20 Ala. 156 | Ala. | 1852
We are of opinion that the court properly overruled the demurrer to the declaration. It seems to be well settled, that in an action upon a covenant of seizin, the breach may be as general as the covenant. See Sedgwick on Damages, 181, and cases there cited. In this case, the pleader has averred the existence of an outstanding t tie or incumbrance, showing in what it consists, and also that the plaintiff below purchased it, in order to perfect his title, at the price of seven hundred and fifty dollars. In order to pass the title conveyed by Lucy Mayhew to George Whitman and his wife, it was necessary that they should have conformed to the mode prescribed by the power contained in the deed to them. This they failed to do, and notwithstanding the execution of the deed from Whitman to Bunckley, under whom Anderson claimed, the power to appoint other limitations, inconsistent with the absolute title attempted to be conveyed by Anderson to Knox, still existed, and this of itself constituted an incumbrance upon Knox’s title, amounting to a breach of Anderson’s covenant, and justifying Knox in purchasing its extinguishment by a revocation of the limitations created by Lucy Mayhew’s deed, and in procuring an appointment to himself of the fee.
The payment was an act done, in which Knox and Whitman were alone the actors. Anderson was neither a party, nor privy to it, and, as to him, it was clearly res inter alios acta, and, according to the established rules of evidence, in
That Knox offered to prove the reasonableness of the payment, and was prevented by an objection interposed by the other side, which the court sustained, did not justify the jury in acting without proof, or in considering that as proof which would otherwise be incompetent. This part of the charge, therefore, was erroneous.
The views above expressed show that the court properly refused the charged prayed for by the counsel for the defendant in the court below.
Let the judgment be reversed, and cause remanded.