White v. Tucker

Chalmers, J.,

delivered the opinion of the court.

The action was by Tucker against White as administrator of Huntington, for breach of the conditions of a title bond for land. Tucker proved eviction of himself, and had verdict and judgment for the $700 of purchase money paid originally by him, and interest thereon, aggregating $1,413.98, the interest thus doubling the recovery. The recovery of the interest is the principal error relied on.

It was disclosed on the trial that Tucker had paid no mesne profits to the true owner when evicted by title paramount, it having been expressly agreed between himself and said owner that he should pay none, and this agreement having been embodied in, and made a part of, the judgment in ejectment under which he was evicted. Having thus enjoyed possession of the land for many years, and being acquitted of all demands for the use and occupation thereof, can he recover from his vendor interest on the purchase money paid by him ?

The question is one of first impression in this state, but it seems abundantly well settled elsewhere. It is held that interest on the money, and the mesne profits of the land, are intended.by law as the equivalent of each other, and that where there has been 'an acquittance of the one, the other cannot be recovered.

We concur in these decisions. Rawle on Cov. for Title, 93, et seq.; Guthrie v. Pugsley, 12 Johns., 126 ; Patterson v. *148 Stewart, 6 Watts & Serg., 528 ; Kyle v. Fauntleroy, 9 B. Mon., 620 ; Williams v. Beeman, 2 Devereux, 485 ; Clark v. Parr, 14 Ohio, 118; Flint v. Steadman, 36 Vt., 210 .

The other errors assigned relate to questions arising on thé pleadings, which were exceedingly and unnecessarily protracted and complicated. The most important are those growing out of the plea of the statute of limitations and the introduction of evidence intended to avoid it.

It appears that as early as 1858 Tucker and his vendor, Huntington, had notice of the paramount title and that suit fir the land was about to be instituted. Huntington therefore notified Tucker that he would not receive any more money from him, nor deliver a deed, until the litigation was ended, but that he, Huntington, who was an attorney, would defend the suit for Tucker, and they would settle all matters at the end of the litigation.

This arrangement was carried out, but before the final settlement could be had Huntington died.

His administrator, being sued by Tucker for the purchase money which he had paid in cash at the time of the purchase, pleaded the statute of limitations, setting up that his intestate’s covenants had been broken upon his refusal in 1858 to receive any further payment or make deed; that plaintiff’s right of action had accrued then, and that, more than seven years having' elapsed since that time, the right of action was barred. He objected to the introduction of the testimony as being an attempt to save the bar by proof of a parol promise.

It was held in Wilson v. Joy, 3 George, 233, that a right of action accrued to the purchaser of a'slave, for'false and fraudulent representations as to the title, from the time of the representations, and that the statute would commence to run from that date, although there was no actual loss of the slave for some time afterwards. It was held in Johnson v. Pyles, 11 S. & M., that an attorney’s right to sue for his fee accrued, in the absence of any express contract, upon the rendition of the judgment, and that the statute would commence to run *149 against Mm from that time, although the collection of the money on the judgment was enjoined for several years thereafter. In the first case, however, it was said that, if any relation of trust existed between the parties, the statute would only begin to run from the discovery of the falsehoods of the representations. And the second cause was rested upon the ground that the attorney did not act in the injunction suit, but his relations with his client terminated with the recovery of the judgment.

In the case at bar we think that the agreement proved between Huntington and Tucker established a relation of trust between them, and at least had the effect of continuing that relation of trust which, this court has more than once said, subsists between the vendor and vendee of land by title bond, and that therefore the statute did not commence to run until the termination of the ejectment suit.

The testimony was properly admitted, not for the purpose of proving a new promise by parol, but to establish the fiduciary relation.

For the error in the rendition of verdict, and judgment for the interest on purchase money, the case is reversed and remanded.

Mr. Justice Campbell, having been of counsel, takes no part in this decision.