Smith v. M'Campbell

Holman, J.

The plaintiff brought an action of covenant, setting forth in his declaration that the defendant, at Charles-town, in Clark county, by his indenture sealed, &c. granted,bargained, and sold to the plaintiff a certain lot of land in Charles-town aforesaid; and covenanted with the plaintiff, that he would warrant and forever defend the said lot from himself, his heirs, and all persons claiming under him, and also against the lawful claim or claims of all persons whatever. The breaches assigned are, that the defendant has not warranted and defended the said lot from the claim, &c. in this, that he suffered the plaintiff to be ejected, &c. by a title better than the title conveyed by the defendant as aforesaid. And in this, that he suffered the plaintiff to be ejected by persons claiming under the defendant. And in this, that the defendant in collusion with others ejected the plaintiff. And in this, that a judgment was obtained in the General Court in 1812, before the date of the *101 conveyance aforesaid, against the defendant and one Joseph Brown; that execution issued on the said judgment, and, after the conveyance by indenture aforesaid, the said lot was given up on said execution by the defendant as his property; and, at the sale, the defendant and others in the name of one James Bigger purchased the said lot, and in the name of Bigger procured the sheriff’s deed therefor; and that Bigger, by an action of ejectment in the Harrison Circuit Court, ousted and evicted the plaintiff from the possession of the lot. The next and last breach sets forth the judgment in the General Court, and the sale of the lot on the execution, in nearly the same words; but states that the defendant, in partnership with others, purchased the lot at the sheriff’s sale in the name of Bigger as trustee, and to him the conveyance was made; and in the name of Bigger as trustee, by a certain action of ejectment, evicted the plaintiff. To this declaration there were four pleas; on two of which issues were made up. To the other two the plaintiff demurred; and the Circuit Court, on the demurrer, decided that the declaration was insufficient to support the action, and gave judgment for the defendant.

JYelson, for the plaintiff! Caswell, for the defendant.

The two pleas, to which the plaintiff demurred, were clearly inadmissible; and the only question is, as to the sufficiency of the declaration. Several of the breaches assigned are objectionable; but, in the two last, the title of Bigger by which the plaintiff was evicted is fully set forth, and shown to be paramount to the title conveyed by the defendant to the plaintiff. A doubt may arise on the manner of the eviction as shown in the first of these two breaches; it being by an action of ejectment in the Harrison Circuit Court, without showing by what authority that Court exercised jurisdiction over an action local to ClarJc county. But a removal of tiffs doubt is unnecessary, inasmuch as we are warranted by the precedents in the opinion, that the eviction as specified in the last breach, is sufficiently certain (1) . The Circuit Court, therefore, acted incorrectly in sustaining the demurrer against the declaration.

Per Curiam.

The judgment is reversed, with costs. Cause remanded to the Circuit Court, with directions to permit the defendant to withdraw his joinder in demurrer, and perfect his defence.

Had the deed contained a covenant against incumbrances, the judgment stated had authorized a recovery, without alleging an eviction. On that covenant, however, nominal damages only are recoverable, unless the declaration aver a disturbance of the possession, or payment of the incumbrance. Delavergne v. Norris, 7 Johns. R. 358. — Hall v. Dean, 13 Johns. R. 105.— De Forest v. Leete, 16 Johns. R. 122. — Stanard v. Eldridge, ibid. 254. On a covenant of warranty, or for quiet enjoyment, where the covenant is general against the interruptions of all persons, and the disturbance is by , a stranger, the declaration must aver an eviction by a legal title inconsistent with the plaintiff’s. Wot ton v. Hele, 2 Will. Saund. 177, and 181, note 10. — 2 Wheat. 62 , note c. — 2 Stark. Ev. 434. But the particulars of the title need not be set out, nor that the eviction was by legal process. Foster v. Pierson, 4 T.R. 617. — Hodgson v. The E. J. Company, 8 T. R. 278. If the covenantbe particular against the interruption of the grantor, or some other specified person, the eviction by the person named need not be alleged to have been made under a legal title. 2 Will. Saund. 181, note 10. — 2 Wheat. 62 , note c. — Patton v. Kennedy, 1 Marsh. Ky. R. 389. — 2 Stark. Ev. 434. On the covenant of seisin or right to convey, breaches may be assigned generally by negativing the words of the covenant, without stating any eviction or interruption. Bradshaw's case, 9 Co. R. 60. — 2 Will. Saund. 181, note 10. — Pollard v. Dwight, 4 Cranch, 421, 430 . —2 Wheat. 62, note c.

The above named covenants, with that.for further assurance, have succeeded to the warranties contained in ancient feoffments. .They relate to the land, and pass to the assignee. 4 Cruise on R. P. 80, — Sugd. Vend. 367. It is true, that it has been held in New-York, (Livingston, J. dissentients,) that the assignee cannot sue on the covenant of seisin. Greenby v. Wilcocks, 2 Johns. R. 1. So also in Massachusetts. Bickford v. Page, 2 Mass. 455 . But the law is settled otherwise in England. It is there held, that though the covenant of seisin is broken as soon as made, if the grantor be not seised; yet that the breach is a continuing one, and therefore the assignee may sue on this covenant as well as on the others. Kingdon v. Nottle, 4 M. and Selw. 53. As to the measure of damages for breaches of these covenants, vide Lindley v. Lukin, in this Court, Nov. term, 1823, post. — Blackwell v. The B. of J. of Lawrence County, in this Court, May term, 1828, post. — 2 Wheat. 62 , note c.