We are precluded from passing upon tbe merits of defendant’s objections to tbe evidence, since tbe record does not disclose what tbe witnesses would have said if tbe questions bad been allowed. Tbe burden is on tbe appellant to show error, and, therefore, tbe record must show tbe competency and materiality of tbe proposed evidence. This Court will not do tbe vain thing to send a case back for a new trial when it does not appear what tbe excluded evidence is, or even that tbe witnesses would respond to tbe questions in any way material to tbe issues. This is tbe established practice in this Court, in both civil and criminal cases. Whitesides v. Twitty, 30 N. C., 431; Bland v. O'Hagan, 64 N. C., 471; Street v. Bryan, 65 N. C., 619; S. v. Purdie, 67 N. C., 326; Knight v. Killebrew, 86 N. C., 402; Sumner v. Candler, 92 N. C., 634; S. v. McNair, 93 N. C., 628; S. v. Rhyne, 109 N. C., 794; Baker v. R. R., 144 N. C., 40; Boney v. R. R., 155 N. C., 95; Stout v. Turnpike Co., 157 N. C., 366; Dickerson v. Dail, 159 N. C., 541; Fullwood v. Fullwood, 161 N. C., 601; In re Smith’s Will, 163 N. C., 466; Wallace v. Barlow, 165 N. C., 676; Lumber Co. v. Childerhose, 167 N. C., 40; Brinkley v. R. R., 168 N. C., 428; Morton v. Water Co., 168 N. C., 582, 587; Wilson v. Scarboro, 169 N. C., 654; Schas v. Assurance Society, 170 N. C., 421; In re Edens, 182 N. C., 398; Snyder v. Asheboro, 182 N. C., 708; S. v. Jestes, 185 N. C., 735; Hosiery Co. v. Express Co., 186 N. C., 556; S. v. Ashburn, 187 N. C., 717, 722; Barbee v. Davis, ibid., 79, 85; Smith v. Myers, 188 N. C., 551; S. v. Collins, 189 N. C., 15.
While tbe court refused to give tbe defendant’s fourth prayer for instructions, tbe action of tbe court has not prejudiced tbe defendant, because tbe jury has accepted this view and has found tbe purchase *112price to be $40,000. If any error was committed in this regard, it is clearly harmless.
The deeds of plaintiffs to Meekins were not competent evidence at the instance of the defendant, since they and the other evidence did not show any basis for a contention that the plaintiffs received complete reimbursement to the extent of the purchase price paid Hinton when they sold to'Meekins. The covenant of seizin does not run with the land, and is broken when the deed is delivered, if the grantor does not own the lands according to his covenant, the right of action accrues at once to him, and to him alone. Eames v. Armstrong, 142 N. C., 506, 515; Markland v. Crump, 18 N. C., 94; Wilder v. Ireland, 53 N. C., 85, 90; Britton v. Ruffin, 123 N. C., 67; Jones on Covenants, sec. 851; Pridgen v. Long, 177 N. C., 189; Wilson v. Vreeland, 176 N. C., 504; Webb v. Wheeler, 17 L. R. A. (N. S.), 1178, 1183, and citations noted; Cover v. McAden, 183 N. C., 642; Meyer v. Thompson, 183 N. C., 545; Lockhart v. Parker, 189 N. C., 138; Eawle on-Covenant for Title, ch. 10, sec. 202; Mordecai’s Law Lectures, 901.
The difference in the purchase price paid to the defendant and the purchase price received from Meekins is more than the amount sued for; hence, there can arise no equity for defendant from this sale.
The covenant of seizin is, when broken, a chose in action, not assignable at common law, and this rule still obtains. Mordecai’s Law Lectures, 859, 860; Eames v. Armstrong, supra; Lockhart v. Parker, supra; Grist v. Hodges, 14 N. C., 198, 202; Shankle v. Ingram, 133 N. C., 254.
The defendant’s contention that he is a purchaser for value and without notice from his brothers and sisters, under the deed in 1932, cannot be sustained. It appears from the record, which includes the opinion in In re Hinton, 180 N. C., 206, that the defendant, E. L. Hinton, cannot assume now the position of a purchaser for value, without notice of the rights of the children of John C. Hinton, deceased, to attack the will of their grandfather with success. This prevents us from considering whether the doctrine announced in Newbern v. Leigh, 184 N. C., 166, applies, in any event, to a devisee in a will that is subsequently set aside upon a caveat, when such a devisee is an heir at law of the maker of the contested will.
The rule of damages in a breach of a covenant of seizin is the purchase price, with interest. This still remains the rule, when the breach is a partial failure of the title. Wilson v. Forbes, 13 N. C., 40; Eames v. Armstrong, supra; 7. R. C. L., 1175, sec. 93; Mordecai’s Law Lectures, 899; Price v. Deal, 90 N. C., 291; Crowell v. Jones, 167 N. C., 286.
The plaintiffs have only sued for the proportion of the original purchase price represented by the failure of title. Hartford Ore Co. v. *113 Miller, 41 Conn., 112; Guthrie v. Prigslie, 12 N. Y., 126; Rawle on Covenants, secs. 186, 187; 7 R. C. L., 1170, sec. 87; 24 A. L. R., 267; Campbell v. Shaw, 170 N. C., 186; Lemly v. Lilis, 146 N. C., 221.
If the plaintiffs bad bought the outstanding interest, then the measure of damages would be the amount expended therefor, with interest, not exceeding, in any event, the pro rata of the original purchase price. Lemly v. Ellis, supra; Campbell v. Shaw, supra.
We are of the opinion that the trial court was correct in the instructions given to the jury, and, therefore, there is
No error.