Eccleston, J.,
delivered the opinion of this court.
When an executor relies upon a plea oí plena administravit to defeat the suit of a creditor, to render the plea available by showing that he has paid over the assets to legatees, it must appear that he has given the notice required by the act of 1798, ch. 101, sub-ch. S, sec. 13. This section provides, that “no executor or administrator who shall, after the lapse of one year from the date of his letters, have paid away assets to the discharge of just claims, shall be answerable for any claim of which he had no notice or knowledge; provided, that at least six months before he shall make distribution, he shall have caused to be inserted in such and so many newspapers as the orphans court may direct, an advertisement,” in effect, according to the form given in the section. See also the act of 1823, ch. 131, sec. 2.
The defendant offered in evidence the order of the orphans court of Howard District, directing him to advertise in the Howard Gazette; which order he offered to read from the record of proceedings of that court, as of its session on Tuesday, the 5th day of February 1850, all of which proceedings, inclusive of that order, are inserted in this record. The entry in reference to the order is: “On application of Andrew Jackson Adams, executor of William Adams, late of Howard District, deceased: It is ordered, that he give the notice required by law for creditors to exhibit their claims against the said deceased, and that the same be published once in each week, for the space of six successive weeks, in the Howard Gazette, printed in Ellicotts Mills.”
[45]*45After admitting the orphano court was not. in session on the 25(h of January 1850, the defendant offered to read in evidence to the jury his notice to creditors, dated on that day, and published in the Howard Gazette for eight successive weeks, commencing on the 2Glh of January 1850. At the time of this offer it was accompanied with proof to show, that when the notice was advertised, the Howard Gazette was the only newspaper published at Ellicotts Mills. The defendant also declared, that he proposed to give evidence for the purpose of showing that before the institution of this suit, or of any notice to him of the plaintiff’s claim, he had paid away all the assets of the estate in discharge of debts and legacies.
Bat the plaintiff objected to the evidence offered for the purpose stated, and especially to the proceedings of tire orphans court directing the advertisement in the Howard Gazette and to the notice published. The court, however, overruled the objection and allowed tho evidence so offered to bo given for the purpose stated. And this decision constitutes the first exception.
In such a case, if the plea of plene administravit can avail the defendant, the due publication of notice to creditors, under the order of the orphans court, is necessary to be established by proof, which, in the first instance, is addressed to the court, and if they are satisfied that the rules of law have been complied with, the notice ¡lien goes before the jury. If, however, in the preliminary examination, the court entertain doubts in reference to questions connected with the validity of the notice, the court may submit the matter to the jury, with an instruction, that whether they are to regard the notice as evidence before them, must depend upon whether they do or do not find tiie disputed point in favor of the validity of the notice. 1 Md. Rep., 123, and 5 Ibid., 418.
When, as in this case, the court permit the order of the orphans court and the publication to go to the jury, if exception is taken, the appellate court must decide whether the preliminary proof sanctioned the act. And hero wc think it did not. Tiie notice is dated tho 25th and was advertised for the first time on the 26th of January 1850. The orphans court was [46]*46not in session the day on which (he order bears date, and it appears as part of (he proceedings of that court on the 5th of February, according to the record of the minutes or proceedings. With such proof we cannot say, that on the 26th of January, when the notice was first inserted, it was given under the order of the orphans court. Their order, according to their record, was passed on the 5th of February; and the notice is clearly defective, because it warned the creditors to exhibit their claims on the 1st day of August following, which was less than six months after the order of the court. And under this view, the court below were wrong in overruling the objection of the plaintiff and permitting the proof to go to the jury.
Having thus disposed of the first exception, there is no necessity for expressing any opinion in regard to the question presented by the second bill of exceptions, nor in reference to the two prayers of the plaintiff contained in the third, as they were submitted under the supposition or assumption, that the notice to the creditors was regularly in evidence.
At the instance of the defendant the court granted an in? struction: “That if the jury shall find from the evidence that the land devised by the last will and testament of William Adams unto his grandson, Benjamin Rawlings, son of James Rawlings, and his, the testator’s, daughter Elizabeth, and therein described as all that tract or parcel of land lying and being in Montgomery county, State of Maryland, known as Bond’s Tanyard Farm, on which James Rawlings now resides, together with the tanyard and all the improvements thereon, is the same land which is described in the supposed obligation on which the plaintiff has declared; and that the said Elizabeth died in the lifetime of the said William Adams, and that the said Benjamin Rawlings, the devisee, is the only child and heir at law of the said Elizabeth Rawlings, then the plaintiff will not be entitled to recover any damages for the breach of the condition of the said supposed writing obligatory alleged in the declaration, even although the jury shall find that the said instrument declared on was the deed of the said William Adams, deceased, and all other facts offered in evidence by the plaintiff.”
[47]*47According' to the doctrine recognised in Dorsey vs. Dashiell, 1 Md. Rep., 207, 208, as settled by the cases there referred to, this prayer does not present any question for decision upon the pleadings. The position it assumes is, that although the jury should find the bond sued upon was executed by William Adams, and they should also find all other facts offered in evidence by the plaintiff, still he was not entitled to recover any damages, provided they should find the land devised by William Adams to his grandson, Benjamin Rawlings, the son of his daughter, Elizabeth Rawlings, to be the same land which is described in the bond, and that the said Elizabeth Rawlings is the obligee in the bond, and died in the lifetime of William Adams, leaving Benjamin Rawlings, her only child and heir at law.
When the prayer is viewed in connection with the proof in the cause, it necessarily asserts the proposition, that, even if the condition of the bond was broken in the lifetime of Mrs. Raw-lings, the surviving husband could not recover any damages for such breach, but the right of action passed to the heir at law of the wife. No case has been adduced in which the right of the surviving husband, as such, was under consideration in regard to covenants relating to land, but in the cases referred to, where breaches had occurred whilst the covenantees were living and the suits instituted after they had died,the inquiry has been, whether the right of action belonged to the personal representatives or descended to the heirs at law?
In the case of Lucy vs. Levington, 2 Lev., 26, and 1 Vent., 175, where the covenant was for quiet enjoyment, and the covenantee, himself, was ejected, the court held the executor to be the proper party to take advantage of the covenant. The decision in Lewes vs. Ridge, Cro. Eliz., 863, is very similar in principle. But in Kingdon vs. Nottle, I Maule & Selw., 355, the executrix sued for a breach of the covenant for seizin, and upon demurrer to the nar, the demurrer was ruled good, because no other damage had been alleged than such as arose from a breach of the defendant’s covenant that he had a good title, the nar containing no allegation of special damage to the estate of the testator in his lifetime. Upon a suit by the same [48]*48plaintiff as devisee, reported in 4 Maule Selw., 53, it was argued for the defendant, upon demurrer, that inasmuch as the covenant for seizin was broken as soon as made, no right of action could pass to the devisee; but the court held, that it was a continuing breach so long as the defendant had not a good title, and notwithstanding there might have been a technical breach during the life of the testator, yet t.he substantial breach occurred after his decease, which conferred upon the devisee the right to sue, she being the party materially injured.
In King vs. Jones, 5 Taunt., 418, under a covenant for further assurance on request, the purchaser requested that a fine might be levied, which was not done. The ancestor was not evicted, but after his decease the heir was. Tile court held, that the heir could maintain the suit. After citing Fitzherbert, N. B., Writ of Covenant, p. 341, C, and the case of Sir Anthony Cooke, Dyer, 337, also reported in Anderson, 53, Justice Heath, in delivering the opinion of the court, refers to Kingdon vs. Nottle, in 1 Maule & Selw., 355, and says: “The court there follow the doctrine of Lucy vs. Levington, and they advert to the circumstance which differs that case from this, that there the ultimate damage was sustained in the time of the ancestor, and therefore the land did not descend to the heir.” From this it would appear, the English judges were not disposed to overrule the decision in Lucy vs. Levington. And if the case of Kingdon vs. Nottle, in principle, should be considered in conflict with it, an inclination to sustain the doctrine of the former decision has been manifested in Raymond vs. Fitch, 2 Crompt., Mees. & Ros., 596, and Ricketts vs. Weaver, 12 Mees. & Wels., 718.
Speaking of Kingdon vs. Nottle, Chancellor Kent does not assent to the correctness of the idea, that a covenant of seizin runs with the land and the assignee may sue, because want of seizin is a continuous breach. He says,- “ The reason assigned for this last decision is too refined to be sound. The breach is single, entire and perfect in the first instance.” 4 Kent’s Com., 472, marg’l p., (7th Ed.) See also Rawle on Cov., 284, 285, 289, and the cases referred to in note 4 on page 489.
[49]*49In 1 Parsons on Contracts, 109, we find it stated, that in covenants relating to the freehold, where the covenant is collateral or in gross, and the breach occurs either before or after the death of the covenantee, the personal representative must sue, and not the heir. But, “for the breach of a covenant which runs with the land, the heir must sue, if the breach occur after the covenantee’s death, the personal representative if it occur before.” This author then says, “the doctrine of a continuing breach, for which the heir or assignee may recover, if the ultimate and substantial damage is suffered by him, was established in England, by the case of Kingdon vs. Nottle, but it has not been adopted in this country.”
The plaintiff insists, that his right to recover is sustained by the later English decisions, but if not by them, it certainly is by the American authorities. And not only does he claim a right to some damages, but to the extent of the full value of the land at the time when it should have been conveyed. We do not think it necessary to decide whether that which, in argument, has been called the English doctrine, or that called the American doctrine, prevails in this State, because conceding to the plaintiff the full benefit of the latter, in our opinion he is not entitled to more than nominal damages, under the proof in the cause.
The case of Cannell vs. M’Clean, 6 H. & J., 297, has been very much relied upon by the plaintiff in support of his claim for damages to the value of the land. But that was a suit upon a bond, iff which Cannell, the defendant, bound himself to convey, on a particular day, to M’Clean the plaintiff, a lot of woodland. It does not appear that the latter ever had possession of or derived any benefit or advantage from the land. Nor did he receive any conveyance of the title.
In Dyer vs. Dorsey & Edelen, 1 G. & J., 440, Henry Anderson had sold to Campbell and Ritchie, a parcel of land, and H. H. Chapman, as their agent, sold the same to Dorsey, who sold, and by deed conveyed it to Dyer. Dorsey and Edelen, (the defendants,) entered into the agreement sued upon, by which they covenanted that during the month of [50]*50August, a deed should be executed to Dyer, for the purpose of conveying to him the title of Campbell and Richie, in the land; the defendants binding themselves to the performance of the covenant under the penalty of two thousand dollars. The price contracted to be paid by Dyer for the land was $2500. At the trial the plaintiff claimed the penalty of the bond, and asked an instruction to the jury, sustaining that view of the case. The court, however, refused the instruction, and held, that the sum which it might be necessary to pay for obtaining the title of Campbell and Ritchie, would furnish the true measure of damages, the proof of which was upon the plaintiff. And this ruling was affirmed in the Court of Appeals. The case of Cannell vs. M’Clean, was relied upon by the appellant, but Judge Archer in delivering the opinion of the court, says, “the value of the land at the time of the breach of the contract ought not, as has been contended, to constitute the measure of damages, for such a rule applied here, would work this injustice. The plaintiff would obtain the value of the land, and would moreover hold Dorsey’s right and title, having obtained a conveyance for the same, and would be left in possession of the land.” And after stating the circumstances, the judge adds, “these facts show how essentially this case varies from the case of Cannell vs. M’Clean.”
In Tanner vs. Livingston, 12 Wend., 83, 96, the defendant having in fact-only a life estate, but believing it to be in fee, conveyed the property with a covenant of seizin in fee. In a suit upon the covenant, it appeared that the plaintiff, from the date of the conveyance, had been in possession, and had the exclusive occupation and enjoyment of the premises. He was allowed by the court below to recover the consideration money, but without interest. For the purpose of reducing the amount of the verdict, the counsel for the defendant offered to prove the value of the life estates, but the court refused to permit him. This ruling was reversed in the Supreme Court; where they say, “the court however erred in not admitting the evidence of the value of the life estates, as the plaintiff’s title to that extent is valid.”
[51]*51So in Rickert vs. Snyder, 9 Wend., 416, in a suit on a covenant of warranty, the plaintiff having been ousted of a part of the premises by a party having superior title, but only for a term of years, the Supreme Court held, that the consideration money paid, and interest, could not be recovered, (according to the general rule in that State, in regard to damages for breaches of covenants relating to land titles,) but the annual value of the land, or the interest on the purchase money for the period of the term, together with the costs and counsel-fees of the plaintiff’s defence to the suit of the termor.
The cases referred to are quite sufficient to show, that the rule adopted in Cannell vs. M’Clean, in regard to the measure of damages, cannot with propriety be applied to such a case as this. Whenever suits are instituted for violations of contracts similar to this, in ascertaining the quantum of damages, such circumstances as will tend to show the real injury which the plaintiff has sustained, must be taken into consideration. The correctness of this position is very fully sustained by Mr. Sedgwick, in his work on the Measure of Damages, at page 180. He there says, “In regard to all the real covenants, although the courts have felt themselves bound to adopt the arbitrary rules which we have stated, as to the price paid, still the constant effort is to give compensation for what is actually lost, not to allow any remuneration for a mere technical breach of agreement; and in all cases to make the measure of damages correspond with the real injury sustained.” That the writer is justified in making this remark, will appear from the cases examined by him in several previous and subsequent pages.
When this principle is applied to the circumstances disclosed in the record before us, we think the plaintiff is shown to be entitled to nominal damages only.
The bond recites that, “Whereas the said William Adams having received full satisfaction from the said Elizabeth Rawlings, for the farm and lands thereunto attached, which he purchased of Caleb Stabler, as trustee of Joseph Bond’s [52]*52property, I bind myself, my heirs, executors and administrators, under the above named penalty, to execute a deed in fee-simple to the said Elizabeth Rawlings, her heirs and assigns; forever, and appoint James Rawlings their trustee.”
This instrument is dated the 1st of January 1844. According to the evidence, it appears the plaintiff and his wife had possession of the land continually, from some day prior to the date of the bond, until the death of the wife, which occurred in June 1846. After this statement of the proof, the third bill of éxceptions proceeds thus: “And that the said plaintiff has ever since remained in possession of said land, and that said plaintiff has been duly appointed guardian for his said son, and holds said land as guardian for his son, and at an occupation rent assessed thereon, under the order of the orphans court.” When the holding as guardian, and at a rent, commenced, does not appear.
The recital in the bond discloses or furnishes written evidence of a sale of the farm. Which farm, the proof shows, was then in the possession of the plaintiff and his wife. She then, under the contract as contained in the bond, had an equitable fee-simple estate in the premises. And this, as we must suppose, with the approbation and consent of the plaintiff; for he, it seems, with her, continued to hold the property until her decease; and after that he still remained in possession. Such an equitable estate in the wife, in possession, would have enabled husband and wife, during her life, to have prevented, by a proceeding in equity, any attempt on the part of William Adams, to dispossess them, by virtue of his legal title. And after the death of the wife, if Adams had made a similar attempt to dispossess the plaintiff, he, in virtue of his right, as tenant by the curtesy, in the equitable estate, would have been protected by a court of equity. Upon the decease of the wife, whatever estate she had in the premises, subject to the husband’s right as tenant by the curtesy, descended to her only child Benjamin Rawlings: and the devise to him by William Adams, his grandfather, could have no other effect but to pass to him the naked legal [53]*53title: that being all the estate remaining in Adams at the date of his will, and at the time of his decease. Consequently, under that devise, Benjamin Rawlings had no more authority to interfere with the possession of the plaintiff than the testator had. And therefore it was a voluntary act on the part of the plaintiff, when he relinquished his own possession, and took the farm, as guardian to his son, at an occupation rent.
Under such circumstances, admitting the plaintiff’s right to sue, and considering the failure to convey the naked legal title within a reasonable time after the contract, to have been a breach of the bond, what actual loss has been sustained to entitle him to more than nominal damages ?
Instead of perceiving any equitable circumstances in favor of this claim, it appears to us to be based, exclusively, upon a mere technical breach, resulting from a failure to convey the legal title, in due time, according to the condition of the bond.
William Adams executed the bond, binding himself to convey to his daughter a parcel of land in fee-simple: the daughter and her husband then in possession, and so continuing until her decease. After which the husband remained in possession until he became voluntarily, in the character of guardian to his son, a quasi tenant to the son ; the obligor in the bond having devised the land to that son, who was the sole heir at law of his mother, the obligee, to whom the land was to have been conveyed in fee. Up to this point the plaintiff had acquiesced in his wife’s right to the land under the bond. He had instituted no suit asserting his right, if he had any, to damages for a breach of the bond, either as surviving husband, or because he was entitled to the bond, from the time of its execution, by virtue of its provisions. There is no evidence of any such claim having been made, until the institution of this suit, in September 1851, nearly two years after the decease of William Adams, and after the assetts of his estate had been exhausted in the payment of debts and legacies. At least there is evidence tending to [54]*54show that such was the fact. It is true, the executor, in giving notice to the creditors to exhibit their claims, did not comply strictly with the requirements of the law, and consequently he would be responsible for the claim, if valid.
It has been said, that the widow of "William Adams is entitled to dower in this land, and even if the devise is to be considered in the light of performance or satisfaction, of the bond, it can only be so in part, because subject to the dower. But if the facts are correctly stated in the record, there is no such right of dower, because, before the marriage the land was sold. 1 Bright on Husband & Wife, 359. Lloyd vs. Lloyd, 2 Connor & Lawson, 599, 600, and 4 Drury & Warren, 370, 371.
In the previous part of this opinion we have spoken of the rights of the plaintiff as tenant by the curtesy. That a husband is entitled to curtesy in equitable estates of inheritance, in possession, will appear by reference to 1 Bright on Husband & Wife, 120, 135.
In consequence of the error in the first bill of exceptions, we reverse on that, but a procedendo will not be granted, because the plaintiff would not be entitled to recover more than nominal damages.
With our views on the subject, it is unnecessary to decide whether the court were right or not in granting the defendant’s prayer. It asked the court to instruct the jury, if they believed the facts as stated, the plaintiff could not recover any damages. If the prayer was erroneous to any extent, it could only be so, in our opinion, because the plaintiff had a right to nominal damages. And a reversal on that account would not induce us to send the case down for a second trial.
Judgment reversed,
but no procedendo awarded.