By the Court.
Penning, J.
delivering the opinion.
This was an action in the name of Doe, on the several demises of Linsey, Carter, Pitner, Cochran and Beall.
On the trial, the plaintiff showed title in Linsey, (by grant,) and there left the title.
The tenant then showed a deed from Linsey to Carter; a deed from Carter to Pitner; a deed from Pitner to Smith; and a deed from Smith to the two McCoys. And then the tenant closed his evidence. There was no further or other evidence as to the- title.
. The deed from Pitner to Smith was made before the deed from Carter to Pitner was made; and consequently, before Pitner had any tille.
[632]*632This being the evidence, any recovery that could have happened in the case, would have had to be a recovery on the demise of Pitner; that is, would have had to be, in effect, a recovery by Pitner.
In the deed made by Pitner to Smith, there was a warranty of the land to Smith, “his heirs, and assigns.” The tenant, (it may be inferred) claimed under persons who were the “assigns” of Smith, viz: the two McCoys.
The recovery then, if there had been one, would have had to be, not only a recovery by Pitner, but a recovery by Pitner, against persons to whom he had made a warranty of the land.
Such a recovery followed by eviction, (and we may assume, that a recovery in ejectment will be followed by eviction,) would have been evidence, to show Pitner guilty of a breach of his warranty.
By a breach of his warranty, Pitner would have become liable to those very same persons against whom his recovery was, for the sum of money, with interest on it, which he had obtained, in payment for the land, from their assignor, Smith.
This sum, with the interest on it, would have been equivalent, we are bound to presume, (at least, we are so bound, in the absence of proof to the contrary,) to the value of the land, and the value of all the rents that could have entered into the recovery; for this sum, with such interest, would have been the measure of the damages for the breach of the warranty; and the measure of the damages for the breach of a warranty, nothing can be, except something of a value equal to that of the warranted land and the value of the rents lost by the warrantee.
By a recovery then, Pitner would have become liable to the two McCoys, the “assigns” of Smith, for a sum precisely equal in value to the value of what, by the recovery, he would have obtained from them.
These things being so, the question is, did the McCoys have the right to retain the land as against Pitner ? In other [633]*633words, the question is, did this warranty of Pitner’s constitute a defence for the McCoys’ against his suit ?
And, taking the case as it stood, (it standing without any evidence to show the relation which the value of the land and of the rents on the one hand, bore to the purchase money, and the interest thereon, on the other,) the answer to the question, we think, must be, yes. Such, it seems to us, is the answer which section 446 of Littleton, together with the comment upon it by Coke, requires to be given.
That section is in these words:
“Also these words which are commonly put in such releases, scilicií (quse quo-vismodo in futurum habere potero,) arc as void in law ; for no right passeth by u release, but the right which the releasor had at the time of the release made. For if there be father and sonne, and the father be disseized, and the sonne (living Ms father) releaseth by his deed to the dissesor all the right ivhich he hath or may have in the same tenements without clause of warrantie, £/c.; and after thefather dieth, fyc.; the sonne may lawfully enter upon the possession of the disseisor, for that he had no right to the land in his father’s life, (pur ceo que il n’avoit droit en la Ierre en la vie son pier) but the right descended to him after the release made by the death of his father, fyc.”
And the comment is in these words: “ For if there be a warranty annexed to the release, then the sonne shall be barred. For albeit, the release cannot barre the right for the cause aforesaid, yet the warranty may rebut and barre him and his heirs of a future right, which was not in him at that time: and the reason (which in all cases is to be sought out) wherefore a warrantee being a covenant reall, should barre a future right, is for avoiding of circuitie of action (which is not favored in law); as he that made the warranty should recover the land against the ter-tenant, and he by force of the warrantie to have as much in value against the same person.”
[634]*634Lord Coke’s expression is, that the warranty may “rebut and barre him,” &c., not that the warranty may estop him. And this is just what we would be understood as saying in this case. Indeed, to say that the thing,- war rcmty, is an estoppel upon the warrantor, is to destroy the thing, as a warranty, for every estoppel is mutual; if therefore, the warranty estops the warrantor, it equally estops the warrantee; and if it estops the warrantee, the effect must be, to prevent him from alleging any breach of the warranty; and this is to-destroy the warranty.
[1.] We think then, that Pitner’s warranty was a good defence to the McCoys against the action — the action being,, as thq proof stood, his action.
This opinion is not adverse to anything in Bivins vs. The Lessee of Vinzant, (15. Ga. R. 521.) The present case is: not like that case.
That was a case in which Vinzant made two deeds, one, with warranty, before the grant had issued to him, the other after the grant had issued to him. The suit was by a person claiming under the younger deed, against a person claiming under the older deed. It was by a person, therefore, who was not a ¡tarty to the warranty; and consequently by a person who, byrecovering, would not subject himself to any action on the warrant};. If the suit had been by Vinzant, the warrantor himself, the case would have been like this, and Vinzant, by recovering, would have broken his warranty. In this case, so far as appears, Pitner made but one deed; a deed with warranty, but made it before he himself had acquired title; and after he had acquired title, he himself, in the face of his warranty sued his warrantee for the land.
What is said of Bivins and Vinzant, may be equally said of Way vs Arnold, 18. Ga. 181.
If, in the present case, the plaintiff had shown a deed from Pitner to Cochran, the case would have been more like those two cases, but he did not do that. He did not offer to show title in any of his lessors below Pitner, or, indeed below Lin[635]*635sey, the title having been carried clown into Pitner by the opposite party.
Assuming, then, the correctness of our opinion, that Pitner’s warranty was a good defence to the McCoys, against the action in the form in which the proof stood, the question is, whether, of the charge of the Court, so much was right, as consists in these words: "And if they should believe, that Pitner sold the land in dispute before he acquired title to it, and afterwards acquired title, he, Pitner, could not recover on such after
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By the Court.
Penning, J.
delivering the opinion.
This was an action in the name of Doe, on the several demises of Linsey, Carter, Pitner, Cochran and Beall.
On the trial, the plaintiff showed title in Linsey, (by grant,) and there left the title.
The tenant then showed a deed from Linsey to Carter; a deed from Carter to Pitner; a deed from Pitner to Smith; and a deed from Smith to the two McCoys. And then the tenant closed his evidence. There was no further or other evidence as to the- title.
. The deed from Pitner to Smith was made before the deed from Carter to Pitner was made; and consequently, before Pitner had any tille.
[632]*632This being the evidence, any recovery that could have happened in the case, would have had to be a recovery on the demise of Pitner; that is, would have had to be, in effect, a recovery by Pitner.
In the deed made by Pitner to Smith, there was a warranty of the land to Smith, “his heirs, and assigns.” The tenant, (it may be inferred) claimed under persons who were the “assigns” of Smith, viz: the two McCoys.
The recovery then, if there had been one, would have had to be, not only a recovery by Pitner, but a recovery by Pitner, against persons to whom he had made a warranty of the land.
Such a recovery followed by eviction, (and we may assume, that a recovery in ejectment will be followed by eviction,) would have been evidence, to show Pitner guilty of a breach of his warranty.
By a breach of his warranty, Pitner would have become liable to those very same persons against whom his recovery was, for the sum of money, with interest on it, which he had obtained, in payment for the land, from their assignor, Smith.
This sum, with the interest on it, would have been equivalent, we are bound to presume, (at least, we are so bound, in the absence of proof to the contrary,) to the value of the land, and the value of all the rents that could have entered into the recovery; for this sum, with such interest, would have been the measure of the damages for the breach of the warranty; and the measure of the damages for the breach of a warranty, nothing can be, except something of a value equal to that of the warranted land and the value of the rents lost by the warrantee.
By a recovery then, Pitner would have become liable to the two McCoys, the “assigns” of Smith, for a sum precisely equal in value to the value of what, by the recovery, he would have obtained from them.
These things being so, the question is, did the McCoys have the right to retain the land as against Pitner ? In other [633]*633words, the question is, did this warranty of Pitner’s constitute a defence for the McCoys’ against his suit ?
And, taking the case as it stood, (it standing without any evidence to show the relation which the value of the land and of the rents on the one hand, bore to the purchase money, and the interest thereon, on the other,) the answer to the question, we think, must be, yes. Such, it seems to us, is the answer which section 446 of Littleton, together with the comment upon it by Coke, requires to be given.
That section is in these words:
“Also these words which are commonly put in such releases, scilicií (quse quo-vismodo in futurum habere potero,) arc as void in law ; for no right passeth by u release, but the right which the releasor had at the time of the release made. For if there be father and sonne, and the father be disseized, and the sonne (living Ms father) releaseth by his deed to the dissesor all the right ivhich he hath or may have in the same tenements without clause of warrantie, £/c.; and after thefather dieth, fyc.; the sonne may lawfully enter upon the possession of the disseisor, for that he had no right to the land in his father’s life, (pur ceo que il n’avoit droit en la Ierre en la vie son pier) but the right descended to him after the release made by the death of his father, fyc.”
And the comment is in these words: “ For if there be a warranty annexed to the release, then the sonne shall be barred. For albeit, the release cannot barre the right for the cause aforesaid, yet the warranty may rebut and barre him and his heirs of a future right, which was not in him at that time: and the reason (which in all cases is to be sought out) wherefore a warrantee being a covenant reall, should barre a future right, is for avoiding of circuitie of action (which is not favored in law); as he that made the warranty should recover the land against the ter-tenant, and he by force of the warrantie to have as much in value against the same person.”
[634]*634Lord Coke’s expression is, that the warranty may “rebut and barre him,” &c., not that the warranty may estop him. And this is just what we would be understood as saying in this case. Indeed, to say that the thing,- war rcmty, is an estoppel upon the warrantor, is to destroy the thing, as a warranty, for every estoppel is mutual; if therefore, the warranty estops the warrantor, it equally estops the warrantee; and if it estops the warrantee, the effect must be, to prevent him from alleging any breach of the warranty; and this is to-destroy the warranty.
[1.] We think then, that Pitner’s warranty was a good defence to the McCoys against the action — the action being,, as thq proof stood, his action.
This opinion is not adverse to anything in Bivins vs. The Lessee of Vinzant, (15. Ga. R. 521.) The present case is: not like that case.
That was a case in which Vinzant made two deeds, one, with warranty, before the grant had issued to him, the other after the grant had issued to him. The suit was by a person claiming under the younger deed, against a person claiming under the older deed. It was by a person, therefore, who was not a ¡tarty to the warranty; and consequently by a person who, byrecovering, would not subject himself to any action on the warrant};. If the suit had been by Vinzant, the warrantor himself, the case would have been like this, and Vinzant, by recovering, would have broken his warranty. In this case, so far as appears, Pitner made but one deed; a deed with warranty, but made it before he himself had acquired title; and after he had acquired title, he himself, in the face of his warranty sued his warrantee for the land.
What is said of Bivins and Vinzant, may be equally said of Way vs Arnold, 18. Ga. 181.
If, in the present case, the plaintiff had shown a deed from Pitner to Cochran, the case would have been more like those two cases, but he did not do that. He did not offer to show title in any of his lessors below Pitner, or, indeed below Lin[635]*635sey, the title having been carried clown into Pitner by the opposite party.
Assuming, then, the correctness of our opinion, that Pitner’s warranty was a good defence to the McCoys, against the action in the form in which the proof stood, the question is, whether, of the charge of the Court, so much was right, as consists in these words: "And if they should believe, that Pitner sold the land in dispute before he acquired title to it, and afterwards acquired title, he, Pitner, could not recover on such after acquired title, but that such tille enured to the benefit of his prior vendee.”
These words, we take it, were intended to amount to this that if Pitner made the deed to Smith, Pitner could not recover, for the reason, that his after acquired title enured to• the benefit of Smith: if so, we think the proposition they lay down is true, but for a different reason, viz : for the reason, that Pitner’s deed to Smith contained a warranty.
Whilst then we may say that we approve the Court’s proposition, that Pitner’s " after acquired title enured to the benefit of his prior vendee,” we are not prepared to say, that we approve the reason on which the Court founds the proposition.
This being the view which we take of the charge, it is unnecessary to express any opinion on the rejection of the evidence offered in the Court for mesne profits. I have no doubt myself that the evidence was admissible. See Cunningham vs. Morris, 19. Ga. R. 583.
■Was the rejection of the power of attorney made by Linsey to Hallam, proper ?
There were entries on the power of attorney to Hallam to show it one that had been assigned by Hallam to Pitner; and one the recording of which was on the same day on which was recorded the deed from Pitner to Smith.
These are facts suggestive of the existence of the further fact, viz: That Pitner, in making that deed, intended to act, not as principal, but as an agent — as the agent of Linsey; [636]*636and that Smith, in accepting the deed intended to accept it as a deed made by Pitner, not as a principal, but as an agent, as this very agent of Linsey. These facts are such as are suggestive of this further fact. But still, they are not sufficient by themselves to prove that fact, in the face of this other fact, that the deed itself is in the mere name of Pitner, and takes no notice of the power of attorney; especially,as, in law, the power of attorney, was not assignable.
Therefore, we do not think that the rejection of the power ■of attorney, even if wrong, is a matter to require us to grant a new trial.
But we do not say that we think that the rejection of the power of attorney was wrong. As to that, we express no opinion.
The counsel for the defendant in error commented, before the jury, upon the case handed to him by the counsel for the plaintiff in error. After doing that, it certainly did not lie in his mouth to say, that the counsel for the plaintiff in error should not also comment, before the jury, upon the case.
[2.] We think therefore, that the Court should have allowed the counsel for the'plaintiff in error so to comment.
But still, we do not think this an error that entitles the plaintiff to a new trial, because we think that it was not in the power of comment, on that case, to show that the plaintiff was entitled to a verdict
As to the only remaining point: the Court’s stopping the plaintiff’s counsel from proceeding in his charges of unfairness made against the defendant’s counsel, we cannot say, that we" see anything wrong; such charges could have nothing to do with the issue; and therefore any effect at all which they might have had, would, of necessity, have been air improper effect.
Upon the whole, we have to affirm the result of the decisions of the Court below.
Judgment affirmed.