Majority
p. 376Sedgwick against Hollenback. ALBANY, Beb. ISll.
Headnote
¿e in an action of eovenanu°'conofsíá™ &plwr to sell, qmet en joyment, agamst encumbrances it wm htid, that the declaration were well assigned in venants^thataíi entry by the corenantov himself; tortiousiy tie,’ iT a'breach &Vquiet° enjoy-breach of^the covenant of war ranty is bad, if it does not statethe í!m™the defendSsed Tc and li}e , (!eiÍn<í.:l,nt pleaded that he was seised, ke. and the plaintiff replied, that he because1 oneW. wasatseisedtUnof three undivided seventh parts oí the premises, this was held a good assignment the Covenant, the'1 defendant was not seised absolutely in fee of the whole right.
But the stating an outstanding mortgage and a judgment, at the time of the covenant, without averring a foreclosure or possession under the mortgage, is not alleging a sufficient breach-of seisin; and a judgment of itself does not transfer the title, or destroy the seisin.
time to time, and at all times thereafter, peaceably and THIS was an action of covenant. The declaration stated, that the defendant by his deed, dated the 14th of 7utyi ISO?, in consideration of 800 dollars, granted, bargained, sold and conveyed to the plaintiff a piece of land, ° J . 1 1 7 &c. and in and by the said deed covenanted with the plaintiff that the defendant was well seised, &c. and had good right to sell, &c. and that the plaintiff should from duietty have, hold, occupy, possess and enjoy the said premises with the appurtenances, as above granted and 1 r bargained, and the defendant further covenanted, that he would warrant and defend the premises, See. The plaintiff assigned as breaches, 1. That the defendant was not seised, &c. (in the words of the covenant;) 2. That he had not power to sell, &c. (in the words of the covenant;) 3. That the defendant had not, from time to time, and at all times after the making the said deed, hitherto peaceably and quietly had, held, &c. the said Pretnises with the appurtenances, without any let, &c. but that, on the contrary, the defendant, on the 10th of ’ _ J ’ ’ October, 1808, disturbed and hindered the plaintiff in the . „ , . , , . . , use, occupation, &c. oí the premises, and the defendant did put and cause to be put into possession of the premises divers persons and their families, to wit, &c. and ejecte¿ and amoved the plaintiff from the use and occuu i pation, and possession, &c. 4. That the defendant hath . „ not warranted and del ended the premises, etc.
Plea, to the first and second breáches, that the de.fendant was seised, &c. and had proved to sell, &c.
p. 377
First plea to the third and fourth breaches, that after the making the deed, &c. to wit, on the 14th of July, 1807, the plaintiff executed a mortgage to the defendant, of the premises, for securing the payment of the sum of 1,000 dollars, 300 dollars on the 1st of March next ensuing, 400 dollars on the 1st of November, 1808, and 300 dollars on the 1st of November, 1809, with interest, &c. and did, in and by the said mortgage, authorize and empower the defendant, in case of default in the payment of the said sum of 1,000 dollars, or any part thereof, to enter upon and take possession of the said premises; and the defendant averred that the plaintiff did make default, to wit, in the payment of the said sum of 300 dollars on the 1st of March; and the defendant on the 10th of October, 1808, did, in consequence, enter into the premises, and put 71 and A- into the possession thereof as his tenants, who have ever since kept the possession thereof; and that, ever since the 14th of July, 1807, until the said 10th of October, the defendant did warrant and defend the said premises to the plaintiff, according to the said covenants, &c. and this he is ready to verify, fkc.
Second plea to the third and fourth [ye a ches: that the plaintiff, on the 14th of July, 1807, mortgaged the said premises to the defendant, to secure the said sum of 1,000 dollars, &c. and did, by the said mortgage, authorize and empower the defendant, his heirs and assigns, in case of the non-payment of the said sum, &c. to grant, bargain and sell the said premises at public auction, pursuant to the statute, &c. and that the plaintiff having made default, &c. the defendant did, on the 6th of November, 1807, assign and transfer the said mort - gage, to William Shute, for the consideration of the principal and interest due thereon; and that the plaintiff having made default in the payment, &c. the said William Shute did sell the said premises at public auction, pursuant to the said power, See. according to the statute, &c. unto the defendant, for the consideration of, See. by
p. 378
reason whereof the defendant entered into the premises, the 10th of October, 1808, and put the said T. and A. jn possession, &c. as his tenants, &c. and that, ever since the 4th of July, 1808, the defendant did warrant and defend, &c.
Third plea to the third and fourth breaches: that the plaintiff, on the 14th of July, 1797, mortgaged the premises to the defendant, and the plaintiff having made default in the payment of the money according to the condition, &c. the defendant, by virtue of the mortgage, entered, &c. on the 10th oí October, 1808, &c.
Replication to Pat plea to the first and second breaches: that the defendant was not seised, &c. because, at the time of the sealing and delivery of the said deed, the heirs of William Bates were seised, &c. of three equal and undivided seventh parts of the premises; and because, previous to the said, deed, to wit, on the 8th of January, 1805, the defendant had mortgaged the premises to V. Kingsley, for securing the payment of 2,300 dollars, &c. and which mortgage remained unsatisfied at the time of the giving of the deed by the defendant to the plaintiff; and because, before the said deed of the defendant to the plaintiff, to wit, on the 6th of March, 1806, there was a judgment in this court against the defendant in favour of J. B. Eves and S. Whiston, for 6,328 dollars and 86 cents, and at the time of the said deed remained unsatisfied, &c. and this he is ready to verify, &c.
Replication to the first plea to the third and fourth breaches: that though the plaintiff did give the mortgage to the defendant, &c. yet the defendant, before his entry, &c. to wit, on the 6th of November, 1807, assigned the mortgage to William Shute, &c. and this he is ready to verify, &c.
Replication to the second plea to the third and fourth breaches: that the plaintiff did give the mortgage, &c. to the defendant, &c. and the defendant did assign it to William Shute, &c. but the plaintiff denies tljat the de,=
p. 379
fendant did, on the 8th of April, 1808, or at any other time, before his entry, &c. purchase of the said William Shute the said premises, &c. and this he prays may be inquired of by the country, &c. .
Replication to the third plea to the third and fourth breaches : that the plaintiff did mortgage, &c. to the defendant, as stated, &c. yet that, before the entry of the said defendant, to wit, on the 6th of November, 1807, the defendant did assign the said mortgage to William Shute, &c. and this he is ready to verify, &c.
There was a special demurrer to the replications, and the following causes were assigned: 1. Because the replication to the plea to the first and second breaches, after denying the whole plea, proceeds argumentatively to state and allege a number of supposed facts, to maintain the traverse, and sets forth three distinct facts-, which, if put in issue, must be tried by different tribunals ; and it concludes to the court, and not to the country. 2. That the replication to the first plea to the third and fourth breaches neither confesses and avoids, nor traverses and denies the said plea, but leaves it unanswered; that the plea states a power to sell contained, in the mortgage, and the right to enter, and the default of the plaintiff, and the defendant does not reply to these facts, nor does he reply to the fact, that until the entry, &c. the defendant did defend, &c. S. That the replication to the second plea to the third and fourth breaches, does not answer the allegations that the mortgage contained a power to sell, and that the plaintiff made default, &c. 4. That the replication is double, as, after confessing and avoiding a part of the said second plea to the third and fourth breaches, and taking issue on certain other parts of the said plea, and concluding to the •country, it further states part of the same facts so confessed and avoided, by alleging that the said mortgage was assigned to William Shute, and concludes to the • court. 5. That the said replication wants certainty, as it does not appear to which of the said pleas the last replication was intended to relate.
p. 380There was a joinder in demurrer; and the cause was , . , . submitted to the court, without argument.
The three first breaches in the declara» tjon are weq assigned. The two first are in the words of the covenant, and the third states, that the defendant himself entered and evicted the plaintiffs. In the case of a covenant for quiet enjoyment, an entry by the covenantor himself, tortiously and without title, is a breach. This was the doctrine in Corus’s case, (Cro. Eliz. 544, 1 Roll. Abr. 430. pl. 11.) and it was very pointedly and' strongly laid down in Crosse v. Young. (2 Show. 415.) But as the fourth breach, which was upon the covenant of warranty, does not state any eviction whatever, it is clearly bad, and it will be found that this defect was not cured by the replication.
The pleas were good and sufficient, and the nex't inquiry is respecting the replication.
The replication to the plea to the first and second breaches, assigns specially a breach in stating that the heirs of Bates were seised of three sevenths of the premises in fee. This was a good assignment; for if the defendant was not seised absolutely in fee of the whole right in the premises, his covenant was not true. He goes on and states two outstanding encumbrances, a mortgage and a judgment, and the question is, whether these were breaches of the covenant of seisin. He does not aver that the mortgage was foreclosed, or possession given, and until then the mortgagor is considered as seised, according to the doctrine of this court. A judgment is of itself no transfer of title, nor does it destroy the seisin of the defendant. So far the replication was filled with immaterial matter, and bad on special demurrer. The replication to the other pleas is bad in substance. It does not meet the fact charged of a lawful entry by the defendant under the title of the mortgage. Every fact in the replication to the first, second
p. 381
and third plea to the third and fourth breaches, may be true, and yet the defendant may have lawfully entered under the mortgage. The defendant is therefore entitled to judgment upon the whole record; for the fourth breach is bad in substance, the replication to the plea to the first and second breaches is bad in form, and the replication to the other pleas is bad in substance.
Judgment for the defendant, with leave to amend on payment of costs.