1For the old forms of covenants, with short statutory equivalents, see N. Y. R, P, L, § 223. - Ed.
In relation to principles so well established, one or two modern decisions in Westminster Hall in opposition to them, however they might there be regarded, ought not here to be considered as of any authority. Such decisions have been cited. The first of them is the case of Kingdon exr. v. Nottle, 1 Mau. & Selw. 355. The defendant had conveyed to Richard Kingdon, the testator, certain property, and covenanted that he was seised of it, and had good right to convey. It was averred as a breach, that he was not seised of the premises; and the court adjudged, that the executor could not sue on the covenant, without showing special damage to the testator, but that the heir might. It was said by Lord Ellenborough, that "the covenant, it was true, was broken, but that there was no damage sustained in the testator's life-time." To this observation of that learned and able judge I cannot subscribe. The covenant being broken the instant it was made, the damage, most obviously, was the whole consideration paid; and I am at a loss to conceive what other or further damage could arise. In the surrounding States, as well as in our own, it is unquestionably established, that the damage is the consideration paid; and that this is immediate on the delivery of the deed. This, then, is the first objection to the determination, that whatever may be the law of Westminster Hall, the damage, in the case alluded to, is justly considered as not nominal, but real, and indeed all that the party can experience. It is the whole consideration paid. This principle alone shows, that the determination in Kingdon v. Nottle, is inapplicable to us; and it likewise authorizes the assertion that Lord Ellenborough and his associates, had they resided in Connecticut, and there pronounced their opinion, would have decided the case before them differently from what they have. To the determination in Kingdon v. Nottle there is a sound objection. It is opposed to principles, uniformly, and for centuries, established in Westminster Hall. It was said by Lord Ellenborough, in the case alluded to, that "if the executor could recover nominal damages, it would preclude the heir, who is the party actually damnified, from recovering at all!" The force of this reasoning depends entirely on the assertion that the heir is "the party actually damnified;" and if this is an incorrect position, the argument wholly fails. Now, it is not true, that the heir is the party damnified. The damages arise entirely by the breach of the covenant in the lifetime of the testator; and the testator is the only person who receives damage. Thus were all the determinations before the last mentioned decision. To this effect was Lewis v. Ridge, Lucy v. Levington, and the law was laid down in Comyn's Digest; and not a case or dictum was there to the contrary. Indeed, the admission of Lord Ellenborough, that the covenant was broken in the lifetime of the testator, most conclusively shows that the heir was not damnified. His own damage must result from his title to the land, and not from the covenant broken, to which he was no party. Now, as to the land, the heir never had title; nor had his ancestor. The complaint is, that the grantor was not seised, and had conveyed no title. How, then, is it possible, that the heir should inherit land, to which his ancestor had no title? If, then, he had no title to the estate supposed to be conveyed, and he was no party to the covenant, and the breach happened before his ancestor's death, what is the ground of his claim? In my opinion, none. On the other hand, as the covenant was broken in the testator's lifetime, and the damage resulting from the breach was due to him; after his death, his executor, standing in his place, had the right of suit. For the principle is incontrovertible, that where the testator can maintain covenant in his lifetime, on a cause of action then existing, his executor may support the same action after his death. 1 Swift's Dig. 371; Toll, Ex. 158, 432.
Another writ of covenant was brought by Kingdon, as devisee, against Nottle (4 Mau. & Selw. 53) upon the covenant of seisin before mentioned, on the ground that the covenant ran with the land, and that the breach happened to the devisee. Consistently with the former determination, the court decided in favor of the plaintiff. It required some ingenuity to sustain an action on a covenant, for a breach happening in the time of the testator, before the devisee (the plaintiff), could have any interest in the covenant; and more especially, as no special damages were laid. For it was not stated in the case, that the plaintiff was, at any time interrupted, or disturbed in the enjoyment of the premises; or that he sustained any damages, by the breach of covenant, in the testator's lifetime. Accordingly, this point was met, by Lord Ellenborough, who said: "The covenant passes with the land to the devisee, and has been broken in the time of the devisee; for so long as the defendant has not a good title, there is a continuing breach, and it is not like a covenant to do an act of solitary performance, but it is in the nature of a covenant to do a thing toties quoties, as the exigency of the case may require." From this opinion I am compelled to dissent in omnibus. First, I affirm, that the novel idea attending the breach in the testator's lifetime, by calling it "a continuing breach," and therefore a breach to the heir or devisee at a subsequent time, is an ingenious suggestion, but of no substantial import. Every breach of a contract is a continuing breach, until it is in some manner healed; but the great question is, to whom does it continue as a breach? The only answer is, to the person who had title to the contract when it was broken. It remains, as it was, a breach to the same person, who first had a cause of action upon it. If it be anything more, it is not a continuing breach, but a new existence. In the next place, I assert, that it is like a covenant to do an act of solitary performance; and for this plain reason, that it is, in its nature, a covenant for a solitary act, and not a successive one. If the covenant is broken, that is, if the grantor was not seised, it is infracted to the core; and a second supposed breach is as futile as the imaginary unbroken existence of a thing dashed in pieces. It has no analogy to a covenant to do a future act, at different times, which may undergo repeated breaches. It has no futurition; and cannot be partly broken and partly sound; but the grantor is seised or not seised; and therefore, the covenant is inviolate, or violated wholly. Not further to pursue the subject, I remark, that, in my judgment, the case of Kingdon v. Nottle may justly be said to authorize the assignment of a chose in action by devise; a supposition as unfounded as it is novel.