Williams, Ch. J.
The questions reserved for the consideration of the court, are, whether the defendants are personally liable upon the covenants of warranty in the deed ; and if so, what damages the plaintiff ought to recover.
In the deed, the defendants are described as warden and burgesses of the borough of Bridgeport, and convey the premises by virtue of a statute law of the state empowering them to sell highways. The covenants are in the usual form in deeds of warranty; and the grantors bind themselves and their successors, in their official capacity; and covenant, that, as warden and burgesses aforesaid, they have good right to bargain and sell the same; and that for themselves and their successors, they will warrant and defend.
The right of the defendants to sell lands owned by the borough for new highways, is admitted ; but the plaintiff claims, that as they have warranted the title, without any authority, they must be personally responsible. The defendants contend, that the authority under which they claimed to act, appears upon the deed, and that they acted as agents of the public officially, and this was known to the plaintiff, and so they are not bound personally. Many cases have been cited, which will not require a particular examination in this case.
As the defendants have shewn no law or vote authorizing them to covenant for the title of the land, they cannot place themselves on the ground of those who were acting within the scope of their authority, and therefore bound their principal; and as they have entered into special covenants, that class of cases depending upon simple contracts, particularly implied ones, will not require examination. On the other hand, we must consider these defendants as public officers, as it has been decided select-men are public officers. Tomlinson v. Leavenworth, 2 Conn. Rep. 292. We dismiss, threfore, the case of private agents, as not necessarily governing this.
The case presented, then, is one of public agents, by covenants under their own hands and seals, binding themselves to do certain acts, to which they could not bind any one else, having no authority from any one else to do these acts. The borough gave them no power, except such as was conferred upon them by their office. The statute gave them no power [252]*252but a power to sell. Whom, then, could they expect to bind, but themselves ?
It is said, that as it appears they were acting for the public, it cannot be presumed, that they meant to bind themselves; and that this is further shewn from the fact, that they say they bind themselves and their successors, in their official capacity. It is certain, that a covenant, though made in behalf of others, when signed and sealed by the defendants, may bind them. Appleton v. Binks, 5 East 148. And it must bind them, unless they can shew a clear intent that it should not, as was shewn in the case of Hodgson v. Dexter, 1 Cranch 345.; or unless personal responsibility is expressly excluded, as was the case in Thayer v. Wendell, 1 Gall. 48. and in Perry v. Hyde, 10 Conn. Rep. 329. That personal responsibility is here expressly excluded, is not pretended.
But it is claimed, that the whole frame of the deed shows a different intent. First, the consideration did not accrue to them. Then they claim to act officially, and to bind themselves, and not their heirs, but their successors. It is true, that the consideration did not benefit them. Neither did it the defendant, in the case cited from East, where he covenanted for Lord Rokeby, nor in Pell v. Stephens, where Pell, assignee of a bankrupt, promised, that if S. would withdraw a distress from the goods of the bankrupt, to pay out of the produce of the sale of the effects, and S. complied, but afterwards, the commission was set aside. Pell was held personally liable, both at law and in chancery. 4 Tyr. 6. 2 M. & R. 334. (8 Cond. Ch. Rep. 25.) And in cases of agency, this is usually, if not always, the case.
But it is said, they do this officially ; — they bind themselves and their successors; and that showed they could not have meant to be personally liable. Whom then, did they mean to bind? Was it the borough? There is not a word said importing any obligation upon it in the covenants. Indeed, the corporation is not alluded to, unless when they say, they bind themselves and their successors, officially. Did they, then, expect, or intend, to bind their successors? Certainly not, more than themselves; for they bind themselves and their successors, in their official capacity. We have no more evidence that they meant to bind their successors, than themselves. There is nothing that shows the intention to bind the [253]*253state, under whose laws they claim to sell; for they have no pretence of authority to warrant a title under that law, - When, then, we cannot find from the instrument, that there was any other person or body, that they intended to bind; how are the words of the covenant to be avoided ? We certainly must take into consideration the intention of both parties. It seems, indeed, that when the defendants are doing an act in which they have no personal interest, which, they say, they do officially, it can hardly be supposed they meant to bind themselves. On the other hand, when so many covenants are inserted, it cannot be supposed but that the parties intended by them something more than a mere release deed. The construction contended for, makes the covenant vain and useless. In such a case, unless the defendants can show a clear and decisive intention to the contrary, we see not why we must not give to the words of this covenant their full effect,
This is not the case of parties acting under apparent authority, which proved, unexpectedly, to be invalid ; as in the case of Perry v. Hyde, where parties acted under the apparent authority of the county court. It is not the case where a person acts under a vote of a corporation, but there is a secret vice behind the vote. We give no opinion in such a case. Here, nothing appears to lead us to suppose, that the parties were mistaken as to the extent of their powers, unless we are to infer it from the bare fact that the defendants have executed a warranty deed of lands, in a case where they had no personal interest. This may be improbable, but it is not more improbable than that the parties should have entered into solemn covenants, which they should have understood could have no operation whatever, and which were in effect a mere nullity.
Looking, then, at the words of these covenants, and finding them to be such as may bind the defendants ; and looking over the whole deed, and not being able to discover any such plain intent of the parties as will authorize us to say, that something else was intended than these words import; we feel bound to say, that the defendants did assume the responsibility of warranting this title, and must, therefore, be personally liable upon their covenants.
The next question is, as to the rule of damages. This suit [254]*254's brought upon the covenants of seisin and warranty; and ⅛ one of the counts, it is claimed, the plaintiff was evicted. -jyjjat then, js to he ,}le ru]e 0f damages ? Upon this subject, we need not go into the enquiry, what is the rule in England, or our sister states.
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Williams, Ch. J.
The questions reserved for the consideration of the court, are, whether the defendants are personally liable upon the covenants of warranty in the deed ; and if so, what damages the plaintiff ought to recover.
In the deed, the defendants are described as warden and burgesses of the borough of Bridgeport, and convey the premises by virtue of a statute law of the state empowering them to sell highways. The covenants are in the usual form in deeds of warranty; and the grantors bind themselves and their successors, in their official capacity; and covenant, that, as warden and burgesses aforesaid, they have good right to bargain and sell the same; and that for themselves and their successors, they will warrant and defend.
The right of the defendants to sell lands owned by the borough for new highways, is admitted ; but the plaintiff claims, that as they have warranted the title, without any authority, they must be personally responsible. The defendants contend, that the authority under which they claimed to act, appears upon the deed, and that they acted as agents of the public officially, and this was known to the plaintiff, and so they are not bound personally. Many cases have been cited, which will not require a particular examination in this case.
As the defendants have shewn no law or vote authorizing them to covenant for the title of the land, they cannot place themselves on the ground of those who were acting within the scope of their authority, and therefore bound their principal; and as they have entered into special covenants, that class of cases depending upon simple contracts, particularly implied ones, will not require examination. On the other hand, we must consider these defendants as public officers, as it has been decided select-men are public officers. Tomlinson v. Leavenworth, 2 Conn. Rep. 292. We dismiss, threfore, the case of private agents, as not necessarily governing this.
The case presented, then, is one of public agents, by covenants under their own hands and seals, binding themselves to do certain acts, to which they could not bind any one else, having no authority from any one else to do these acts. The borough gave them no power, except such as was conferred upon them by their office. The statute gave them no power [252]*252but a power to sell. Whom, then, could they expect to bind, but themselves ?
It is said, that as it appears they were acting for the public, it cannot be presumed, that they meant to bind themselves; and that this is further shewn from the fact, that they say they bind themselves and their successors, in their official capacity. It is certain, that a covenant, though made in behalf of others, when signed and sealed by the defendants, may bind them. Appleton v. Binks, 5 East 148. And it must bind them, unless they can shew a clear intent that it should not, as was shewn in the case of Hodgson v. Dexter, 1 Cranch 345.; or unless personal responsibility is expressly excluded, as was the case in Thayer v. Wendell, 1 Gall. 48. and in Perry v. Hyde, 10 Conn. Rep. 329. That personal responsibility is here expressly excluded, is not pretended.
But it is claimed, that the whole frame of the deed shows a different intent. First, the consideration did not accrue to them. Then they claim to act officially, and to bind themselves, and not their heirs, but their successors. It is true, that the consideration did not benefit them. Neither did it the defendant, in the case cited from East, where he covenanted for Lord Rokeby, nor in Pell v. Stephens, where Pell, assignee of a bankrupt, promised, that if S. would withdraw a distress from the goods of the bankrupt, to pay out of the produce of the sale of the effects, and S. complied, but afterwards, the commission was set aside. Pell was held personally liable, both at law and in chancery. 4 Tyr. 6. 2 M. & R. 334. (8 Cond. Ch. Rep. 25.) And in cases of agency, this is usually, if not always, the case.
But it is said, they do this officially ; — they bind themselves and their successors; and that showed they could not have meant to be personally liable. Whom then, did they mean to bind? Was it the borough? There is not a word said importing any obligation upon it in the covenants. Indeed, the corporation is not alluded to, unless when they say, they bind themselves and their successors, officially. Did they, then, expect, or intend, to bind their successors? Certainly not, more than themselves; for they bind themselves and their successors, in their official capacity. We have no more evidence that they meant to bind their successors, than themselves. There is nothing that shows the intention to bind the [253]*253state, under whose laws they claim to sell; for they have no pretence of authority to warrant a title under that law, - When, then, we cannot find from the instrument, that there was any other person or body, that they intended to bind; how are the words of the covenant to be avoided ? We certainly must take into consideration the intention of both parties. It seems, indeed, that when the defendants are doing an act in which they have no personal interest, which, they say, they do officially, it can hardly be supposed they meant to bind themselves. On the other hand, when so many covenants are inserted, it cannot be supposed but that the parties intended by them something more than a mere release deed. The construction contended for, makes the covenant vain and useless. In such a case, unless the defendants can show a clear and decisive intention to the contrary, we see not why we must not give to the words of this covenant their full effect,
This is not the case of parties acting under apparent authority, which proved, unexpectedly, to be invalid ; as in the case of Perry v. Hyde, where parties acted under the apparent authority of the county court. It is not the case where a person acts under a vote of a corporation, but there is a secret vice behind the vote. We give no opinion in such a case. Here, nothing appears to lead us to suppose, that the parties were mistaken as to the extent of their powers, unless we are to infer it from the bare fact that the defendants have executed a warranty deed of lands, in a case where they had no personal interest. This may be improbable, but it is not more improbable than that the parties should have entered into solemn covenants, which they should have understood could have no operation whatever, and which were in effect a mere nullity.
Looking, then, at the words of these covenants, and finding them to be such as may bind the defendants ; and looking over the whole deed, and not being able to discover any such plain intent of the parties as will authorize us to say, that something else was intended than these words import; we feel bound to say, that the defendants did assume the responsibility of warranting this title, and must, therefore, be personally liable upon their covenants.
The next question is, as to the rule of damages. This suit [254]*254's brought upon the covenants of seisin and warranty; and ⅛ one of the counts, it is claimed, the plaintiff was evicted. -jyjjat then, js to he ,}le ru]e 0f damages ? Upon this subject, we need not go into the enquiry, what is the rule in England, or our sister states. We consider the rule to have been long since settled in this state, that upon the covenant of seisin, the plaintiff has a right to recover the consideration money, and the interest, and on the covenant of warranty, the value of the land, at the time of eviction. This, says Judge Swift, has been the immemorial usage in Connecticut, 1 Sw, Dig. 673. It was expressly recognized, by the superior court, in Horsford v. Wright, Kir. 3., and acted upon ever-since. Mitchell v. Hazen, 4 Conn. Rep. 516. It is too late at this time, for the court to give a new construction to contracts, which have been made with reference to a long settled course of decisions, acquiesced in for more than half a century. We think, too, that when the warrantor has beep vouched in to defend his title, the costs which the plaintiff has actually been put to, is also a fair ground of damages.
It is said, however, here, that the plaintiff has not been evicted, and so he cannot recover upon the covenants of warranty.
The facts alleged in this count show, that the plaintiff, being in possession of the granted premises, an action of trespass was brought against him, by a person claiming title ; that the title of the plaintiff, then defendant, was distinctly put in issue, and a verdict found against him, and a judgment rendered; upon which, the plaintiff in that suit took possession of the premises. We see not why this is not a legal eviction ; and the party who was found not to have title, was no more bound to wait for an action of ejectment, than after the termination of such action, he was bound to wait for the sheriff to turn him out of possession. In another case, the verdict of the jury has settled the question of title. When the plaintiff in that suit has got possession under, or in consequence of, such verdict, we see no reason, and we know no rule, which will require the defeated party to continue useless litigation. The law having settled the title, he need not wait for its officers to enforce the sentence ; and it is not for the court to discourage a ready acquiescence in its decisions. We think, thereforer [255]*255that the plaintiff may elect to take judgment upon either cove-Rant, upon these principles; and so we advise the 1 court.
In this opinion the other Judges concurred, except Sherman, J., who gave no opinion, having been of counsel in a former stage of this controversy.
Judgment for the plaintiff.