The defendant’s counsel insisted that, as the demand for judgment in the complaint was for damages for a breach of the covenant of quiet enjoyment, the plaintiff could not recover, because no eviction under a paramount title had been shown, and the plaintiff was not entitled to recover the amount paid by him to remove the incumbrance, because it was a voluntary act on his part.
But the plaintiff alleged breaches of the covenant of seizin as well as that of quiet enjoyment, and prayed for general relief. In such a case the courts will look to the allegations and proofs and give the plaintiff such relief as the justice of his case demands, consistently with the facts set out in the complaint- and not disputed.
*294The plaintiff alleged that two parcels of the sixty acres purchased by him from the defendant, the one consisting of twenty-four acres, and the other of nine acres, had been claimed by persons having paramount titles, and that he had had to pay one hundred dollars to remove the incumbrance from the twenty-four-acre tract.
The defendant admitted he liad no title to either of these parcels of land.
As a general rule a plaintiff cannot recover in an action for a breach of covenant for' quiet enjoyment, without showing an eviction from the possession under a paramount title, and the measure of damages in such cases is the price paid for the land, with interest. Williams v. Beeman, 2 Dev., 483.
But in an action upon a covenant of seizin, all the plaintiff need show is that defendant had no title or no right to convey. Wilson v. Forbes, 2 Dev., 30; Bawle on Covenants for Title, 66; Brant v. Foster, 5 Iowa Rep., 287.
The reason of the distinction is that a covenant for quiet enjoyment is a covenant for possession, and that of seizin is a covenant for title, the word being used as synonymous with right In an action upon the former covenant, an eviction must be alleged in the complaint or declaration, but on the latter, it is only necessary to negative the words of the covenant and to allege that the grantor had no seizin'or title to the land. 4 Kent. Com. 479; Richest v. Snyder, 9 Wend., 416. And, as a general rule, the measure of damages is the same for a breach of covenant of seizin as for a breach of covenant of quiet enjoyment. Wilson v. Forbes, supra. This rule of damages is applicable to those cases where there is an eviction from the whole of the land conveyed, or a want of title to the same. But where there is an eviction from a want of title to only part of the land conveyed,, and the plaintiff has been put to the necessity, as in this case, to advance money to.remove an incumbrance, the measui’e of damages is more difficult to be fixed.
We tliink His Honor very properly refused to give the instruc*295tions asked for by the defendant, upon the question of damages, but we are also of the opinion that there was misdirection in the instruction which he did give to the jury.
It is well settled that a party who purchases land with covenants for seizin or quiet enjoyment may protect himself by buying in the outstanding title. Faucett v. Woods, 5 Iowa, 400.
When that is clone the measure of damages, according to the best- lights we have been able to obtain on the point is, that the damages in such a case would be limited to, or measured by, not the value of the land, but by the amount reasonably paid for that purpose, provided it did not. exceed the purchase money. Faucett v. Woods, supra; Brant v. Foster, 5 Iowa, 287; Wood’s Mayne oh Damages, §255; Bank v. Glenn, 68 N. C., 35. It will be seen from the rule laid down by these authorities that the price paid to extinguish the outstanding title must not exceed the purchase money, and to determine whether it exceeded that amount it becomes necessary for a jury to ascertain the relative value of that parcel, and in doing so the rule for their guidance is not the proportion in quantity, as held by His Honor in the court below, but such proportion as the value of the land covered by the title paramount bears to the value of the whole land, estimated by the consideration. Cornell v. Jackson, 3 Cush., 506; Morris v. Phillips, 5 Johnson, 49. But if the amount paid to extinguish the outstanding title to the twenty-four acres shall be found to be more than the assessed value of that part, then the. amount so assessed shall be the measure of damages, and this latter measure applies as well to the nine acres.
Being of the opinion that the justice of the case was not reached by the jury, in consequence of the misdirection of His Honor, the case must be remanded to the superior court of Alexander county, that proper issues may be submitted to the jury upon the question of damages only, with instructions as to the measure of damages in accordance with the principle announced in this opinion.
Error. Remanded.