
    WILLIAM MORRIS v. THOMAS ROWAN ET AL.
    In covenant.
    In an action for breach of covenant of warranty of title, on eviction, the rule is to allow for damages, the amount of the consideration monev with interest thereon, not exceeding six years antecedent to the eviction, 'together with the costs consequent thereon, and no more.
    
      Jeffers, for plaintiff.
    
      J. Harrison, for defendants.
    Hornblower, C. J. This was an action of covenant brought by the plaintiff as an assignee of a covenantee, against the defendants as devisees of the covenantor. John Sinnickson conveyed certain lands, on the 8th April, 1795, to William Miller in fee simple, with covenants; 1st,.that the lands should be and remain to him, his heirs and assigns forever, free and clear of dower, Ac.; and 2dly, that the grantor and his heirs should and would warrant-and forever defend to the said Wm. Miller, his heirs and assigns, the said premises against all persons whatsoever. Miller, on the 20th of April, 1796, by his last will, devised the premises to his son Samuel Miller, in fee simple. Samuel Miller being so entitled, on the 28th of December, 1801, conveyed the premises to one Henry Keen in fee; but whether the deed contained any covenants; or if any, what they were, does not appear by the declaration.
    On the 3d of August, 1811, Henry Keen conveyed the premises in fee to Christopher Morris by deed of bargain and sale; but the declaration does not state whether this deed contained any covenants. Christopher Morris devised the premises to certain persons, under whom William Morris, the plaintiff in this suit, claimed title and had possession as purchaser, when he was evicted by Anna II. Johnson and Robert G. Johnson, in whom, as the plaintiff avers, the title to the said premises was, at the time of the conveyance thereof by Sinnickson to Miller.
    Morris appeared to, and defended the action of ejectment brought by Anna II. and Robert G. Johnson against him for the recovery of the lands; but gave no notice of such action to the devisees of Sinnickson, the defendants in this suit. The question now is, whether under these circumstances, the plaintiff in addition to the consideration money with interest thereon, is entitled to recover the costs recovered against him in the action of ejectment.
    
      Mr. Jeffreys for the plaintiff,
    cited Staats v. Executors of Ten Eyck ; 3 Caines R. 311; Stewart et al. v. Drake, 4 Halst. R. 139 ; Pitcher v. Livingston, 4 Johns. R. 1; Executors of Holmes v. Devisees of Sinnickson, 3 Green, 313 ; Marsten v. Hobbe, 2 Mass. R. 433.
    
      Josiah Harrison for defendants,
    cited Co. Litt. Sect. 697; 4 Mass. R. 348.
    Hornblower, C. J. This question did not arise in the case of Stewart v. Drake, 4 Halst. 139. The purchaser in that case had not been subjected to any costs, but was deprived of the property by a sale of it under a decree of the court of chancery, upon a mortgage given by the vendor. The court was not therefore called upon to express any opinion on the point now before us, namely: whether the plaiutiff can recover any costs incurred by him in defending the title, unless he gives notice of the suit to the covenantor.
    Nor did this question come before the court in the case of Executors of Holmes v. Devisees of Sinnickson, 3 (Green 313.) The parties had agreed that the consideration money with six years interest, and the taxed costs, should be paid. The only question submitted, was whether the defendant, should pay the counsel fees advanced by the covenantee in defending his title; and it was decided that they were not recoverable.
    Chief Justice Kent, in Staats v. Executors of Ten Eyck (3 Caines R. 311) decided that the plaintiff was entitled to recover the consideration money paid, with interest, and Lie costs of the defence. But the case does not inform us whether the plaintiff had given any notice of the suit to the executors of the covenantor; and therefore does not settle the point now in controversy.
    It is proper to remark however, that in the case just cited, Chief Justice Kent was of opinion and so decided, that the costs should include the reasonable fees of counsel, as well as those which are taxable. But in his commentaries (4 vol. 463) after reviewing the cases, he says, “ the uniform rule is, to allow the consideration money, with interest and costs, and no more.”
    
    
      Vid. Prescott v. Trueman, 4 Mass. 627 ; Delaveine v. Norris, 7 
      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, ho 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 aetkm.”
    
    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 t-ho defendants, conscious of the unsoundness of 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 think not. I do not End 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 not to run him to costs by making a useless defence, perhaps it might form a good exception to the general rule; but 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 Nevitjs, Justices concurred.

Judgment for plaintiff, for consideration money, with six years interest, and costs of eviction.  