This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
296, 76 N. E. 449; Mackey v. Harmon, 34 Minn. 168, 24 N. W. 702; Kellogg v. Malin, 62 Mo. 429; Willson v. Willson, 25 N. H. 229, 57 Am. Dec. 320; Williams v. Hewitt, 57 Wash. 62, 135 Am. St. Rep. 971, 106 Pac. 496; Smith v. White, 71 W. Va. 639, 48 L. R. A. (N. S.) 623, 78 S. E. 378; Gadow v. Hunholtz,
160 Wis. 293, 151 N. W. 810. See Mcguckin v. Milbank, 152 N. Y. 297, 46 N. E. 490.
When the breach arises from the existence of an outstanding term of years, the value of tho use of the land for such term has been regarded as the measure of damages. Barker v. Denning, 91 Kan. 485, 138 Pac. 573; Malsbury v. Jacobus, 88 Neb. 751, 130 N. W. 424; Porter v. Bradley, 7 R. I. 542.
30. Tuskegee Land & Security Co. v. Birmingham Realty Co.,
161 Ala. 542, 23 L. R. A. (N. S.) 992, 49 So. 378; Ensign v. Colt, 75 Conn. 1ll, 52 Atl. 829, 946; Willetts v. Burgess, 34 111. 494; Thompson v. Richmond, 102 Me. 335, 66 Atl. 649; Wilcox v. Musche, 39 Mich. 101; Walker's
Adm'r v. Deaver, 79 Mo. 664; Smith v. Jefts, 44 N. H. 482; Hasselbuch v. Mohmking, 76 N. J. L. 691, 73 Atl. 961; Mcgucken v. Milbank, 152 N. Y. 297, 46 N. E. 490; Fishel v. Browning, 145 N. C. 71, 58 S. E. 759; Funk v. Voneida, 11 Serg. & R. (Pa.) 109, 14 Am. Dec. 617; International Development Co. v. Clemans, 59 Wash. 398. 109 Pac. 1034; In re Hanlin's Estate, 133 Wis. 140, 113 N. W. 411; Rawle, Covenants, Sec.Sec. 188, 189.
That the grantee could have recovered nominal damages on a covenant against incumbrances by reason of an outstanding mortgage does not prevent a recovery on the covenant of warranty upon his eviction after foreclosure of the mortgage. Smith v. Wahl, 88 N. J. L. 623, 97 Atl. 261.
31. Rawle, Covenants, Sec. 193; Collier v. Cowger, 52 Ark. 322, 6 L. R. A. 107, 12 S. W. 702; Guth-rie v. Russell. 46 Iowa, 269, 26 Am. Rep. 135; Dimmick v. Lock-wood, 10 Wend. (N. Y.) 142; Foote v. Burnet, 10 Ohio, 317, 36 Am. Dec. 90; George A. Lowe Co. v. Simmons Warehouse Co.,
- Interest. Interest from the time of plaintiff's eviction is presumably always recoverable by him,32 since from that time he is deprived of the use of his money and also of the use of the land. For a like reason a covenantee who, by reason of an outstanding title, fails to acquire the possession of the land under the conveyance to him, is entitled to interest on the purchase price paid by him from the time of its payment.33
Whether, when the covenantee did acquire the possession under his conveyance, he is entitled to interest on the purchase price for the period previous to his eviction by the paramount owner, has ordinarily been regarded as dependent on the question of his liability to the latter for mesne profits.34 Except for this liability, he might well be regarded as compensated, by his enjoyment of the land, for his deprivation of the use of the money, and so not entitled to interest. But the courts usually assume that if he has not already been made liable for such profits, he will be made so liable, and consequently do not regard his enjoyment of the land as in itself sufficient to deprive him of interest. In so far, however, as his non liability for mesne profits can be regarded as established, by adjudication or otherwise, he is not entitled to interest,35 and, so if, by
39 Utah, 395, 117 Pac. 874, Ann. Cas. 1913E, 246; Eaton v. Lyman, 30 Wis. 41.
32. Collier v. Cowger, 52 Ark. 322, 6 L. R. A. 107, 12 S. W. 702; Spring v Chase, 22 Me 505, 39 Am. Dec. 595; Hutchins v. Round-tree, 77 Mo. 500; Henning v. Withers, 3 Brev. (S. C) 458, 6 Am. Dec'. 589; Conrad v. Emnger, 87 Va. 59, 24 Am. St. Rep. 649.
35. Graham v. Dyer, 16 Ky. L. Rep. 541, 29 S. W. 346; Hutchins v. Roundtree. 77 Mo. 500; Hunt v. Nolen, 46 S. C. 551, 24 S. E. 543; Johns v. Hardin, 81
Tex. 37, 16 S. W. 623.
34. In Virginia the recovery of interest is restricted to that which accrues after eviction. Threlkeld v. Fitzhugh, 2 Leigh, 451; Abernathy v. Phillips, 82 Va. 769, 1 S. E. 11:;.
35. Harding v. Larkin, 41 111. 413; White v. Tucker, 52 Miss. 145; Withers v. Bank of Commerce & Trust Co., 104 Miss. 681, 61 So. 690; Mcguffey v. Humes. 85 Tenn. 26, 1 S. W. 506; Mann v. Mathews, 82 Tex. 98, 17 S. W. 927; Flint v. Stead-man, 36 Vt. 210. Contra, Rhea reason of the statute of limitations, or for some other reason, he is liable for mesne profits for only a limited number of years back, his right to recover interest is limited to those years.36 Occasionally the immunity of the covenantee from liability for mesne profits has been regarded as precluding his recovery of interest only in so far as the land was capable of beneficial use,37 but the correctness of such a view is open to question.38
- Expenses of litigation. Since the covenantee, if he relinquishes possession on the demand of one asserting a paramount title, has the burden of showing that the claimant's title is paramount,39 it appears just and equitable that he should have the privilege of defending against the adverse claim without incurring loss by so doing. This has been generally recognized by the courts to the extent of giving him, as an element of damages in an action on the covenant, the costs in an action against him by the paramount claimant, which action he, in good faith but unsuccessfully, undertook to defend.40 In some states the covenantee is v. Swain, 122 Ind. 272, 22 N. E. 1000, 23 N. E. 776.
36. Fernander v. Dunn, 19 Ga. 497, 65 Am. Dec. 607; Harding v. Larkin, 41 111. 413; Spring v. Chase, 22 Me. 505, 39 Am. Dec. 595; Stebbins v. Wolf, 33 Kan. 765, 7 Pac. 542; Thompson v. Jones, 11 B. Mon. (Ky.) 365; Hutchins v. Roundtree, 77 Mo. 500; Morris v. Rowan, 17 N. J. L. 304; Foster v. Thompson, 41 N. H. 373; Staats v. Ten Eyck, 3 Caines, 111, 2 Am. Dec. 256; Caulkins v. Harris, 9 Johns, 324; Bennett v. Jenkins, 13 Johns. (N. Y.) 50; Clark v. Parr, 14 Ohio, 118, 45 Am. Dec. 529; Cox v. Henry, 32 Pa. 18; Mengel Box Co. v. Ferguson, 124 Tenn. 433, 137 S. W. 101.