Rhea v. Swain

• Decision Date: 26 February 1890
• Citation: Rhea v. Swain, 122 Ind. 272, 23 N.E. 776 (Ind. 1890)
• Parties: Rhea et al v. Swain.
• Court: Indiana Supreme Court

122 Ind. 272

23 N.E. 776

Rhea et al

v.Swain.

Supreme Court of Indiana.

Feb. 26, 1890.

On petition for rehearing.For former opinion, see22 N. E. Rep. 1000.W. S. Shirley and W. R. Hamson, for appellants.Adams & Newby, and Jordan & Matthews, for appellee.

Olds, J.

As is said in the original opinion, this is an action on covenants of warranty.In a suit against both the appellants and appellee, the true owner had recovered the land, and evicted the appellee.In that suit the true owner had sued for rents and profits, and failed to recover.In this suit the appellants sought to set off the rents and profits of the land, and the value of timber taken from the land by the appellee, while he occupied the same, before eviction.This they could not do.The rents and profits and the timber belonged to the true owner of the land.The fact that the true owner of the land failed to recover his just dues, in the former action, by obtaining a judgment for the amount of the rent, and the value of the timber, did not give the appellant any title to the rent and value of the timber.It did not transfer the owner's title to the rent and value of the timber to the appellants, whereby they could set off the amount against the sum they owed the appellee.It is said the reason the true owner did not recover for the rents and profits is because he occupied another tract of land, of equal value.Suppose he did.If he did not own such tract, he would be liable to the true owner of such tract of land for the rent of it.Suppose the appellee had occupied the land, and became liable for rents and profits, to the true owner, in an amount equal to amount he paid for the land and interest thereon, but the claim in favor of the owner for rent had been barred by the statute of limitation before the appellee brought this action for the breach of...