of a feud or fee; but it came, in time, to signify the grant of a free inheritance in fee, respect being had to the perpetuity of the estate granted, rather than to the feudal tenure. Nothing can be more concise, and more perfect in its parts, than the ancient charter of feoffment. It resembles the short and plain forms now commonly used in the New-England states. The feoffment was likewise accompanied with actual delivery of possession of the land, termed livery of seisin. The notoriety and solemnity of the livery were well adapted to the simplicity of unlettered ages, by making known the change of

■ Com. vol. ii. 309.

By the statute of 7 & 8 Vict. ch. 76, and of 8 & 9 Vict. ch. 106, freehold land may be conveyed simply by way of deed without livery of seisin, or lease and release; and no partition, or assignment, or exchange of land, or lease is valid except by deed, but where there is an agreement for a lease, payment of rent will constitute a yearly tenancy; and contingent interests may be conveyed by deed. The last act above mentioned renders feoffments void in law, except in a special case and they shall not have any tortious operation.

owners, and preventing all obscurity and dispute concerning the title. The actual livery was performed by entry of the feoffor upon the land, with the charter of feoffment, and delivering a clod, turf, or twig, or the

latch of the door, in the name of seisin of all the *481 lands contained in the deed. The *ceremony was performed in the presence of the peers, or freeholders of the neighbourhood, who were the vassals of the feudal lord, and who might afterwards be called on to attest the certainty of the livery of seisin."

The charter itself was not requisite. The fee was capable of being conveyed by mere livery in the presence of the vicinage. The livery was equivalent to the feudal investiture of the inheritance, for it created that seisin which became an inflexible doctrine of the common law. And if the feoffor was not able to enter upon the land, livery was made within view of it, with a direction to the feoffee to enter, and if the actual entry afterwards, in the time of the feoffor, took place, it was a good livery in law.b

The feoffment operated upon the possession without any regard to the estate or interest of the feoffor; and though he had no more than a naked, or even tortious possession, yet, if the feoffor had possession, the feoffment had the transcendant efficacy of passing a fee by reason of the livery, and of working an actual disseisin of the freehold. It cleared away all defeasible titles, divested estates, destroyed contingent remainders, extinguished powers, and barred the feoffor from all future right, and possibility of right, to the land, and vested an estate of freehold in the feoffee. In this respect the feoffment differed essentially from a fine, or common

• Co. Litt. 48, a. 2 Blacks. Com. 315, 316.

b Litt. sec. 419. 421. Co. Litt. 48, b.

e Co. Litt. 9, a 49, a. 367, a. Litt. 599. 611. 698. West Symb. sec. 251. Shep. Touch. 203, 204. Butler's notes, 285, and 317 to Co. Litt. lib. 3.