Majority
p. 105Hall against Dean.
Headnote
where a grants covenanted that ‘¡¡“u,|jr“g“ea. suít'&c.t'oí ^yal^rsm !ngfu¿Lr°hím’ from all former incumbrances o£ what nature or made tb® field that a judgment against the °tut;he t|“® having ^Igmliit, 4mi-he was evicted, recover the a«^grantorf™1THIS was an action of covenant. The declaration stated, • that on the 30th of March, 1804, the defendant and his wife executed a certain deed, by which, for the consideration of 4,626 dollars, they conveyed certain premises to the plaintiff, in fee; and the defendant, among other things, covenanted, “ that the said Joseph Hall, his heirs and assigns, should, and might, at all times thereafter, peaceably and quietly have, hold, occupy, 1*1*1 ■* • i i n and enioy the above-granted premises, and every part thereof, and the appurtenances, without any let, suit, trouble, molestation, eviction, or disturbance of the said Daniel S. Dean, his , . . - , , , ,, , . . heirs or assigns, or or any other person, lawfully claiming or to claim by, from, or under him, or any of them, and that free, clear, discharged, and unincumbered from all former and other tibes, charges, estates, and incumbrances of what nature or kind soever had, made, committed, done, or suffered by the said Daniel, his heirs or assigns, or by any other person or persons whomsoever, any thing having or claiming in the premises,”
The plaintiff then averred, that John Murray and Edward Payer, executors of Jacob Watson, obtained a judgment in the supreme court against the defendant for 10,300 dollars debt, and 28 dollars and 55 cents damages, which was docketed, prior to the execution of the deed, on the 23d of February, 1804, which judgement remained and continued in-full force and virtue, and was a valid existing incumbrance on the premises, until on the 5th of May, 1804, when the plaintiff was forced to pay, and did pay, the sum of 3,700 dollars, for, towards, and in satisfaction of, the said
To this declaration there was a general demurrer and joinder in demurrer. The cause was submitted to the court without argument.
delivered the opinion of the court.
If this had been a covenant for quiet enjoyment only, it is clear that a lawful eviction of the grantee would be necessary to authorize the action, because such a covenant goes to the possession, and not to the title 5 ( 3 Johns. Rep, 471 , 5 Johns. Rep.
p. 106
130 .;) but, in this'case, the covenant against incumbrance's is coupled with it. The defendant not only covenants that the-plaintiff shall peaceably and quietly occupy and enjoy the premises, but that the premises, shall be free, clear, discharged, and unincumbered of, and from, all former and other titles,' charges, estates, and incumbrances of what nature or kind soever, had, made, committed, done, or suffered by the defendant, his-heirs or assigns,, or by any other person-,, or persons-, whomsoever. Is it true, the®, according to this .-covenant, that the premises were thus unincumbered when the conveyance was executed ? The contrary appears, to- be the case. The judgment of Murray Peyer, survivors of Murray, Peyery 4r. Wetsjm,. -exeat». tors, &c., was an existing incumbrance at the time* - The aliegation in the coyenant is not, therefore, founded in fact. . The covenant must be deemed to have -been broken’, and, without discharging the incumbrance, the plaintiff would have been enititled to nominal damages; but, in this case, the judgment was, averred to have been paid by him, which he had a right to do without waiting until he was evicted. He has, therefore, properly resorted to his action on the covenant, to recover .back the amount paid by him, in extinguishment of the judgment against the defendant. ( 7 Johns. Rep. 358 .)
Judgment for the plaintiff.