Point Street Iron Works v. Turner

Pee, Ctjbiam. Tbe parties agree that tbe damages shall be computed by taking $5,718 as tbe value of tbe land from wbicb tbe plaintiff was evicted. On that amount we tbink tbe plaintiff is entitled to interest from tbe date of tbe eviction, and for tbe length of time prior to that date during which he is liable to account for mesne profits. Foster v. Thomp son, 41 N. H. 373; Cox’s Administrators v. Henry, 32 Pa. St. 18; Flint v. Steadman, 36 Vt. 210. Tbe limitation of tbe action of trespass is four years. If, therefore, as we understand, no action for mesne profits has been commenced, the computation of interest will begin at a day four years prior to tbe entry of tbe judgment herein. As to tbe question of costs incurred in defending the ejectment: tbe parties are agreed that tbe defendants are liable for the proportional part of the costs found by comparing the whole amount of tbe land recovered in that suit, with tbe portion thereof wbicb was conveyed by tbe deed declared on in this suit. Tbe only question remaining is whether expenses and counsel fees paid by tbe plaintiff in defending tbe former suit shall be allowed as part of tbe costs. On this question there is conflict between cases of good authority. Pawle on Covenants for Title, cap. ix. pp. 308 et sq.; Sedgwick Leading Cases, 10; Sedgwick on Damages, 174. We think tbe better rule to be that where, as in this case, tbe person bound by tbe covenant has been notified to come in and has neglected to do so, and has not notified tbe defendant in ejectment that be prefers to make no defence, be should be liable for such reasonable expenses and counsel fees as have been incurred in defending the title. In this case we do not tbink tbe amounts charged by tbe plaintiff are unreasonable.