
    J. W. Earle v. Henry Middleton.
    
    In case o'f eviction, the measure of damages, on the covenant of warrantry, is the purchase money with interest from the date of the purchase.
    ‘ ‘ There is no case of eviction actually or constructively, by paramount title, where the party’s right to interest could be defeated by the reception of the rents and profits.” —O’Neall, J.
    
    Before Earle, J., at Charleston, June, 1839.
    Action of covenant, on a warranty in a deed dated May 18, 1820, by which defendant conveyed to G. W. Earle ten hundred and twenty acres of land for eight thousand dollars. The writ, declaration, and verdict in an action, Earle v. Thompson, were introduced. In that action Middleton was vo ached, and, by the verdict, one hundred and thirty-one acres, parcel of the ten. hundred and twenty acres, found to be the freehold of Thompson, the defendant. The writ in that case was issued on September 14, 1831.
    E. B. Benson proved the land recovered by Thompson to have appreciated in value. But at the time of the purchase, on a comparison of prices, supposing eight thousand dollars to be the price of the whole plantation, the part in question-was worth'no more than four dollars per acre. Plaintiff bad possession of the whole plantation till the eviction, but never cultivated this part.
    His Honor instructed the jury that the measure of damages was the purchase money and interest, and left it to them to say whether the interest should run from the purchase, or the eviction; and stated that, if the date of interest was to be regulated by circumstances, the circumstances of this case were such as to show that interest should run from the time of' eviction only. But the jury found for the plaintiff, five hundred and twenty-four dollars, with interest from May, 1820.
    The defendant appealed and moved for a new trial, unless the plaintiff would remit the interest from May, 1820, to September, 1821, on the following groufids:
    That from the nature of a contract of indemnity, the compensation should be according to the prime .cost, with interest from the time of loss, or eviction; and that this principle has been adopted as the rule of damages by the act of the Legislature, and his Honor, instead of leaving the matter to the jury, should have instructed them that interest could only be allowed from the time of eviction.
    That if the date from which interest is to run be a question for the jury, the circumstances of this case afford no ground to allow interest from the time of the purchase; and that the verdict of the jury is partial, unjust, and against evidence, as well as against the charge of the Court.
    
      
      
        Middleton v. Thompson, 1 Sp. 67. An,
      
    
   Curia, per O’Neall, J.

In the .case of Bond v. Quattle baum, (1 M’C. R. 584,) decided in 1822, Judge Nott said, “ It is now understood to be a settled rule of law that, when a person has been evicted of land, or what amounts to the same thing, when he is deprived of it by title paramonnt in another, although there has been no eviction, he is entitled to recover back the purchase money, with interest, and nothing more.” “ The're may be,” he adds, “ cases where the rents and profits in the mean time will take away the claim of the party to interest.” This last dictum, with unfeigned deference to‘ every thing which ivas said by the great Judge whose words I have quoted, is, I think, erroneous. There is no case of eviction, actually, or constructively, by paramount title, where the party’s right to interest would be defeated by the reception of the rents and profits. The defect reaches back to the beginning of his title, and the rents and profits which he has received are not those of his vendor, but those of a third person having the paramount title. The damages recovered in a case of actual eviction, or which may be recovered by an existing paramount title outstanding, are in the place of rents and profits, and represent them in legal contemplation.

The case of the vendee’s tide defeated by a mortgage, does not conflict with the principles I have stated. The mortgage is a mere incumbrance; it is by the foreclosure only that the right of the mortgagor or his alienee is defeated; and it is, therefore, only an actual éviction under the decree of foreclosure that will entitle the vendee to damages on the covenant of warranty. It is then, that, through the defect in his title, his possession is defeated by actual eviction, and he can only have interest from that time. Such seems to be the purport of the decision in Executors of Withers v. Johnson, April, 1830, although that can hardly be regarded as authority, for the two judges who concurred in the result differed materially in the reasoning by which they arrived at their conclusion, while the third member of the court (Johnson, J.)'dissented from it; and, in the Circuit Court, Gantt, J. seems to have given no opinion on the law of the case.

The A. A. 1824, sec. 4, (p. 24,) enacts in affirmance of the rule, as laid down in Furman v. Elmore, (2 N. & McC. R. 189,) Bond v. Quettlebaum, and the other cases decided at law, “ that, in any action or suit at law, or in equity, for reimbursement or damages, upon covenant or otherwise, the true measure of damages shall be the amount of the 'purchase money at the time of the’alienation, with legal interest.” Testing the case before us by this Act, or by the rule of law settled long before it was enacted, there can be no doubt that the jury adopted the true measure of damages, in giving to the plaintiff the proportion of the purchase money which the land recovered bore to the whole tract, with interest from the date of his deed.

Petigru and Lesesne, for the motion.

Motion dismissed; the whole Court concurring. 
      
       That case is introduced here, as well for the better understanding of the present one, as on account of the citation of it in 2 Rice’s Dig. 192, viz.:
      ‘ ‘Action of debt on bond for the purchase money of negroes — plea, non est factum ; 
        on the trial the defendant proved that the negroes purchased were taken away from him by virtue of a mortgage given by Withers, before Ms sale to defendant. The jury found for defendant; and the Court refused a new trial.”
      Executors of R. F. Withers v. William Johnson.
      Before Gaett, J., at Georgetown, Spring Term, 1830.
      This was an action on a bond for one thousand dollars, part of the purclrase money of certain land an£ negroes. The defendant pleaded non est factum, and proved that three o'f the negroes, value eleven hundred and ten dollars, had been taken from him, and sold under an elder mortgage, executed by the vendor.
      Verdict for the defendant; from which the plaintiff appealed.
      
        Curia, per Richakdsoe, J. The question for the Court to decide is, can the general verdict for the defendant be supported f ,The defence to the bond of one thousand dollars was a failure of the whole consideration. This defence the jury have verified. The evidence showed sufficiently, at least after the verdict, that eleven hundred and ten dollars was the price to be paid for the three negroes; that some time after the sale to Johnson, the negroes were taken from him, by virtue of an elder mortgage given by Withers, without notice to Johnson, and sold; at what price is immaterial. It is enough that Johnson lost the negroes by the act of the vendor. The price to be paid was the measure of the bond, and must be the measure of the discount. If we stop here, Johnson ought to have had his bond of one thousand dollars, and the balance of one hundred and ten dollars returned to him. And strictly speaking, the facts reported go no farther. 'But it appears from the facts involved in the case, or rather from inferences, though not reported, nor used at the trial, that Johnson had the labor of the negroes for some years. This labor, according to a very equitable rule, well established where there is no specific evidence, ought to amount per annum to ten pounds, or forty-two dollars profits per head, and the'strict legal verdict might have been for the difference between the valhe of the labor and the one hundred and ten dollars which Johnson paid for the three negroes over and above the bond of one thousand dollars. But this difference was neither proven nor insisted upon at the trial. Whereupon the jury found by their verdict that the whole consideration of the bond had failed. And when we consider that the whole fault of selling the negroes before mortgaged, lies at the door of thé obligee, that Johnson had been obliged to suffer unexpectedly, a derangement of his contract, and possibly much inconvenience in the domestic relations of his negroes by the loss of three taken from him 11 nolens volens, ’ ’ the' Court does not feel itself urged by any strong principle of justice, or rule of law, to send the case back in'order that the plaintiff may possibly get a small balance which he did not make plainly appear at the trial already had. And that too, when the verdict is by no means inequitable, and is supported by the evidence actually adduced.
      The motion is dismissed. Johksoií, J., dissented.
      Colcock, J. I think it the plain case of a loss of property by a title paramount, and the defendant’s plea is a suit for the reoovery of the value of the property, which, according to the established law, is the price paid and interest, or the value of the labor in the case of negroes,
     
      
       See 1 McM; 38. An,
      
     