in New York upon such an instrument must be an, cretion of the said Starr, and to take the ceraction appropriate to unsealed instruments. Therefore, where a deed was executed with a scroll in Wisconsin, which contained a covenant of seisin, and an action was brought in New York for a breach of this, it was properly an action of assumpsit, and not covenant. It was not necessary in the declaration to allege an eviction, because the covenant was broken as soon as made. Where a power of attorney authorized the agent "to contract for the sale of, and to sell, either in whole or in part, the lands and real estate so purchased," and "on such terms in all respects as he shall deem most advantageous," and "to execute deeds of conveyance necessary for the full and perfect transfer of all our respective right, title, etc., as sufficiently in all respects as we ourselves could do personally in the premises," these expressions, aided by the situation of the parties and the property, the usages of the country on such subjects, the acts of the parties themselves, and any other circumstance having a legal bearing upon the question, must be construed as giving to the agent the power to enter into a covenant of seisin. Some of the general rules stated for the construction of powers. THE HIS case was brought up by writ of error up writ On the 31st of August, 1836, Jacob Le Roy and Charlotte D. Le Roy, citizens of the State of New York, executed the following power of attorney: "Know all men by these presents, that we, Jacob Le Roy and Charlotte D. Le Roy, his wife, of the town of Le Roy, in the County of Genesee, and State of New York, have constituted and appointed, and by these presents do constitute and appoint, Elisha Starr, of the same place, our true and lawful attorney, for the purposes following, to wit: In the name of the said Jacob Le Roy, and for his use and benefit, to expend and invest certain moneys for that purpose herewith placed by him in the hands of the said Starr, in the purchase of lands and real estate in some of the Western States and territories of the United States, at the dis Covenant of seisin, when broken, and when not. Measure of damages for breach of same. The covenant of seisin is broken, if the covenantor has not the possession, the right of possession, and the right of legal title. Bradshaw's case, 9 Co. 60; Wotton v. Hele, 3 Saund. 181 c, note; Pollard v. Dwight, 4 Cranch, 421, 430; Duvall v. Craig, 2 Wheat. 62; McCarty v. Leggett, 3 Hill. 134 2 Hillyard on Real Property, 372, 382, 2d ed. Where grantor holds under a deed, which is not void, but only voidable, as the deed of a non compos not under guardianship; or, where he has exclusive possesion, claiming a fee, adversely to the owner; or, where he claims under a deed from one having no right to convey, and enters under color, though not by virtue of such deed, and acquires a seisin by disseisin of the prior owner, the covenant of seisin is not broken. Wait v. Maxwell, 5 Pick. 217; Marston v. Hobbs, 2 Mass. 433: Bearce v. Jackson, 4 Man. 408; Smith v. Strong, 14 Pick. 132; Baxter v. Bradbury, 7 Shepl. 260; Spring v. Chase, 9 Shepl. 905. In New Hampshire, a mere right of entry in the grantor has been held to sustain the covenant of seisin. Willard v. Turtchell, 1 N. H. 177. Where land is definitely described, it is no breach of the covenant that grantor owns less number of acres than that estimated in deed. Mann v. Pearson, 2 Johns. 37. But it is a breach of the covenant of seisin, if covenantor is not seized of the entire fee, but only of an undivided portion. Sedwick v. Hollenback, 7 Johns. 376. There is a distinction between the covenant of seisin and that of a "perfect, absolute and indefeasible estate of inheritance in fee-simple." A tificates, titles, deeds, or other evidences of such ས tenancy by the curtesy, the tenant being in possession, is a breach of the latter covenant, but not of the former. Smith v. Strong, 14 Pick. 132; Garfield v. Williams, 2 Vt. 327; Lockwood v. Sturdevant, 6 Conn. 373. A seisin by wrong, or of an estate less than a fee, is a breach of the covenant of seisin. This covenant is not the same with that of "a good right to convey." The latter is a covenant for title, and requires "the very estate in quantity and qual|ity" which is agreed for. Richardson v. Dorr, 5 Vt. 19; 2 Id. 337. In Connecticut, the covenant of seisin is held to require a lawful seisin. Mitchell v. Warner, 5 Conn. 497. The covenant of seisin has reference to the time of conveyance. No subsequently acquired title is a fulfillment of it. If broken at all, it is so the instant it is made. Abbott v. Allen, 14 Johns. 248; McCarty v. Leggett, 3 Hill, 134; 2 Hilliard, Real Property, 374, 2d ed.; Gilbert v. Bulkley, 5 Conu. 262; Morris v. Phelps, 5 Johns. 49; 2 Saund. 171: 3 T. R. 186; 4 East, 507. Where the covenant is of seisin in fee-simple, and the covenantor has only a copyhold in fee, the covenant is broken, and the measure of damages is the difference in value of a fee-simple and a copyhold. So where husband and wife convey, and the latter is an infant and dies, it is a sufficient breach of the covenant of a right to convey, to allege this fact, and that her right has descended to a minor heir, and that the estate is devested from the plaintiff. Gray v. Riscoe, Noy. 142; Nash v. Ashton. Jones, T. 195. The covenant of seisin is not broken by any outstanding equity, or equitable lien, as, for instance, a mortgage or judgment, or the expectant right of Howard 8. "Sealed with our seals, and dated this 31st reversion and reversions, remainder and reday of August, 1836. "Jacob Le Roy, [L. S.] "Charlotte D. Le Roy. [L. S.] "In presence of—” This power was regularly acknowledged. On the 7th of November, 1836, Starr executed the deed which was the subject of the present controversy, viz.: mainders, rents, issues, and profits thereof. And all the estate, right, title, interest, claim, or demand whatsoever, of the said party of the first part, either in law or equity, of, in, and to the above bargained premises, with the hereditaments and appurtenances; to have and to hold the said premises as above described, with the appurtenances, unto the said party of the second part, and to his heirs and assigns, to their "This indenture, made this 7th day of No- sole and only proper use, benefit, and behoof, vember, in the year of our Lord 1836, between forever. And the said parties of the first part, Jacob Le Roy and Charlotte D. Le Roy, wife by their attorney, as aforesaid, for their heirs, of said Jacob, both of Le Roy, Genesee County, executors, and administrators, do covenant, State of New York, by Elisha Starr, now of grant, bargai✩, and agree, to and with the said Milwaukee, in the Territory of Wisconsin, party of the second part, and his heirs and astheir lawful attorney, parties of the first part; signs, that, at the time of the ensealing and deand William Beard, of Newtown, Fairfield livering these presents, we are well seized of the County, and State of Connecticut, party of the premises above conveyed, as of a good, sure, second part, witnesseth: that the said party of perfect, absolute, and indefeasible estate of inthe first part, for and in consideration of one heritance in the law in fee-simple, and have thousand eight hundred dollars in hand paid good right, full power, and lawful authority to by the said party of the second part, the receipt grant, bargain, sell, and convey the same in whereof is hereby acknowledged, have granted, manner and form as aforesaid. And that the same bargained, sold, remised, released, aliened, and are free and clear of all incumbrances, of what confirmed, and by these presents do grant, bar-kind and nature soever. And that the above gain, sell, remise, release, alien, and confirm, bargained premises, in the quiet and peaceable 453*] unto the said party of the *second possession of the said party of the second part, part, and to his heirs and assigns, forever, one his heirs and assigns, against all and every percertain piece or parcel of land, situated in the son or persons lawfully claiming or to claim town of Milwaukee, and territory of Wiscon- the whole or any part thereof, they will forever sin, viz.: One equal undivided acre of land, in warrant and defend. fifty-seven and sixty hundredths acres, said fifty-seven and sixty hundredths acres being in township lot number three of the southeast fractional quarter of section number thirty-two in said township seven, north of range twentytwo east, it being part of the same tract of land conveyed to us by Levi C. Turner, of Cooperstown, Otsego County, State of New York, as per his deed, bearing date the 28th day of April, 1836; together with all and singular the hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and the a wife to dower her husband being living. Backus' Adm'r, etc. v. McCoy, 3 Ohio, 218; Wheeler v. Hatch, 3 Fairf. 389: Fitzhugh v. Crogham, 2 J. J. Marsh. 430; Sedgwick v. Hollenback, 7 Johns. 376, 380: 16 Johns. 254 Rawle, Covenants for Title, 63, 64; Tuite v. Miller, 10 Ohio, 383. "In witness whereof, the said parties of the first part have hereunto set their hands and seals, the day and year first above written. "Jacob Le Roy, [L. S.] "By Elisha Starr, his Attorney. "Charlotte D. Le Roy, [L. S.] "By Elisha Starr, her Attorney. "Sealed and delivered in presence of "Hans Crocker, "David V. B. Baldwin." *This deed was regularly acknowl- [*454 edged and recorded in Wisconsin. that. Mott v. Palmer, 1 N. Y. 564; West v. Stewart, 7 Burr. 122; Rawle, Cov. for Title, 64. A want of title, according to the covenant of seisin, breaks it and gives an immediate right to action. McCarty v. Leggett, 3 Hill, 134; Bingham v. Weiderway, 1 N. Y. 509; Fitch v. Baldwin, 17 Johns. 171; Rawle, Cov. for Title, 57. Measure of damages on breach of covenant of seisin. It is no breach of the covenants of seisin and a right to convey, that a highway passes over the land. The owner of the land has the fee, or right | to the soil, subject to the public use. Cooke v. Upon the covenant of seisin the measure of damGreen, 11 Price, 736; 1 Rolle's Abr. 392, B.; 2 ages is the consideration paid with interest. 2 Inst. 705; Lade v. Shepherd, Str. 1004 Grose v. Hilliard on Real Property, 385, 2d ed.; Horsford v. West, 7 Taunt. 39; Goodtitle v. Alker, 1 Burr. 133, Wright, Kirby, 3; Castle v. Peirce, 2 Root, 294; 143; Cortelyou v. Van Brunt, 2 Johns. 357; Jack-Mitchell v. Hazen, 4 Conn. 495; Nelson v. Matson v. Hathaway, 15 Johns. 447; Makepeace v. thews, 2 Hen. & M. 177: Mills v. Bell, 3 Call. Worden, 1 N. H. 16; Peck v. Smith, 1 Conn. 103; (Va.) 322; Stout v. Jackson, 2 Rand. 132; ThuelWitter v. Harvey, 1 McCord, 67; 3 Md. L. 83; keld v. Fitzhugh, 2 Leigh, 451. Com. v. Peters, 2 Mass. 127; Paley v. Chandler, 6 Mass. 454; Fairfield v. Williams, 4 Mass. 427; Stackpole v. Healey, 16 Mass. 33; Robbins v. Borman, 1 Pick. 122; McDonald v. Lindall, 8 Rawle, 495; Whitbeck v. Cook, 15 Johns. 483; Mayor, etc. v. Steamboat, etc. Charlt. 342; Nicholson v. Stockett, 1 Walk. 67; Matter of John and Cherry Streets, 19 Wend. 659; Doe v. Pearsy, 7 B. & C. 304; Dygert v. Schenck, 23 Wend. 446; Trustees, etc. v. Auburn, etc. 3 Hill, 567: Union, etc. v. Robinson, 5 Whar. 18; Wooster v. Butler, 13 Conn. 309; Rowe v. Granite, etc. 21 Pick. 344; Bosley v. Susquehanna, 3 Bland, 67; Leavitt v. Towle, 8 N. H. 96; 2 Hill, Real Property, 37; Rawle on Covenants for Title, 63; Lewis v. Jones, 1 Burr, 336. If a fence, or a building, on the premises, which is part of the realty, does not belong to the covenantor, the covenant of seisin is broken, as to The measure of damages on the breach of the covenant of seisin is the value of the lands at the time of the sale, and the best estimate, and the only one generally taken, of this, is found in the consideration money paid, and to counterbalance the claim for mesne profits it is deemed proper to allow interest upon this amount whenever they could properly be recovered by the paramount owner. 4 Kent, 475; Rawle on Covenants for Title, 71, 73. It was the land and its price at the time of the sale which the parties had in view, and to that subject the operation of the contract ought to be confined. Decisions to this effect may be found in nearly every State in the Union in which the covenant for seisin is employed. Some of them are: Marston v. Hobbs, 2 Mass. 433; Caswell v. Wendell, 4 Mass. 108; Smith v. Strong, 14 Pick. 128; Stubbs v. Page, 2 Greenl. 376; Leland v. Stone, 10 "Newtown, August 28, 1838. There were three persons, viz., Nichols, Bald- a letter three days ago from that place, but not win, and Beard, engaged in making purchases a word is said about any trouble, and I have from Starr, each upon his own account, and therefore come to the conclusion your agent the following letters were read upon the trial. has been hoaxed; the whole statement carries They are inserted because the opinion of the on the face of it an absurdity. Admitting that court lays some stress upon the actions of the anything had occurred as you state, have not parties. the United States received the same amount *there from their land as they have else- [*455 where? Do you imagine that Congress would allow_innocent persons to suffer in a case of that kind? I have written to Milwaukee by this day's mail to ascertain if there is any difficulty, and in the interim would beg you to keep easy in mind, for you may rest assured that your title will never be disturbed. "Respectfully, yours truly, "Jacob Le Roy, Esq.: "Dear Sir-I take the liberty of forwarding to you the following information, by advices lately received from my attorney at Milwaukee. I learn that the title of the property I purchased of you in Milwaukee, 'in November, 1836, has failed, in consequence of the Indian title not being extinguished when the property was floated. I further learn that the receiver or land officer has been directed to refund the purchase money to the original purchaser, and that the subject has been before the Solicitor of the Treasury, and he has directed that the property belongs to the government, and that an appeal was taken from his decision to the Secretary of the Treasury, who confirmed the decision. "If so, you are doubtless aware that, upon your covenants of warranty, you are liable to refund to me the purchase money, which I shall expect you to do, together with the interest on the same. If a deed of release or quitclaim will be of any service to you, you can have one when the money is refunded. "I shall be happy to hear from you on the receipt of this, and any proposition you may have to make regarding the premises will be duly considered. (Signed) "Your obedient servant, "Theophilus Nichols." "Le Roy, 2d September, 1838. "Dear Sir-I received last evening yours of the 28th, and the contents surprised me not a little, that I, who held large possessions in Milwaukee, and in constant communication with that place, should receive the first intelligence of so great a misfortune from you. I received Mass. 459; Mitchell v. Hazen, 4 Conn. 495; Sterling v. Peet, 14 Conn. 234; Whiting v. Nissly, 1 Harr. Pa. 655; Tapley v. Lebeaum's Ex'rs, 1 Mo. 550; Martin v. Long, 3 Mo. 391; Wilson v. Forbes, 2 Dev. 30; Logan v. Moulder, 1 Pike, 323; Bachus v. McCoy, 3 Ohio, 211; Clark v. Barr, 14 Ohio, 121; Cummins v. Kennedy, 3 Litt. 118; Cox's Heirs v. Strode's Heirs, 2 Bibb, 277; Nichols v. Walter, 8 Mass. 243; King v. Kerr, 5 Ohio, 156. So where the covenant of seisin is broken as to part of the land, the measure of damages is such proportion of the purchase money as the value of the land of which the grantor is not seized bears to the value of the whole land. Cornell v. Jackson, 3 Cush. 506; Morris v. Phelps, 5 Johns. 49, and see Guthrie v. Pugsley, 12 Johns. 126; Wager v. Schuyler, 1 Wend. 553. (Signed) "Jacob Le Roy." "Theophilus Nichols, Esq.: "Sir Your letter of the 1st instant was re- "With respect, yours, etc., "Jacob Le Roy." such case, the measure of damages, but not exceeding the consideration money. Leffingwell v. Elliott, 10 Pick. 204; 8 Id. 455; 11 N. H. 74; Spring v. Chase, 22 Me. 509. Defendant in action on covenant of seisin may show that nothing was in fact paid for the particular land in question, or that it was included by mistake, or where the land was in two portions, with separate price for each, that the title failed to only one portion. So, it may be proved that the consideration was greater or less than that stated Guthrie v. Pugsley, 12 Johns. 126 Morse v. ShatBarnes v. Learned, 5 N. H. 265; tuck, 4 N. H. 229; Ela v. Curd, 2 N. H. 175; Harlow v. Thomas, 15 Pick. 66; Leland v. Stone, 10 Mass. 459; Belden v. Seymour, 8 Conn. 304; Greenvault v. Davis, 4 Hill, 643; Bingham v. Weiderwax, 1 N. Y. 514; Moore v. McKee, 5 Sm. & M. 438; in the deed. Where the breach arises solely from a prior mort-Rawle, Cov. for Tit. 78. gage, the damages will be determined by the amount due on the mortgage. Gilbert v. Bulkley, 5 Conn. 262. But such damages cannot be recovered till grantor has discharged the mortgage. Comings v. Little, 24 Pick. 266. Where grantor, with covenant of seisin in fee, has only a life estate, the value of the life estate is to be credited on the damages. Lockwood v. Sturtevant, 6 Conn. 373. Where grantor was not seized at the time of conveyance, but afterwards became so, and grantee thereby acquired title by estoppel, under the covenants of warranty, he cannot retain the land and still recover back the consideration, upon the covenant of seisin. Baxter v. Bradbury, 7 Shepl. 260. The money paid to extinguish adverse title, is, in Defendant may claim allowance for profits of land received by plaintiff. Whiting v. Dewey, 15 Pick. 428; Caulkins v. Harris, 9 Johns. 324. Only nominal damages recoverable, where grantee keeps possession long enough to give him good title by lapse of time, or where defendant has gained good title after action commenced which enures to plaintiff, by estoppel. Garfield v. Williams, 2 Vt. 327; Caulkins v. Harris, 9 Johns. 324; Baxter v. Bradbury, Law Rep. Oct. 1841, 231; see McCarty v. Leggett, 3 Hill, N. Y. 134; Cornell v. Jackson, 3 Cush. 510; Wilson v. Forbes, 2 Dev. 30; Cowan v. Silliman, 4 Dev. 47. In New York, only six years' interest on consideration money recoverable, and purchaser only liable for six years' mesne profits. Caulkins V. Harris, 9 Johns. 324; Bennet v. Jenkins, 13 Johns. 50. "New York, 5th February, 1841. "Dear Sir-Yours, addressed to me at Le Roy, came to hand in due course, being returned to this place. In reply to your remarks I have only to say, that so soon as the highest tribunals of our country shall decide that my title to the land sold you is defective, I shall be ready to settle with you on just principles; but until then I must decline all negotiations. You say that the title is bad. Perhaps you are not aware that an act passed the Senate of the United States at its last session, unanimously confirming the sale, and was only lost in the House for want of time. I am in great hopes that relief will be obtained this session; but at any rate a long time cannot now elapse before justice will be done us; for a more righteous claim there cannot be. My situation is the same 456*] as yours. *Until such decision is made, I cannot make claim from those from whom I purchased. evidence so offered, on the ground that the same was not authenticated in *such [*457 manner as to entitle the same to be read in evidence; and the court overruled the objection; and to the decision thereupon, the counsel for the plaintiff excepted. The counsel for the defendant then read in evidence from said printed book as follows: "Sec. 5. That any instrument, to which the person making the same shall affix any device by way of seal, shall be adjudged and held to be of the same force and obligation as if it were actually sealed." The counsel for the defendant then prayed the court to instruct the jury, among other things, that no action can be sustained against the defendant in this suit, because the power of attorney executed by the defendant to Elisha Starr did not authorize Elisha Starr to warrant the title of the defendant to any lands which might be sold by him under said power of attorney. "With great respect, yours truly, "Jacob Le Roy. The counsel for the plaintiff then prayed the "William Beard, Esq., Newtown.” court to give its instruction to the jury upon On the 24th of June, 1841, Beard, a citizen the construction of the power of attorney exeof the State of Connecticut, brought his action cuted by the defendant to Elisha Starr, so in the Circuit Court of New York against Le given in evidence at this stage of the cause, as, Roy. It was an action of assumpsit, contain-in the event of such construction being against ing the ordinary money counts, and also two special counts, stating the purchase and sale, the covenant of seisin, and an averment that the grantor was not so seized, whereby he became liable to repay the $1,800. The defendant pleaded the general issue to the money counts, and a special plea that he had a good title to the premises described in the declaration. To this plea there was a general replication. the existence of such authority in said attorney under said power, the said plaintiff had further evidence to give of the representations of the said agent to the said plaintiff at the time of, and made as a part of, the transaction. The court reserved for the present their opinion upon the question, for the purpose of hearing the further evidence of the plaintiff, so as to enable him to bring out the whole case, and perhaps thereby save another trial. In April, 1846, the case came up for trial. The counsel for the plaintiff then offered to The counsel for the plaintiff offered in evi- prove that, at the time of negotiating the sale dence the power of attorney, the deposition of of, and of selling, the land described in said Starr, the oral evidence of Nichols, the letters deed to the plaintiff, the said Elisha Starr fraudabove recited, and some other evidence notulently represented to the plaintiff that he, the material to be mentioned. said Elisha Starr, was authorized by the defendant to warrant the defendant's title to the premises therein described, and withheld from the plaintiff any view of the power of attorney in question; and that the plaintiff refused to make the purchase, or take any conveyance of such lands, without such warranty on the part of the defendant. The counsel for the plaintiff then offered to read in evidence the deed or instrument of conveyance executed by the defendant, by Elisha Starr, his attorney, to the plaintiff, with a scroll and the word "Seal" written therein, opposite the name of the defendant, as subscribed in execution thereof, without any wafer, wax, or other tenacious substance being The counsel for the defendant objected to the affixed thereto; referred to in, and proved by, evidence so offered as incompetent and inadthe same depositions. The counsel for the de-missible, and the court sustained the objection, fendant objected to the reading of the covenants contained in said deed so offered, on the ground that the power of attorney from the defendant to Starr did not authorize Starr to enter into such covenants on behalf of the defendant. The court overruled the objection, and the defendant's counsel excepted. The counsel for the plaintiff then offered numerous papers from the general land office, to show that the title of Le Roy was not good in the premises conveyed. The counsel for the defendant then offered to read in evidence, on his part, from a book purporting to be a printed copy of the laws enacted by the Legislature of the territory of Wisconsin, "an act of the said Legislature in relation to seals." The counsel for the plaintiff objected to the and excluded the testimony; and the counsel for the plaintiff excepted to the decision. The counsel for the plaintiff next offered to prove, that, at the time of the negotiation of the said sale between Starr and the [*458 plaintiff, and as a part of the transaction, the said Elisha Starr, as the agent of the defendant, also fraudulently represented to the plaintiff that the defendant had a good and valid title to the land described in the said deed, and that the plaintiff was deceived thereby. The counsel for the defendant objected to the evidence so offered, and the court overruled the objection and to the decision thereon the counsel for the defendant excepted. The counsel for the plaintiff recalled Theophilus Nichols, who further testified, that he was present at the negotiations and bargain between the plaintiff and Elisha Starr, as the Second. That if it be shown that the defendant claimed title under the government of the United States, the plaintiff has not shown that the title of the defendant to said lands has been legally declared to be invalid. That the certificate of the register of the land office at Green Bay gave a title to the lands, and the only power vested in the officers of the government at Washington was to see that two patents were not issued for the same land. Third. That by the acts of Congress granting rights of pre-emption to actual settlers, Linus Thompson had a right to float upon the land in question; and that the decision of the Secretary of the Treasury annulling the certificate of the register was contrary to law, and void. That under the Chicago treaty the lands in question were public lands at the date of the passage of the said act. agent of the defendant, as to the sale of the acre | defendant had not acquired a title from the of land described in said deed; that Mr. Starr French settlers, or other source than the govstated that the title to the land was good, and ernment of the United States. there could not be a question about it, because the defendant had the government title; that it had been sold by the government about a year previous to that time. That Linus Thompson and others had floated off George Walker, who had first settled on it, and claimed a preemption right, but who had got no patent; that the defendant's title was direct from the government, and there was no question about it. Mr. Starr proposed to give to the plaintiff a quitclaim deed, and said it was just as well, as the title came from the government. The plaintiff said he would not accept it; that he would not take the land unless he had covenants of warranty; and Mr. Starr then gave the plaintiff the deed read in evidence in this case. No title papers were produced by Starr, or exhibited to the plaintiff. It was stated in the body of the deed executed by Starr, from whom the defendant had purchased, but he did not exhibit to the plaintiff any papers of any kind. Plaintiff, and Mr. Baldwin, and witness, all stayed together at the public house kept by Starr. They all went to Milwaukee together for the same purpose; stayed together, purchased together, and left together. The plaintiff did not make any examination of the title that witness knows of. Witness purchased an acre of the defend- *Fifth. That no action will lie upon [*460 ant of the same title, at the same time, and this deed upon a failure of the title to the lands under the same representations; and witness therein described, without express covenants did not make any examination of title, but re- of warranty; there being no valid warranty lied upon the representations of Mr. Starr. against the defendant, the plaintiff is not enThey all left Milwaukee on the 10th of Novem-titled to recover. ber, 1836, three days after they made the purchase. The counsel for the plaintiff then recalled David V. B. Baldwin, who further testified, that he had heard the testimony just given by Mr. Nichols, and concurred with him as to the representations made by Mr. Starr, and the acts done by the parties in making such purchase; that he was present and acting with the others in the transaction; that no examination of the 459*] title *was made by him, nor by either of the others, to his knowledge. Fourth. That the deed of defendant in evidence in this cause is a sealed instrument by the law of the territory of Wisconsin, and is to be treated and regarded as a sealed instrument in the State of New York, because of its character at the place where it was made; and that the present action being assumpsit, such cannot be maintained upon said deed. Sixth. That the plaintiff is not entitled to recover in this form of action, if a fraud be proved in the cause, but should have brought an action on the case for deceit. The counsel for the plaintiff then prayed the said court to instruct the jury, that the action of assumpsit is properly brought in this court upon the promises of the defendant contained in said deed, if any promises are made therein which are binding or obligatory upon the defendant. The court so instructed the jury, and to such instruction the counsel for the defendant excepted. The counsel for the plaintiff next read in evidence, from the same volume of the statutes of Wisconsin above referred to, an act of the The counsel for the plaintiff then prayed the Legislature of the territory of Wisconsin, en-court to instruct the jury, that the deed in titled “An Act in relation to fraudulent conveyances of lands and the conveyance thereof," the sixth section of said title, in the words and figures following, to wit: "Sec. 6. No estate or interest in land, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing." The proofs in the cause were here closed. The counsel for the defendant prayed the court to instruct the jury—— First. That the plaintiff had not proved the failure of the defendant's title to the lands in question, because he had not shown that the question being without seal, by the laws of the State of New York, and a deed to convey lands in the territory of Wisconsin not being required by the laws of that territory to have any seal, or any device by way of seal, affixed thereto, it is competent for the plaintiff to prove a ratification of the defendant, by parol, of the act of Starr as his attorney, in warranting such title. The court refused so to instruct the jury, and thereupon instructed the jury, that, by the laws of the territory of Wisconsin, the said deed is an instrument under seal, that it is a covenant by the laws of that territory, and this court must so regard it, and give it the same effect here that it would have in the territory of Wisconsin; that being a covenant by the laws of that territory, there can be no ratification or confirmation of the act of the agent, Starr, by the defendant, which will be binding upon the defendant, unless made by an instrument executed by him under seal. |