
    Clara J. Brown, Resp’t, v. Sally Allen et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 5, 1895.)
    
    1. Damages — Failure oe title.
    Where the grantees in a deed, while in possession of the property, removed from the land a large portion of the standing timber, the damages to be allowed them or their representative, in case of failure of title, are such part of the original price as bears the same ratio to the whole consideration that the value of the land at the time of the eviction bore to the land with the timber thereon..
    3. Interest — Failure of vendor’s title.
    Interest on damages for failure of title runs only from the time of eviction or loss, unless there is a liability to the real owner for mesne profits prior to that time.
    $. Same — Time of eviction.
    The sale of land for taxes and the execution of a tax deed to the state constitute no eviction of a prior grantee, so as to start the running of interest on damages recovered by him against his grantor, so long as there is no assertion of "title, under the tax deed, against such grantee.
    "Appeal from a judgment entered on tlie decision of the court after a trial withoub a jury.
    
      Henry W. Bentley and E. McCarty, for app’lts; C. D. Adams, for resp’t.
   Merwin, J.

— When this case was last before us, we considered the question whether the trial court was justified in finding that the consideration for the bond in suit had totally failed, and therefore the plaintiff was not entitled to recover. It appeared that the grantees in the deed, while in possession of the property, removed from the land a large portion of the standing timber, which constituted the chief value at the time of the sale. Upon this situation, it was then said: “We are of the opinion that' the eviction in this case was but partial. The most valuable part of the real estate purchased had been enjoyed by the purchasers, and they have reaped the benefit of its removal and sale. Under such circumstances, the damages to be allowed them or their representatives should be only those that are commensuate with the eviction and their consequent loss. If allowed such part of the original price as bears the same ratio to the whole consideration that the value of the land at the time of the eviction bore to the land with the timber, they would receive all to which they are justly entitled. If some portion of the timber was removed after the title failed, as to that they might be liable to the present owners, and to that extent entitled to be allowed its value, in addition to the proportionate value of the land. We think the court erred in holding that the eviction of Allen & Rortham was total, that the whole consideration for the bond had failed,- and that the plaintiff was not entitled to recover thereon.”

In the decision now under review it is found that the eviction was on or about January 1, 1886 ; that the whole value of the premises at that time, and in July, 1874, was the sum of $1,071.42 ; that the whole value at the time of the purchase, in May, 1870, was the amount of the purchase price, being the sum of $3.171.40. There was also evidence tending to show, and from which it might have been found, that the value in 1874, and up to 1885 or 1886, with the the timber on, as it was in 1870, would have been about the same as it was in 1870. The court allowed the defendants, as damages for the loss sustained by the eviction, the sum of $1,071.42, and applied it on the bond as of January 1, 1886. The evidence sustains the finding as to the amount of the value in 1874 and 1886 ; and its amount, as appears from the findings, or may be inferred from the evidence, bears the same ratio to the whole consideration that the value of the land at the time of the eviction bore to the land with the timber on. The appellants, however, claim that the amount should be applied on the bond as of its date, on the theory that there was a failure of the consideration to that amount. The failure did not occur, or was not complete, until eviction, and up to that time the grantees had such enjoyment or use of the whole property as was contemplated by the parties at the time of the grant. A large portion, at least, of the timber was cut by them before the tax sale, on September 28, 1871; and for more than two years thereafter no one was in position to interfere with their possession, whatever it was. It has been held that without eviction there would be no defense to an action for the price. Lamerson v. Marvin, 8 Barb. 9 ; Farnham v. Hotchkiss, 2 Keyes, 9. In some case it is said that if the damages recoverable are equal to the purchase money and interest sought to be recovered, there is in substance a total failure of consideration, and it might be so pleaded. Talmadge v. Wallis, 25 Wend. 116. In Cowdrey v. Coit, 44 N. Y. 882, the main question was whether there was an eviction ; and, if so, the same result was deemed to follow, whether the defense was regarded as a failure of consideration or a counterclaim for damages. It was alleged in both aspects. In Dunning v. Leavitt, 85 N. Y. 30, the grantee received nothing, as the rents while she was in possession were in law received to the use of the real owners of the land. These cases do not, we think, reach the present one. It is not here a question of the failure of consideration, but what is the proper amount to be allowed for the loss to the grantees, and, that being ascertained, from what time should interest be allowed. Assuming the amount was properly ascertained, the interest was in effect allowed from the date of the eviction as found. Interest runs only from the time of the eviction or loss, unless there is a liability to the real owner for mesne profits prior to that time. 3 Sedg. Dam. § 981. There is no claim here that there is any such liability for mesne profits; so that when the defendants were allowed the amount of the loss as of the time it occurred, that would seem to be full compensation.

But the appellants further claim that, although the funding of the fact of eviction January 6, 1886, would be correct under our decision on the first appeal, still, under the facts as here presented, it should be held that as matter of law eviction took place as early as July, 1874. It is found by the trial court “ that in the month of July, 1874, said Emory Allen and Newton Northam, through their agents, duly notified said Marietta L. Brown and this plaintiff, and her agent and attorney in that behalf, that they had surrendered and abandoned the premises conveyed to them under the Brown deed aforesaid, because of the tax sales thereof, made September 23, 1871, as hereinbefore set forth.” It is not found that Allen & Northam had then in fact abandoned or surrendered the premises. At that time there was no one asserting title adverse to them, and their possession had in no way been interfered with. The premises consisted of six parcels. The tax sale was in September, 1871. A deed of one of the parcels was-executed by the comptroller to one Hungerford on October 30,, 1873. A deed of four others of the parcels was executed by the comptroller to the people of the state on Febuary 1, 1875/ No-deed of the sixth parcel seems to have ever been executed under the tax sale of 1871. No assertion of title appears to have ever been made under the deed to Hungerford, and none under the-deed to the people until 1885, by the forest commission. It appears that the purchaser of the sixth parcel, some time after the fall of 1878, but when it does not appear, assumed to sell the. hard wood on the lot. In October, 1877, all,,of the parcels were again-sold for taxes that had been assessed in or before 1870. All were bidden in by the state in March and April, 1881. Another deed appears to have been executed to the state, in pursuance of the sale of 1877, on the 31st of October, 1884. The forest preserve act was passed in 1885, by reason of which, and the acts-done under it, a constructive eviction was found to have been perfected on January 1,1886. - Prior to 1885 there was no assertion of title adverse to Allen & Northam, aud no one, therefore, to whom a surrender could be made that would operate to perfect a remedy on the covenant of the grantors. We fail to sqe how it can be said that as matter of law there was an eviction in 1874, or prior to the action of the forest commission. These considerations lead to an affirmance.

Jndgment affirmed, with costs.

All concur.  