TaiLexi AI U.S. Case Law

Bearce v. Jackson

Asa Bearce versus Simon Jackson, Administrator of Alexander Shepard

Bearce v. Jackson, 4 Mass. 408 (1808)
Download
Format
Include

Star paging (*137) is kept for pin cites.

Court
Massachusetts Supreme Judicial Court · State Highest Courts
Decided
May 15, 1808
Judges
Parsons
Citations
4 Mass. 408
Cited by 21
Headnotes
A plan of land taken ex parte cannot be used on a trial but as chalk. One in possession of land, claiming to hold it in fee simple, is sufficiently seised to enable him to convey ; and, if he warrant the land, no action lies against him on his covenant of warranty, until an eviction of the grantee, or his assigns, by a paramount note.
Summary
Covenant broken, on a deed of the defendant’s intestate, conveying certain lands, described therein, to the plaintiff in fee, and covenanting that the grantor was lawfully seised in fee, and that he would warrant and defend the granted premises to the grantee, &c. At the trial of this cause, before Thatcher, J., at the last October term in this county, the counsel for the plaintiff offered in evidence a plan of the land described in the declaration, accompanied with the oath of the surveyor who took it, attesting its accuracy. The judge refused to admit the plan, because a plan, including the lands in question, had been taken by order of Court, and with the consent of the parties in this action, which was proved to be accurate; and because the plaintiff’s counsel, when he offered the first-mentioned plan, acknowledged that it was not of itself legal evidence. It appearing in evidence that Shepard, the defendant’s intestate, entered on the land in question about the year 1779, claiming to hold the same under a grant from the commonwealth, and that the plaintiff has quietly possessed the same lands from the date of Shepard’s deed to him, the judge directed the jury that, if they believed the said evidence, it was sufficient in law to support the covenant of seism made by Shepard, and that neither that covenant, nor the covenant to warrant and defend, were broken, as no eviction of the plaintiff had been proved, and the jury accordingly rendered their verdict for the defendant. The plaintiff’s counsel filed exceptions to the said opinions of the judge, upon which the cause stood continued to this term, upon the plaintiff’s motion for a new trial for the misdirection of the judge.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Parsons

Text extracted by OCR from a scanned original; check the original for exact wording.

The opinion of the Court was afterwards delivered by Parsons, C. J.

We are satisfied that the judge was correct in rejecting the plan. Anciently, the land was not described in the declaration; but the plaintiff was bound to give the defendant a view. (a) The practice here has been to describe the land in the declaration, and, if necessary, to send the jury to view it. But to supersede the necessity of either of those views, a very convenient practice has arisen, — to have a plan taken under a rule of the Court by a surveyor, appointed by the Court, or agreed upon by the parties, who is sworn to the faithful execution of the trust, as are *a!so the chain-bearers. And his duty is to give [ *410 ] notice to the parties, and to mark on the plan any monuments or lines, which either of the parties shall request. A plan taken ex parte can never be used but as chalk, unless by consent.

As to the other exception, it is very clear that the defendant’s intestate, being in possession, claiming a fee simple in the land, was able to convey. So the covenant of seisin was not broken. And, to entitle the plaintiff to recover on the covenant of warranty, he must show an actual eviction, or ouster, by a paramount title. (b)

Judgment according to verdict.

Memorandum. — May term, 1806, at Portland, Ezekiel Whitman, Esquire, and June term, 1806, at Wiscasset, James D. Hopkins, Esquire, were appointed examiners of candidates for admission as counsellors and attorneys within the county of Cumberland.

а) [In the English practice, a view is not granted as a matter of course. Roscoe's Real. Actions, 247—256. — Ed.]

б) [Vide Prescott vs. Trueman, post, 627. — Twambly vs. Henley, post, 441. — Ed.]

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 21 cases

View all citing references →
1817–1818: 21825–1826: 21831–1832: 11841–1842: 31843–1844: 21845–1846: 11847–1848: 11851–1852: 11853–1854: 11857–1858: 21859–1860: 21879–1880: 11883–1884: 11923–1924: 118172026peak 1841 · 3

Relies on it most ⓘ

  1. Mitchell v. Warner5 Conn. 497 (1825)
  2. Rose v. Davis11 Cal. 133 (1858)
  3. Vancleave v. Milliken13 Ind. 105 (1859)
  4. Duvall v. Craig15 U.S. (2 Wheat.) 45 (1817)
  5. Brandt v. Foster5 Iowa 287 (1857)
  6. Perry v. Weeks137 Mass. 584 (1884)

Most recent

  1. Gallison v. Downing244 Mass. 33 (1923)
  2. Perry v. Weeks137 Mass. 584 (1884)
  3. Story v. Maclay3 Mont. 480 (1880)
  4. Durando v. Durando32 Barb. 529 (N.Y. Sup. Ct. 1860)
  5. Vancleave v. Milliken13 Ind. 105 (1859)
  6. Rose v. Davis11 Cal. 133 (1858)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

No citations to other opinions in this database were found.

Keyboard shortcuts

/Focus the search box
j kNext / previous result
EnterOpen the selected result
xAdd / remove the selected result from the download list
n pNext / previous search term in a case
cCopy the citation of the current case
+ −Larger / smaller reading text
?Show this list