text:
    Teall vs. Felton.
    r'*'?ver may be maintained in the courts of this state against a postmaster for improp» y detaining a newspaper, although such detention is under color of the laws of the United States and the regulations of the post office department.
    The question, when the jurisdiction of the federal courts is exclusive and when concurrent with that of the state courts, considered.
    A postmaster, who assumes to charge letter postage on a newspaper, in consequence of an initial being on the wrapper, does not act judicially in -such a sense as to protect him from an action for improperly detaining such newspaper, although no fraud or malice be alleged or proved.
    On error from the supreme court. Mary C. Felton, by her next friend Citarles T. Hicks, sued William W. Teall in a justice’s court, and declared in trover for converting one newspaper called the Michigan Expositor, of the value of six cents, and one newspaper wrapper of the value of six cents. The defendant pleaded the general issue, and the cause was tried by a jury. On the trial it appeared that the defendant was postmaster at the city of Syracuse; that the newspaper mentioned in the declaration came to that post office and was put into the box of Mr. Hicks, who demanded it of the postmaster in behalf of the plaintiff, and. tendered the newspaper postage thereon, being one and a half cents. There was an initial upon the wrapper, and for that reason the defendant refused to deliver it until letter postage, fifteen cents, should be paid. The letter postage was marked at the Syracuse post office. One of the clerks in the post office testified that it was the general custom to charge, letter postage on newspapers having on' them a single initial. The defendant in the course of the trial objected to the jurisdiction of the. court, which objection was overruled. After the plaintiff had rested, the defendant introduced in evidence a circular from the post office department as follows:
    “ To Postmasters. I am directed by the postmaster general to call your special attention to the multiplied and increasing attempts to violate the law and defraud the revenue by writing on the wrappers, margin or other portion of newspapers, pamphlets and magazines sent by mail. The cheap postage system has removed every reasonable excuse for violating or evading the law, and too much vigilance cannot be exercised by postmasters to detect and punish the offenders; and public sentiment, when well informed, will not fail to sustain you in the faithful discharge of this duty, which is as imperative upon you as any other. That frauds of this,kind may be detected and tracéd to their origin, you are particularly instructed to stamp or mark in writing any transient (by which is meant all not regularly sent to subscribers) newspapers, pamphlets or magazines, with the name of the office and amount of postage. The wrappers of all such newspapers, pamphlets or magazines, when they have reached their destination, should be carefully removed, and if. upon inspection, found to contain any manuscript or memorandum of any kind, either written or stamped, or by marks or signs made in any way, either upon any newspaper, printed circular, price- current, pamphlet or magazine, or the wrapper in which it is enclosed, by which information shall be asked for or communicated, except the name and address of the person to whom it is directed, such newspaper, printed circular, price current, pamphlet or magazine, with the wrapper in which it is enclosed, shall be charged with letter postage by weight. If the person to whom the newspaper, printed circular, price current, pamphlet or magazine is directed, refuses to pay such letter postage thereon, the postmaster will immediately transmit the same to the office from whence it was forwarded, and request the postmaster thereof to prosecute the same for the penalty of five dollars as prescribed by the 30th section of the act of 1825. Suits may be brought either in district courts or before state magistrates having civil jurisdiction in actions of debt for this amount • under the respective state laws. The name of the sender written or stamped either upon the newspaper, printed circular, price current, pamphlet or magazine, or the wnappev in which it is enclosed, communicates such information as subjects it to letter postage, and the consequential penalties, if such postage is not paid at the place of its destination.
    * The diminution of the revenue of the department under the iheap postage system, and the great and increasing demand for additional mail, facilities throughout the-country, whose territory now extends to the Pacific, render it absolutely necessary not only that every cent of lawful revenue be collected and accounted for, but that the utmost vigilance should be exercised for the prevention of fraud, and the sure and speedy infliction of the proper penalty upon the offender.
    This can only be accomplished by the strictest attention of postmasters, who are the sworn agents of the department, and bound to see the laws faithfully administered.
    Post Office Department, Dec. 4, 1846.
    W. J. Brown, 2d Assistant Postmaster General.”
    The jury gave their verdict for the plaintiff for six cents damages, on wdiich the justice rendered judgment. The common pleas of Onondaga county, on certiorari brought by the defendant, affirmed the judgment. The defendant then brought error into the supreme court, and that court sitting in the fifth district affirmed the decision of the common pleas. The opinion of the supreme court was delivered by Gridley, J. as follows •.

      • Gridley, J. We have no doubt that this action was properly brought in a state court. If a letter enclosing $1000 in oank notes, had been sent by mail to the post office in Syracuse, directed to the plaintiff, and had been withheld by the postmaster, unlawfully, after a tender of the postage chargeable bn the package, it is difficult to see why an action would notdie against the postmaster for a conversion of the money, in a state court. The injury is one for which the common law gives redress, and the party injured may seek his redress by the usual common law remedy, in any appropriate common law tribunal. The case is not one where the remedy is given by an act of congress, and is to be sought in the courts of the. United States. . So'too, we are of the opinion that the conversion .of a newspaper belonging to a citizen, authorizes an action of trover in the appropriate state tribunal, notwithstanding the party guilty of the conversion should be a postmaster. To justify such an action, however, the conversion should be clearly proved. The withholding of the paper should be shown to be without color of right, and the plaintiff should establish his title to it by unquestionable proof. This view of' the case brings us to the consideration of the. question whether there is any error apparent in the record for which we are authorized to reverse the judgment. This will depend upon the facts proved on the trial of the cause, or rather upon what we are bound to adjudge to be the facts of the case after the verdict of the jury.
    By the act of 1845, (Acts of 2d. Session of 28th Congress, p. 24, § 1,) the defendant was bound to charge with letter postage, not only letters in manuscript., but also “ a paper of any kind by or upon which information shall be asked for or communicated in writing, or by marks and signs,” <fcc. Now it is quite clear that an initial may be so placed upon a paper as to convey information, and precisely such information as was intended to be prohibited by the act. For instance, a friend whose initial is known to his correspondent who may be trav elling to a certain place, in Michigan, may thus communicate t. a distant person, the fact of his arrival. So also a distant, correspondent may, by a paper which in itself contains nothing of importance, on which is inscribed his initial, communicate the fact of his friendly remembrance and-recognition, and of h is own good health. There are cases, therefore, in which a postmaster may only be doing his duty under the act, in charging such a paper with letter postage. And chap. 58, § 426, of the regulations'for the government of the post office department, shows that' it is immaterial whether the writing, or sign, or mark is on the paper or the wrapper. We have no doubt that the above is a sound though a severe interpretation of the act, when we consider the object'for which it was passed, and the change in the phraseology from that employed in the act of 1825. But it is equally clear that an alphabetical character which would be an initial of some word or name, may often be found inscribed on .the wrapper of a newspaper made carelessly and with no definite intent, or which may have been upon the paper used as a wrapper before it was employed for that purpose. In such a case the initial .would be no evidence at all, that it was a mark or sign by which information was asked or communicated. Now we have no evidence in this return of the justice that this single letter was a capital letter; whether it appeared to be written by the same hand, or with the same ink and pen with the address on the wrapper, nor as to what, position it occupied on the wrapper. Nor have we any evidence, whatever, to show by circumstances or otherwise, whether it was probably written by the person who sent the paper, to communicate information, or not, For aught we know, it was written with a different ink and pen and hand, and was placed in such a position on the wrapper, as to indicate that it was there by. accident and not by intent. It is true that the evidence does not show that it was so, nor does it show to the contrary; and that is precisely the case where the law declares that every intendment and presumption is to be made in favor of and to uphold the verdict of the jury. If the facts are such as to indicate an intentional making of the letter by the same hand which wrote the address, that should have appeared on the return of the justice. (See 18 Wend. 141; 3 John. 435, 439; 2 id. 378.) The jury saw the witness and may have had opportunities to arrive at the truth, which we have not. Hence the difficulty of setting aside a verdict when there is room for controversy about the facts.
    We must hold, therefore, inasmuch as it may have been clearly an accidental mark, that the jury have found that it was so. This we feel bound to adjudge, while we can readily imagine that by means of a careless mode of trying the cause, or of an imperfect return, injustice may have been done to the defendant below.

      S. D. Dillaye, for the plaintiff in error.
    I. The act, on account of which this suit was brought, was done by the plaintiff in error as postmaster, and in the regular exercise of his duties under the laws of the United States and the regulations of the post office department. For any, even an erroneous, exercise of his duties as such postmaster he was not amenable to the tribunals of the state of New-York. The state courts had no jurisdiction over the subject matter of the suit. (Const. of U. S. art. 1, § 8; Post Office Laws of 1825 and 1827; Commonwealth v. Feely, 1 Va. Cas. 321; Sergeants Const. Law, 279; United States v. Lathrop, 17 John. 8, 9, 10; Story on the Const. §s 1124, 1632 ; McCullough v. The State of Maryland, 4 Wheat. 416; United States v. Cornell, 2 Mason's Rep. 60; Osborn v. Bank of U. S. 9 Wheat. 738 ; Slocum v. Mayberry, 2 id. 1; Federalist, No. 80.)
    II. In the absence of fraud or malice, which are not pretended or alleged in this case, officers required by the law to exercise their judgment are not answerable for mistakes of law or errors of judgment. (Drew v. Colton, 1 East, 563 and note; Seaman v. Patten, 2 Caines, 312; Jenkins v. Waldron, 11 John. 114; Vanderheyden v. Young, id. 160; Cunningham v. Bucklin, 8 Cowen, 185; Weaver v. Deavendorf, 3 Denio, 117.) The act complained of was in its nature judicial, and the cases cited show that the plaintiff in error was not liable therefor.
    III. The evidence on the trial clearly showed.that there was an initial on the wrapper of the newspaper when it came to the Syracuse post office; and it should have been decided as mater of law that the plaintiff in error, in imposing letter postage, lid no more than follow out the instructions from the post office department, and therefore that he was not liable.

      B. D. Noxon, for the defendant in error,
    to sustain the jurisdiction of the state courts, cited Bruen v. Ogden, (6 Halst. 370, 377, 379, 381;) Wilson v. McKenzie, (7 Hill, 95 ;) Story on Agency, s§ 319, 319 a, 319 b, 320, 321, 322; Comp. 754; 1 Kent's Com. 386. On the merits he insisted that the question was one of fact purely, as to which the verdict was conclusive. (18 Wend. 141; 1 Hill, 61; 3 John. 435, 439 ; 2 id. 378.)
   Wright, J.

The first point taken by the plaintiff in error is, that if any action could be maintained against him, the defendant in error had not the choice of a fofum, as the jurisdiction of the courts of the United States, in a case of this character, is exclusive. If this proposition be true, it is quite unnecessary for the plaintiff in error to come here to ask us to reverse the judgment, for it is utterly void.

This is undoubtedly a question of grave importance ; for if the plaintiff in error be right, the'slate courts have been wrong ever since the adoption of the constitution of the United States; as the cases are almost without number, in which such courts, in the exercise of their ordinary, original and rightful jurisdiction, have incidentally taken cognizance of cases arising under the constitution, the laws, and treaties of the United States. (1 Kent's Com. 395.) In our own courts, officers of the government of the United States have been impleaded in actions of assumpsit, debt, trespass, &c. in which the defence set up was that they were acting officially under the laws of the Union. (Ripley v. Gelston, 9 John. R. 201; In the matter of Stacy, 10 id. 328; Hoyt v. Gelston & Schenck, 13 id. 141; Wilson v. M'Kenzie, 7 Hill, 95 ;) and in at least one case the supreme court of this state held that they had jurisdiction, and sustained a suit on a bond for duties given to a collector of-the United States'customs. (United States v. Dodge, 14 John R. 95.) I am not disposed to assume for the courts of this state the exercise of powers, concurrently or otherwise, clearly taken from them by the constitution of the United States ; nor a jurisdiction in all cases that may grow out of, and be peculiar-to that instrument: but I think that to divest them of primitive jurisdiction, or pre-existing authority, the grant of powér to the federal courts should be direct and exclusive, and the exercise of it by the state courts expressly prohibited. This was the construction given to the clauses of the constitution providing for the organization of the federal judiciary, cotemporaneous with its adoption, both by the national legislature and eminent expounders of it. (Judiciary Act of 1789; Federalist, No. 82.)

The first section of the third article of the constitution of the United States provides for the organization of a supreme court, and such inferior courts as congress may from time to time ordain and establish. This provision simply denotes the organs of the national judiciary. Were its construction extended further, “ it would (as has been remarked by one of the eminent framers of the constitution,) amount to an alienation of state power by implication.” (Federalist, No. 82.) The second section provides that “ the judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority ; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between a state and citizens of another state, between citizens of different stales, between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens of subjects.” This is a mere grantof jurisdiction to the federal courts, and limits the extent of their powers, but without words of exclusion, or any attempt to oust the state courts of concurrent jurisdiction, in any of the specified cases in which jurisdiction existed prior to the adoption of the constitution. The apparent object was not to curtail the powers of the state courts, but to define the limits of those granted to the federal judiciary.

This doctrine of exclusive and concurrent jurisdiction growing out of the provisions of the third article of the constitution of the United States, was fully examined in the court for the correction of errors, in the case of Delafield v. State of Illinois, (2 Hill, 159,) and that court, with great unanimity, arrived at the conclusion, that the constitution had not, by its own force, divested the state courts of any of their former jurisdiction; and that a mere grant of jurisdiction to a particular court, without words of exclusion as to other courts previously possessing the like powers, will only have the effect of constituting the former a court of concurrent jurisdiction with the latter. See, also, Federalist, No. 82, in which a similar doctrine is maintained.

I will not contend that congress may not make the jurisdiction of the federal courts exclusive in cases affecting ambassadors, other public ministers, and consuls ; or in cases of admiralty and maritime jurisdiction ; or in cases growing out of, and peculiar to the federal constitution, and where the remedy is exclusively given by an act of the national legislature. In the latter cases congress may unquestionably provide that the remedy specifically given shall be pursued and enforced in the federal courts solely. But in many cases where the law of the Union prescribes the remedy, the power to pursue and enforce it in the state courts, is expressly given by congress. In cases where this has not been done, and there is no exclusive grant of jurisdiction to the federal courts, if the state tribunals are so organized as to afford redress, it may be obtained therein. I think that it is strictly true that in all civil cases where the common law affords redress, the party injured may seek it in a state tribunal, proceeding according to the course of the common law, and having jurisdiction of the person of the defendant, though he may be an officer of the federal government, and affect to act under a law of the Union. The judiciary power of every government,” says one of the distinguished authors of the Federalist, looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the law's of the most distant part of the globe. Those of Japan not less than of New-York may furnish the objects of legal discussion to our courts.” (Federalist, No. 82.) I am aware that there are cases of federal cogni zance, in which the state courts have not a concurrent jurisdiction. A sovereign state cannot be sued in the court of another state, neither could she be in the federal courts, but by agreeing expressly in the national compact to submit herself to their jurisdiction. Crimes against the government of the United States cannot be punished in the state courts, for every criminal prosecution must charge the offence to have been committed against the sovereign whose courts sit in judgment upon the offender, and whose executive may pardon him. (1 Kent’s Com. 402.) Nor will the courts of this state enforce the penal laws of the United States, (United States v. Lathrop, 17 John. R. 9,) or of any other state. (Scoville v. Canfield, 17 John. R. 338.) But the want of jurisdiction in these cases depends upon principles older than the federal constitution, and wholly independent of it.

But the counsel for the plaintiff in error contends that this is a case which the'state courts did not hold cognizance of at the adoption of the federal constitution, for the reason, that the post office department not only never in any manner or at any time, pertained to the state or colony, but is entirely the creation of the national statute: that it owes its existence exclusively to the constitution and national legislature, and hence, that the federal judiciary has exclusive jurisdiction in all matters grow ing out of, or pertaining to it. That the post office is a federal institution no one will deny ; but it is difficult to perceive how the premises of the counsel sustain the conclusion at which he arrives. The same reason would apply with equal force in case of a suit being brought against a collector of the. customs. The present action is one coeval with the common law, to enforce a right to property, alleged to have been wrongfully con verted by the defendant. This remedy for a tortious conversion has always been complete in the state courts. It does not fol low that because the defendant may have been acting under a law of congress; in withholding the newspaper, and consequently may defend himself against the alleged conversion, thatjurisdiction of the subject matter is exclusively given or acquired by the federal courts under such law. The plaintiff is not seeking redress under the post office laws, or attempting to enforce a penalty specifically imposed by them on the postmaster for a fraudulent act pertaining to his official duty. She simply seeks to recover in an.appropriate common law tribunal, competent to afford a remedy, and in a form of action more ancient than the federal constitution or laws, the" value of her property. If the defendant can maintain that by the post, office laws, or any constitutional act of the national legislature, there was no legal conversion, his defence will be complete. But it is an incorrect conclusion, that because a law of congress prescribes the duties of an officer of the federal government, and in a proper case he may thereunder defend his acts,.for such reason the state courts are ousted of jurisdiction. Upon the whole, I have no'doubt that the justice had jurisdiction in the present case : and whilst asserting this jurisdiction, I would not be understood as inclined to throw the least obstacle in the way of a successful operation of the general government, or -to encourage the exercise of state power having that tendency.

The remaining point of-the plaintiff in error is, that the postmaster was required by law to judicially determine whether the initial on the wrapper of the newspaper, asked for or communicated information; and that being compelled to act, he is not answerable for a mistake in law, or a mere error of judgment, unaccompanied by fraud or. malice. The principle is well settled that a public officer, who is not a mere volunteer, but compelled to act in a judicial capacity, is not amenable either civilly or criminally, for a mistake in law, or error of judgment, when his motives are untainted with fraud or malice: and if it be true that the postmaster in this case was compelled to exercise his judgment in determining the object or purpose of the initial upon the wrapper, the judgment against him should be reversed. (Drew v. Coulton, 1 East’s R. 563; Seaman v. Pat ten, 2 Carnes’ R. 312; Jenkins v. Waldron, 11 John. R. 114; Weaver v. Devendorf, 3 Denio, 117.) I have been unable, however, to arrive at the conclusion on this point, so confidently put forth by the counsel for the plaintiff in error. In the act “ to reduce the rates of postage,” &c.' (Laws of the U. States for 1845, chap. 43, § 1,) this provision occurs : “ In lieu of the rates of postage now established by law" there'shall be charged the following rates, viz: For every single letter in manuscript, or paper of any kind by or upon which information shall be asked for or communicated in writing, or by marks and signs, conveyed in the mail, for- any distance under three hundred miles, five cents; and for any distance over three hundred miles, ten cents,” &c. This is the only provision touching the question, and this it is insisted compels the postmaster, in all cases, in which a newspaper shall be conveyed through the mail, having waiting thereon, or marks and signs, to judicially determine whether such writing, or marks, or signs, ask for or communicate information. In other words, that it is submitted to him as the sole judge in every case to decide the question of fact; and it follows of course that from his judgment there is no appeal. I see nothing in the law of congress that submits this question exclusively to his judgment; nor is the power within the general scope of his duties as postmaster. I think that if ne assumes to determine, he does it at his peril. It is true that he is bound to charge the rates of postage prescribed on letters or papers, conveyed by the mail, of the description embraced in the act of congress. In a great variety of cases it would be obvious that the writing, marks, or signs, were used to ask for or convey information, and as a matter of fact a jury would not hesitate to come to that conclusion. In such cases the postmaster would be but doing his duty to charge letter postage. But there may be cases wliere the intent is not apparent, or the writing, mark or sign, may be on the newspaper or its wrapper, without a definite intent, or by accident. He is not made the exclusive arbiter to decide that such newspapers should or should not be rated with letter postage.. When he does undertake to decide, it should be in a case in which the fact, if disputed, could be satisfactorily established. -Whether a newspaper, by having writing or marks thereon, falls within the description authorizing it to be rated with letter postage, is a question of fact, and if disputed, must be determined in the same manner and by the same tribunals, that determine other questions of fact.

I confess that I see difficulty in many cases to successfully carry out the provisions of the' act of congress. It might be impossible, many times, for jurors to satisfactorily determine whether an initial, or mark, found on a' newspaper passing through the mail, was placed thereon with a definite intent. But this is no reason for the postmaster to assume judicial power. The national legislature can alone remedy the difficulty.

In this case the jury have found that the initial.on the wrapper of the newspaper was there without any design of asking for or communicating information ; that it was a mark thoughtlessly or accidentally made, or that it was on the paper prior to its being used as a wrapper, and hence that the paper did not fall within the description authorizing the postmaster to demand letter postage. From the return of the justice, no facts appear to indicate an intentional marking, nor are there any facts showing the contrary; and as the return does not purport to give the whole evidence, I think we must intend that the defendant failed to establish a defence, and that the facts proved justified the finding of the jury.

I am of the opinion that the judgments of the courts below should be- affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Gardiner, J.

license: Public Domain

text:
    Gilbert vs. Wiman and others.
    In contracts of indemnity where the obligation is to perform some specific thing or to save the obligee from a tharge or liability, it seems the contract is broken when there is a failure to do the specific act,, or when such charge or liability is incurred.
    But where the obligation is that the party indemnified shall not sustain damage or molestation by reason of the acts or omissions of another, or by reason of any liability incurred’ through such acts or omissions, there is no breach until actual damage is sustained.
    And in such cases a judgment recovered against the party indemnified, on account of the acts or neglect of another for which he is answerable, without payment of the judgment, or some part thereof does not entitle him to sustain an action against the indemnitors.
    A deputy sheriff and his sureties executed to the sheriff a bond, conditioned that the deputy should so demean himself in all matters touching his duty, that the sheriff should not sustain any damage or molestation by reason of any act done or liability incurred, by or through such deputy. The sheriff was sued and judgment recovered against him for a default of the deputy in not returning an execution. Other judgments were also recovered against him and his sureties upon bonds given to discharge himself from arrest under attachments issued against him for not returning other executions in the hands of the deputy. No part of the judgments having been paid by the sheriff, and no actual damage being shown, held, that there was no breach of the bond of the deputy and his sureties, and that the sheriff could not maintain an action thereon.
    This was an action of debt instituted in the supreme court by Jabez H. Gilbert against Stephen Luce, Gideon H. Wood-ruff Truman Wiman and Lucas Tan Schaack, upon a bond executed by the defendants in the words following, viz:

      “ Know all men by these presents, that we, Stephen Luce, Gideon H. Woodruff Lucas Tan Schaack, Truman Wiman, are held and firmly bound imto Jabez H. Gilbert, Esqr., sheriff of the county of Oswego, in the penal sum of ten thousand dollars, for which payment well and truly to be made to the said Jabez H. Gilbert, his executors, administrators and assigns, we bind ourselves, our heirs, executors and administrators, jointly and severally, -firmly by these presents. Sealed with our seals» and dated this eleventh day of May, one thousand eight hundred and thirty-eight. The condition oí this obligation is such, that whereas the said Stephen Luce has been appointed to the office of deputy sheriff by the above named Jabez H. Gilbert, sheriff as aforesaid—Now therefore, if the said Stephen Luce shall so demean himself in all matters touching his duty as such deputy sheriff, that the said sheriff shall not sustain any damage or molestation whatsoever by reason of any act from this date done, or any liability incurred by and through said deputy, then this obligation to be void, otherwise of force.
    Stephen Luce, (l. s.)
    G. H. Woodruff, (l. s.)
    Truman Wiman, (l. s.)
    L. Tan Schaack, (l. s.)”
    The declaration assigned, as the first breach of the condition of the bond, that Luce as such deputy sheriff neglected to return an execution placed in his hands for collection, and that on account of such neglect the plaintiffs in the execution brought an action against the plaintiff in this suit, as sheriff, and recovered judgment against him' for $441,18. There was no averment that the plaintiff had paid any part of this judgment. In the assignment of the second breach it was stated that the said Luce neglected to return another execution placed in his hands, and that on account of such neglect the plaintiff, as such sheriff, was attached as for a contempt of court at the instance of the plaintiffs in the execution, and held in custody until he gave bail for his appearance to answer to the attachment; that he failed to appear on the return of the attachment, by reason whereof the bail bond became forfeited and was ordered by the court to be prosecuted; and that the plaintiff and his sureties in such bond were sued and judgment recovered against them; but there was no averment that any part of that judgment had been paid. The third and fourth breaches were substantially like the second, except that they related to other executions which the deputy had neglected to return.
    The defendants Wiman and Tan Schaack pleaded, among other pleas, that the said Stephen Luce had always well and truly demeaned himself in all matters touching his duty as such deputy sheriff, and that the plaintiff had not sustained any damage or molestation whatsoever by reason of any act done or liability incurred by or through the said Stephen Luce as such deputy.
    The cause was tried before Gridley, circuit judge, in July, 1845, and on the trial the plaintiff proved the execution of the bond declared upon, and the substantial truth of the matters averred in the assignment of the several breaches. The aggregate amount of the judgments recovered against the plaintiff, as such sheriff) mentioned in the several breaches, was shown to be $2948,41, but there was no proof of the payment of those judgments, or any part thereof. It was insisted for the plaintiff) that he was entitled to a verdict for the penalty of the bond and to have his damages assessed at the amount of the judgments. For the defendant, it was insisted that without proof of the payment of the judgments, the plaintiff was entitled to nominal damages only, and so the circuit judge decided. To this decision the plaintiff excepted, and then submitted to a nonsuit with leave from the court and consent from the defendant’s counsel to move for a new trial. A bill of exceptions was duly signed and sealed, on which the supreme court sitting in the fifth district granted a new trial. The following is the opinion of that court.
    Pratt, J. The condition of the bond upon which this action is brought, is as follows, “ that if the said Stephen Luce shall so demean himself, in all matters touching his duty as such deputy sheriff) that the said sheriff shall not sustain any damage or molestation whatever, by reason of any act, from the date of the said writing obligatory, done, or liability incurred by or through said deputy, then the obligation to be void.” It is an undertaking to save the plaintiff harmless from all damage or molestation, by reason of any liability which might be incurred by him through the acts of said deputy; and the question on this obligation is, whether the sheriff, after proving a breach of such obligation, and a'fixed liability for a certain sum, in consequence thereof against himself, can recover, without proving payment of the judgment, "any more than nominal damages.
    Perhaps there is no branch of law, concerning which the docisions of our courts have been more fluctuating, than in relation to damages, especially in relation to the damages arising upon contracts, in the nature of contracts of indemnity. According to strict legal principles, a court of law, it would seem, should only give actual compensation for actual loss; and such is the rule in relation to contracts of indemnity against damages merely. (Aberdeen v. Blackman, 6 Hill, 324; Jackson v. Post, 17 John. 482.)
    So as to covenants in relation to real estate, the courts have adhered to the same rule; for instance, in a covenant against incumbrances in a deed of real estate, although there should be found an incumbrance to twice the value of the land, nothing short of actual payment or eviction gives the grantee a right to ecover any thing more than nominal damages. (Van Slyck v. Kenibal, 8 John. 198; Stannard v. Eldridge, 16 id. 254; id. 122.) But in personal contracts, when the instrument deviates the least from a simple contract to indemnify against damage, even where indemnity is the sole object of the contract, and where in consequence of the primary liability of other persons, actual loss may be sustained, the decisions of our courts, although by no moans uniform, have gradually inclined towards fixing the rule to be one of actual compensation for probable loss; so that in contracts of that character, it mey now be considered a general rule, both in this country and in England. (Thomas v. Alden, 1 Hill, 146 ; Holmes v. Rhodes, 1 Bos. if Pull. 638; Hodge v. Bell, 7 T. R. 93; Post v. Jackson, 17 John. 239.) For instance, in an action on a covenant, that a bond or other debt upon which the covenantee is liable shall be paid tvhen due, or on.a day certain, it has been long settled that the plaintiff may recover the full amount of his liability, although it is evident, from the terms of the contract, that it was intended merely as an indemnity, and although the parties, primarily liable, are abundantly able to pay. (Mann v. Eckford’s ex’rs, 15 Wend. 502; Ex parte Negus, 7 id. 499 ; 7 T. R. 97; 2 M. R. 181.) ■ Indeed, the late supreme court have gone so far, in some recent cases, as to allow a full recovery when it did not appear that the plaintiff was liable at all. or could be injured by a breach of the contract, the court deciding that they had a right to infer that the plaintiff had some interest in having the debt discharged, or he would not have made the contract. (Thomas v. Alden, 6 Hill, 146 ; Tyler v. Ives, MS. Sup. Court, 1839.) That the plaintiff had some interest in such a case, would be probable; but that he had an interest to the full amount of the original indebtedness, in the absence of proof, seems to be rather a violent presumption ; such, however, is the effect of those decisions. In the last case cited above, Ives covenanted with Tyler that Raynor should pay up and discharge a bond and mortgage upon certain lands. There was no evidence to show that Tyler had any interest in the lands, or in the discharge of the bond and mortgage, or was in any manner liable upon the same; yet the court held that he was entitled to recover the full amount of the bond. So in an action on a bond for the jail liberties, the sheriff recovers the whole amount of the debt, on showing that he has been made legally liable, although he may never be called on to pay a penny—the creditor having it in his power to collect the amount of the original debtor, who maybe perfectly responsible. (Keep v. Brigham, 6 John. 158; 7 id. 168.) So a contract of indemnity against liability is held to be broken when the liability is incurred, and the measure of damages is the full amount of such liability. (Webb v. Pond, 19 Wend. 423; Rockfeller v. Donnelly, 8 Cowen, 623; Chace v. Hinman, 8 Wend. 452.)
    Whether the rule laid down in all these cases is not a departure from strict legal principles, it is not profitable now to discuss. It is said by a late writer on the subject of damages, “Any rule by which actual damages are given, where no actual loss is sustained, is in truth nothing but an effort to engraft on the courts of common law a species of specific performance, irregular and illegitimate, and which neither their forms of procedure nor the general arrangement of their system enable them to exercise without great danger of injustice and abuse. The rule should be considered cardinal and absolute, that actual compensation shall only be given for actual loss.” {Sedgwick on Damages, 311.) However true these remarks may be in the abstract, and we admit their force, the rule is now settled by adjudication otherwise, and we are bound to follow it until it shall be changed by a superior court, or the legislature shall interpose. The obligation in this case may be classed among the contracts of indemnity against liability—in which cases the plaintiff is entitled to recover the amount of the liability incurred. (Webb v. Pond, 19 Wend. 423; Rockfeller v. Donnelly, 8 Cowen, 623 ; Chace v. Hinman, 8 Wend. 452; Warwick v. Richardson, 10 Mees. f Weis. 284; 2 Starkie, 167 ; 1 Burr. 574; 5 Carr, fy Payne, 102.) And this is so, even where the contract is in form- to indemnify against damages to be incurred in consequence of such liability. Indeed, in the case of Rockfeller v. Donnelly, which was in the court for the correction of errors, the decision of the court went much further than is necessary to sustain the plaintiff’s claim in this case. Although the soundness of the principle adjudged in that case has been often questioned, yet.it must be deemed to be law in this state, until it shall be overruled by a court of at least equal authority. The case of Chace v. Hinman seems to be directly in point. The condition in that case was, that the obligor should save harmless and indemnify the obligee against all damages, costs and charges to which he might in any way be subjected or become liable by reason, <fcc. It was objected that the plaintiff should prove payment before he could recover more than nominal damages. But the court held that the plaintiff was entitled to recover the full amount of the liability incurred. Leaving out the word “molestation,” (upon which we shall have occasion to remark,) the undertaking in that case, and the one under consideration, appear to be in legal effect precisely the same. The liability in both cases was against the damages arising therefrom. We are unable to distinguish between them. We are aware that the soundness of. the principle adjudged in that case was questioned by Chief Justice Bronson, in Aberdeen v. Blackmar, but he admits, and such is the fact, that it only carries out the principle decided in Rockfeller v. Donnelly. We are not aware that either of the cases have been overruled.
    In this case the plaintiff, by the contract, was not only to be saved harmless from damages, but also from molestation. Now whether the commencement of a suit and the recovery of a judgment against the plaintiff, is molesting him within the strict sense of the term, no one will deny, we apprehend, that .Tin arrest by an officer, under an attachment, is a molestation of no mild or trifling character, and such seems to have been the holding at the circuit, or the plaintiff could not have recovered nominal damages.. It becomes us to inquire whether there were no other damages legitimately resulting in consequence of such arrest or molestation. The party is entitled to such damages as naturally flow from the breach complained of, the injury sustained, and that not the actual but the probable loss. The sheriff finds himself under arrest and is taken before' the court and fined the amount of the execution, which his deputy neglected to return. It seems to us that this fine is a necessary result of the arrest, and should measure the damages. If there was any excuse for the deputy’s negligence, by which the fine might be averted, it was the deputy’s duty to interpose it. We assume, therefore, that there was no such excuse. Why then, as the fixed liability was the inevitable and immediate conse quence of the molestation or arrest, should it not be the measure of damages, as well as in a suit on a bond for the jail liberties ? In Doth cases there might be a possibility of collecting the debt of the original debtor. It is in the nature of a tort on the part of the deputy, and may be likened to a recovery against the principal for the negligence, of his agent or servant. The judgment against the principal is the measure of damages in a suit by him against his agent or servant, whether he has paid the same or not.
    In this case a bond was given, and the recovery against the sheriff was had on that bond. This was only a more circuitous way of arriving at the same result. The ultimate liability of the sheriff is the same, and inevitably follows the arrest, unless the sheriff should appear, and then he would only escape liability on the bond, by subjecting himself to a fine for the same amount. As the law now stands we think the plaintiff is en titled to recover the amount of the liability proved.
    From the decision of the supreme court the defendants appeal ed to this court according to the judiciary act of December, 1847

      H. A. Foster, for the plaintiff.
    The plaintiff was entitled to recover the amount of the several judgments recovered against him ; the circuit judge erred in deciding that he was entitled only to nominal damages; and the supreme court decided right in granting a new trial. When the obligation is to indemnify against damages and expenses, and the obligee has become absolutely bound and liable to pay the expense or damage, he may enforce his remedy on the obligation. (Rockfeller v. Donnelly, 8 Cowen, per Jones, chancellor, 639, 640; also per Spencer, senator, 657, 658, 659.) In Rockfeller v. Donnelly, the court for the correction of errors held, on a bond to save, defend and keep harmless the overseers of the poor and inhabitants of a town, of, from and against all costs, charges, rates, assessments, damages or expenses, by reason of the birth, education and maintenance of a bastard child, to be born, and of and from all actions, suits, troubles, damages and demands touching the same, that after the birth of the child and order of the justices directing the weekly allowance, an action could be maintained upon the bond by the .overse.ers, to recover the weekly allowance to the time of the commencement of the suit, without having paid any part thereof.
    Where a party has an indemnity not only against actual damages and expenses, but against any liability for damages or expenses, he need not wait to commence his suit until he has actually paid such damages; his right of action is complete, for the whole amount, when he becomes legally liable for them. (Chace v. Hinman, 8 Wend. 452; Warwick v. Richardson, 10 Mees. & Wels. 284; Sparks v. Martindale, 8 East, 593; Wood v. Wade, 2 Stark. Rep. 146; Broughton’s case, 5 Coke’s Rep. 24; Rosse v. Pye, Yelv. 207; Cutler v. Southern, 1 Saund. Rep. 116 ; 8 Watts, 157; 9 Yerger, 20; 1 Hen. & Mun. 459 ; 2 Bay, 145; 19 Wend. 423.)
    In personal contracts, when the instrument deviates the least from a simple contract to indemnify against damage, even when indemnity is the sole object of the contract, where actual loss may be sustained in consequence of the primary liability of others, the decisions have gradually inclined toward fixing the rule to be one of actual compensation for probable loss.
      (See cases cited in the opinion of the supreme court.) Thus, i» an action on covenant, that a bond or debt on which the cove nantee is liable shall be paid when due, the plaintiff may recover the full amount of his liability. (Ex parte Negus, 7 Wend. 499; Thomas v. Alden, 1 Hill, 146; Mann v. Eckford’s Ev’rs, 15. Wend. 502; Hodgson v. Bell, 7 T. R. 97; Challoner v. Walker, 1 Burr. 574; 5 Carr, & Payne, 102.) When a judgment has been recovered against the principal for the negligence or unskilfulness of the agent, he may main-; tain his action against the agent, if he had notice of the suit against the principal. (Mainwarring v. Brandon, 8 Taunt. 202.) And the verdict fixes the amount to be recovered. (Dunl. Paley on Agency, 7.) The rule is the same between master and servant. Upon an implied warranty of title to personal property, or false affirmation of ownership, by the vendor, when a recovery has been had against the vendee by the true owner, he may sue and recover against the vendor, before paying the judgment. (Barney v. Dewey, 13 John. Rep. 224; Blasdale v. Babcock, 1 id. 517.) A sheriff may recover on a bond for the jail limits, the amount of the debt, without actual payment by him ; and yet it is only a bond to indemnify and. save harmless. (Janson v. Hilton, 10 John. Rep. 549; Barry v. Mendell, id. 563; Kipp v. Brigham, 6 id. 158; 7 id. 168.) So he may recover against the debtor, who has escaped on final process, whereby the sheriff has become liable, before he has paid the debt. (Sheriffs of Norwich v. Bradshaw, Cro. Eliz. 53.) He may recover against the keeper of a loclc-up-house, for tile escape of a prisoner committed to his custody, upon his promise to keep him safely and save the sheriff harmless for any escape; and this even before suit against himself. (Barkley and Gibbs v. Kempstow, Cro. Eliz. 123.) He may also recover upon the bond of his under sheriff or deputy, for an escape on execution or for improperly discharging property attached on mesne process; although he has not paid the debt to the plaintiff. (Norton v. Simmes, Hobert, 12 (c.); Cooper v. Mowrey and others, 16 Mass. Rep. 5) On a bond by deputy to the marshal “ to keep the marshal clear, free and indemnifieda breach that" he failed to return executions (specifying them) is well assigned. (Lewis v. Crockett, 3 Bibb, 196.)

      Geo. F. Comstock, for the defendants.
    The general rule in regard to contracts of indemnity is that courts of law can only give actual compensation for actual loss. The line which separates the jurisdictions of law and equity is here visible. In courts of equity, on the principle of quia timet, a party who is under a liability, and has a counter indemnity, can compel the indemnitor to perform specifically, so as to exonerate him from his liability. (2 Story’s Eq. § 850; id. § 815 ; 6 John. Ch. 406.) Courts of law have no jurisdiction of this nature. They can only give compensation for actual loss; and this distinction between the two jurisdictions is founded in sound policy, and ought to be maintained. In the present case, it would be a specific performance of the defendants’ contract for them to pay the creditors whose executions have not been returned, and thus exonerate the sheriff from his liability; but a court of law cannot call before it the-necessary parties, nor are its powers and functions adapted to that result. The plaintiff may recover the sum demanded, but there is no guaranty that it will go to its proper destination— the satisfaction of the execution • creditors; nor would such a recovery prevent the creditors from still enforcing then-executions.
    In all the cases where it is supposed courts of law have gone beyond the rule of compensation for actual loss only, it will be found on a careful examination that the contracts were very different from the one in question. They were affirmative engagements for the performance of some specific thing, and not to indemnify against loss or damage by reason of the non performance of the thing specified. Such are the cases referred to in the opinion of the supreme court, and such are all the cases of any authority cited on the other side. In Rockfeller v. Donnelly, the condition of the bond was to save the overseers against all charges, &c. This was construed as a condition that no liability should come upon the town. The decision of that case was also placed very much upon the intent and policy of the statutes under which the bond had been taken. In Chase v. Hinman, the condition of the bond was to indemnify against a liability, and the decision of that case can only be sustained upon the ground that the language used amounted to a condition that no liability should occur. But the principle of that case was disapproved in Aberdeen v. Blackmar, (6 Hill, 324,) and the case itself was overruled in Churchill v. Hunt, (3 Denio, 321.) In the cases of the bonds given for the jail liberties, (6 Johns. Rep. 158, 7 id. 168,) the condition was that the debtor should remain a true and faithful prisoner. Of course this was broken the moment the escape took place. The case of Warwick v. Richardson, (10 Mees. & Welsby, 284,) was in principle very much like Rockfeller v. Donnelly, already referred to.
    In the case before the court, the condition of the bond is not to save or indemnify against a liability. It is that the sheriff shall sustain no damage or molestation by reason of liability, &c. In other words, it is simply a bond of indemnity against damage or molestation; and the well established doctrine in such cases is that actual loss must be shown. (Cutler v. Southern, 1 Saund. 116, n. 1; Douglass v. Clark, 14 John. 177; Aberdeen v. Blackmar, 6 Hill, 324; Churchill v. Hunt, 3 Denio, 321; Sedgwick on Damages, 311, 312, 314, 317, 318.) The word “ molestation” adds nothing to the force of the bond. It does not mean a mere mental annoyance occasioned by a suit or attachment. Like the word damage, it refers to some actual pecuniary loss. Such is the construction it has always received in covenants for quiet enjoyment, where it usually occurs.
    The circumstance that judgments have been recovered against the plaintiff on account of the default of his deputy, does not at all change the question.- The sheriff became liable to the execution creditors the moment the deputy was in default, and he was no more than liable after the judgments were recovered against him. The only effect of the judgments was to change the onus of proof. They did not create the liability. Ef they were obtained upon due notice to the deputy and his sureties, they are conclusive evidence simply that the deputy was in default, and of the amount of the sheriff’s liability-occasioned by such default. (Per Bronson, J. in Aberdeen v. Blackmer, 6 Hill, 324.)
   Gardiner, J.

delivered the opinion of the court. The principal question in this case is, whether the bond executed by Luce and his sureties is a mere bond of indemnity, requiring proof of actual damage, or whether it provides an indemnity against the liability of the sheriff oh account of the acts done or omitted by his deputy.

The cases of Rockfeller v. Donnelly, (8 Cowen, 623,) and Chase v. Hinman, (8 Wend. 452,) have been relied upon, particularly the former, as decisive of this question. In the case first cited, the action was upon a bastardy bond, the condition of which was “ to save, defend and keep harmless the overseers of the poor, and the inhabitants of the town, from and against all charges, damages and expenses, taxes, rates and assessments, for or by reason of the birth, education and maintenance of the child,” then unborn. The two judges who delivered the prevailing opinion in the court of errors, agree that in its legal effect the instrument was a bond of indemnity against the charge to be created by the expected birth of a bastard child. (Id. 653.) The chancellor remarked, “ the town was damnified by the ‘'charge’ which was brought upon it by the birth of the bastard. The law imposes on the officers of the town the liability and duty of providing necessaries for the infant, and it was against this legal obligation that the defendants bound themselves to indemnify the plaintiff.” Senator Spencer remarked that the condition was broken the moment the child ivas born, for then it became a charge upon the town.” (Id. 653.) The construction given by the learned judges therefore to the bond in that suit was that it provided for an indemnity against a legal liability. The case of Chase v. Hinman, (supra,) was an action on a bond, the condition of which was that the obligor should “save harmless and indemnify the obligee against all damages, costs and charges, to which he might in any way be subjected, or become liable for,” &c. No money was paid; and it was held by the -court that by the instrument itself a distinction was obviously taken between damages actually sustained, and a fixed, legal liability for such damages, and that the indemnity was against both.

The condition of-the bond before us is as follows: “Now therefore, if the said Stephen Luce shall so demean himself in all matters touching his duty as such deputy sheriff, that the said sheriff shall not sustain any damage or molestation whatsoever, by reason of any act from this date done or any liability incurred by and through said deputy, then the obligation to be void.” The distinction between the bond in question and those above mentioned, consists, I apprehend, in this, that by the former a charge” or “ fixed legal liability” is declared to be the injury from which the obligee is to be saved harmless. By the condition of the latter, the obligor stipulates that the sheriff shall not sustain any damage or molestation by reason of any liability, &c. By the former, he is to be saved from the thing specified. By the latter, from its consequences, or in other words, from the.damage or molestation which may result from the liability.

The distinction is very important. It is recognized in the cases to which reference has been made, and in others, and will be found to pervade most of the authorities which have been cited. It is the distinction between an affirmative covenant for a specific thing, and one of indemnity against damage by reason of the non-performance of the thing specified. The object of both may be to save the covenantee from damages, but their legal consequences to the parties are essentially different. Thus, in Kip v. Brigham, (7 John. Rep. 168,) the condition of the bond was that the debtor should remain a true and faithful prisoner and not escape; and that he should not at any time escape or go without the limits.” The prisoner escaped, the very act to which the covenant applied, and it was held a breach, and the liability of the sheriff the measure of damages. The court, in 6 John. Rep, 159, say, it is true that the bond was in effect a bond of indemnity ; but they nowhere intimate that the rights and remedy of the obligee in the two cases were identical. So in Warwick v. Richardson, (10 Mees. & Welsby, 284,) trust moneys were left by the testator in the hands of a co trustee to be used in trade. The latter executed a bond, the condition of which was to save, defend, and keep harmless the obligee from all suits, claims and demands, &c. prosecuted or made against him. A decree was obtained by the cestuis que trust against the plaintiff’s testator for the trust money. The court say that the obligor in order to save the obligee harmless from this claim, ought to have invested the trust moneys pursuant to the will. Not having done so, the proper amount of damages is the amount to which the claim subjected the obligee. The obligee was to be saved from any claim. This was the act to be done. Its non-performance was the breach, and the legal liability of the obligor the measure of damages. The cases of Thomas v. Allen, (1 Hill, 145,) and Churchill v. Hunt, (3 Denio, 321,) are to the same effect.

Justice Beardsley states the obvious truth in Churchill v. Hunt, that upon obligations of this sort, the right of action becomes complete on the defendant’s failure to do the particular thing he agreed to perform. Non-damnificatus cannot be pleaded in such cases, although it may be where the condition is to acquit the plaintiff of any damage by reason of the particular thing. (1 Saunders, 116, n.; 1 Hill, 146.) It is believed that all the cases referred to by the learned judge of the supreme court whose opinion is before us, may be reconciled upon the principle above suggested. Here the defendant agreed that the plaintiff should not sustain any damage, which means actual damages, by reason of any liability incurred by the act of the deputy. The case is therefore within the principle stated in the note to Saunders.

The word molestation cannot enlarge the condition beyond what would be implied from the word damage. The former occurs frequently in covenants for quiet enjoyment, and against incumbrances. Nothing short of an eviction, or in the case of the latter covenant, the payment of money on account of the incumbrance, will entitle a party to recover, however much he may have been annoyed, troubled or molested. Indeed damage is much the most comprehensive word of the two ; molestation, if it has any legal meaning, being but a species of damage.

The plaintiff having failed to establish a breach of the condition of the bond, was not in strictness entitled to nominal damage. • But as the error can work no injury to the parties, a new trial must be denied.

New trial denied.


author: Ruggles, J. Bronson, J. Johnson, J. Gardiner, J.

text:
    Mott vs. Palmer.
    The covenant of seisin is broken if the grantor at the time of the conveyance do not own such things affixed to the freehold as would pass to the grantee by a conveyance of the land itself.
    Accordingly where the grantor covenanted in the conveyance that he was the lawful owner of the premises and seised of a good and indefeasible inheritance therein, and a quantity of rails erected into fence standing on the premises was the property of another person by virtue of a previous agreement made with the grantor; held, that the grantee might maintain an action against the grantor for a breach of the covenant of seisin.
    [t seems that rails built into fence by a tenant, under an agreement that he may remove them from the land, are, as between such tenant and the owner of the soil, personal property.
    Palmer brought an action of covenant against Mott in the common pleas of Columbia county, in which court the cause was tried in October, 1846. " The case was this: On the 85th of December, 1841, the defendant conveyed to the plaintiff certain premises situated in Chatham, Columbia county, covenanting in the conveyance that at the delivery thereof he was the lawful owner of the premises granted, and seised of a good and indefeasible estate of inheritance therein clear of all incum brance. A quantity of rails erected into a fence which stood on the premises at the time the deed was executed was not in fact the property of the grantor, but belonged to one Brown, the owner of adjoining lands. Brown had cut the rails from his own land and built the fence in 1840, under an agreement with the defendant by which he was to enclose temporarily a part of the defendant’s land and occupy it as tenant, with leave to remove the rails whenever he saw fit to do so. Under this agreement Brown occupied that part of the land in the season of 1841, and it was enclosed by the fence in question when the above deed was executed. The plaintiff, after his purchase the premises, went into possession, and in the year following took the rails and converted them to his own use, and for this he was sued by Brown in a justice’s court, and judgment recovered against him for the value of the rails. The defendant Mott was present on the trial of that suit and was sworn as a witness. It was claimed on the part of the plaintiff that these facts constituted a breach qf the covenant of seisin, inasmuch as the fence in question was at the time the conveyance was ' executed the personal property of Brown. The defendant’s counsel requested the court to charge the jury, that if the fence was the personal property of Brown at the date of the deed, the plaintiff could not recover for a breach of the covenant of seisin, but that his remedy would be an action on the case. The court refused so to charge, and instructed the jury that if they found the facts to be as they are above stated, the plaintiff was entitled to recover the value of the rails. The defendant excepted. The jury found a verdict for the plaintiff, on which judgment was rendered. The supreme court sitting in the third district affirmed the judgment, and the plaintiff brought error to this court.

      N Hill, Jim. for the plaintiff in error.
    To entitle the plain.tiff below to recover, it must be shown that there -was, at the time of giving the deed, an outstanding estate in some third person of freehold at least, so as to interfere with the -grantor’s power of conveying and transmitting by descent. (4 Kent’s Com. 386, 7; 1 Hill. Abr. 104, note ; 2 Wend. 166.) It cannot be pretended that Brown had such an estate. His right was that of a tenant for a short period, with the privilege of taking away, when he left, the rails he had placed upon the land to enable him to use it. Neither this outstanding tenancy, nor any of the incidental privileges connected with it, interfered with the estate of the grantor, so as to divest his seisin.
    The action is unprecedented and anomalous. No trace of any thing like it can be found in the books. It proceeds upon a course of reasoning which finds no countenance in the cases hitherto decided. The declaration itself is necessarily incongruous and absurd. It admits that the grantor was properly seised of the land described in the deed, and then asserts that the rails in question were part and parcel of and attached to the soil and freehold. If this allegation is true, the plaintiff below acquired a valid title to the rails; and his right of recovery, therefore, must be established, not by proving what he has thus far alleged, but by-disproving it. The declaration, however, alleges further, that the .grantor, though duly seised of the soil and freehold, was not seised of an indefeasible estate of inheritance in the rails, and then proceeds to show that they were the personal property of Brown—a species of property which the deed does not purport to convey.
    It is not true that the covenant of seisin extends to every thing which would pass under the deed as between vendor and vendee where no right of a third person intervenes. As between vendor and vendee, a deed like the one in question purports to transfer not only the unqualified property in the soil, but the exclusive right of using it. And yet it is settled that a public highway over the land, which implies an outstanding right to cut down trees, dig up the soil, and exclude the grantee from the beneficial enjoyment of it, is no breach of the covenant of seisin. (15 John. Rep. 481.) Outstanding rights of this nature, as the right to pasture cattle on the land, (5 Conn. Rep. 508,) to take water from it, (15 Pick. 66, 68,) to dig turf, &c. upon it, (5 Conn. 508, 9,) are within the covenant against incumbrances, but are not reached by the covenant of seisin. (See 1 Hill. Abr. 394; 2 Mass. Rep. 97; 3 New Hamp. Rep. 335; 10 Conn. 422; 19 Maine Rep. 313.) So as to every thing constituting a burthen upon the estate, and affecting its value, without changing its essential character; as an outstanding right to have dower in the land, (22 Pick. 447, 8; 10 John. Rep. 266,) or to occupy it as tenant for years. (2 Speer’s Rep. 649.)
    It may be said that if this action is not maintainable, purchasers may be ‘misled and defrauded, without the means of redress. If this were so, it would not furnish an adequate reason for extending the covenant of seisin beyond its appropriate limits. Upon the principle of the cases above cited, the covenant against incumbrances seems, to be .the only one applicable to an outstanding right to enter'and remove rails or other things from the land. But conceding that no remedy exists upon the covenants in the deed, this does not prove that the purchaser would be remediless. If he has been misled through mistake or fraud, a court of equity would set aside the transaction and compel a restoration of the purchase money. (2 Paige, 84, 91, 2 ; Story's Eq. § 140 et seq.) And in cases of fraud, even a court of law would furnish adequate redress in an action on the case for damages. (1 Day, 250; 2 Cain. Rep. 193; 2 Bibb's Rep. 583; 13 Johns. Rep. 325 ; 5 Day's Rep. 439 ; 6 Shepl. 419, 424; 23 Wend. 260 ; 17 id. 193; Georgia Rep. part 2, p. 112.)

      J. EL Reynolds, for the defendant- in error.
    The rails being made into fence, on the premises covered by thé deed, were as between Mott and Palmer a part of the realty, and would have passed by the deed had Mott owned them. (Goodrich v. Jones, 2 Hill, 142; 2 Wooddeson’s Lec. 379 ; 2 Kent's Com. 346, n.; Walker v. Sherman, 20 Wend. 639 ; Middlebrook v. Corwin, 15 id. 169.) And Mott having assumed by the deed to convey them ar real estate, is estopped from denying that they were a part of the realty as between him and his vendee. (McCarty v. Leggett, 3 Hill, 134; Abbott v. Allen, 14 John. 248 ; Greenly v. Wilcox,2 id. 1; Hamilton v . Wilson, 4 id. 72; Sinclair v. Jackson, 8 Cowen, 553; Jackson v. Bull, 1 John. Cas. 90; Jackson v. Stevens, 16 John. 110 ; Dezell v. Odell, 3 Hill, 215 ; 2 Atk. 228, 383, 558.) There being no reservation in the deed, of the fence in question, every thing appurtenant to the soil prima facie passed by the deed as between Mott and Palmer. It was as between them treated as real estate, and the rails or fence in question would have passed had Mott owned them. Mott covenanted that he owned the premises and every part thereof. These rails made into fence were a part thereof, as between grantor and grantee, and the covenant of seisin operated as much upon them as upon the soil itself. (Austin v. Sawyer, 9 Cowen, 39; Holmes v. Tremper, 20 John. 30; Miller v. Plumb, 6 Cowen, 665 ; McClintock v. Graham, 3 Mc
      Cord, 553 : Fairis v. Walker, 1 Bailey, 540; Isham v. Morgan, 9 Conn. R. 374 ; 2 Kent's Com. 342.) If Mott had covenanted.in express terms that he owned the particular fence in question, there could be no doubt that an action for the breach of that covenant could have been maintained if the title had failed. By the deed from Mott to Palmer the fence in question was as much embracedein it and as much a part of the.premises conveyed as if it had been conveyed in express terms; for there being no reservation in the deed, every thing appurtenant to the premises was covered by the deed as between vendor and vendee. (Platt on Cov. 306; 11 East, 642; Holmes v. Tremper, 20 John. 30; Isham v. Morgan, 9 Conn. 374; Kittredga v. Woods, 3 N. Hamp. R. 503 ; Parsons v. Camp, 11 Conn. 525; 5 Greenl. 222; 15 Wend. 169; 21 Pick. 367.)
    The defence set up by the defendant and the evidence offered to sustain it was in its effect an .effort to vary by parol the legal import of the deed; to restrict its terms so that it should not operate upon what in fact and in judgment of law was a part of the premises described in the conveyance. The covenant operated upon every thing which would have passed by the deed if Mott had been the owner. The effort therefore to show that the fence was mere personal estate, and that in consequence of its being personal estate was not covered by the deed or embraced in the covenants, was in effect contradicting its terms, and limiting and restricting its legal effect by parol, and was therefore inadmissible. (Austin v. Sawyer, supra ; Isham v. Morgan, 9 Conn. 374; Suydam v. Jones, 10 Wend. 180; Stevens v. Cooper, 1 John. Ch. 429; Champion v. Storrs and White, 5 Cowen, 509; Jackson v. Croy, 12 John. R. 427; Child v. Wells, 13 Pick. 121.)
   Ruggles, J.

In December, 1841, Mott conveyed to Palmer a farm of land in Columbia county, by a deed containing the following covenant:

“ And the said Philander Mott doth hereby covenant and agree that at the delivery hereof he is the lawful owner of the premises above granted, and seized of a good and indefeasible, estate of inheritance therein clear of all incumbrance.”

This action was brought by Palmer, the grantee, on the cov enant in the deed, to recover the value of a rail fence which stood on the land when the deed was executed, but which did not belong to Mott the grantor. The facts were, that the fence was erected on Mott’s land in 1840 by one Brown, (who owned the adjoining land,) under an agreement between him and Mott, by which Brown was to fence in, temporarily, a part of Mott’s land with his own, and to cut and take away the grass growing on Mott’s land ; with leave to take away the fence whenever he liked. After Molt conveyed to Palmer the land on which the fence stood, Palmer removed the fence and converted it to his own use. Brown thereupon sued him before a justice for the fence and recovered, Mott being a witness on that trial against Palmer. Although the evidence to prove these facts was at first offered by Palmer on the trial of this cause in the court below and rejected by the court, it was afterwards given by the defendant Mott.

The question now is whether in this action brought by Palmer the grantee against Mott his grantor, on the covenant of ownership and seisin in the deed, Palmer is entitled to recover the value of the fence. A grantor who executes a conveyance of land undertakes to convey every thing described in his deed; and by a covenant of seisin he assumes to be the owner of all he undertakes to convey. The deed in question purported to “ grant and convey all that certain lot or farm of land situate in the town of Chatham, county of Columbia, bounded &c. with the appurtenances,” &c. The word land, when used in a deed, includes not only the naked earth, but every thing within it, and the buildings, trees, fixtures and fences upon it. (Goodrich v. Jones, 2 Hill, 143; Walker v. Sherman, 20 Wend. 639, 640, 646; Green v. Armstrong, 1 Denio, 554; Com. Dig. Grant, E.; Co. Litt. 4 a; 2 Roll. 265.) A deed passes all the incidents to the land as well as the land itself, and as well when they are not expressed as when they are. Fixtures belonging to the owner of the land, being part of tha land, cannot be reserved by parol when the land is conveyed; the deed conveys them to the grantee unless the reservation be in writing. (Noble v. Bosworth, 19 Pick. 314.) If the fence had belonged to Mott, it would have passed by his deed ; not by force of the word appurtenances contained in the deed, but without that word, and as part of the land. Trees, buildings, fixtures, and fences on a farm, are corporeal in their nature, and the subjects of seisin, like the land itself of which they are regarded in the law as a part. Fences are perishable by the effect of time, and so are trees and houses; but indestructibility is not one of the essential attributes of real estate. Fences are not only indispensable to the enjoyment of real estate, but they are, in their nature, real estate, to the same extent that houses and other structures on the land are so. A rail, before it is used in the construction of a fence, is personal property, and so is a loose timber before it is used in the construction of a house. When either is applied to its appropriate use in building a fence or a house, its legal nature is changed. It becomes real estate, and is governed by the law which regulates land, descending to the heir as part of the inheritance, and passing by a deed as part of the freehold. A fence may be easily detached from the earth, but not more easily than the stones which lie on its surface, and both are part of the land, and therefore it is that a building or fence belonging to the owner of the land will pass by his deed of the land without being expressed or designated .as part of the thing granted.

But the earth within specified boundary lines may be owned ;by one man, and the buildings, trees and fences standing on it iky another. A man may have an inheritance in an upper chamber, although the title to the lower buildings and soil be in another. (Shep. Touch. 206; 1 Inst. 48, b.) And it is a corporeal inheritance. (10 Vin. 202.) Buildings and fixtures erected by a tenant for the purposes of trade belong to him, and are removable without the consent of his landlord. (Holmes v. Tremper, 20 John. 30; Miller v. Plumb, 6 Cowen, 665; Doty v. Gorham, 5 Pick. 489.) Herlakenden's case, (4 Co. R. 63,) affords an instance in which one man owned the land and another the growing trees upon it. In Rogers v. Woodbury, (15 Pick. 156,) Putnam, J., in speaking of a house which a man had erected on land which did not belong to him, said it might or it might not be parcel of the realty. If the owner of the land owned the buildings, it would be so. If he did not, and the owner of the building had no interest in the land, the building would be personal property.” Smith v. Benson, (1 Hill, 176,) was the case of a dwelling house and grocery belonging to one man, although standing on the land of another; and in Russell v. Richards, (1 Fairf. 431,) the owner of land on which another man had erected a saw mill by his consent, executed a deed for the land and the mill, but it was held that the conveyance passed no title to the mill, because it was the property of him who built it. The conclusion derived from these cases against the plaintiff’s right of recovery on the covenant is, that the defendant’s deed purports to be a grant of real estate only, and the fence in question being personal property was not a part of the premises granted, and therefore not within the scope of the covenant which relates to the realty only.

If this be a sound conclusion, a grantor could not be made liable on the covenants in his deed, although he had previously and privately sold, with a view to removal, all the houses, buildings, mills, fences, and growing timber on the land conveyed. Indeed, if this doctrine prevails, the gravel, clay, stone and loam, might also be converted into personal property by such a sale, and carried off the land; without violating the grantor’s covenant. Let us test the correctness of this conclusion in a few words. It is true the fence in one sense was not a part of the thing granted. It did not pass by the deed. In the same sense, if some stranger had been the owner of one half the farm, that half would not have been part of the thing granted, because it would not have passed by the deed. But the fence was within the description of the thing granted as clearly as the land itself ; and being within the description, it was a part of that which the deed purported to convey, and of which the grantor covenanted that he was the owner. If it be yet doubted whether the fence (being in fact the personal propertj’- of Brown) was within the description of what the grantor professed to convey, that doubt can be solved in a moment, by reflecting that it would undeniably have passed by the deed if the grantor had been the owner of it; although it could not have so passed if it had not been within the description.

It all comes to this: The grantor undertook to convey it as part of the realty by a deed which would have been effectual for that purpose if he had been the owner of it, as by the deed he professed to be, but was not. It is therefore a case in which the covenant of seisin affords a remedy; and although the amount in controversy is trifling, the right is clear; and it seems to be perfectly just that the grantor should pay for the fence, because there is nothing in the case to show that Palmer, when he accepted the deed, was informed by Mott or otherwise knew that it belonged to Brown.

The judgment of the supreme court must therefore be affirmed.

Bronson, J.

The fence in question stood on the land which the defendant conveyed to the plaintiff; and, as between vendor and vendee, was a part of the thing granted. (Goodrich v. Jones, 2 Hill, 142; Thayer v. Wright, 4 Denio, 180; Green v. Armstrong, 1 id. 554.) There is no more doubt of this, than there is that the trees, herbage and buildings on the land, or the mines and quarries in it, passed by the deed.

It is undoubtedly true that the soil may be owned by one man, and the fences and buildings by another; and as between such owners, those structures will be regarded as personal property. But in their nature, fences and buildings, like every thing else attached to the earth, are real estate, and will pass with the soil to the heir or grantee. It is truly said that rails are not in their nature rear property. But a fence, though constructed of rails, is in its nature real property. It is just as plainly so as is a house. Both are made of materials which were once personal property; but they become real when formed into a structure attached to the soil. The word land includes not only the soil, but every thing attached to it, whether attached by the course of nature, as trees, herbage and water, or by the hand of man, as buildings and fences. This is but common learning; and there is no more room for question that a grant of land, eo nomine, will carry buildings and fences, than there is that it will carry growing trees and lierbage upon, or mines and quarries in the ground. This is probably the first time the suggestion was ever made, that the purchaser of a farm must have the fences mentioned in the deed, either for the purpose of acquiring a title to them, or having that title secured by the covenants in the conveyance.

The fact that buildings and fences maybe owned by a different person from the one who owns the soil, has no tendency to shew how much the defendant attempted to convey. That must be settled by the deed ; and the deed just as plainly goes to the structures attached to the land, as it does to trees, mines and quarries.

It is said that the fence was not included in the grant, because the defendant did not own it. That argument proves too much. It proves that nothing was granted, if the defendant owned nothingwhich he professed to convey. • And it turns the covenant of seizin into nonsense; for it will have no operation, except where it is of no use, to wit, where the grantor owned the thing granted.

It is true that ejectment cannot be brought for a fence after it has been severed from, the freehold, and become personal property. ‘And it is no less true that ejectment cannot be brought for trees, buildings or ores under the like circumstances. But the argument does not prove but that all these things are real property before the severance takes place.

The covenant of seizin, when 'in the usual form, goes to the title ; and is broken the moment it is made, if the vendor had not the lawful title to the property granted, and to every part of it. In this case the defendant covenanted, that he was “ the .lawful owner of the premises above granted, and seized of a good and indefeasible estate of inheritance therein.” The covenant extended to the whole of “ the premisesand included the fences, as well as the trees, buildings, mines, quarries, and other things which were granted by the deed. As to the fence, and the rails of which it was composed, the defendant had no title; he was not the owner; the property belonged to Brown. The covenant was as plainly broken, as it would have been had Brown owned the house and barn, or a coal mine or ore bed in the land. Notwithstanding the zeal with which the contrary doctrine was urged, no authority was produced in support of it. Cases were cited to show, that a mere lien or incumbrance, as a judgment or mortgage ; or an easement, as a way over the land ; none of which divest the title ; do not constitute a breach of the covenant of seizin. (Sedgwick w. Hollenback, 7 John. 376 ; Whitbeck v. Cook, 15 id. 483.) Such cases are very far from proving, that the covenant is not broken where a part of the thing granted was not owned by the covenantor, but was owned by another.

It was a matter of no importance how Brown acquired title to the rails. It was enough that he owned them.

That parol evidence was inadmissible to control the legal effect and operation of the deed, is too plain a proposition to be disputed. If the plaintiff had been told at the time that Brown owned the rails; and more, if the rails had been expressly excepted by parol from the operation of the grant and covenant, it would have been no answer to the action. (Townsend v. Weld, 8 Mass. R. 146; Noble v. Bosworth, 19 Pick. 314; Suydam v. Jones, 10 Wend. 180; Champion v. White, 5 Cowen, 509 ; Jackson v. Russell, 12 John. 427.) A deed cannot be contradicted in its legal effect, any more than it can in its terms.

I am of opinion that the judgment is right, and should be affirmed.

Johnson, J.

There is no reservation of the fence or rails in question in the deed. It purports to convey the entire premises ; every thing that usually passes with the land and as part of it as well as the land itself. The covenant alleged to have been broken is as broad as the grant, and by it the grantor covenanted with his grantee that he was lawfully seized of an estate of inheritance in and had good right to convey every thing which the grant purported upon its face- to operate upon. Prima facie the rails which were then lying in a fence upon the land were part of it and passed by the deed as land, with the seizin in fee in the vendor guarantied by the covenant.

But it is said that this fence in fact was not part of the freehold ; that having been built by a tenant under an agreement that it might be removed, it was mere personal property and did not pass by the deed : and the argument assumes that if it was not a part of the realty and would not therefore pass by the deed, the covenant of seizin did not extend to it. But it is no answer to say that because the grantor had no title, and could grant none, to what upon the face of his deed he undertook to convey, the covenant of seizin does not therefore apply to it and is not broken. The same answer might be given with equal force in regard to the title to the soil itself. It is not so much a question as to whether the title to the rails did actually pass under the deed, as it is conceded that " they did not: and if they had there would clearly have been no breach. But it is more properly a question what upon the face of the instrument and by its terms the grantor undertook to convey and to covenant that he was seized of. The undertaking is one thing and its effect upon the subject matter of the undertaking and the rights of the parties under it quite another. And it is precisely because the grantor undertook to convey and to be the owner of that to which he had no right, and could convey none, that the action lies if it can be sustained at all. If the covenant of seizin shall be found to apply to things of this nature in ordinary cases between grantor and grantee, it seems to me quite clear that the defendant in error must recover.

It xvas strenuously urged by the counsel for the plaintiff in error that the covenant of seizin does not apply to any thing in the nature of fixtures or appurtenances which may or may not belong to the freehold, according to extraneous facts or circumstances ; that by it the grantor only covenanted that he was seized of a freehold estate in the premises, and that no other person had such an estate therein ; ana, that the covenant had no application to any estate or interest in the premises less than a freehold. Before we adopt this doctrine as applicable to such things as usually pass by a conveyance as part of the realty, we must be careful to see the consequences to which it might lead. It has been well held that a highway regularly laid out running across land at the time of the grant was no breach of the covenant of seizin, because notwithstanding the easement the grantor was well seized of the title to the land and had good right to convey. (Whitbeck v. Cook, 15 John. 483.) But that is not this case. The want of seizin, of a right to convey, (which did not exist in that case,) is the very cause here alleged. It must be quite obvious, I think, that if a party under the circumstances of this case has no remedy under his covenant of seizin he must remain entirely remediless as regards his deed, because no other covenant is at all applicable. Under the covenants of warranty and for quiet enjoyment there must first be an eviction; and I think no one will seriously contend that the covenant against incumbrances has an application in any sense. Even conceding—which I do not—that the existence of a public highway or other easement is an incumbrance, it would not affect this case. Were the rule contended for the true one, it might and doubtless often would happen that a party holding premises under a deed with full covenants would have his premises stripped of buildings, fences, and every thing valuable belonging to the estate, and yet have no remedy against his grantor upon any covenant in the conveyance.

No one, I believe, has ever yet thought it necessary to require the grantor to insert a special covenant in his conveyance that he was seized and had good right to convey the buildings, fences, standing trees and growing grass upon the premises covered by the grant, and for the obvious reason that the covenant of seizin has hitherto been regarded as a sufficient protection against a want of title in the grantor, to any of these essential and often by far the most valuable portions of the premises purchased. The novelty of such a special covenant in a deed at this day would be a strong argument against its necessity. These personal covenants in our conveyances of real estate have been framed with great care and proved by long experience ; and it can hardly be conceived that they have hitherto failed to protect parties or to give them a sufficient remedy in case of the loss of such valuable interests.

The ordinary covenant that the grantor is seized in his own right and has power to convey the premises granted must, it seems to me, be construed to extend to every thing attached to the soil that usually passes by deed as real estate, as fully as though the specific thing were named, or a covenant framed for it by itself; and such, I think, has been the general understanding of courts and conveyancers.

Wright, J. and Gray, J. were also for affirming the judgment.

Gardiner, J.

dissenting. The argument by which the rails in question are converted into real estate, in order to bring them within the purview of the grant of the defendant, is substantially as follows. Rails made into fence and attached.to the freehold become part of the land. The rails in question were made into fence and attached to the land conveyed to Palmer. Therefore as between vendor and vendee, Brown’s rails were a part of Mott’s land : and it being admitted that Mott the defendant neither owned the rails nor “was seized of an indefeasible estate of inheritance therein,” at the delivery of the deed, he is liable for breach of his covenants.' This is plausible. The infirmity of the syllogism consists in what logicians call the petit io principii. It assumes the very point in issue, namely, that the rails in question were attached to the land so as to become parcel of the premises. This proposition, which is indispensable to the maintenance of the action, is not only unsupported by proof, but was conclusively disproved by the evidence. Brown, the tenant, swore “ that he cut the rails upon his own lands, and put them in fence upon Mott’s land for the purpose of cutting a piece of grass upon the premises, under an agreement with Mott that if he would build the fence there he might move it off whenever he pleased.”

The question is. were these rails, under the circumstances, attached to the freehold J Is there not something of an absurdity in asserting that the property of one man placed upon the land of another with the unlimited right of removal becomes thereby a part of the inheritance 1 The assumption, it is believed, has no foundation in principle or authority. Rails upon a fence are constructive fixtures. (3 Kent's Com. 347, n.) They are in their own nature personal property, and become parcel of the realty, as the term fixture imports, in virtue of their annexation to the land. (Id. 345, n.) The annexation which will convert personal into real estate, is not affected by placing the chattel upon or even by affixing it to the land : it must be fixed to the freehold jterpetuiusns causa. (Id. 347 and note; Walker v. Sherman, 20 Wend. 647, 655; 3 Dane's Abr. 156; 4 Adol. & Ellis, 884.) Hence, if tlie annexation is made by virtue of a contract with the owner of the land for the purposes of trade, (3 Kent, 345 ; 2 R. S. 83, §§ 6, 7, 8,) or of agriculture, (Whiting v. Brastow, 4 Pick. 310,) the chattel does not become á part of the freehold, but remains personal property. In this case, the fence was built for the purpose of cropping a part of the land under a contract with the owner which secured to the tenant the right to remove it at pleasure. The rails of which it was composed were never attached to the freehold, and were consequently personal property at the time of the conveyance to the plaintiff. And the covenant of seizin could have no more application to them, than to the vehicle by which they were transported to the premises.

Again, it was urged that the grantor was estopped from denying that the fence which was upon the premises in question and apparently attached thereto, was parcel of the land con veyed. This was the view taken by the judge at the trial, who ruled accordingly. If the defendant was estopped, it must be upon the ground of his grant or his covenant, or both. But the grant is of land, and the defendant covenants that he owns the land described, and is seized of an estate of inheritance therein. He declares by his covenant, that all the land, in other words all that is land within the bounds given in the deed, lie owns and has in it an estate of inheritance. It is a palpable perversion of such a contract to turn it into a warranty that .every thing upon the land (which would pass with it if attached) is in fact a part of the freehold. No authority sanctions such a principle. We have been referred to cases in which it has been held that crops growing pass to the vendee as incident to the land, and that the vendor is not permitted to contradict the effect of his deed by setting up a parol exception at the time of the conveyance. But in all these cases, the property sought to be exempted from the operation of the grant was the property of the vendor attached to or appurtenant to the land. Crops will thus pass; so also will a right of way; but if either be severed from the land prior to its conveyance, by sale or release, the vendor is not estopped from showing the fact, nor is he liable upon his covenant of seizin. He is owner of the land and seized thereof notwithstanding the severance. The ownership of the property determines its character, whether it is part of the freehold, or an appurtenance, or a mere chattel. (4 Kent, 468.)

It has heen held in effect that a grant of liberty to dig turf, or of the herbage, (Com. Dig. tit. Grant,) or of an easement, as the right of way, (2 R. S. 90,) or of particular trees, (4 Coke, 63,) although made prior to the sale of the land, is not a breach of the covenant of seizin. The reason is assigned by Coke—“ for these passed to the first grantee but a particular right.” In these cases the turf, herbage, trees, and road (if opened) would apparently be annexed to the land, or as Coke expresses it in reference to trees, in property they are divided from the land although in fact annexed. (4 Coke, 63.) The same is true a fortiori of a constructive fixture. (Ropp v. Baker, 4 Pick. 243.)

But the plaintiff in his declaration avers that the rails were attached to the freehold and premises described in the indenture, and were part and parcel thereof.” This was a question of fact, the affirmative of which the plaintiff was bound to establish. Until this was done, the fence was not within the grant, and of course the deed could not be relied upon as an estoppel. It was in fact a question of parcel or no parcel, upon wnich both parties were at liberty from the necessity of the case to give evidence, in order to identify the subject of the conveyance.

And finally, no precedent from the earliest period can be found of an action of this character. The books are full of controversies between vendor and vendee as to the effect of a grant upon property claimed as fixtures. But this is the first attempt to extend the covenant of seizin to personal property, upon the ground that the vendee probably supposed that it was part of the freehold. There are substantial reasons for this silence. The covenant of ownership and of seizin are broken, if at all, upon the delivery of the deed. If at that time the supposed fixture is really such, it passes by the grant; if it is not a fixture, it remains a mere chattel, and cannot be the subject of covenants which are restricted to the land only. In neither case, consequently, can there be a breach of the covenants. Hence the declaration in this cause is a felo de se, and must be so in every case of a similar character. For example, the plaintiff avers, 1st. That the rails were attached to the freehold, and are parcel of the premises. This averment was necessary in order to bring the subject within the grant. And 2d. by way of breach, “ that they were not at the time of the conveyance the property of the defendant.” The two propositions are utterly repugnant. For if the rails were owned by a person having no interest in the land, they were for that reason personal property, and therefore could not be a part of the freehold. If on the contrary they were parcel of the land, they could not be the property of a person having no interest therein, and of course would pass by the grant. In Rogers v. Woodbury, (15 Mass. 158,) the action was trover for a fish house; and it was held by the court, “ if the owner of the land did not own the building, and if the owner of the building had no interest in the land, the building Was personal property.” In the case before us, the owner of the land did not own the fence, and the owner of the fence had no interest in the land. (Smith v. Benson, 1 Hill, 176; 4 Coke, 63; 3 McCord, 553 ; 8 Mass. 411; 1 Fairf. R. 429.)

I am of opinion that the charge of the judge was erroneous and that there should be a new trial.

Jewett, C. J. and Jones, J. also dissented, and concurred in the opinion of Gardiner, J.

Judgment affirmed.