Gelston v. Burr

Headnote

for a breach of the covenants of seism, ó¿c. the defendant thípiaintiffbethe^pre'mises, heid^ferame totjon'ibát that demand bar Ma said estate, cation to this that theCpiahi- and‘bar hiíTsTOnfesringh0or theVeriplaintiff actscS “is’bady

as the plea did not show the nagtrumcnt, pialndBefeat Md the parties íie'1’was^not oiTrof u)8the jilea was’ held

in covenant the “covenants defendarii had in’qnestioiT'to euretheccnsTder ition mo-Bey.mortgaged it to -.he .defendant, and the defendant afterwardssold and conveyed to th “plaintiff; the plaintiff assigned the seisin of A. as a breach of the covenant; th e defendant pleaded that the mortgage from A. to him liad become forfeited, whereupon be entered and became seised of the land, and, being so seised^ conveyed to the plaintiff; it was held that the plea was bad in not stating that A.’s equity ol redemp= tion had been barred.

\v here a party demurs to a defective pleading, if the previous pleading, to which the pleading de6 snnrrcu to is an answer, be also defective, judgment will be given against the demurrer

THIS was an action of covenant against the defendant, one Qf the attorneys of this court. v

1 he declaration stated that the defendant; on the 1 st of No* vember, 18113, executed a deed to the plaintiff, which deed was set forth, and in which it was recited, that the defendant, on the 22(1 of October, 1802, conveyed to one Timothy Green twenty ^ots ^and in i’-ie city of New-Yorlc; and that the said Green, ^or securinS' fo°r thousand dollars, part of the purchase money, to be paid in four equal annual instalments, with interest, did, on the said 22d of October, mortgage to the defendant the said 20 lots, which said mortgage has been assigned by the defendant to the Manhattan Company ;■ and that whereas afterwards the sa^ Green released the said lots to the defendant, subject to the sa^ mortgage, and whereas the first of the said instalments has keen paid by the defendant; and that, whereas the defendant has bargained and sold the said lots to the plaintiff, in consideration of the sum of five thousand three hundred dollars; the deed then stated that the said defendant, in consideration of the said sum, bargained and sold unto the plaintiff the said lots, *n f66) subject to the said mortgage; that the defendant covenanteft that he was lawfully seised,, and had good right to conT’ that the plaintiff should peaceably and quietly enjoy the' same, without molestation of the defendant, or any person-claiming under him; and that the same were clear of all former gifts, grants, &c. and encumbrances, except the said mortgage, The plaintiff then averred that the defendant had not lawful authority to convey the said premises; and that- the plaintiff did not Peaceably and quietly enjoy the same; because the said Green, by virtue of the said conveyance to him from Burr, the J J 3 defendant, was seised of the premises, and did lawfully claim the 1 J same, and had never released and reconveyed the same to the defendant, in mariner and form as in the recita! of the deed1 from the defendant to the plaintiff is mentioned; and that the

[premises were not free from encumbrances, save as to the said .mortgage, but that the same were encumbered by the conveyance from the defendant to Green; and so the said defendant Ms covenant has not kept, &c.

To this declaration the defendant pleaded,

1. That after the execution of the deed from the defendant to the plaintiff, on the 1st of November, 1803, the plaintiff became seised of the premises in fee, and might have held and enjoyed the same without molestation, but that, on the 18th of April, 1808, he did, by deed dated on that day, defeat and bar Ms said estate, so conveyed to him by the defendant, whereby it became ended and determined.

2. After stating the mortgage from Green to the defendant, which came afterwards into the hands of the plaintiff and still remains in his possession, and was, on the Hthof November, 1802, duly registered, and that Green did not pay the said four thousand dollars, and the interest, but, nevertheless, that the plaintiff, on the 18th of April, 1808, voluntarily, and without the knowledge and consent of the defendant, did, by a certificate in writing, signed by him, the plaintiff acknowledge the said mortgage to be satisfied, and thereupon caused the said record and mortgage to be cancelled, whereby the estate of the said plaintiff was defeated, and became revested in Green.

3 and 4. The defendant, in his 3d and 4th pleas negatived the breaches assigned in the plaintiff’s declaration on the first and second covenants respectively, and tendered issues thereon to the country.

5. As to the breach of the third covenant; that on the said 1st of November, 1803, the plaintiff entered and was seised, and might have remained in quiet enjoyment; traversing that Green was seised at the time.

6. As to the breach of the fourth covenant; that the premises were, on the said 1st of November, free of all encumbrances, save as to the said mortgage; traversing that they were encumbered by the conveyance from the defendant to Green.

7. For further plea, as to so much of the breaches thirdly assigned in the plaintiff’s declaration as alleges that at the time of the conveyance from the defendant to the plaintiff Green was seised of the premises, and did lawfully claim the same, and had never released and conveyed the same, 5 and, as to so

much of the breaches fourthly assigned, as alleges that the pi emises were encumbered by the conveyance from the defendant to Green; that (after stating the mortgage, as in the 2d plea) Green did not pay any of the instalments, at the time limited by the mortgage, or at any other time, whereby the estate of the defendant became absolute in the premises, whereupon he entered on the same, and became seised thereof in fee, and, being so seised, conveyed to the said plaintiff.

8. For further plea, as to so much of the 3d and 4th breaches as are answered in the 7th plea; that between the said 22d of October, 1802, and the said 1st of November, 1803, Green released the said 20 lots of land to the defendant by deed, which deed has been since lost or destroyed by time or accident, and cannot be brought into court, nor can the date thereof be more particularly set forth.

The plaintiff replied as follows °.

1. To the first plea; that the defendant did not defeat and bar his estate in the said twenty lots of lands in manner and form, &c.

2. A general denial of' the allegation in the second plea.

3. As to the fifth plea; that Green was seised and possessed of the premises, and did lawfully claim the same; pursuing the words of the declaration.

4. As to the seventh plea; that the defendant did not become seised of the premises in fee, and was not seised thereof in manner and form, &c.

5. As to the eighth plea; that Green did not reconvey to the defendant.

Issues were tendered by each of these replications.

To the replications to the first and seventh pleas, the defendant demurred, and the plaintiff joined in demurrer.