Executors of Holmes v. Devisees of Sinnickson , 15 N.J.L. 313 ( 1836 )

The opinion of the court, was delivered by

Ford, J.

The parties in this action, which is in covenant for breach of warranty of title to land, have agreed that the warrantor shall refund the consideration that was paid for the land, together with specified interest, and shall pay the costs that accrued in the action of eviction ; but whether he shall pay such counsel fees as the covenantee advanced in defending against the superior title, is the question submitted to the court.

The recompense formerly obtained at law, by voucher and warranties chartes, was a recompense in lands, which were to be equal in value to those from which the covenantee had been evicted; estimated as of the time when they were warranted; but since the modern recompense in money, has been substituted in place of- land, the evicted party has been constantly struggling to change the ancient measure. Not content to receive back the consideration money which was the value of the land at the time it was sold, together with six years’ interest to countervail his liability for mesne profits, and the costs of eviction, he has been struggling after other allowances, such as for improvements that he has put on the land, the formation of gardens, avenues, parks, palaces and the endless embellishments that taste and luxury can invent; but courts of justice have as firmly resisted all such claims, as being innovations on the common law measure of recompense. I shall not state any of the numerous cases that are to be found on this subject, because they have been collected and reviewed by Chancellor Kent, with his usual ability, in 4 Kent's Com. 468, and shall only give the result of them, in his words. — “ The uniform rule is, to allow the consideration money, with interest, and costs, and no more.'' Any counsel fees beyond those allowed in the fee bill, are no part of the legal costs, and are just as much out of the prescribed rule, as buildings or improvements. I am therefore of opinion that counsel fees are not allowable.

Hornblower, C. J. and Ryerson, J. concurred.

Cited in Morris v. Rowan, 2 Harr. 306-309; Drake v. Baker, 5 Vroom, 360.