Hosmer, Ch. J.
In this case, there are four questions presented for determination. 1. Whether the defendant’s covenant was broken. 2. Whether the defendant bound himself, by his covenants, personally. 3. Whether the deeds and distributions, rejected by the court below, were admissible. And 4. Whether the rule of damages was correctly stated.
1. Was the defendant’s covenant broken?
Covenants are to be construed, so as to have effect, and correspond with the intention of the parties, at the time of making them. In their creation, technical words are not necessary; nor indeed are any expressions in particular; for any thing under the hand and seal of the parties, importing an agreement, and amounting to a covenant, will support an action. 1 Roll. Abr. 518. Shep. Touch. 158. Williamson v. Codrington, 1 Vesey 516. 3 Cruise’s Dig. 65.
In the case under discussion, the defendant covenanted with the plaintiff, that, “at and until the ensealing of these presents, he was well seised of the premises, as a good, indefeasible estate in fee-simple, and had good right to bargain and sell the same, in manner and form as above written.” The defendant, in fact, had no title to the land in question; but was empowered, by the court of probate, to sell the estate of David Mitchell, deceased, in payment of debts. He likewise was in possession of the premises, at the time he executed to the plaintiff the deed declared on. There is no pretence for the assertion that he was seised of the premises, as of an estate in fee-simple, or had any part of this seisin, but an actual possession. On this, however, I do not lay any stress; as from the whole deed, it is apparent, that the defendant was acting only as an administrator, under a power to sell; and this was well known to the plaintiff. The defendant, nevertheless, covenanted, that he had good right to [509]*509sell the premises in fee-simple, in manner and form as he was doing by his deed. Cruise, in his Digest, 4 vol. p. 78. when treating on the construction of the covenants of seisin and good right to sell, remarks, that if the vendor is seised in fee, they are of similar import. But, he says, the converse of this proposition does not hold; for a person not actually seised in fee, may have power to convey. Thus, where a tenant in tail conveys to a person, to make him a tenant to the prœcipe, in order that a common recovery may be suffered to the use of the purchaser in fee, or where a person conveys under a power; the covenant is, that the grantor hath good right to convey. This covenant most obviously does not relate to the deed or instrument of conveyance, but to the estate intended to be granted. Parker v. Parmelee, 20 Johns. Rep. 130. When the grantor is tenant in fee-simple, it is equivalent to the covenant of seisin; but when he confessedly has no title to the thing granted, it is a covenant that he has power to sell and convey precisely such an estate as the deed specifies.
The question, then, naturally arises, has there been a breach of the defendant’s covenant? This land, described in the defendant’s deed, and purporting to be conveyed, was parcel of a farm of land, owned and held in common, and undivided, by Simeon Mitchell, and the heirs at law of Samuel Mitchell deceased, and the heirs at law of David Mitchell deceased, in unequal proportions. The deed of the defendant, by the terms of it, purported to convey, by metes and bounds, an undivided interest in and to a part only of the estate, held as aforesaid in common; and not an undivided property, in the whole of it. Is it true, then, that the defendant had good right to sell and convey the premises, in manner and form? It is not pretended, that the court of probate gave the defendant any power, except one of a general nature, to sell the estate of the deceased; and it is clear, that no authority was derived from the law to make the preceding disposition of the property. On prniciples of law firmly established, the defendant was empowered only to convey an undivided proportion of the estate, throughout the whole farm held in common; and either the whole, or a part, of the interest, which the said David deceased had in the premises. In performing this act, the defendant was not authorized to impair, vary, or in any respect, prejudice, the estate of the other tenants in common. In Tooker's case, 2 Co. Rep. 67. it is said, when speaking [510]*510of joint tenants, that “if one attorns only, he may prejudice his companion”; “and for this reason, one joint tenant only shall not be suffered to attorn of record, for the manifest prejudice which would accrue to his companion, if it should be the attornment of both.” To the same effect is the remark of Popham, J. in Rud v. Tucker, Cro. Eliz. 803., that, it is clear, every act by one joint-tenant, for the benefit of his companions, shall bind; but those acts which prejudice his companion in estate, shall not bind.” Indeed, the proposition is self-evident, that one tenant in common, cannot deprive his co-tenant of any part of his interest, in the common estate, nor in any respect lessen or vary his legal rights. But if he is permitted to divide the common property into distinct moieties, by metes and bounds, and then dispose of a certain proportion in the property thus separated, he prejudices his co-tenant. On writ of partition, the moiety thus divided, and disposed of, undoubtedly, may be aparted to the other tenant; and his right to claim such partition, cannot be impaired, without his consent. Nor can this objection be obviated, by admitting that this right cannot be lessened, but that the purchaser may go beyond the limits of his purchase, and have his portion assigned in that part of the property, which is beyond the bounds of his deed. In this portion of the property his deed gives him no right or estate: nor can he have any communicated by a partition, which is no conveyance, but a distribution founded on antecedent right. It is clear, if David were living, that he could not convey a part of the common estate, in the manner in which the defendant has attempted to do; and has his administrator any right, which was not vested in his intestate? Certainly not. It is thus unquestionable, that the defendant had no authority to convey the premises to the plaintiff, by metes and bounds; and that his covenant, for this reason, is broken.
The nature of the covenant demonstrates, that the breach of it was instantaneous, on the execution of the deed. The principle is correctly expressed, by Ch. J. Parsons, in Marston v. Hobbs, 2 Mass. Rep. 437. The action was upon a deed containing covenants of seisin, of freedom from incumbrances, of a good right to sell, and of warranty. “The mannerof assigning breaches of these covenants (says Ch. J. Parsons) deserves some attention. The general rule is, that the party may assign breaches generally, by negativing the words of the covenant. The exception to the rule is, that when such general [511]*511assignment does not necessarily amount to a breach, the breach must be specially assigned. The first and third covenants in this case, (that is, the covenants of seisin and of good right to sell) come within the rule: If the defendant was not seised, or if he had no right to convey, these covenants must necessarily be broken. They are called synonimous, because the same fact, the seisin of the defendant, which will support the first, will also support the other covenant.” He then justly remarks, that, “when the breaches assigned to the first and third covenants are found for the plaintiff, it then appears that those covenants were broken, as soon as the deed was executed, and that no estate or interest passed by the conveyance.” The cases cited by the counsel for the plaintiff, prove incontrovertibly, that the covenant of seisin was instantaneously broken, so soon as it was made, if the covenanter were not seised; and that there was no necessity for an eviction; because the covenant was not suspended, at all, on the happening of this fact; and it is past all controversy, that the breach of the analogous covenant of good right to convey, falls precisely within the same reason and principle. Bickford v. Page, 2 Mass. Rep. 455.
The defendant’s covenant was not merely false in part, but altogether so; and the breach, therefore, is total. The deed passed no title; and, in effect, was an utter nullity. The cases of Starr v. Leavitt, 2 Conn. Rep. 243. and Hinman v. Leavenworth, 2 Conn. Rep. 244. n. on this subject are perfectly conclusive; because they are entirely analogous with, and not capable of any essential discrimination from, the one before us. Between the levy of executions on a part of an estate held by two tenants in common, for the debt of one of them, and a deed executed in the same manner, what is the difference? They are both conveyances of real estate, one by virtue of the statute regulating the levy of executions, and the other, by the act of the party; and their invalidity, for the same reason, results from the legal impossibility of performing an act, which is injurious to a third person. It cannot be true, that you may not prejudice a person, by the levy of an execution for the debt of his co-tenant, so as to impair or vary his rights in the common estate, but that the conveyance of one of the tenants in common, in the same manner, and effecting the same injury, is legally binding. This would be a pointed inconsistency, and sanction the perpetration of a prohibited injury, if it is done in a certain mode. The question [512]*512has correctly been stated, by the supreme judicial court of the state of Massachusetts, in Bartlett & al. v. Harlow, 12 Mass. Rep. 348.
A covenant against incumbrances, stands on a ground altogether different from the covenant of seisin, or of good right to convey. On an incumbrance not extinguished, the grantee can only recover nominal damages; but if it has been extinguished, the sum recoverable, is the full amount of the payment, which the party has been compelled to make. The above rule is founded on this reason, that such covenant is considered as strictly a covenant of indemnity, and that the grantor ought not to recover the value of the incumbrance, on a contingency, when he may never be disturbed by it. This is a reasonable rule; for if he were to recover the value, for example, of an outstanding mortgage, the mortgagee might still resort to the defendant, on his personal obligation, and compel him to pay it; and if the purchaser feels the inconvenience of the existing incumbrance, and the hazard of waiting until he is evicted, he may go and satisfy the mortgage, and then resort to his covenant. Prescott v. Freeman, 4 Mass. Rep. 627. Pitcher v. Livingston, 4 Johns. Rep. 1. Delavergne v. Norris, 7 Johns. Rep. 358. Deforest v. Leete, 16 Johns. Rep. 122.
It was contended, by the defendant, that he was estopped from claiming title, by the covenants in his deed; and that this had an important bearing on the point now under discussion. Let the estoppel be admitted, and give to it the legal effect of precluding the claim of the defendant; and the difficulty of the plaintiff will remain in undiminished force. What was the defendant’s claim? Absolutely nothing, except a power to sell, which, if not legally executed, may be performed in future, by another administrator. Besides, the conveyance is a nullity, imparting to the purchaser no right; and from the estoppel of the administrator, no possible benefit can be derived.
It is proper that some attention should be paid to the claim of the defendant, that being in possession, under colour of title, with a power to sell, by an order from the court of probate, the covenants of seisin and of right to convey are not broken. To sustain the proposition, he has cited the cases of Twambly v. Henley, 4 Mass. Rep. 441., and Prescott v. Trueman, 4 Mass. Rep. 627., which contain this principle; that a covenant of seisin is not broken, if the grantor, at the date of [513]*513his deed, was seised in fact, either by wrong, or by a defeasible title. This principle does not apply, as the defendant was not possessed, under claim of right, in the land now in question, but only of a power to sell, and the supposed analogy entirely fails. Besides, the covenant on which the plaintiff's suit is sustainable, is that of a good right to sell. Now, it cannot be said, even with plausibility, that the defendant’s having had a naked possession, would confer on him a right of disposition, in the manner attempted; and nothing short of this will show, that his covenant remains unbroken. I do not, however, admit, that an actual seisin or possession, (for these words are synonymous in their application here,) will validate the covenant, that the grantor is seised of an estate in fee simple, if the legal freehold and fee were in another person. It is the true construction of the covenant, that the grantor is legally seised; and if he is not, but has merely a naked possession, the contract is not kept, because it is untrue.
I am clear, therefore, that the defendant’s covenant was broken.
2. Did the defendant bind himself by his covenants personally? This is the next question.
The deed executed by him, was signed, “Elijah Hazen, administrator," and his covenants were in the following words: "I, the said Elijah, do for myself, my heirs, executors, and administrators, covenant with the said Timothy, his heirs, and assigns, that at, and until the ensealing of these presents, I am well seised of the premises, as a good indefeasible estate in fee-simple; and have good right to bargain and sell the same, in manner and form as is above written; and that the same is free from all incumbrances whatsoever, except as above.” These covenants must be construed with effect, ut res magis valeat, quam pereat, and correspond with the intention of the parties at the time of making them; and if there remains any doubt in respect of their meaning, they are to be taken in that sense, which is the most strong against the covenanter, and beneficial to the other party. Hookes v. Swain, 1 Lev. 102. S. C. 1 Sid. 151. Amner v. Luddington. And. 60. 1 Bulstr. 175. Hob. 304. Co. Lit. 134. Plowd. 156. It is indisputably clear, that the power of sale given by the court of probate to the defendant, without prescribing the manner in which it was to be executed, authorized him to make such an instrument only, as was legally proper for the conveyance of the deceased’s estate. Longford v. Eyre, 1 P. Williams 741. 4 Cruise's [514]*514Dig. 254. The defendant was not required, by his duty and trust, to enter into any personal covenant for the security of the title to the properly conveyed, nor for the validity of the conveyance; and it has not been contended, that for this purpose, he had authority to bind the heir of the deceased, or to subject the assets. It is unquestionable, that, unless he bound himself personally, his formal and solemn covenants under seal, were a nonentity; and vox et prœterea nihil. Although he was under no obligation to enter into covenants, he was at liberty to do it, if he chose to excite, in this manner, the confidence of purchasers, or to enlarge the proceeds of the sale, upon the general principle, that a covenant to do any thing that for the substance and matter of it is lawful, is good. Sheppard's Touchstone 159. If the covenants of the defendant are to be construed as having any effect, they must be considered as binding on him personally; for they can be obligatory on no other person. So, if the words of his covenants are at all indicative of his meaning, he, and he only, intended to be holden to the performance of them. It is worthy of remark, that he has covenanted, not only for himself, but for his heirs, executors, and administrators, which places his intention in an irrefragable light. With respect, then, to the intentions of the covenanter, or the effect of his covenants, there can exist no serious question, unless the mind will admit the palpable absurdity, that he meant nothing. There being subjoined to his signature, the word “administrator,” and the subject-matter of his conveyance, being the estate of other persons, cannot invalidate the construction given to his act. The former was, unnecessarily, I admit, a descriptio personæ only; and the latter is not prohibitory of any lawful agreement he should please to make. It has long been an established principle, that whenever a man undertakes to stipulate for another, by an instrument under seal, without authority or beyond authority, he is answerable, personally, for the non-performance of his contract; and if he choose to bind himself, by a personal covenant, he is legally liable for a breach of it, even although he describe himself as covenanting as trustee, agent, executor, or administrator. Appleton v. Binks, 5 East's Rep. 148. Thacher & al. v. Dinsmore, 5 Mass. Rep. 299. Sumner v. Williams & al. 8 Mass. Rep. 162. Duvall v. Craig & al. 2 Wheat. 45. White v. Cuyler, 6 Term Rep. 176. Wilkes v. Back, 2 East's Rep. 142. Tippets v. Walker, 4 Mass. Rep. 595. Thayer v. Wendall, 1 [515]*515Gallis. 37. The determinations in Sumner v. Williams and Duvall v. Craig & al. go the full length of the present case, and are applicable to it, on a principle of strict analogy. The case of Coe v. Talcott, 5 Day 88. is a strong authority in support of the opinion expressed, and contains this important principle; that “a trustee, acting within his powers, does not render himself liable on his contracts and conveyances; but wherever he exceeds his powers, and undertakes to transfer and convey without authority, he becomes personally answerable to the grantee, on his covenants." This is precisely the case before the court. The defendant exceeded the powers with which he was invested, and undertook to transfer and convey, in a manner which he had no right to do, and therefore without authority It results, then, that he is personally liable, on the principle of the case last cited, as well as on the other legal grounds, before discussed.
3. Whether the deeds and distributions, rejected by the court below, were admissible, is the next subject for consideration.
On this question, I shall be brief, as little is required to be said. The distribution of Samuel's estate was totally irrelevant, as in its effect it only proved, that the land in question was owned by one tenant in common less than the plaintiff has supposed, but left a tenancy in common of the farm before-mentioned, between Simeon and the heirs of David. If the common estate remained throughout the above property, the sale by the defendant was equally illegal, as if the number of tenants in common had been ever so great; and, of consequence, his covenant, for the same reason, was equally broken. The second distribution was of David's estate, before the making of which, and while the tenancy in common unquestionably existed, the defendant executed the deed, and bound himself in the covenant, on which the plaintiff’s suit is founded. It was likewise made by metes and bounds, and therefore was void, upon the same principles, as the deed executed to the plaintiff was invalid. The sale made by the defendant to the plaintiff was never returned to the court of probate, and by necessary consequence, could not be appealed from; and the subsequent acceptance of the distribution cannot be considered as having affirmed a sale, which does not appear ever to have been judicially known. Finally, the right of Simeon, as tenant in common, and seised per mie and [516]*516per tout, can never be varied or diminished, by the distribution of David's estate. Simeon, in respect of property not derived from his brother David, was a stranger to the proceedings of the court of probate, over whom and whose estate that court had no jurisdiction; and his right now to compel partition, and to obtain, if it should be thought just and expedient, an appropriation of the whole land, of which the defendant attempted to convey to the plaintiff a part, is precisely the same as if David were living, or there had been no distribution or sale of his estate. This transient glance at the subject, is sufficient to show, that the rejection of the evidence, by the court below, was entirely conformable to law.
4. Whether the rule of damages was correctly stated, is the only remaining question.
In this state, the rule of damages for breach of the covenant of seisin, ever has been, the consideration of the deed, with the interest. Horsford & al. v. Wright, Kirby 3. Castle v. Pierce, 2 Root 294. The same rule has been sanctioned in the contiguous states; and it is impossible, upon any just principle, to adopt a different standard. The intended conveyance is a nullity; and the contract, as to any operation, is precisely as if it never had been, or as if it had been rescinded. Unless vindictive damages were allowed, for which there exists no sufficient reason, what can be more consonant to natural justice, than that the grantee, who has got nothing for his money, should have it returned to him?
The covenant that the grantor has good right to sell, in many cases, is synonymous with the covenant of seisin; and when it is not, so far as respects damages for the breach of it, it stands precisely on the same ground. If the grantor has not good right to sell, the covenant is broken instantaneously, so soon as it is made; as the covenant of seisin is, when the covenantor is not seised; and the reason for returning the consideration, where the conveyance has wholly failed, in both cases, is precisely equal. I am aware, that in Prescott v. Trueman, 4 Mass. Rep. 627. 631. it is laid down as a rule, that nominal damages only will be given for the breach of the covenant that the grantor had right to convey, until the estate conveyed has been defeated, or the right to defeat it has been extinguished. This opinion is obiter, unsustained, by any case or established principle, and in opposition to the rule of the same court, in respect of the covenant of seisin. [517]*517I have the highest deference for the source, whence the above opinion emanated; but I cannot admit it to be just, or supported by analogous cases.
It is said, that as the plaintiff was in possession of the land in question, and answerable for the rents and profits, they should have been deducted from the damages. To this proposition, I cannot assent. The money due for the rents and profits has no relation to the covenant broken, but constitutes a separate and distinct debt. It could not be set off, had the claim been duly made; as it is a demand in which the defendant has not a sole interest, if he has any, which I very much doubt. The rents and profits are legally due to Simeon, and the heirs of David; and in all events, Simeon is a joint creditor in relation to this demand.
It has been contended, that the consideration money for the land in question, was applied to the payment of debts against David's estate; and that the plaintiff, being one of his heirs, has received a benefit from this source, which ought to diminish his damages. No such fact appears to have been proved; and if it had, it constituted no indebtedness on the part of the plaintiff; but gave to the defendant a right to remunerate himself out of the assets of his intestate. Besides, it had no relation to the point of damages, in this case; and, therefore, could not be allowed to diminish them.
In conclusion, I am of the opinion, that the determination of the judge below, has done no injustice to the plaintiff, and should not advise a new trial.
The other Judges were of the same opinion.
New trial not to be granted.