Wood v. the Kingston Coal Co..

• Citation: 48 Ill. 356,95 Am.Dec. 554,1868 WL 5118
• Parties: CHAUNCEY C. WOODv.THE KINGSTON COAL COMPANY.
• Decision Date: 30 September 1868
• Court: Illinois Supreme Court

48 Ill. 356

1868 WL 5118 (Ill.)

95 Am.Dec. 554

CHAUNCEY C. WOOD

v.THE KINGSTON COAL COMPANY.

Supreme Court of Illinois.

September Term, 1868.

APPEAL from the Circuit Court of Peoria county; the Hon. SABIN D. PUTERBAUGH, Judge, presiding.

The facts upon which a reversal of the judgment in the court below is asked, are fully presented in the opinion.

Messrs. MCCOY & STEVENS, for the appellant.

Messrs. WEAD & JACK, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of covenant, brought by appellees, in the Peoria Circuit Court, against Chauncey C. Wood, on the covenants contained in a deed executed by the latter to the former. The declaration avers that the deed was made and contained a covenant of general warranty of the title; that a suit was instituted in the Circuit Court of the United States in ejectment, by Francis A. Wilson against appellees, and that the premises thus conveyed were recovered on a trial of the action, and appellees evicted therefrom. To the declaration several pleas were filed upon which issue was joined. A trial was subsequently had, resulting in a judgment in favor of appellees. And the case is brought to this court on appeal, and a reversal is urged upon the alleged ground of a misdirection of the jury by the court below.

The instruction given for appellees, and to which an exception is taken, is the first in the series asked by them, and is this:

“If the jury believe, from the evidence, that the defendant executed the deed to the plaintiff, and that the plaintiff has been ousted from the possession of the land therein described by virtue of an older and better title, the plaintiff is entitled to recover the amount of the consideration named in said deed, with interest thereon from the date of the deed to the present time, at six per cent.”

In the case of Harding v. Larkin, 41 Ill. 413, it was held that on a breach of a covenant of general warranty of title, the true measure of damages was the purchase money with six per cent. interest for five years prior to the eviction, if the grantee was liable for mesne profits. That the action for mesne profits, being an action of trespass, and that the limitation of that form of action applied by analogy to a recovery of this character; that the recovery of mesne profits always followed a recovery in ejectment and was in trespass, and that our ejectment law had given a suggestion in the nature of that action and for the recovery of mesne profits, as a continuation of the suit in ejectment, which followed the judgment for the recovery of the land; that if the action was either trespass or the suggestion in ejectment for the recovery of such profits, the statute of limitations barred a recovery for a longer period than five years before the recovery; and, that as the law indulged the presumption that the possession and profits of the land purchased were equal in value to the interest on the purchase money, that on the failure of title, the grantee having enjoyed the use of the land from the date of his deed, could not recover interest on the purchase money except for the period of time he was liable for mesne profits. This rule is applicable to improved and productive land, but, perhaps, would not apply to vacant and unproductive real estate, to which the title had failed.

At the ancient common law, under the writ of warrantia chartæ, the demandant recovered only the value of the land at the time the warranty was made, although the land may have increased in value from natural or other causes. Reeves' Eng. Law, 448. This compensation was made in lands, by the warrantor, or his heir, if he inherited from his ancestor, of equal value to the land from which the feoffee was...