in his possession, such breach is a mere technical breach, for which the grantee can recover nominal damages only.
(Opinion Filed February 4, 1891.)
APPEAL from district court, Grand Forks county; Hon. William B. McConnell, Judge.
J. F. McGee, for appellant, maintained: That the title was complete in the grantor before patent, and that there was, therefore, no breach of the covenant of seizure; but if otherwise then (the grantee having obtained the full equitable and beneficial title, being in possession and not offering to re-convey,) only nominal damages were recoverable.
W. H. Standish and J. H. Bosard, for respondent, filed no brief.
Bartholomew, J. This was a trial to the court on an action brought on a covenant of seisin in a deed. The unquestioned findings of fact show that prior to January 10, 1882, the land in controversy was the property of the general government; on that date one Bailey located what is known as "Sioux Half-Breed Scrip" upon said land at the local land office of the United States at Grand Forks; that the land was at that time subject to entry with such scrip; that the entry remained intact upon the records of the land department, but no patent has ever been issued by the general government for the land; that said entry was duly accepted by the local land officers at the Grand Forks land office; that subsequent to the acceptance of said location Bailey transferred the land to Goodhue, who entered into possession of and platted the same into town lots and blocks, and by warranty deed conveyed the property described in the complaint, and delivered possession of the same to the defendant, Wolcott; and that in March, 1883, in consideration of the sum of $600, Wolcott conveyed the land by warranty deed to the plaintiff, which deed contained the covenant set forth in the complaint, which is as follows: "And the said C. C Wolcott, party of the first part, for himself, his heirs, executors and administrators, does covenant with the party of the second part, his heirs and assigns, that he is well seized in fee of the land
