33 Am. Dec. 225 | Va. | 1837
I am of opinion, that the circuit court ought to have granted a new trial in this case, on the ground, if upon no other, that the damages were excessive and vindictive. [Here, the judge recapitulated the leading facts of the case.] Although Thompson had not the le
In the case of actual eviction from land for which the purchaser has a conveyance, he can only recover the purchase money, with interest for such time as he is liable to be called on for rents and profits, and the costs of defending the title. This is the settled rule by which the damages are measured in cases of eviction under an executed contract, “ whether they be claimed in an action upon a warranty, or covenant of seisin, or of power to convey, or for quiet enjoyment:" see Stout v. Jackson, and Threlkeld's adm'r v. Fitzhugh's ex'x. The same rule applies, at least with equal force, to executory contracts for land. In Mills v. Bell, pre
Hence, the plaintiff here, in case of actual eviction, would seem to have been entitled to little more than 100 dollars, which he had paid, with some interest. Under the actual circumstances of ‘the case, I am strongly inclined to think, his damages should have been nominal: but as (if my opinion prevails) the cause must be sent back for a new trial, and its aspect may be changed by new pleadings and new evidence, I forbear to give any opinion on this point.
The other judges concurred. Judgment reversed, and cause remanded for a new trial.