Parker, C. J.
MitcheE and Ela are not estopped from setting up title to the whole of lot No. 6, by the fact that MitcheE, at a time when he had no interest, showed a certain bound as the corner of lot No. 5, which would include a portion of lot No. 6 within the limits of lot No. 5.
MitcheE alone would not be thus estopped. His acts could not affect the owner of lot No. 6, who might notwithstanding convey a good title to the whole of that lot to any third person, and his grantees might convey as good a title to MitcheE as to any one else. In the case of fraudulent sales, a party who has notice may purchase and take a good title from one who purchased from the fraudulent grantee without notice. There was no warranty of title in MitcheE’s pointing out the bounds for the purpose of a survey, nor any representation respecting the title. It was a mere mistake respecting the lines of a particular lot, with no reason why especial dependance should be placed upon his information. Another reason why he cannot be estopped is, that'Howard did not act upon that information in making his purchase. The survey was made subsequent to the purchase. It is perhaps not clear that MitcheE could have been estopped from setting up title by an act of that description, if he had been the owner of No. 6 at the time, and Howard had purchased after the boundary was pointed out by him, if it appeared clearly that he acted under a mistake respecting the true line.
A party is estopped to set up title where he has permitted Ms land to be sold and conveyed under such circumstances that the [185]*185concealment of Ms title would be a fraud upon the grantee, if he was permitted to set it up afterwards. 11 N. H. Rep. 201, Thompson vs. Sanborn; [12 N. H. R. 133, Marshall vs. Pierce.] In case of mutual mistake respecting a boundary, perhaps he ought not to suffer, notwithstanding the other party may be prejudiced by relying on his act. Brewer vs. Boston & Worcester R. R. Co., 5 Mel. 478 ; Tolman vs. Sparhawk, 5 Met. 469.
Ela was a competent witness. It is not an objection to a witness that his evidence goes to sustain Ms own title to land, if he has no interest in the suit. Ela would not gain or lose by the event, nor could the verdict and judgment be evidence for or against him.
If the plaintiffs should fail in this suit, upon the ground that the defendants had title to the land they conveyed, that would not bind Mitchell and Ela, who are not parties to this proceeding.
If the plaintiffs succeed, that will not avail Mitchell and Ela against Howard in another action. Estoppels must be mutual.
It appears, from the evidence in the case, that the defendants were not the owners of all the land included in their deed to the plaintiffs. By reason of the error respecting the southeast corner of lot 5, when the survey was made the line mentioned in the deed was extended too far to the south and also to the east.
But the survey of Howard, entering under his deed, gave Mm a seizin as against any one who could not show a better right, to the extent of the survey and the boundaries then set up. He had actual seizin to that extent. Wendell vs. Blanchard, 2 N. H. Rep. 456 ; Woods vs. Banks, [14 N. H. Rep. 112.] This seizin was transmitted to the plaintiffs, so that they might have maintained trespass against a mere wrong doer.
The evidence shows an entry of Mitchell and Ela under tMs title upon that part of the land included in the deed to the plaintiffs, south of the true line of lot No. 5, and east of the Poor road, being part only of the land included in the deed from the defendants to the plaintiffs, to wMch Howard, and the defendants claiming under Mm, had not title. Mitchell and Ela had no title on the east end of No. 6, nor any west of the Poor road. No other title appears to have been asserted. Kittredge may have [186]*186entered on the gore west of the Poor road, or he may not. IIoay that is, does not distinctly appear. The covenant of warranty, therefore, has been broken only in relation to that part on the south side of lot 5 east of the Poor road. This would authorize an action only in relation to that tract upon that covenant. 11 N. H. Rep. 77, 78, 85, Loomis vs. Bedel.
The plaintiffs claim to recover damages for the whole land included in the deed, to which the defendants had not title, and the verdict covers all that land. The plaintiffs, then, to show a right of action to the extent of their claim, must maintain it on the covenant of seizin, or on that of good right to convey. No breach of the covenant that the defendants were lawful owners is alleged. If the doctrine in Willard vs. Twitchell, 1 N. H. Rep. 175, is correct, the plaintiffs cannot maintain an action on those covenants upon the facts before us. It is there stated, in substance, that the covenants of ownership, seizin, and good right to convey, are satisfied if the party had seizin whether by right or wrong.
This doctrine is derived from Marston vs. Hobbs, 2 Mass. 439, where the law is laid down in familiar terms.
In neither of these cases was it necessary, to the determination of the case' before the court, to settle the construction of the covenant of seizin usually contained in deeds here.
The doctrine there laid down of Marston vs. Rolls has been confirmed, however, in several subsequent cases in Massachusetts, and has been adopted in Ohio, (3 Ohio 220, 307,) and seems to have been sanctioned by an incidental opinion in Maine, 1 Fairf. 95. But it does not seem to have been brought before the court here for consideration in any case where the point was directly in issue. The doctrine of Marston vs. Hobbs upon this subject has been controverted elsewhere. 4 Kent’s Com. 471, note; 3 Verm. 403, Catlin vs. Hurlburt; 5 Verm. 20, Richardson vs. Dorr; 5 Conn. R. 262, Gilbert vs. Bulkley.
It is under these circumstances that the true construction of this covenant is brought before us for consideration by the very able argument of the plaintiffs’ counsel. We have given the question all the consideration that the intrinsic importance of the principle, and the inexpediency of holding a different doctrine [187]*187from that which has been once promulgated, even incidentally, except in a clear case, demands of us. But that consideration has satisfied us that the fair import of the covenant of seizin extends beyond a mere engagement that the party is seized of the land by a seizin which would be good only against another having no pretence of title.
After contracting that they are the lawful owners of the premises, the grantors covenant that they are lawfully seized in their own right in fee simple. This engagement is certainly not satisfied in any just sense, by evidence that the grantors are unlawfully seized without right in their own wrong, and of no fee simple except such as is claimed wrongfully, and in disseizin of the true owner. This may be a good seizin against all but the true owner, but is not a seizin in the party’s own right in fee.
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Parker, C. J.
MitcheE and Ela are not estopped from setting up title to the whole of lot No. 6, by the fact that MitcheE, at a time when he had no interest, showed a certain bound as the corner of lot No. 5, which would include a portion of lot No. 6 within the limits of lot No. 5.
MitcheE alone would not be thus estopped. His acts could not affect the owner of lot No. 6, who might notwithstanding convey a good title to the whole of that lot to any third person, and his grantees might convey as good a title to MitcheE as to any one else. In the case of fraudulent sales, a party who has notice may purchase and take a good title from one who purchased from the fraudulent grantee without notice. There was no warranty of title in MitcheE’s pointing out the bounds for the purpose of a survey, nor any representation respecting the title. It was a mere mistake respecting the lines of a particular lot, with no reason why especial dependance should be placed upon his information. Another reason why he cannot be estopped is, that'Howard did not act upon that information in making his purchase. The survey was made subsequent to the purchase. It is perhaps not clear that MitcheE could have been estopped from setting up title by an act of that description, if he had been the owner of No. 6 at the time, and Howard had purchased after the boundary was pointed out by him, if it appeared clearly that he acted under a mistake respecting the true line.
A party is estopped to set up title where he has permitted Ms land to be sold and conveyed under such circumstances that the [185]*185concealment of Ms title would be a fraud upon the grantee, if he was permitted to set it up afterwards. 11 N. H. Rep. 201, Thompson vs. Sanborn; [12 N. H. R. 133, Marshall vs. Pierce.] In case of mutual mistake respecting a boundary, perhaps he ought not to suffer, notwithstanding the other party may be prejudiced by relying on his act. Brewer vs. Boston & Worcester R. R. Co., 5 Mel. 478 ; Tolman vs. Sparhawk, 5 Met. 469.
Ela was a competent witness. It is not an objection to a witness that his evidence goes to sustain Ms own title to land, if he has no interest in the suit. Ela would not gain or lose by the event, nor could the verdict and judgment be evidence for or against him.
If the plaintiffs should fail in this suit, upon the ground that the defendants had title to the land they conveyed, that would not bind Mitchell and Ela, who are not parties to this proceeding.
If the plaintiffs succeed, that will not avail Mitchell and Ela against Howard in another action. Estoppels must be mutual.
It appears, from the evidence in the case, that the defendants were not the owners of all the land included in their deed to the plaintiffs. By reason of the error respecting the southeast corner of lot 5, when the survey was made the line mentioned in the deed was extended too far to the south and also to the east.
But the survey of Howard, entering under his deed, gave Mm a seizin as against any one who could not show a better right, to the extent of the survey and the boundaries then set up. He had actual seizin to that extent. Wendell vs. Blanchard, 2 N. H. Rep. 456 ; Woods vs. Banks, [14 N. H. Rep. 112.] This seizin was transmitted to the plaintiffs, so that they might have maintained trespass against a mere wrong doer.
The evidence shows an entry of Mitchell and Ela under tMs title upon that part of the land included in the deed to the plaintiffs, south of the true line of lot No. 5, and east of the Poor road, being part only of the land included in the deed from the defendants to the plaintiffs, to wMch Howard, and the defendants claiming under Mm, had not title. Mitchell and Ela had no title on the east end of No. 6, nor any west of the Poor road. No other title appears to have been asserted. Kittredge may have [186]*186entered on the gore west of the Poor road, or he may not. IIoay that is, does not distinctly appear. The covenant of warranty, therefore, has been broken only in relation to that part on the south side of lot 5 east of the Poor road. This would authorize an action only in relation to that tract upon that covenant. 11 N. H. Rep. 77, 78, 85, Loomis vs. Bedel.
The plaintiffs claim to recover damages for the whole land included in the deed, to which the defendants had not title, and the verdict covers all that land. The plaintiffs, then, to show a right of action to the extent of their claim, must maintain it on the covenant of seizin, or on that of good right to convey. No breach of the covenant that the defendants were lawful owners is alleged. If the doctrine in Willard vs. Twitchell, 1 N. H. Rep. 175, is correct, the plaintiffs cannot maintain an action on those covenants upon the facts before us. It is there stated, in substance, that the covenants of ownership, seizin, and good right to convey, are satisfied if the party had seizin whether by right or wrong.
This doctrine is derived from Marston vs. Hobbs, 2 Mass. 439, where the law is laid down in familiar terms.
In neither of these cases was it necessary, to the determination of the case' before the court, to settle the construction of the covenant of seizin usually contained in deeds here.
The doctrine there laid down of Marston vs. Rolls has been confirmed, however, in several subsequent cases in Massachusetts, and has been adopted in Ohio, (3 Ohio 220, 307,) and seems to have been sanctioned by an incidental opinion in Maine, 1 Fairf. 95. But it does not seem to have been brought before the court here for consideration in any case where the point was directly in issue. The doctrine of Marston vs. Hobbs upon this subject has been controverted elsewhere. 4 Kent’s Com. 471, note; 3 Verm. 403, Catlin vs. Hurlburt; 5 Verm. 20, Richardson vs. Dorr; 5 Conn. R. 262, Gilbert vs. Bulkley.
It is under these circumstances that the true construction of this covenant is brought before us for consideration by the very able argument of the plaintiffs’ counsel. We have given the question all the consideration that the intrinsic importance of the principle, and the inexpediency of holding a different doctrine [187]*187from that which has been once promulgated, even incidentally, except in a clear case, demands of us. But that consideration has satisfied us that the fair import of the covenant of seizin extends beyond a mere engagement that the party is seized of the land by a seizin which would be good only against another having no pretence of title.
After contracting that they are the lawful owners of the premises, the grantors covenant that they are lawfully seized in their own right in fee simple. This engagement is certainly not satisfied in any just sense, by evidence that the grantors are unlawfully seized without right in their own wrong, and of no fee simple except such as is claimed wrongfully, and in disseizin of the true owner. This may be a good seizin against all but the true owner, but is not a seizin in the party’s own right in fee. The grantee who takes such a covenant for his security has a right to understand that his grantor covenants to him some seizin other than one which will make him liable to the rightful action of a third person the moment he enters under his deed. And we think we are required to give to the terms of the covenant the fair signification to be drawn from the language in which it is expressed. Parties not conversant with the law ordinarily understand this covenant as an assurance of a title, and we are of opinion that they have the right so to understand it. A party who has disseized another may be treated as seized of the fee, at the election of the disseizee. He cannot be permitted to qualify his own wrong. But this is for the sake of the remedy. A party who remains in the adverse peaceable possession of lands for twenty years as owner, may thereby have evidence of a seizin in fee during that time. But this is for a quieting of possession and barring stale claims. It does not show that before the lapse of the period proscribed he had a lawful seizin in fee. On the contrary, he was, until the expiration of the period, a wrong doer.
That the deed may transmit a seizin in virtue of which, and a possession under it, the grantee may obtain evidence of an indefeasible foe simple, does not show then that the terms of the covenant are fulfilled.
Nor docs the consideration that the seizin transmitted may never [188]*188be interrupted, suffice to give a construction to the covenant, or to show tl].at the grantee ought not to maintain an action until he is actually dispossessed.
The engagement of the grantor upon the covenant is not that he will be answerable if the grantee is ousted. That is the effect of the covenant of warranty.
No wrong is done by the maintenance of the action; for if the grantee recovers damages for the breach of the covenants of seizin, on the ground that the grantee had no title whatever, the operation of it must be to estop the grantee from setting up the deed afterwards, as a conveyance of the land, against the grantor. We see not why the grantor may not again enter, if he chooses, as against the grantee. A recovery in trespass or trover with satisfaction, vests the property in the party against whom the damages are assessed
The defendants may reenter if they think proper, and will hold under their former possession against all persons who cannot show a better right. We are not aware of anything in the nature of the feudal investiture, or in the principles which regulate the title to land at the present time, that should require a different rule in relation to real estate. The record of the recovery will furnish as good an estoppel as that which arises from a disclaimer. 4 N. H. Rep. 182, Hamilton vs. Elliot. The defendants may reenter if they think proper, and will hold under their former possession, against all persons who cannot show a better right.
The measure of the damages for a breach of the covenant of seizin is the value of the land at the time of the conveyance, which may be determined by the consideration paid. This was stated to be the rule in this case, and it is not controverted that the consideration expressed in the deed was the evidence of value.
But the plaintiffs were not entitled to the verdict they have obtained, nor will it be safe for them to hold it. The declaration describes the whole land conveyed, and alleges an entire breach of the covenants of seizin and warranty. The issues contradict this. The one on the covenant of warranty admits the ouster, and traverses the title of Mitchell and Ela. The verdict finds ■that the defendants were not seized in manner and form, and that [189]*189Mitchell and Ela had lawful right and title to the premises described in the declaration. Although Mitchell and Ela cannot claim anything by virtue of this verdict, the defendants seem to have a right to rely upon it as record evidence between these parties, not only that the defendants were not seized of any part, but that the plaintiffs have been entirely ousted and have recovered compensation for it. See 9 Mass. 148, Stinson vs. Sumner. The declaration might have set out the breach in part specially under a scilicet, and the issue have been framed on that; or, the issue being general, as in this case, the verdict should have been special; the evidence showing a breach in relation to only part of the land.
After this opinion was delivered, the plaintiffs’ counsel moved that the verdict be amended, so that it should find that the defendants were not seized of six and one half acres, parcel of the premises; and as to the residue of the promises, that they were seized and had lawful right to convey the same.
The plaintiffs’ counsel contended that the court had general power to amend verdicts in conformity to the notes of the judge who tried the cause; that damages were awarded by the jury only for the land of which the plaintiffs were shown to bo evicted; that it is not necessary to insert in the verdict the quantity of land for which the damages were awarded; that it would be sufficient to say “ of part of the premises” the defendants were not seized, and of the residue they were.
Parker, C. J. It seems from the case that the jury gave damages only “ for the value of that part of the premises convoyed to which the defendants had not title at the time of their conveyance”; and if it would be sufficient so to amend the verdict as to find that the defendants had not title to a part of the premises, wo might make that amendment on the case before us. But upon the construction wo have given to the covenant of seizin and the operation of a recovery for the breach of it where the grantor had actual seizin without title, it seems clear that if the failure of title is but of part of the land embraced in the deed, [190]*190either the declaration or the verdict should specify the tract for which the damages are recovered, with as much certainty as would be required in a deed of the land. And we are of opinion that there is not sufficient before us to authorize us to malee this verdict thus specific. As the rights of the parties are settled, there will probably be no occasion, however, for another trial.
Verdict set aside.