10 Me. 170 | Me. | 1833
The opinion of the Court, at a subsequent term, was delivered by
The action on the covenant of freedom from incumbrances was prematurely brought, and nothing but nominal damages were recovered; still it is admitted that the judgment in that action would be a good bar to a second action on the same covenant, for the same breach. But it is contended that it is no bar to the present action, founded on the covenant of warranty, or covenant for quiet enjoyment. This action was not commenced until after the recovery by Esther Thompson of her dower and damages against the present plaintiff. But her dower was not actually assigned, because it was prevented by a compromise between the parties, by which the plaintiff extinguished her title by paying her one hundred and five dollars. The question for decision is, whether the present action is barred by the former judgment. It is very clear that the two covenants are different in their character. The covenant in the first action is a covenant in presentí. That in the present case is a covenant in futuro, which runs with the land. The counsel for the defendant has contended that there is another marked distinction, and one of importance as applicable in the case before us ; namely, that the covenant of freedom
In the two preceding cases, above cited, viz. Bearce v. Jackson, and Twambly v. Henley, it was stated that an action could not be sustained on the covenant of warranty, unless there had been an eviction or ouster by a paramount title; but still the general position thus stated is to be considered as qualified by the doctrine previously established in Hamilton v. Cutts.
Thus it is seen that none of the cases* cited by the counsel for the defendant, go the length of proving the principle to be correct, that an action on the covenant of warranty can in no case be maintained, except where there is a loss of the land warranted, by an elder and better title. A different principle is established in the case of Sprague v. Baker, 17 Mass. 586. It was an action of covenant broken, upon a deed, containing the usual covenants against incumbrances, of warranty, &c. White and wife mortgaged the premises to Morse and Bachelder, and afterwards conveyed the same to Baker, the defendant; he conveyed the same to Hitchings with warranty and the usual covenants of seizin, of good right to convey, and against incumbrances; and Hitchings conveyed the same to Sprague, the plaintiff, with similar covenants. It was objected that the plaintiff being an assignee of Hitchings, could maintain no action against Baker, on the covenant against incumbrances, made by him ; as that covenant was broken as soon as it was made;