Foster v. Thompson , 41 N.H. 373 ( 1860 )

Doe, J.^*

The liability of the defendants is the same as if the action were brought against them as heirs of John Thompson, upon the covenants in his deed to Hutchinson. Simons v. Moore, 3 B. & Ad. 175; Browning v. Wright, 2 B. & P. 13; Rich v. Lord, 18 Pick. 322 ; Jackson v. Stackpole, 1 Cow. 122.

It was decided in Willson v. Willson, 25 N. H. 229, that in an action for the breach of the covenant of warranty, the damages are the amount of the consideration and interest, with tbe costs of the suit attending the eviction. We think the rule of damages, as to the time for which interest is to be reckoned, is the one claimed by the defendants. The profits of the land may be more or less than the interest of the money, and the real owner may or may not demand the mesne profits. And, on account of these uncertainties, it is impossible to establish a rule that would operate with perfect equity in all cases. But the rule which is most reasonable, and which will generally work the least injustice, seems to be founded upon the presumption that the profits and interest are equal, and that mesne profits will be recovered by the owner. Rawle on Cov. (ed. 1860) 93, et seq., and cases there cited.

The plaintiff is entitled to judgment for two fifths of the consideration of the conveyance from John Thompson to Hutchinson, with interest thereon for six years, deducting the amount paid by the defendants to Morrill as mesne profits, and also for the costs recovered by Morrill and Martin on their petition for partition.

Judgment for the plaintiff.

* Fowler, J., did not sit.