Norton

Bryan, J., and Murray, C. J., concurred.

Where land is sold with covenant of warranty, accompanied with a delivery of possession, for which the purchaser gives a note for the purchase money, the promise to pay, and the warranty, are independent covenants, and the enforcement of the one, is not dependent upon the performance of the other.

It has therefore been held by all sound decisions, that an action upon the covenant of warranty would not lie until eviction. The reason of this principle is founded upon the position, that there can be no approximation to a correct measure of damages. It would be a serious hardship to allow the grantee to defeat the recovery of the purchase money and interest, while he remains in the enjoyment of the possession, has derived its rents and profits probably for many years, and may hold until his possession ripens into a perfect title. See Backus, Administrator, v. McCoy, 3 Ohio, 211, and the cases cited in appellant’s brief.

In Dunn v. White & McCurdy, 1 Ala. R., 645, the question was whether the vendee should be allowed to reduce the recovery of the purchase money.

The Court decide that there is no right to reduce the amount of the purchase…