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In Massachusetts, treble damages are given for waste, and they may be recovered in an action of debt. (8) And the statute of Gloucester, in regard to waste, has been declared to be a part of the law of the State, except in regard to tenants in dower. (t)

"It is common learning," said Heath, J., in the English Common Pleas, (u) "that every lessee of land, whether for life or years, is liable in an action of waste to his lessor for all waste done on the land in lease, by whomsoever it may be committed." And this has been recently recognized in New York. (v) And so where land had been demised to the plaintiff at an annual rent, for years, with liberty to dig half an acre of brick earth annually, and the lessee covenanted that he would not dig more, or if he did, that he would pay an increased rent of £375 per halfacre, "being after the same rate that the whole brick [149] earth was sold for," and a stranger dug and took away brick earth, it was held that the lessee should recover of him the full value of it, on the ground that the brick earth was, by the terms of the lease, sold to the tenant, as well as that he would be liable over for the waste, to his landlord.

In the action of waste it was originally necessary, in order to entitle the plaintiff to judgment, that the damages found should be something more than nominal; and the sum of three shillings and fourpence appears to have been arbitrarily fixed on as the minimum of damage which would authorize a party to bring such action. (w) This doctrine has been in England extended to the action on the case for injury to the reversion, though not in reason applicable. (a) The commutation was originally introduced on the ground that in the action of waste the place wasted was forfeited, and it was thought not just that the tenant should forfeit his estate for every trifling act of waste; but in actions for injuries to the reversionary interest, the injury complained of may be merely that the act in question will perhaps be afterwards relied on as evidence of the tenant's absolute property in the tenement; here the object of the action is

(s) Reed v. Davis, 9 Pick., 514.

(t) Sackett v. Sackett, 8 Pick., 309. See Paddleford v. Paddleford, 7 Pick., 152, and particularly as to what is waste. In Pennsylvania, as to what is waste, see Hastings v. Crunckleton, 3 Yeates, 261, and Shult v. Barker, 12 S. & R., 272.

(u) Attersall v. Stevens, 1 Taunt., 182 and 198.

(v) Cook v. Champlain Transportation Co., 1 Denio R., 91.

(w) Gov'r of Harrow School v. Alderton, 2 B. & P., 88.

(x) Rigg v. Parsons, cited 2 East, 156.

simply to assert the reversioner's right of property, and not to recover damages. (y)

Case lies by reversioner against one who erects a dam on the adjacent land and backs the water on the plaintiff's mill race. (2) But this branch of our subject I have already considered, when treating of suits brought by reversioners.

Waste is well known by the name of degradations in the French law, and it will be found treated of in the Code Civil under the proper head. (a)

(y) Pindar v. Wadsworth, 2 East, 154. V. Redfern v. Smith, 8 Moo., 443; 1 Bing., 392; 2 Bing., 262. Gibbons on the Law of Dilapidation and Nuisances, 78.

9.

(2) Ripha v. Sergeant, 7 Watts & Serg.,

(a) See the titles of Usufruit, Art. 578, et seq., et Le Contrat de Louage, Art. 1708, et seq. Under the first head are stated, with great care, the precise acts which the usufructuary can do without committing waste.

I am favored by the Hon. E. Fitch Smith, First Judge of the Ontario Common Pleas, with the report of the following case decided by him. Nottingham v. Osgood.

I. In an action on the case in nature of waste, where the court on the trial instructed the jury on the subject of damages, to "inquire whether by reason of the additions and alterations made by the defendant, the premises were rendered less or more valuable; if less valuable by reason thereof, then the plaintiff would be entitled to recover the actual damage he had sustained, to be ascertained by the jury from all evidence in the cause; but if, from the evidence, the jury should be satisfied that the premises, by reason of such alterations and erections, were in point of fact more valuable, that, then, although the act of the defendant was a technical wrong, yet that the plaintiff, under such circumstances, would only be entitled to nominal damages." Held erroneous, and for that reason a new trial ordered.

II. Where a tenant, during the continuance of his term, made material and essential alteration of the buildings, and erected additions without the consent of his landlord-held that he was not entitled to any remuneration for the materials and erections, even although the general value of the premises were

thereby enhanced; upon the principle that, the act being tortious, he could not claim any benefit or remuneration for his own wrong.

III. In an action on the case in the nature of waste, the jury, in estimating the damages, are not to take into consideration whether the general value of the premises have been enhanced or depreciated by reason of the act of the defendant, but simply whether they are depreciated as to the plaintiff. In such action, on estimating the plaintiff's damages, where the alterations and changes made by the tenant are of such a nature as to admit of the premises being restored to their condition at the time of the demise, the jury may take into consideration what sum would be equivalent to the costs and expenses incident to the restoration of the demised premises to their original state at the time of the demise. Under a declaration properly framed for that purpose, if the premises are, at the time of their surrender, by the act of the defendant, rendered untenable, the jury may also take into consideration the value of the rent, or the use of the premises, for such period of time as would be requisite to put them in a tenantable state.

IV. If the changes amount to a total destruction of any part of the demised property, such as shade trees and ornamental shrubbery, the jury may also take into consideration the actual value of the property totally destroyed, with reference to their original state and condition at the time of the demise, and their value to the owner of the reversion.

In Tennessee, where land is sold at execution sale, and the purchaser takes possession, and the land is redeemed, the owner is not entitled to rent or damages for waste before the redemption, but he is entitled to rent for the time he was

The question of the measure of damages for waste [150] committed by tenants, often arises in actions of covenant brought on the lease; and we may have occasion to recur to the subject when we come to consider personal actions of this class.

wrongfully kept out of possession after redemption. Kannon v. Pillow, 7 Humphreys, 281.

Though a disseisee may have his action of trespass quare clausum fregit against the disseisor for the injury done by the disseisin, at which time the plaintiff was seised of the land, he cannot have it for any act done after the dissei

sin until he gain possession by reëntry; and then he may maintain it for the intermediate damage done, for, after his reëntry, the law, by a kind of jus postliminii, supposes the freehold to have all along continued in him." Black. Com., 3, 210. Kent's Com., 4, 119. Ex'rs of Stevens v. Hollister, 18 Verm., 294.

CHAPTER VI.

RULE OF DAMAGES IN ACTIONS BROUGHT FOR THE BREACH OF COVENANTS OR AGREEMENTS GROWING OUT OF THE CONVEYANCE OR OCCUPATION OF REAL ESTATE.

The Ancient Warranty-Modern Covenants-The Stipulatio Duplex and Edictum Edilium of the Roman Law-Rules of the Modern Civil Law, in cases of Eviction Of the French Code-Measure of Damages according to the Common Law, in case of Eviction-On the Covenants for Quiet Enjoyment, and of Warranty-Consideration named in the Deed-Measure of Damages on the Covenant of Seisin-On the Covenant against Incumbrances-On Covenants to convey Lands-Covenants in Leases-Covenants to repair and to rebuild Ecclesiastical Property.

I PROPOSE to discuss in this chapter the subject of agreements growing out of the conveyance or occupation of real estate. This will embrace Real Covenants, or the stipulations entered into by a seller, and incorporated into the conveyance; Contracts for the Sale of Land; and Agreements entered into by Landlord and Tenant for the Temporary Use or Enjoyment of Real Estate.

And first, of Real Covenants. The warranty of the ancient English law was in substance a covenant, whereby the grantor of an estate of freehold and his heirs were bound to warrant the title, and either upon voucher or judgment in a writ of warrantia charta, to yield other lands to the value of those from which there had been an eviction by a paramount title. (6) Upon eviction of the freehold, no personal action lay at common law upon the warranty. The party had only a writ of warrantia chartæ upon his warranty to recover a recompense in value to the extent of his freehold. (c) For reasons assigned by Blackstone, (d) in

(b) Co. Litt., 365 a, and Reeves' Engl. Law, vol. i., 448.

(c) Kent's Com., vol. iv., 469.

(d) Bl. Com., Book II., ch. 20, 300;

and see, also, Co. Litt., 384 a, for "divers other diversities between warranties and covenants, which yield but damages,"

modern practice the covenant has totally superseded the warranty; and to this end various statutes have contributed. Such is the statute (e) making void all warranties by tenant for life, as against any reversioner or remainderman; and, as against the heir, all collateral warranties by any ancestor who had no estate of inheritance in possession; and these statutes have been generally reënacted in this country. (f)

The usual personal covenants contained in a deed, the [152] rule of damages in relation to which we shall now proceed to examine, are, First, that of seisin, or that the grantor is lawfully seised. Second, that he has good right to convey, which has been called synonymous with the covenant of seisin. (g) Third, that the premises are free from incumbrances. Fourth, for quiet enjoyment, or that the grantee shall quietly enjoy. Fifth, of warranty, or that the grantor shall warrant and defend the title against all lawful claims; and, Sixth, the covenant for further assurance, (h) or that the grantor will execute any further conveyances, to perfect the title, which the grantee can legally require.

In regard to all these covenants the rule is general, that no substantial relief will be given till the party complaining has actually suffered injury. It is not sufficient that he is menaced by an outstanding title or incumbrance. The covenantee cannot have anything more than nominal damages until he has been damnified in consequence of a breach of the covenant. (2) (1) But it often becomes a question what constitutes a breach, and what a damage, sufficient to found a claim for remuneration. In regard to the three first, if the title is defective, or incum

(e) 4 and 5 Anne, c. 16.

(f) It is certainly so, at least, in New York. The statute of 4 and 5 Anne, c. 16, was reenacted in New York in 1788; and finally the Revised Statutes of the same State (vol. i., 789, § 146), have abolished both lineal and collateral warranties with all their incidents, and have made heirs and devisees answerable upon the covenant or agreement of the ances

tor or testator, to the extent of the lands descended or devised. And it has been further declared (Sec. 140), that no covenants shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not.

(g) Rickart v. Snyder, 9 Wendell, 416. Dimmick v. Lockwood, 10 Wend,

149.

(i) Nyce's Ex'rs v. Obertz, 17 Ohio, 71.

(1) Willson v. Willson, 5 Fost. (N. H.), 228. In an action brought upon a warranty, by an assignee, the measure of damages is the sum which the assignor might have recovered had the action been brought in his name. The amount paid by the assignee for the right of action, is not the rule. The warrantor must make good his warranty. Sweet v. Bradley, 24 Barb. (N. Y.), 549.

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