McOLELLAN, J.
— We shall not enter upon a discussion of the evidence in this case. It will suffice to say that it entirely satisfies us of the truth of the allegations of the bill as to the terms of the contract entered into in the year 1883, and as to (that being the only contract at any time made between the •parties. The most cursory examination of the documentary evidence demonstrates this, and the writings are corroborated, by the preponderance of the oral testimony. There was never in fact any change or modification of the contract as first made. The deed, it is true, was executed to W. M. Gunter, instead of W. M. and John Gunter, as originally contemplated and stipulated; but this was done in accordance with some arrangement between them, in which the complainant had no concern, except to be assured of his own safety in so doing; and to this end, he was expressly indemnified by W. M. Gunter. That there was no agreement to forego any part of the original debt and interest, except that part of the latter accruing for the years during which the defendants were kept out of possession, is clearly shown by the memorandum, entered into when the principal was paid and the notes surrendered, to the effect that the right of complainant to the interest on the purchase-money, for the years 1883,1884, and 1885, was in no manner to be taken as waived or affected by the surrender of the evidence of the debt, but that Beard might thereafter assert any and all rights he theretofore had to enforce the payment of such interest, &c.
Thr case presented, therefore, is this: Beard sold to the Gunters the tract of land in question, and put them in possession, under a bond for title, in March, 1883. They paid only ten dollars of the purchase-money, and executed their notes for the balance, with interest from date. These notes were to be paid, according to the stipulations of the title-bond, when certain infirmities of Beard’s title should be cured, and he thereby be put in position to pass good title to the land into the purchasers. These infirmities were specifically set forth in the bond, and resulted from (1) the liability of the [234]*234land to be subjected to Beard’s proportion of the debts oí his .father’s estate, the land having come to him under the will of his father, charged with debts of the eslate, and the estate not having been settled; (2) the pendency of a proceeding in contestation of said will, and (3) an outstanding mortgage'of the land executed bjr Beard to a sewing-machine company, the validity of which he disputed. On bill filed by the executors of the will of Beard, Sr., against A. IT. Beard, the sewing-machine company, and the Gunters, the land was subjected to sale, and sold in 1886, for the payment of $2,280, Beard’s proportion of liability for the debts of the estate — this sum being less than half the price agreed to be paid for the land by the Gunters. At this sale, the executors purchased, and soon after demanded and received possession from the Gunters. Early in 1888, the sewing-machine company’s mortgage having-been satisfied, and the bill to contest the will of Beard, Sr., having been dismissed, A. II. Beard redeemed the land from the executors; and being now in-the position contemplated and provided lor in the title-bond, executed conveyance to W. M. Gunter, received from him the principal of the notes under the agreement as to iuterest to which we have alluded, put him in possession, and then filed this bill to enforce a vendor’s lien for that balance of the purchase-money constituted of the interest on the notes for the years 1883, 1884 and 1885, during which defendants, as we have seen, were in possession, and received the rents and profits of the land.
The defense relied on against the case thus made by the bill and evidence is, that the purchasers suffered special damages in consequence of the eviction and deprivation of possession for the years 1886 and 1887, these damages resulting from, or growing out of the facts, it is alleged, that they, or TV. M. Gunter, had closed out a lucrative business elsewhere, changed his residence, involving the disposition “of many things at a sacrifice,” had made certain expenditures, looking to the occupation and use of the land for those years, and b3r way of preparation to that end, which proved abortive, and a loss to them, because tney were not allowed, to continue in possession. These matters are not, in our opinion, available in set-off or recoupment against the demand for the purchase-money, or, what is the same thing, for the interest on the purchase-money for the years 1883, 1884 and 1885. The doctrines applicable to the measure of damages, in actions for breach of warranty, where the vendor has paid the purchase-money in full, furnish, by analogy, the true rule on the subject we are considering. The general rule, in the class of actions referred to, is, that the vendee, upon eviction by title para[235]*235mount, may recover from his vendor the purchase-money paid, with interest.. — 2 War. on Yendors, 1007. But the measure of damages is thus made to embrace interest, because the vendee is responsible generally to the evictor for rents and profits. Therefore, in exceptional cases, where rents and profits are not recovered or recoverable from him, his recovery against his vendor is limited to the purchase-money without interest, the use of the land without accountability being compensatory for the loss of the use of the money. — Hutchins v. Rountree, 77 Mo. 500; Stebbins v. Wolf 33 Kan. 765; White v. Tucker, 52 Miss. 145; 2 Sutil, on Dam. 300, and citations. These vendees were not answerable to their evictors for rents and profits, and, under the principle just .announced, had they paid the purchase-money in full, and brought suit on the covenant of warranty after eviction, they could have recovered no interest. For the same reason, having had the land and also the purchase-money, they can not be allowed now, while retaining the rents which belonged to them under their contract with Beard, to also retain the interest -which, under that contract, belonged to the complainant.
The true measure of damages, where the vendee has been evicted, and kept for a time'only out of the possession of the land, resuming its occupancy and enjoyment, as in this case, when the defect in his vendor’s title has been cured, is the value of the estate for the period of dispossession. Thus, where the grantor undertook to sell and convey the fee, but there was a life-estate which did not pass by the deed, it was held that, by reason of the breach of the covenant of warranty in the deed, for which the note was given, the maker had a right, in a suit thereon, to recoup the value of the estate for the time during which he was deprived of its enjoyment because of the existence of the life-estate.— Christy v. Ogle's Ex'rs, 33 Ill. 295. On like principle, it is held that, where land is sold with warranty of title, and at the time the land has been rented by the' vendor’s agent without his knowledge or direction, and the vendee is thereby delayed in getting possession, the measure of damages is the fair rental value for the lost time ; and prima facie, the rent agreed to be paid by the tenant is the fair rental value. — Moreland v. Metz, 24 W. Va. 119.
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McOLELLAN, J.
— We shall not enter upon a discussion of the evidence in this case. It will suffice to say that it entirely satisfies us of the truth of the allegations of the bill as to the terms of the contract entered into in the year 1883, and as to (that being the only contract at any time made between the •parties. The most cursory examination of the documentary evidence demonstrates this, and the writings are corroborated, by the preponderance of the oral testimony. There was never in fact any change or modification of the contract as first made. The deed, it is true, was executed to W. M. Gunter, instead of W. M. and John Gunter, as originally contemplated and stipulated; but this was done in accordance with some arrangement between them, in which the complainant had no concern, except to be assured of his own safety in so doing; and to this end, he was expressly indemnified by W. M. Gunter. That there was no agreement to forego any part of the original debt and interest, except that part of the latter accruing for the years during which the defendants were kept out of possession, is clearly shown by the memorandum, entered into when the principal was paid and the notes surrendered, to the effect that the right of complainant to the interest on the purchase-money, for the years 1883,1884, and 1885, was in no manner to be taken as waived or affected by the surrender of the evidence of the debt, but that Beard might thereafter assert any and all rights he theretofore had to enforce the payment of such interest, &c.
Thr case presented, therefore, is this: Beard sold to the Gunters the tract of land in question, and put them in possession, under a bond for title, in March, 1883. They paid only ten dollars of the purchase-money, and executed their notes for the balance, with interest from date. These notes were to be paid, according to the stipulations of the title-bond, when certain infirmities of Beard’s title should be cured, and he thereby be put in position to pass good title to the land into the purchasers. These infirmities were specifically set forth in the bond, and resulted from (1) the liability of the [234]*234land to be subjected to Beard’s proportion of the debts oí his .father’s estate, the land having come to him under the will of his father, charged with debts of the eslate, and the estate not having been settled; (2) the pendency of a proceeding in contestation of said will, and (3) an outstanding mortgage'of the land executed bjr Beard to a sewing-machine company, the validity of which he disputed. On bill filed by the executors of the will of Beard, Sr., against A. IT. Beard, the sewing-machine company, and the Gunters, the land was subjected to sale, and sold in 1886, for the payment of $2,280, Beard’s proportion of liability for the debts of the estate — this sum being less than half the price agreed to be paid for the land by the Gunters. At this sale, the executors purchased, and soon after demanded and received possession from the Gunters. Early in 1888, the sewing-machine company’s mortgage having-been satisfied, and the bill to contest the will of Beard, Sr., having been dismissed, A. II. Beard redeemed the land from the executors; and being now in-the position contemplated and provided lor in the title-bond, executed conveyance to W. M. Gunter, received from him the principal of the notes under the agreement as to iuterest to which we have alluded, put him in possession, and then filed this bill to enforce a vendor’s lien for that balance of the purchase-money constituted of the interest on the notes for the years 1883, 1884 and 1885, during which defendants, as we have seen, were in possession, and received the rents and profits of the land.
The defense relied on against the case thus made by the bill and evidence is, that the purchasers suffered special damages in consequence of the eviction and deprivation of possession for the years 1886 and 1887, these damages resulting from, or growing out of the facts, it is alleged, that they, or TV. M. Gunter, had closed out a lucrative business elsewhere, changed his residence, involving the disposition “of many things at a sacrifice,” had made certain expenditures, looking to the occupation and use of the land for those years, and b3r way of preparation to that end, which proved abortive, and a loss to them, because tney were not allowed, to continue in possession. These matters are not, in our opinion, available in set-off or recoupment against the demand for the purchase-money, or, what is the same thing, for the interest on the purchase-money for the years 1883, 1884 and 1885. The doctrines applicable to the measure of damages, in actions for breach of warranty, where the vendor has paid the purchase-money in full, furnish, by analogy, the true rule on the subject we are considering. The general rule, in the class of actions referred to, is, that the vendee, upon eviction by title para[235]*235mount, may recover from his vendor the purchase-money paid, with interest.. — 2 War. on Yendors, 1007. But the measure of damages is thus made to embrace interest, because the vendee is responsible generally to the evictor for rents and profits. Therefore, in exceptional cases, where rents and profits are not recovered or recoverable from him, his recovery against his vendor is limited to the purchase-money without interest, the use of the land without accountability being compensatory for the loss of the use of the money. — Hutchins v. Rountree, 77 Mo. 500; Stebbins v. Wolf 33 Kan. 765; White v. Tucker, 52 Miss. 145; 2 Sutil, on Dam. 300, and citations. These vendees were not answerable to their evictors for rents and profits, and, under the principle just .announced, had they paid the purchase-money in full, and brought suit on the covenant of warranty after eviction, they could have recovered no interest. For the same reason, having had the land and also the purchase-money, they can not be allowed now, while retaining the rents which belonged to them under their contract with Beard, to also retain the interest -which, under that contract, belonged to the complainant.
The true measure of damages, where the vendee has been evicted, and kept for a time'only out of the possession of the land, resuming its occupancy and enjoyment, as in this case, when the defect in his vendor’s title has been cured, is the value of the estate for the period of dispossession. Thus, where the grantor undertook to sell and convey the fee, but there was a life-estate which did not pass by the deed, it was held that, by reason of the breach of the covenant of warranty in the deed, for which the note was given, the maker had a right, in a suit thereon, to recoup the value of the estate for the time during which he was deprived of its enjoyment because of the existence of the life-estate.— Christy v. Ogle's Ex'rs, 33 Ill. 295. On like principle, it is held that, where land is sold with warranty of title, and at the time the land has been rented by the' vendor’s agent without his knowledge or direction, and the vendee is thereby delayed in getting possession, the measure of damages is the fair rental value for the lost time ; and prima facie, the rent agreed to be paid by the tenant is the fair rental value. — Moreland v. Metz, 24 W. Va. 119. In the case at bar, the value of the land for the two years during which the defendants were deprived of its enjoyment, was the rents and profits for those years, which, presumably, as well as upon the preponderance of the-testimony, were equivalent to the interest on the purchase-money for that period; and it seems, so far as the rents and profits were concerned, the claim of the [236]*236vendees was settled on this basis by agreement of parties, the vendor abating his demand to the extent of two years interest.
Aside from the loss of the rents and profits, the damages sought to be recouped against the purchase-money are laid in the cross-bill as follows : “And respondents were further damaged in this, that in the Spring of 1886 Wfn. M. Gunter was engaged in a lucrative business at Bridgeport, Alabama, and he closed'out said business, and purchased horses and mules and other stock and farming implements, and hired farm hands, and took them down on the land in suit; built a residence on said lands for himself and family, and moved his family down on said lands, and left his home, where }ie sold many things at a sacrifice, with a view of changing his place 0f business, and with a view of farming on the lands in suit. He put his hands to work, preparatory to making a crop, and remained there some time engaged in improving and building stables, houses, &c., and afterwards was ousted, . . . and compelled,. for want of employment, to return and move back to Bridgeport; in all of which respondents were largely damaged in a sum not less than one thousand dollars.” There are several reasons why these alleged damages could not be recouped against the purchase-money. They are speculative, uncertain and remote, such as could not have been in the contemplation of the parties. They arose, if they exist at all, from conduct of the defendants, and expenditures and losses incurred by .them in moving on the land, and preparing for its cultivation, while a bill was pending against them and others which they knew must result in its sale and their eviction, unless they paid off the incumbrance to satisfy which the sale was to be made. Indeed, it may be that all these expenditures and losses were incurred after the decree of sale had been entered up. Moreover, the title-bond itself advised them of this incumbrance, as one that had to be removed before they could get title. Then, too, they might have fully and amply protected themselves against eviction, and avoided all the damages they now seek to recover, by paying off the incumbrance, and claiming a credit for its value on the purchase-money notes.--Waterman on Set-off, §§ 571; 2 Brick. Dig. 513, §§ 103-4; Holley v. Younge, 27 Ala. 203; Anderson v. Knox, 20 Ala. 156; Martin v. Wharton, 38 Ala. 637; War. on Vendors, pp. 943 et seq.
Of course, if, during the adverse occupancy, the estate had been damaged by the destruction of timber, the removal of improvements, and the like, the vendees might have recouped such damages against the claim of the vendor; but nothing of this sought is averred in the answer and cross-bill.— Weakland v. Hoffman, 50 Pa. St. 513.
[237]*237The decree below properly disallowed the damages claimed’ by the defendants, and directed the register to state an account of the balance of purchase-money due. The register’s report was not excepted to, and we will not enter upon inquiry as to the correctness of the amount he found to be due.
Affirmed.