Comstock v. Comstock

23 Conn. 349 | Conn. | 1854

Ellsworth, J.

There is no doubt that the plaintiff is entitled to recover for the breaches of covenants stated in the declaration. The defendant, when he executed the deed, was not seized of the premises, as a good, indefeasible estate in fee simple, nor were the premises free of incumbrance, nor had the plaintiff a right to sell them in fee simple. The estate of the defendant, under his father’s will, is an estate tail, and nothing more; his lineal heirs only being entitled to take under and through him, and he never having any greater than a life estate to convey. To this point it cannot be necessary to cite authorities, for the books are full of them. They will be found cited in 1 Jarn. on Wills, 232, and Hudson v. Wadsworth, 8 Conn. R., 358.

Nor is there any question, that this estate tail in the defendant was incumbered with a charge for the support of the defendant’s unfortunate brother, David Comstock.

The defendant had, however, some right in the premises conveyed, and the damages to be recovered by the plaintiff must depend upon a further hearing in the superior court.

Many questions and ^ legal distinctions were made, and elaborately discussed by the defendant’s counsel, in the course of his argument, which we have no occasion to consider or decide, because we have no doubt whatever, upon the question above decided, and this is . enough to make an end of the controversy between the parties.

We advise judgment for the plaintiff.

In this opinion the other judges concurred, except Storrs, J., who was not present when the case was argued, and therefore gave no opinion.

Judgment for plaintiff.