Harding v. Larkin

Citations

• 41 Ill. 413

Syllabus

<p>1. Practice—writ of error and appeal by the parties on the same record. Held, that, under the practice in this State, a plaintiff may prosecute a writ of error, although the defendant has appealed from the same judgment, and one of these proceedings does not affect the other, and both may progress at the same time.</p> <p>2. Covenant on warranty of title — damages—costs and attoi-neys’ fees. Where a grantee holding under a covenant of warranty is evicted, he may recover the purchase-money with interest, and the taxable costs and reasonable attorneys’ fees expended in defending the suit in ejectment which resulted in the eviction; hut not so in a chancery suit brought to set aside a deed in the chain of title under which the covenantor claimed, when the covenantee was not a party to that suit. The grantee can only recover such costs and reasonable attorneys’ fees as accrued in the suit by which he was evicted.</p> <p>3. Depositions —• of witness taken out of Ms county. It is not irregular to take the deposition of a witness residing in one county, in another county. It may be he was not bound to attend for the purpose, but having done so it is regular.</p> <p>4. Eviction—■yielding to successful title. Where a party is sued in ejectment, and a recovery is liad against him, he need not wait until actually expelled by legal process, but may yield to the superior title, purchase it, and maintain an action on the covenants in the deed of his grantor. The law does not require the performance of useless acts.</p> <p>5. Judgment — in ejectment—what it establishes. Where the grantee holding a covenant of warranty, is sued in ejectment, and his grantor has notice of the suit, or becomes, as he may, a party to it, the recovery against his grantee is conclusive upon him that the title by which his grantee was evicted was paramount, and he will not be permitted to question the fact in an action by his grantee on the covenants in his deed. But it would be otherwise if he had no