Collier v. Cowger

Warrant Eviction. Damage. A judgment against a covenantee in possession upon foreclosure of a lien created prior to the covenant, rendered after notice to the warrantorto appear and defend, is conclusive of the existence of an outstanding paramout incumbrance. It is a constructive eviction, and he is entitled to his action upon the covenant. Where the covenantee buys in the outstanding incumbrance to protect his estate, he is entitled to recover the sum expended in so doing, provided such sum does not exceed the amount paid to the warrantor for the property, with the legal interest on such sum from the date of the extinguishment of such incumbrance. Boyd v. Whitfield, 19 Ark., 447; Rawle Cov. Tit., secs. 143-6.

same. When paramount title is asserted, and maintained by judgment in ejectment, the recovery of interest prior to eviction, upon the sum paid the warrantor, will depend upon the answer to the question whether there has been a recovery of mesne profits by the plaintiff in ejectment. Interest on the money and mesne profits are regarded as the equivalent of each other. Rawle Cov. Tit., sec. 195 et seq., and cases cited-.

In this cause, plaintiffs, through their mother, purchased the land at a sale under I. C. Jones’ decree on January 14, 1886, and are entitled to recover the $274.69 of purchase-money paid Collier with interest at 6 per cent from January 14, 1886, to this date, amounting to $64.82.

The decree of the Circuit Court in so far as it awarded interest from November 29, 1884, is reversed. Otherwise it is affirmed and judgment will be entered here in accordance with this opinion.

It is so ordered.