49 Ill. 99 | Ill. | 1868
delivered the opinion of the Court:
This case was before this court at the April term, 1866, and is reported in 41 LI. 413, and the material questions presented by it were then decided. We there held the evidence showed an eviction under a paramount title for which these defendants must respond upon their covenants. It is not necessary to discuss again, in detail, the several points then and now presented. We find no error in this record except upon one question, and that relates to the date from which interest should be computed'upon the purchase money as against the covenantors. We fully adhere to the general rule laid down in our former opinion upon that subject, but we were in error in supposing Larkin bought directly from the plaintiff in the ejectment.
Our attention is now, however, more particularly called to the conveyances from Cross to Williams, and from Williams to Larkin. The first bears date September 7,1862, the second December 25, 1862, and the judgment in the ejectment was rendered January 13, 1862. If Larkin had bought directly from Cross, as was supposed in the former opinion, the presumption might well be indulged that the purchase was made as a settlement of the entire litigation, including the claim of Cross to mesne profits, as it was made within less than a year from the date of the first judgment, and the Larkin heirs could have taken another trial. But Cross had conveyed to Williams, and this conveyance did not pass his claim to the mesne profits, which was a chose m action, and there is, therefore, no ground on which we can presume that the purchase by Larkin was anything more than a purchase of the naked legal title, without reference to mesne profits. Adams on Eject. 389 ; Fenn v. Stille, 1 Yates, 154. As, therefore, the Larkin heirs have never paid mesne profits, nor been damnified by the assertion of a claim to them, and as the right of Cross to claim them was cut off by the statute before this suit was tried, there is no basis for charging the appellants with interest except from the date of the deed from Cross to Williams, the possession and profits of the land having been enjoyed by the appellees until that time, under the deed of appellants, and their purchase from Williams only covering the mesne profits back to the time when his title accrued.
Decree reversed.
