Trippe, Judge.
1. The respective deeds from Fields to Willingham and Collier, and from the latter back to the former, were, so far as they affect the rights growing out of this action, substantially the same, both as to what was conveyed by the deeds, and the warranties contained in them. It may be true, that by the deed of Willingham and Collier, Fields obtained the right to the overflow of their land as the water stood when each of the conveyances was executed. It does not appear that he had that privilege before these sales were effected. No claim is asserted by the plaintiffs founded on any breach of the warranty to Fields, so far as that right is concerned. The fact that this easement was thus secured, in addition to what he formerly owned, cannot strengthen his claim, or those claiming under him, to damages for the loss of the right to overflow the lands of the Nesbits. It may have been one inducement to have caused the increase in the consideration expressed in the deed of Willingham and Collier over that in the deed of Fields. It cannot be doubted that if the consideration of the two deeds were the same, that Fields could not recover of Willingham and Collier for a breach of the warranty, from a cause existing at the time he made his deed to them. For his recovery would be the ground and measure of a recovery by them back from him, and the law will not permit such a circuity of action. This was not denied in the argument, nor did we understand it to be denied that Fields’ privies, or the successors in the title under him, the plaintiffs in this action, would labor under the same disability,
But the position assumed by plaintiff in error is, that the sole ground of this rule is, that the two recoveries must be for precisely the same sum; that if the rights of the respective parties were not governed by the same measure of damages, and the recoveries would not be ecpial in both actions, then the right of action exists in the first warrantor, although he has warranted the same property to the defendant.
It is true, this doctrine of rebutter, as thus applied, is often [350]*350put upon the ground, that where the plaintiff's judgment or recovery would be the foundation of another suit by the defendant against the -plaintiff, such recovery will not be allowed, because the very amount of plaintiff’s judgment will be the amount of a second one against him in favor of the defendant. But it is not always stated with the qualification that the recoveries must be identical in cases of mutual warrantees. In Sibley vs. Beard, 5 Georgia, 552, the rule is stated to be: “If A sells property to B, with warranty of title, and B sells the same to A, with warranty, and A is deprived of it by legal process upon a title in a third person, he cannot maintain an action against B for the breach of his warranty, because if he recovers of B he would be entitled to turn round and sue A for a breach of his prior warranty. The Courts will avoid circuity of action.” And again, in the same case, if A sells to B and B to C, and C back to A, all with warranty, and A be dispossessed upon a title paramount in D, he cannot maintain an action against C, for the parties being all in pidvity, the liability would come round on A. No reference is made in the decision to the fact, whether, in the case before the Court, the respective recoveries, if allowed, would be identical, and nothing as to what was the consideration of the respective sales. It was held that there was no privity between Beard and Sibley, and hence, that the doctrine as to circuity of action did not apply between them. Beard had sold the property to the Eagle and Phoenix Hotel. Sibley sold to Beard. It did not appear how Sibley got his title. The decision further says: “ If the Eagle and Phoenix Hotel had sold the property to Sibley with warranty, and he back to again to Beard, the principle would be applicable.” The facts of the case were, as will be seen by the original record, that the respective considerations of the two contracts were not the same. One was for $300 00 and the other for $250 00. No importance was given to that, nor does it seem that it would have affected the judgment.
The same principle is frequently stated without its being put on the ground of the recoveries being for the same amount. [351]*351Take the case of a deed made by A to B, with warranty, the consideration of which is love and affection, commonly called a deed of gift. If B were to re-convey to A, with warranty, and A were evicted by C upon a paramount title, could A recover of B upon a breach of his warranty ? By our law the measure of recovery is the purchase money and interest. B paid nothing. Could he recover of A if he were evicted? The measure of A’s claim would be what he paid B, if he could recover at all. It would not be the principle of circuity of action founded on the several recoveries being equal, that would prevent an action by A. Another element enters into such questions when they arise on reciprocal warranties. The first warrantor, who is the plaintiff in the cases supposed, has solemnly assured his vendee, by deed, that he has the title, and gives his covenant of warranty to maintain the truth thereof.' His covenantee accepts it, acts upon it, and may improve the property purchased. He re-conveys to his vendor, it may be, for a greater price than he gave. The title fails, because it never was in the original vendor. Can he be allowed an action, resting it upon the falsity of his solemn assurance ? Can he deny the title which he affirmed by seal and warranty, was in him, by showing it in somebody else, and thereby make what is the breach of his own covenant the foundation of another right in him against his own vendee ?
Lord Mansfield, in Goodtitle vs. Bailey, 2 Cowper, 597, defines an estoppel by matter of deed, thus: “No man shall be allowed to dispute his own solemn deed.” Bigelow, in his work on Estoppel, 267, says: “An estoppel, by matter of deed, may be defined to be a preclusion against the competent parties to a valid sealed instrument and their privies, to deny its force and effect by any evidence of inferior solemnity.” Our own Code, under this head, when speaking of presumptions of law, which will not allow an averment to the contrary, specifies: “ Recitals in deeds, except payment of purchase money, as against the grantor acting in his own right and sui juris, and his privies in estate, blood and in law.” New Code, section 3753.
[352]*352To permit a recovery by A against B, on the warranty of the latter to the former, when A had made a prior warranty to B, on the ground of a difference between the considerations of the two deeds, would be in conflict with the above wholesome principle, unless A could recover the whole purchase money he paid, which would be odious, and if he were limited to the difference between the two prices, it would be in conflict with the statutory measure of damages, which is the purchase money with interest.
2. We do not understand that it is denied that the subsequent vendees holding under Fields, whether purchasing at a judicial or private sale, are affected by the equities existing between Fields, on the one part, and Willingham and Collier, on the other part; and further, that they had notice of the fact on which these equities are founded, to-wit: Fields’ deed to Willingham and Collier. In Martin vs. Gordon, 24 Georgia, 533, the facts were, that Gordon sold to Fife, with warranty, the consideration, as recited in the deed, being $500 00. Fife sold to plaintiff for $1,000 00.
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Trippe, Judge.
1. The respective deeds from Fields to Willingham and Collier, and from the latter back to the former, were, so far as they affect the rights growing out of this action, substantially the same, both as to what was conveyed by the deeds, and the warranties contained in them. It may be true, that by the deed of Willingham and Collier, Fields obtained the right to the overflow of their land as the water stood when each of the conveyances was executed. It does not appear that he had that privilege before these sales were effected. No claim is asserted by the plaintiffs founded on any breach of the warranty to Fields, so far as that right is concerned. The fact that this easement was thus secured, in addition to what he formerly owned, cannot strengthen his claim, or those claiming under him, to damages for the loss of the right to overflow the lands of the Nesbits. It may have been one inducement to have caused the increase in the consideration expressed in the deed of Willingham and Collier over that in the deed of Fields. It cannot be doubted that if the consideration of the two deeds were the same, that Fields could not recover of Willingham and Collier for a breach of the warranty, from a cause existing at the time he made his deed to them. For his recovery would be the ground and measure of a recovery by them back from him, and the law will not permit such a circuity of action. This was not denied in the argument, nor did we understand it to be denied that Fields’ privies, or the successors in the title under him, the plaintiffs in this action, would labor under the same disability,
But the position assumed by plaintiff in error is, that the sole ground of this rule is, that the two recoveries must be for precisely the same sum; that if the rights of the respective parties were not governed by the same measure of damages, and the recoveries would not be ecpial in both actions, then the right of action exists in the first warrantor, although he has warranted the same property to the defendant.
It is true, this doctrine of rebutter, as thus applied, is often [350]*350put upon the ground, that where the plaintiff's judgment or recovery would be the foundation of another suit by the defendant against the -plaintiff, such recovery will not be allowed, because the very amount of plaintiff’s judgment will be the amount of a second one against him in favor of the defendant. But it is not always stated with the qualification that the recoveries must be identical in cases of mutual warrantees. In Sibley vs. Beard, 5 Georgia, 552, the rule is stated to be: “If A sells property to B, with warranty of title, and B sells the same to A, with warranty, and A is deprived of it by legal process upon a title in a third person, he cannot maintain an action against B for the breach of his warranty, because if he recovers of B he would be entitled to turn round and sue A for a breach of his prior warranty. The Courts will avoid circuity of action.” And again, in the same case, if A sells to B and B to C, and C back to A, all with warranty, and A be dispossessed upon a title paramount in D, he cannot maintain an action against C, for the parties being all in pidvity, the liability would come round on A. No reference is made in the decision to the fact, whether, in the case before the Court, the respective recoveries, if allowed, would be identical, and nothing as to what was the consideration of the respective sales. It was held that there was no privity between Beard and Sibley, and hence, that the doctrine as to circuity of action did not apply between them. Beard had sold the property to the Eagle and Phoenix Hotel. Sibley sold to Beard. It did not appear how Sibley got his title. The decision further says: “ If the Eagle and Phoenix Hotel had sold the property to Sibley with warranty, and he back to again to Beard, the principle would be applicable.” The facts of the case were, as will be seen by the original record, that the respective considerations of the two contracts were not the same. One was for $300 00 and the other for $250 00. No importance was given to that, nor does it seem that it would have affected the judgment.
The same principle is frequently stated without its being put on the ground of the recoveries being for the same amount. [351]*351Take the case of a deed made by A to B, with warranty, the consideration of which is love and affection, commonly called a deed of gift. If B were to re-convey to A, with warranty, and A were evicted by C upon a paramount title, could A recover of B upon a breach of his warranty ? By our law the measure of recovery is the purchase money and interest. B paid nothing. Could he recover of A if he were evicted? The measure of A’s claim would be what he paid B, if he could recover at all. It would not be the principle of circuity of action founded on the several recoveries being equal, that would prevent an action by A. Another element enters into such questions when they arise on reciprocal warranties. The first warrantor, who is the plaintiff in the cases supposed, has solemnly assured his vendee, by deed, that he has the title, and gives his covenant of warranty to maintain the truth thereof.' His covenantee accepts it, acts upon it, and may improve the property purchased. He re-conveys to his vendor, it may be, for a greater price than he gave. The title fails, because it never was in the original vendor. Can he be allowed an action, resting it upon the falsity of his solemn assurance ? Can he deny the title which he affirmed by seal and warranty, was in him, by showing it in somebody else, and thereby make what is the breach of his own covenant the foundation of another right in him against his own vendee ?
Lord Mansfield, in Goodtitle vs. Bailey, 2 Cowper, 597, defines an estoppel by matter of deed, thus: “No man shall be allowed to dispute his own solemn deed.” Bigelow, in his work on Estoppel, 267, says: “An estoppel, by matter of deed, may be defined to be a preclusion against the competent parties to a valid sealed instrument and their privies, to deny its force and effect by any evidence of inferior solemnity.” Our own Code, under this head, when speaking of presumptions of law, which will not allow an averment to the contrary, specifies: “ Recitals in deeds, except payment of purchase money, as against the grantor acting in his own right and sui juris, and his privies in estate, blood and in law.” New Code, section 3753.
[352]*352To permit a recovery by A against B, on the warranty of the latter to the former, when A had made a prior warranty to B, on the ground of a difference between the considerations of the two deeds, would be in conflict with the above wholesome principle, unless A could recover the whole purchase money he paid, which would be odious, and if he were limited to the difference between the two prices, it would be in conflict with the statutory measure of damages, which is the purchase money with interest.
2. We do not understand that it is denied that the subsequent vendees holding under Fields, whether purchasing at a judicial or private sale, are affected by the equities existing between Fields, on the one part, and Willingham and Collier, on the other part; and further, that they had notice of the fact on which these equities are founded, to-wit: Fields’ deed to Willingham and Collier. In Martin vs. Gordon, 24 Georgia, 533, the facts were, that Gordon sold to Fife, with warranty, the consideration, as recited in the deed, being $500 00. Fife sold to plaintiff for $1,000 00. The plaintiff being evicted, brought suit against Gordon on a breach of his warranty. Gordon pleaded that the real consideration of his deed was only $100 00. It was held that “neither Gordon’s grantee nor any subsequent conveyancee, in the absence of fraud, is entitled to recover more than the price actually paid for the land, with the interest thereon.” Judge Lumpkin said, “the result of a careful examination of the authorities establishes that subsequent purchasers are affected by the equities between previous parties. If A sell land to B, with covenant of warranty, and B releases A and sells to C, who is evicted by paramount title, A is nevertheless discharged, and damages cannot be recovered against A by C, upon A’s warranty to B.” BenNING-, Judge, Avent still further. He said, “Gordon having no title when he made the warranty to Fife, the warranty did not pass from Fife to his assignee, and consequently a right of action on it never vested in her.” Many authorities Avere cited on this point, but it is not necessary to consider that question noAV. The evidence showed that Fife had given Gordon a [353]*353bond of indemnity before he sold. Judge Benning expressed a strong intimation that the bond Avas a release of Gordon, and extinguished the covenant, thereby preventing it from passing to Fife’s assignee, whether she purchased with or without notice of such release. Both Judges concurred in the decision that the consideration of Gordon’s deed to Fife being, in fact, but $100 00, though expressed to be $500 00, Fife’s assignee could not recover but the $100 00. And this was not put upon the ground that Fife’s vendee had notice of such fact. It Avas so held, independent of the question of notice to her. Judge McDonald dissented from the judgment of the Court, and put his dissent on the ground that Fife’s vendee purchased without notice. He admitted that Gordon could shoAV the consideration Avas only $100 00, for the purpose of limiting Fife’s recovery, but not to affect a bona fide purchaser Avithout notice. He did not deny that she would be affected by it if she had notice.
In the case under consideration, the subsequent vendees were, by law, charged Avith notice. The section of the Code which has been quoted includes the grantor and his privies in estate. Fields’ deed to Willingham and Collier was part of the chain of title held by these purchasers, and the fact of his Avarranty was apparent on its face. On that fact was based Willingham and Collier’s equity, and of it they had knoAvledge. Moreover, the deed was of record.
We do not think that what Willingham and Collier did toAvards aiding the Nesbits in their suit can affect their liability. That was a matter touching the rights of the Nesbits. Fields had warranted, in substance, that they had none. He cannot complain at their assertion to the contrary. It was a right adjudicated by law, and by presumption of law — not only rightly adjudicated, but so done on a state of facts in conflict Avith Field’s Ararranty. Willingham and Collier Avere not responsible because those facts existed. Nor did they have any power in controlling the judgment founded on them.
The judgment of the Court granting the neAV trial is affirmed.