Majority
p. 236Kerr against Shaw & Shaw.
Headnote
A warranty in a writing not under seal, for the quiet enjoyment of land, must express the consideration on which it is founded.A recovery in ejectment against the covenantee, is not a breach of the covenant for quiet enjoyment; but there must be an actual ouster by writ of possession.
THIS was an action of assumpsit, founded upon á written agreement, dated the 9th .of December, \m\, by which the defenda-nts bound themselves to the plaintiff, in the. penalty of one thousand dollars, as follows : that he, the plaintiff,, “should have, and hold’ a peaceable possession .of a certain farm, distinguished' and;known by lot No. -10., in' great lot No. 23., in Hardenburgh patent, &c.; which the said Kerr is to have pos- ■
p. 237
session of one hundred acres on the west part of said farm, and to possess the same peaceably, with paying the rent due thereon; whereby we warrant and defend against all and every person, except the lord of the soil. The conditions of the above are as such, that the said Kerr is to call on the lord of the soil, and take a lease in his own name, as soon as may be .convenient, within the term of sixty days, then the above to be void, and of no effect.’’
The plaintiff proved, at the trial, that .the consideration of this agreement was 450 dollars, paid by the plaintiff for which William Shaw, one of the defendants, on the same day, assigned to the plaintiff his right and title to the 100 acres of land described in the agreement. This evidence being objected to on the part of the defendants, was admitted by the judge, reserving the point. The plaintiff, then, produced a judgment .against William Shaw, in the supreme court, docketed in March, 1809, on which an execution was issued, and the land in question sold by the sheriff of Greene, on the 10th of November, 1810, and conveyed to E. Williams, who brought an action of ejectment against the plaintiff, and recovered judgment on the 6th of November, 1813; but the premises had never, been yielded up, and no writ of possession had ever been issued. The plaintiff admitted that he had not called on the lord of the soil for a lease, as required by the condition annexed to the agreement.
The counsel for the defendants objected to the sufficiency of this evidence to entitle the plaintiff to recover. But a verdict was taken for the plaintiff, subject to the opinion of the court. The case was submitted to the court without argument.
The agreement upon which this action is founded is very inartificially drawn, but it amounts, substantially, to a promise or warranty of quiet enjoyment, by the plaintiff of the lot of land therein described, against all persons except the lord of the soil. But, according to the case of Sears v. Brink, ( 3 Johns. Rep. 210 .,) the contract is void under the statute of frauds. The agreement is not” under seal, nor is there any consideration expressed in the writing to support the promise; and in the case referred to, it is decided that the consideration, as well as the promise, must be in writing ; and that parol evidence is not admissible to prove the consideration. But if this
p. 238
objection was removed, there' is not enough, shown to entitle the plaintiff to recover in this action.. If the agreement is’to be considered equivalent to a covenant, for quiet-enjoyment, no sufficient breach has been shown. .This eovenaqt is broken 'only, by an eviction or actual ouster. It relates-to the possession only, not; to the title, There must, therefore, be a disturbance of the. possession in order to amount to a breach of such a ..covenant. The case Of Waldron v. M'Carty, ( 3 Johns. Rep. 471 .,) is .very strong on this point. In that case the land, when sold and conveyed, was incumbered.. with a mortgage* which was,- Afterwards, foreclosed in chancery, and sold, and purchased: in by the grantee in the deed; -and this-was held to be no .breach of the Covenant for quiet-enjoyment. - The same principle is/aeffipted,.'and confirmed by the case of Korts v. Carpenter, ( 5 Johns. Rep. 120 .,) where the court say it is A technical rule,-that nothing amounts, to a breach of this Cover-pant but an actual eviction or disturbance of the possession of the covenantee. , In the case before us there is, to be sure, a judgment against the plaintiff, and nothing wanting but a writ of possession to constitute a breach of the promise.'. But this being a technical rule,, applicable to this covenant, the covenantor ought- not to stop short of an actual ouster, if he means to rely Upon his covenant; he has no right tó make Any compromise until an actuaTbreach has been shown.; The defendants aré’, a,cÉordingly, entitled to judgment. . • ,
Judgment forihe defendants.