BENDER v. FROMBERGER
4 U.S. 441 (1806)

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U.S. Supreme Court

BENDER v. FROMBERGER, 4 U.S. 441 (1806)

4 U.S. 441 (Dall.)

BENDER
v.
FROMBERGER

Supreme Court of Pennsylvania.

December Term, 1806

THE case now came before the court, on the point submitted by the verdict; and this turned upon the question, whether in an action of covenant, founded upon a deed, in which the grantor covenants, that he has a good title to the land conveyed, the grantee, being evicted, is entitled to recover the price of the premises

Page 4 U.S. 441, 442

at the date of the deed, or the improved value, at the time of the eviction? For the plaintiff, it was contended, that the measure of damages, on all covenants, is the amount of the loss actually sustained, and though it would seem from the old books, that, in cases of warranty, the recovery is to be according to the value of the land, at the time of the warranty; it was a recovery, in those cases, of land only, and not (as in this case) of money for damages. This position was illustrated and supported by an elaborate argument, and these authorities: 2 Bl. C. 299, 300. 304. 22 Vin. 145, 146. 'Vouchee.' 3 Bl. C. 156. 1 Bac. Abr. 526. 3 Woodes. 91. 2. 1 Ld. Raym. 107. 2 Ld. Raym. 1126. T. Raym. 77. 30 Ed. 3. 14. 6. 19 H. 6. 45. 6. 19 H. 6. 61. Sayre on Dam. 3, 4, 5, 6. 2 Caines 111. New-York. Bay's Rep. 18. 263. South Carolina. For the defendant, it was taken as conceded ground, that on a warranty, strictly speaking, the value of the land, at the date of the warranty, could alone be recovered, according to the law of England; and, it was contended, that there was no legal, or equitable, distinction between that case, and the general case of covenant, further than the enlargement of the remedy; which was limited, by the former, to a recovery in land; but, by the latter, the personal estate, also, becomes liable. 2 Bl. C. 304. Godb. 152. Johns. N. Y. Rep. 379. The opinion of the court, upon great consideration, was delivered, at an adjourned session, on the 17th of January 1807. The chief justice, after stating the facts, proceeded in the following terms:

TILGHMAN, Chief Justice. The question submitted to us by the jury, has never been decided in this court. It is of importance, and has been well argued. It may be taken for granted, that on a strict warranty, where the remedy for the party who loses the lands, is either by voucher, or writ of warrantia chartae, the recovery is only according to the value of the land at the time the warranty was created. This is conceded by the plaintiff's counsel, and very properly; for, many authorities were cited directly to the point. But this kind of warranty, which is a covenant real, has long ceased, and has been succeeded by the covenants personal, introduced into modern conveyances. The latter have two advantages: the remedy by action of covenant is more easy in its form, and more comprehensive in its effects; for, it extends to the personal property of the warrantor in the hands of his executors; whereas the ancient recovery, in value, was confined to land. I know of no case in England, where it has been decided, whether a recovery in an action of covenant, could be carried so far as to include damages, for improvements made after the purchase; but, I must suppose, that Sir William Blackstone was of opinion, that such damages could [4 U.S. 441, 443]


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