Page:Federal Reporter, 1st Series, Volume 2.djvu/128

 PATRICK V. LEACH. 121 �culed by hîm, jointly with his wife, and for the conveyance of the wife's separate property. i hold that, if the proof shall show the facts to be as claimed, the defence can "be maae under the answer which claims that there is nothing due the plaiûtiff on the covenants sued on. �Second/. defendant asks leave to amend by plea only that the consideration for the deed sued on was only $2,000, and not $77,000, as alleged. The real consideration may be shown under the pleadings as they stand. The sum named in the consideration clause of the deed i^ orày prima fade, and not binding on either party. defendant may show that the consideration was less than the sum named. Bawle on Covenants, 258, 259. �Third. It is proposed to amend the answer by alleging that while the land conveyed by the warranty deed was in possession of plaintifif, under defendant's warranty deed, he committed waste upcn the same. Thisj if shown, would con- stitute no defence to a suitHo recover damages for breach of the covenant of warranty. �It is now well settled that the measure of damages in such a suit is the consideration money and interest, and that the recovery is not to be increased by an increase in the value of the land, nor diminished by a decrease in such value. The parties are to be regarded as having fixed the measure of damages when they agreed upon the value of the land at the time of the sale. Rawle on Covenants, 235, 236, 237, et seq.; 6 Wheat. 118. Besides, as between plaintiff and defendant Leach, the land was the plaintiff's, and he was at liberty to do as he pleased with it. He held it under warranty deed from defendant, who is estopped from saying that notwith- standing his conveyance he still owned or was interested in the land conveyed so as to be entitled to sue and recover for waste committed upon it. ^ �The motion for leave to amend is overruled. ����