Miner v. Clark

A more important question is whether parol notice to the defendant of the commencement of the ejectment suit was sufficient The object of the notice is to inform the grantor that a suit has been brought against his grantee; the grantor is supposed to be better able to defend such a suit, and by his covenant he has undertaken to warrant and defend the grantee against the claims of all persons. A parol notice gives the information to the grantor.quite as well as a written one; and as there is no technical rule requiring such a notice to be in writing, no writing is necessary. The party making this objection should have produced some authority to sustain it; none has been produced, and probably because none can be found. I have already remarked, that the object of giving notice is to inform the grantor of the assertion of a claim against which he has covenanted that he will warrant and defend his granted. If we regard the plain import of the language used, it is the grantor who is to defend, and not the grantee; and if we regard the reason and propriety of the case, we come to the conclusion that the grantor must defend or not at his peril after notice. Such it is believed is the common sense of the case. The first case in our courts on the subject of notice is Blaisdell v.Babcock,1 Johns. R. 517. The plaintiff bought a horse of the defendant, which was claimed by one Snow. An action of trover was brought by Snow, of which the plaintiff gave the defendant notice. It does not appear whether a written notice was given; the point was not raised. The defendant attended one term of the court, with witnesses to defend the title to the horse which he had sold to the plaintiff, but did not attend when the cause wás tried. The record of Snow’s recovery was received in evidence, though the judge told the jury it was not conclusive. On a motion for a new trial, the court said that the record was proper evidence, because without it an eviction could not have been shown; that the first notice given to the defendant was sufficient, and that he was bound to take notice of the subsequent proceedings. The same, point was recently decided in error, in the case of Rogers v. Kneeland, 13 Wendell, 123. The case of Stone v. Hooker, 9 Cowen 154, was an action upon an agreement to indemnify. A suit was brought against the plaintiff:

he gave notice of it to the defendant and requested him t«$ attend, but he did not. The plaintiff recovered the amount of a judgment against himself in favor of others who he had! agreed to indemnify upon the strength of the defendant’s promise to him, even though one of those judgments was obtained by confession. It appeared, however, that there were several suits, and after one suit had been tried it would have been useless to have contested the dthers. Mr. Justice Wood-worth remarks, that having given a cognovit, he was bound to show that the defendant was not prejudiced by it, which in that case he did do. The cáse of Jackson v. Marsh, 5 Wendell, 44, goes farther, and states that after notice to the grantor of suit brought, and a refusal by him to defend, the grantee is not bound to defend. At all events, I apprehend enough was done in this case. A plea was put in, as was stated by counsel; and though the record states that judgment was obtained by default, it is inferrible from the case that such de-' fault was at the circuit, and of course a plea must have been put in. If notice of the suit had not been given to the defendant, it would have behooved the plaintiff to have shown that a full defence was-made, and that the defendant, if notice had been given, could not have defeated á recovery. In the present case the defendant has nb just ground of complaint. He was permitted and attempted to show that there was no ground for the recovery against the plaintiff, but in that he failed.

Baker was a competent witness. He had no interest in "this cause; his credibility was before the jury. The jury were satisfied that there was no collusion betwen him and the plaintiff, and I cannbt say that their verdict is against evidence. That was a question for the jury, and their decision Should not be disturbed fexcept in a clear case.

New trial denied-.

The following dissénting opinion was delivered by Mn Justice BronsOn :

dissented. It has never been decided that á parol notice was sufficient-, in a cáse like the present, andlaih

of opinion that it should have been in writing. If the notice' is to have any influence upon the right of the party, it should be given in such form as fully to apprise the person receiving it of what is required of him, and the consequences which are to follow, if he neglects to take upon himself the defence of the suit. A verbal notice may be misapprehended by the person to whom it is addressed ; and without any intentional error, may be proved in a very different form from that in which it was actually delivered. It should be in writing, not only for thp purpose of avoiding those consequences, but to enable the party to examine it deliberately, and consult his counsel on the proper course to be pursued. In ordinary legal proceedings, however trifling may be the consequences of neglecting the warning, no person is allowed to be prejudiced, either in his action or defence, by a mere verbal notice. If this is a proper regulation, in relation to proceedings after the parties have appeared in court, it would seem to be still more appropriate, where the object of the notice is to call on the party to appear in court, and take on himself the defence of an action which has been instituted against his grantee. This is not like a notice which will sometimes affect the title of a party by showing it tainted with fraud. In those cases notice only means knowledge of a particular fact, which .shows that the party did not act in good faith; and in general, it is a matter of no moment in xvhat form the information was received, or from xvhat source it xvas derived. But here the notice, if it is to have any effect, is in itself a legal proceeding. It advises the warrantor that the title xvhich he professed to grant is called in question; that another person claims the land by a paramount title, and has commenced a suit to recover it; and calls upon the grantor to appear in court and defend the title. It is similar in character to the notice or xx'arning by which an action is commenced; and which, if notin the form of legal process served by a public officer, must at least be in xvriting.

In Gilbert v. The Columbia Turnpike Co. 4 Johns. Cas. 107 , the court say that “ a notice in legal proceedings means a written noticeand it was one of the grounds on which the proceedings were quashed, that it did not appear that the

notice which had been given was in writing. It was added, jn that case, that the necessity of a written notice might be gathered from the statute which directed the notice, in certain cases, to be left at the dwelling house of the party. Although this additional reason for the decision was mentioned, I think the court intended to assert the salutary principle, that' the right of a party could not be prejudiced by legal proceedings, unless the notice required by law was given in writing. ■ If we look a little further into the nature of this proceeding, I think the insufficiency of a verbal notice will be more apparent. The modern practice of giving notice bears a strong analogy to the old method of vouching the grantor to warranty, when the tenant was sued in a real action. If the grantor did not appear voluntarily, a summons ad warrantizandum issued, informing him of the pendency of the suit, and requiring him to appear and warrant the land to. the tenant; and this writ was served by the sheriff. Real actions have every where fallen much into disuse 'óf late years, and in this státe most of them have been abolished. The practice of giving notice when the tenant is sued in the action of ejectment, seems to have been suggested by the old process of voucher and summons ad warrantizandum. And as in the one case the right of the grantor could only be asserted by means of a writ served by a public officer, he ought not in the other to be prejudiced by any thing less definite and formal] than a writing, which shall advise him of what has been done, and what he is required to do.

Whatever may be the rule in relation to warranties on the sale of chattels, I think it against legal analogies, and utterly unsafe in practice to give any effect to a verbal notice of this kind in an action for the recovery of real estate. Without examining the other questions made on the trial, I am of opinion that the notice was insufficient, and that the verdict ought therefore to be set aside..