But if we suppose a case where land is conveyed with warranty, the grantor and grantee both believing the title to be good, and there is no taint or suspicion of fraud, and the land rises greatly in value, either by the increased worth of real estate in that vicinity, or by expensive improvements made by the grantee, and then the grantee is ousted and comes on the warranty against the grantot, the question arises, What is the compensation to which the plaintiff is entitled? It is obvious that an error has been made by which some innocent party must lose much; and it cannot be said that this error is to be imputed as a wilful fault to one party more than to the other. If the covenantor is bound to make good the value of all that the grantee loses, "no man, * says Kent, "could venture to sell an acre of ground to a wealthy purchaser, without the hazard of absolute ruin, "(m) But, if not, the innocent grantee may lose by a failure of a title, for the warranty of which he had paid a valuable consideration, the greater part of the value of his estate. In some States the value of the estate at the time of the conveyance is the measure of damages; and where this value determines the assessment of damages, it is itself determined, generally at least, by the amount of the consideration paid, with interest But if mesne profits have been received by the grantee, they will, in general, be held equivalent to the interest; and then no interest will be allowed to the grantee, or only that which is commensurate with his liability for the mesne profits to the holder of the paramount title; and therefore he can recover interest only for six years, (n) In some * States the value of the land at the time of the eviction is the measure of damages. (o) There seem to be intima(g) Staats v. Ten Evck, 3 Caines, 111; Bickford v. Page, 2 Mass. 455; Marston v Hobbs, 2 id. 433; Caswell v. Wendell, 4 id 103; Smith v. Strong, 14 Pick. 128; Stubbs v. Page, 2 Greenl. 378; Mitchell o. Hazen, 4 Conn 495; Weiting ». Niss-ley, 13 Pa. 650, 655; Seamore v. Harlan, 3 Dana, 415; Martin v. Long, 3 Mo. 391; Clark v. Parr, 14 Ohio, 118. See also Parker v. Brown, 15 N. H. 176; Cox v. Strode, 2 Bibb, 273; Bibb v. Freeman, 59 Ala. 612; Hartford, etc. Co. v. Miller, 41 Conn. 112; Weber v Anderson, 73 111. 439; Zent v. Picken, 54 la. 535. In an action for the breach of this covenant, damages cannot be recovered for improvements, or the increased value of the land.

Staafey.Ten Eyck, 3Caines. Ill; Pitcher v. Livingston, 4 Johns. 1; Bennet v. Jenkins, 13 Johns. 50; Bender v. Fromberger, 4 Dall. 436; Weiting v. Nissley, L3 Pa. 650.

(h) Tanner v. Livingston, 12 Wend. 83; Spring v. Chase, 22 Me. 505; Lef fingwell v. Elliott, 8 Pick, 455, 10 id. 204; Loomis v. Bedel, 11 N. H. 74, 87.

(I) Baxter v. Bradbury, 20 Me. 260.

(j) Cornell v. Jackson, 3 Cush. 506.

(k) Rawle on Covenants for Title, 182, 339.

(l) Gray v. Briscoe, Nov, 142; Pin-combe v. Rudge, Yelv. 139, Hobart, 3, and note, in Williams's edition.

(m) Staats v. TenEyck, 3 Caines, 114, 115.

(n) Where the value of the land at the time of the conveyance is taken into account in assessing damages, that value is in general determined by the amount of the consideration paid, and interest is allowed on that sum; but if mesne profits have been received by the grantee, those will be held equivalent to the interest, and, in that case, the allowance of interest to the grantee will only be commensurate with his liability for the mesne profits to the bolder of the title paramount; that is, he can, in general, recover interest for six years only. Bennet v. Jenkins, 13 Johns. 50; Staata v. Ten Eyck, 3 Caines, 111; Baxter v. Ryerss, 13 Barb. 267; Clark v. Parr, 14 Ohio, 118. The amount of the consideration-money with interest has been held to be the measure of damages, in New York • Pitcher v. Livingston, 4 Johns. 1; Bennet v. Jenkins, 13 id. 50; Kinney v. Watts, 14 Wend. 38; Kellv v. Dutch Church of Schenectady, 2 Hill, 105, 115; Baxter o. Ryerss, 13 Barb. 267;-in Pennsylvania: Brown v. Dickerson, 12 Pa. 372; Bender v. Fromberger, 4 Dall. 436, 441; King v. Pvle, 8S. & R. 166; - in New Jersey: Holmes v. Sinnickson, 3 Green, 313; Stewart v. Drake, 4 Halst. 139,142;- in Virginia: Stout v. Jackson, 2 Rand. 132; Threlkeld t>. Fitzhngh, 2 Leigh, 451, 463; Jackson ». Turner, 5 id. 119; Haffey v. Birchetts, 11 id. 83, 88; contra, Mills v. Bell, 3 Call, 320; - in South Carolina: Furman e. Elmore, 2 Nott & McC. 189; Wallace v. Talbot, 1 McCord, 466, 468; Pearson ». Davis, 1 McMullan, 37; contra. Liber v. Parsons, 1 Bay, 19; Witherspoon v. Anderson, 3 Desaus. 245; - in North Carolina: Phillips v. Smith, 1 Car. Law Repos. 475; Wilson v. Forbes, 2 Dev. 30; - in Ohio • King v. Kerr, 5 Ohio, 154; foote v. Burnet, 10 id. 317; Clark v. Parr, 14 id. 118; - in Georgia: Davis v. Smith, 5 Ga. 274; - in Kentucky: Cox v. Strode,

2 Bibb, 273; Hanson v. Buckner, 4 Dana, 251; Pence v. Duvall, 9 B. Mon. 48; -in Tennessee: Shaw v. Wilkins, 8 Humph. 647, 651, per McKinney, J.

(o) This is the rule adopted in Massachusetts: Gore v. Brazier, 3 Mass. 523; Bigelow v. Jones, 4 id. 512; Norton v. Babcock, 2 Met. 510; White v. Whitney,

3 id. 81, 89; -in Maine: Cushman v. Blanchard, 2 Greenl. 266, 268; Swett v. Patrick, 3 Fairf. 9; Hardy v. Nelson, 27 Me. 525; Elder r. True, 32 id. 109; - in Connecticut: Horsford v. Wright, Kirby, 3; Stirling ». Peet, 14 Conn. 245;-in Vermont * Drury u. Shumwav, 1 D. Chip. Ill; Parke v. Bates, 12 Vt. 387. The question, although raised, is undecided in New Hampshire and in Indiana. Loomis v. Bedel, 11 N. H. 74, 87; Black well v. Justices of Lawrence Co. 2 Blackf. 143, 147. See Rawle on Cov. for Title, p. 319 etaeq. (2d edition); 4 Kent, Com. 474-480; 2 Greenl. Ev. § 264. In Louisiana the Question has been much discussed, and different rules have prevailed, under the codes of 1808 and 1825. See Bissell v Erwin, 13 La. 147; Edwards v. Martin, 19 id. 294; Mofris v Abat, 9 id. 552; 13 id. 148, note. The question was thoroughly discussed in the late case of Burrows v. Peirce, 6 La. An. 297, and it was held. Host, J., dissenting, that the increased value at the time of eviction ought not to be recovered. The grantee is also tions of a distinction between the increased worth by a rise in the market value of the land, which has cost the grantee nothing, and that increase caused by his expenditure in affixing valuable buildings or other improvements to the land.1 And there are some reasons in favor of allowing to the grantee, as damages, the latter kind of increase, but not the former, (p) It has also been held, that the purchase-money with interest, forms the absolute measure of the damages.(q)2 If the failure of title * extend only to a part of the land, the question has been raised whether the damages should be recovered for the whole land, or for part only, and then whether the proportion which the quantity of the land lost by the failure bears to the whole should be considered, or the proportion which its value bears; but the principle of compensation prevails, and it may be considered as established, that the part only of the land of which the title has failed, is to be paid for,(r) and that in proportion to its value and not its mere quantity, (s) entitled to recover the costs of the suit by which he has been evicted. Pitcher v. Livingston, 4 Johns. 1; Baxter v. Ryeras, 13 Barb. 267; Holmes v. Sinnickson, 3 Green (N. J.), 313; Cushman v. Blanch-ard, 2 Greenl. 266; Swett v. Patrick, 8 Fairf. 9.