Bennet v. Jenkins — 13 Johns. 50

Majority

p. 50

Bennet against Jenkins and others, executors of Jenkins.

Headnote

In an action of covenant by á grantee," whp has been evicted, on the covenantS'in his deed,- the damages which be is entitled to recover, are thé consideration .money* wjthjntereBt for such time as he is liable for the mosne profits, and the costs of the ejectment suit againsthim.

‘THIS was an action of covenant, on the covenants contained in a deed of bargain ■ and sale, and was tried at the Co lumUa-ciitmi, iü'1814yb,efore'Mr. J,-Van Ness.

The deed, on the covenants in which thé action was brought, was executed on the 1st of March? 1799, by the testator to the plaintiff, and contained the usual full eovenants.

On the 1st of. March, 1787, the.teStatOr conveyed the lot. in question to one Coffin? who subsequently, and before the above-mentioned deed to the plaintiff, reconveyed it'to. the testator, having, however, in the mean time, mortgaged it to the loan officers of Columbia county. * The plaintiff wás evicted under a judgment and execution in ejectment, at the suit Of Jackson,- ón the demise of Pow.ers, who derived his title from, the. loan officers of Columpia county, of which suit the defendants had notice. -The jury, under the direction of the judge, 'found a verdict for the plaintiff for the' consideration money, sis ' years’ interest, and the costs' of the ejectment suit.-. It was ad-; . mitted that the plaintiff had erected a valuable brick house on the premises, arid that the highest measure of damages would not compensate, him' for.his. loss: a ease was toade, stating, the above facts, subject to the'opiniqn of the court on the .«pies* tion as to the rulé'of damages, '

E. Williams, for the, plaintiff,

contended that the plaintiff was-, entitled' to the value of the premises, at the time of eviction, in the same manner as if it had been an action on the casé againk' the testator, the grantor knowing, at the time of the conveyance, the defect ,in his title, in xyliich case the court, in Pitcher v. Livingston,^[1] intimated, that in ah action grounded on the fraud or deceit, the • plaintiff would recover the. full, extent of. his- loss. He claimed, also, interest from the.date of the deed.,

Van Buren, contra.

He cited 3 Caines, 111., and 9 Johns. Rep. 324 .

The question submitted to the consideration of-the court, in this case;is, to ascertain the rule or principle

p. 51

upon which the damages are to be estimated. The action is covenant upon a deed, given by the testator to the plaintiff, dated the 1st of March, 1799, containing, as stated in the case, full covenants. The testimony shows a breach of the covenants of seisin, and for quiet enjoyment.

According to the principles heretofore established in this court, it is clear that neither the increased value of the land, nor any improvements made thereon, are to be taken into consideration» (3 Caines, 111. 4 Johns. Rep. 1 .) It is also settled by these cases, that the consideration money, and the costs of the ejectment against the grantee, are recoverable» The only point which seems to be in any measure undecided, is, as to the time for which interest upon the consideration is to be recovered, and even as to that, the rule is easily inferred from what is said by the court in those cases. The allowance of interest is to countervail the claim for mesne profits, to which the grantee is liable. And, in the case of Staats v. Executors of Ten Eyck, it is said the interest ought tobe commensurate, in point of time, with the legal claim to mesne profits. In the case of Caulkin, executor, &c. v. Harris, ( 9 Johns. Rep. 324 .,) six years’ interest only was allowed, although the grantee had been in the enjoyment of the land, and taken the mesne profits for fifteen years. The reason why no more interest was allowed, doubtless, was because the grantee might protect himself against a recovery for mesne profits for any greater length of time. The time of the eviction, in the case now before us, or how long the plaintiff had been in the enjoyment of the land, does not explicitly appear. The judgment must, however, be for the consideration money paid, and the interest thereon, from the date of the deed from the loan officers to Powers, provided it does not exceed six years, together with the costs of the ejectment suit against the plaintiff.

Judgment for the plaintiff accordingly*