Wacker v. Straub

• Decision Date: 18 November 1878
• Citation: 88 Pa. 32
• Parties: Wacker et al. <I>versus</I> Straub.
• Court: Pennsylvania Supreme Court

88 Pa. 32

Wacker et al. versus Straub.

Supreme Court of Pennsylvania.

November 7, 1879.

November 18, 1878.

November 7th 1879.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and TRUNKEY, JJ. WOODWARD, J., absent

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 180.

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Wm. B. Rodgers and John Burton, for plaintiffs in error.—The contract between the parties was evidenced by the deed of general warranty from plaintiff below to defendants, in evidence. It conveyed land that the vendor did not own. The contract was broken as soon as it was made.

The value of the portion of the land he did not own, included in the mortgage, he had no right to demand, collect or receive, and of course he had no right to collect interest on that portion of the principal of the mortgage. If he had no legal title to or right to recover the principal, by what process of reasoning are we to arrive at the conclusion that he could collect interest on this principal?

Suppose the title had failed to the whole of the premises described in the deed, would it be contended that the plaintiff, although not entitled to recover on the mortgage for the principal, was still entitled to recover for interest on the sum he had no right to receive or collect?

But it is said, and the reason given for holding us for interest down to the day of trial, is because we were not evicted or turned out of possession by the party who recovered against us in the ejectment. We having remained in possession with the consent of the owner, may be liable to the true owner for use and occupation, but certainly we are not liable to our vendor for the use or interest of money that we do not owe him.

And we were and are liable to the owner in an action for mesne profits for six years prior to the commencement of the ejectment, as ruled in this court in Cox's Adm'r v. Henry, 8 Casey 18.

That the rule is the same in case the action is for purchase-money as it is in case the action is against the vendor for a breach of the warranty, we refer to Beaupland v. McKeen et al., 4 Casey 124, opinion by Justice WOODWARD.

Bruce & Negly and Slagle & Wiley, for defendant in error.— The defendants were in undisturbed possession of the premises, and are not entitled to any allowance of interest on the damages found: Beaupland v. McKeen, 4 Casey 124; Cox's Adm'r v. Henry, 8 Id. 18; Caulkins v. Harris, 9 Johns. 324; Bennet v. Jenkins, 13...