Thomas B. Comings versus Charles C. Little et al., 24 Pick. 266

Wilde J. afterward drew up the opinion of the Court. The defendants are sued on their covenant of seisin, and that against incumbrances, contained in the deed of conveyance from them to the plaintiff; and breaches of both covenants are duly assigned.

There has been, however, no breach of the covenant of seisin, according to the facts agreed; but it is admitted that at the time of the conveyance to the plaintiff, there was an outstanding mortgage of the premises from Hilliard, one of the defendants, to Timothy Frye, to secure a debt to Frye ; and there was also a further condition in such mortgage, that Hilliard shoidd indemnify Frye from certain liabilities he was under to one Davis.

It is agreed, that the defendants have never redeemed this mortgage, and that the plaintiff, before the commencement of this action, did pay off the sum of $ 767 to Frye, and thus far redeemed the mortgage. This amount the plaintiff is entitled to recover, if the defendants are jointly liable on their covenant. It is objected, that the covenants of the defendants are to be taken distributively, and that the action should have been brought against Hilliard alone. But this objection cannot be maintained. The distinction is this.

Where a man covenants with two or more jointly, and the interest and cause of action of the covenantees is several, each of the covenantees may bring an action for his particular damage, notwithstanding the words of the covenant are joint. But where two persons covenant jointly with another, a joint action lies for the covenantee on a breach of the covenant by one of the covenantors only; because they are sureties for each other for the due performance of the covenant. 1 Wms’s Saund. 154, note.

As to the plaintiff’s claim of further damages on account of the defendants’ neglecting to remove the incumbrance in favor of Davis, and thereby to relieve Frye from his liability to him, the plaintiff is not entitled to recover any damages there for, as the defendants did not covenant to remove that incum brance, hut only to indemnify Frye from his liability thereon and he has not yet been damnified. Defendants defaulted.