Morris v. Rowan et al.

John's. 358; Stannard v. Eldridge, 16 Id. 254; Funk v. Voneida, 11 Serg. & Raw. 109; Waldo v. Long, 7 John's. 173; Bennett v. Executors of Jenkins, 13 John's. R. 50.

I have looked into all the cases cited at the bar, and into a number of others, and do not find that the question whether costs shall be allowed as damages, has ever been made to depend on the fact of notice by the covenantee to the covenantor, of the suit by which the former was evicted. In Bennet v. Executors of Jenkins, (13 John's R. 50) it is indeed stated in the case, that the defendant had notice of the suit; but no importance seems to have been given to that fact, either by the counsel or the court. In that, as in all the other cases which I have examined, the right of the plaintiff to recover the taxable costs he had paid, in defending the title, is laid down as a general rule, without any reference whatever to the question whether notice has been given or not, and in Stewart v. Drake, (4 Halst. 141.) Chief Justice. Ewing in laying down the rule of damages in the case of incumbrances, says, "if the grantee has extinguished the incumbrance, he shall then recover in damages, the amount paid to extinguish it, if fair and reasonable, with interest, and in some cases, where an action on account of the encumbrances has been brought against him, the costs also of such action."

If therefore we refuse to allow the plaintiff the costs he has paid in this case, we must do so upon principle, and not by force. of authority.

It certainly seems reasonable that before a man should be called upon to pay a heavy bill of costs, he ought to have an opportunity of defending the suit, or otherwise protecting himself against such a claim; but yet when the subject comes to be looked into with reference to the rights and obligations of the parties, it will seem not to be important in the present case, since the defendants in this action have suffered judgment to pass against them by default.

If notice of the suit had been given to these defendants and they had either declined to interfere, or had unsuccessfully aided the plaintiff in his defence, it must be admitted, that they would not only, have been liable to costs; but would also have been concluded by the judgment of eviction.

But suppose the defendants, conscious of the unsoundness of

Morris v. Rowan, et al.

the title had not only refused to defend the suit, but had given notice to the tenant that if he made any defence, he must do it, at his own risk and expense, would that have availed them any thing? I think not. It would place a grantee, in hazardous circumstances, if upon such an intimation from his grantor, he must either defend, at his own expense; or abandon the title, and look for compensation in damages under his covenants. On the contrary, I am of opinion, that notwithstanding such notice from the covenantor, the grantee would have a right to recover from him, the taxable costs he had incurred in honestly and fairly resisting the claim of title set up by the plaintiff in the ejectment.

Nevertheless, the omission of the plaintiff to give notice to these defendants, of the suit brought against him for the recovery of the premises, might have seriously affected his right. In the absence of such notice, they clearly, were not concluded by the judgment, in that case. It was competent for them, when sued in this action, to set up and maintain the validity of the title of Sinnickson the grantor. Instead of doing so, they have suffered a default, thereby confessing, their covenant broken, in the manner set forth by the plaintiff; and that they are liable for the damages he has sustained; which damages, it is now well settled, and upon the soundest principles, in a case like this, consists of the consideration paid, with interest for a period not exceeding six years antecedent to the eviction, together with the costs consequent thereupon.

The costs paid in this case, on the 16th March, 1825, as appears by the statement handed up to the court, was $369 22, whether that was the amount of the taxed bill; or, whether it includes interest then accrued upon the costs, we are not informed. But large as the amount is, the plaintiff now claims interest upon that sum from that date to the 16th of March last; amounting to $313 79.

The declaration in this case was filed on the 27th February, 1839. I cannot learn from it, when the eviction took place; but it is reasonable to conclude, it was previous to the 16th March, 1825, as the costs, were then paid. Is the plaintiff entitled to interest upon those costs, from the time they were paid, up to the entry of judgment, in this case, a period of fourteen years? I

Morris v. Rowan, et al.

think not. I do not find that interest on the costs, is spoken of, or allowed in any of the cases.

This action is brought to recover the damages sustained by the eviction. What were those damages? The consideration money, with interest up to that time, and the costs then paid. The aggregate of these, constituted the amount of damages the plaintiff was entitled to recover at the time of the eviction. May he lie by for fourteen years, and then recover interest for all that time on those damages? I think not-at most, especially, where notice was not given, as in this case, interest should be allowed only from the commencement of the suit.

FORD, J. The rule of assessing damages for breach of covenant, either of seizin, or for quiet enjoyment, or warranty of title, after an eviction by legal proceedings, is to allow first, the amount of the consideration paid for the land: Secondly, interest thereon for so many years as the plaintiff will be liable for mesne profits; and, thirdly, the taxable costs paid in defending the suit which terminated in his eviction. Baldwin v. Munn, 2 Wend. 399. This rule was fully adopted in our state, in the case of Stewart v. Drake, 4 Halst. 142, and has never been since varied. The costs of defending, as mentioned under the third head, were adjudged to be taxed costs only, and did not extend to money expended for counsel fees, any more than to money laid out in improvements. Holmes v. The Devisees of Sinnickson, 3 Green, 313.

The defendants' counsel supposes the costs on eviction are allowed, because it was the warrantor's duty to defend the suit, upon receiving notice of the action; and he objects to them in this case, because no notice was given to the warrantor or his representatives, of the pendency of the action. But all the cases agree in allowing the costs of eviction; and it is immaterial whether he had notice or not. His covenant to warrant and defend is not a conditional one, if he has notice; otherwise want of notice might bar the warranty itself. He covenants to defend, as absolutely as he does to warrant. The intent of notice is not to make him liable for costs, it is to make the record of eviction conclude him in respect of the title.

If a warrantor upon learning that his title was defective, should make an admission of the fact, and request the covenantee

Guild v. Aller.

not to run him to costs by making a useless defence, perhaps it might form a good exception to the general rule; brt that point is not now before us, and requires no opinion to be given upon it. Let there be allowed for damages, the amount of the consideration money, with six years interest thereon. and the taxed bills of cost paid in the suit on which the plaintiff was evicted, and no more, except the costs of this suit.

WHITE, DAYTON, and NEVIUS, Justices concurred. Judgment for plaintiff, for consideration money, with six years interest, and costs of eviction.

JOHN D. GUILD v. JOHN H. ALLER.

On Certiorari to Hunterdon Pleas.

If the answer of a witness be direct and pertinent to the question put, it is competent evidence as against him who put the question; but if he make statements foreign to that question, they are not competent evidence, and should be overruled, if required.

W. Halsted, for the plaintiff.

H. W. Green, for the defendant

DAYTON, J. Guild, the defendant below, by virtue of an execution in his hands as constable, had levied upon and sold a certain mare, as the property of one George Shurtz, whereupon Aller who claims as vendee of Shurtz to own the mare, brought his action of trover for damages. On the trial of the appeal before the Hunterdon Pleas, the plaintiff below offered to prove what was said between George Shurtz and himself, on the night of the bargain, after it was completed. The witness having said he was not present when the bargain was struck, the defendant's counsel objected to any conversations subsequent to and not at

Guild v. Aller.

the time of the bargain. The court having overruled the objection, at the instance of the plaintiff's counsel, who contended that it was part of the transaction, the witness went on to say, that the mare was not delivered at the time of the conversation, and that Shurtz told him in the presence of the plaintiff, that he had sold the mare to the plaintiff, and he, the plaintiff, said he had bought her; and in a subsequent part of his examination, he added that Shurtz told him (in the same conversation, as I infer from the case) that "he had sold her for $95; that he had made a bargain for the mare, and was to take a watch in part pay at $45," which was likewise objected to on the part of the defendant. The witness further states that he (having the mare in his possession or under his control) was at the same time directed by Shurtz to deliver her to the plaintiff below, on the Monday following this conversation (which was on Saturday night) and that he did so, and afterwards saw the watch in possession of Shurtz.

On the cross examination of Israel Smith, another of plaintiff's witnesses, he stated what the plaintiff himself had told the witness at another time, as to his purchase or his intended purchase -and which evidence the court refused to overrule, on application of the defendant's counsel.

The question before this court, is whether the common pleas admitted illegal evidence, and it is somewhat difficult to determine by the state of the case, whether the same is or is not so.

I. Upon the abstract question which the defendant's counsel first made in the court below, he was undoubtedly right; no evidence of conversation after, and not at the time of the bargain, was admissible. But it was alleged by the other party that though after the bargain was struck, it was in the same conversation and connected with the bargain. Or in other words, a part of res geste. Now it is often a very nice matter to distinguish what is, and what is not fairly embraced within res gesta; but if I have rightly understood the state of the case, I think this evidence may properly be so considered. Though the witness states that he was not present when the bargain was struck; yet in another part of his examination he says he was present when the mare was brought, and throughout his examination he details parts of the negotiation. I suppose he must have been present at the time and place of negotia