citation">4 N.C. 180. It was there decided that the agent was not bound; but it does not necessarily follow that the principal was. If the principal is not bound it is a strong argument to show that the agent was intended to be bound; but in this Court, a court of law, we look at what the parties really did not what it is probable they intended to do; and as to the deed's passing the interest of the Alexanders, the whole of the granting part and the receipt of the consideration money by which the use was to be raised is in the name of them as attorneys, not in their individual names or rights. It is therefore matter of great doubt whether anything, even as between the parties, passed, either the interest of the principals or of the attorneys; and if the covenant is a dependent one it falls to the ground with the interest it was intended to warrant, defend or protect. It is the common doctrine of warranty that it is annexed to and dependent on the estate; that it ceases with it; and the plaintiff Locke must have himself considered this as annexed to the estate which passed with it from Merrill to him, otherwise it is a mere chose in action and incapable of an assignment, and if so the action cannot be sustained in his name; and it appears to me that it would be doing violence to the acts and intention of the parties as well as contravening the rules of law to construe this a mere personal covenant; it is plain from the face of the deed *Page 219 that some interest in the lands was recognized in Springs, Harris and M'Coy in right of their wives; and it is quite evident that the parties intended to pass that interest; and that interest passing the Alexanders were willing to bind themselves personally that Merrill should quietly enjoy the land, for they had no fears that he would be disturbed by any other title or were willing to risk the others. Now to bind them to defend against a title which all parties thought the deed had vested in Merrill, would be contrary to every principle of justice. These, among other reasons, should induce the Court to lean in (417) favor of construing it a dependent and not an independent covenant. But at any event I think the charge wrong upon the question of interest. Mesne profits during the enjoyment under a defective title is not set off against the claim of interest upon the purchase money because the possessor is liable to the rightful owner for them, they are therefore left in his hands for that purpose; but when it appears that the possessor has enjoyed the lands and cannot be called to account for the mesne profits the reason of the rule ceases and the rule no longer applies, and the mesne profits shall be set off. Interest is in most cases an equitable demand and is left to the sound discretion of the court, but in this case it may be resisted without recourse to that maxim. It appears by the case the Alexanders had from Springs and Harris a power of attorney, executed to sell or transact any business in relation to these lands only, among other things that the attorney contracted with Merrill for the sale of the lands, received his money and put him in possession, where he remained unmolested by Springs and Harris during their lives; after their deaths the wives ousted him; they were entitled to the mesne profits only from the deaths of their respective husbands; they had no claim to those which arose during the coverture, they belonged to the husbands. The mesne profits could not be left in Merrill's hands to satisfy their claim for them, for they had none; the husbands could have none, for Merrill was placed by act of their agents duly authorized, and they had received Merrill's money; he was there by their consent, and could not be charged as a trespasser. Nor was he liable for use and occupation, there being no contract for that, either express or implied. (See the case of O'Neal v. Holcom, decided in this Court about four years ago; unreported.) Nor can I perceive in what form of action or upon what principle Merrill could be subjected by the executors of the husbands. I mean not to (418) express any opinion where the possessor is protected in the enjoyment of the mesne profits by the statute of limitations or any collateral defense. I therefore think the presiding judge *Page 220 erred in directing the jury to give interest upon the whole of the purchase money from the time of its receipt; the defendants are not subject to the interest of two-fifths of the purchase money until after the death of Springs and Harris, respectively. Let a new trial, therefore, be granted.

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