Flannery v. Hinkson
40 Vt. 485
Vt.
1868
Check Treatment

*487The opinion of the court was delivered by

Peck, J.

The question is whether the county court erred in dismissing the suit on defendant’s motion for want of jurisdiction of the justice before whom the suit was commenced. The ground urged against the jurisdiction is that the title of land is concerned. If so the justice had no jurisdiction. This must be determined by the declaration. If on a traverse of. all the material facts alleged in the declaration, the title of land would be involved in the issue, the justice had no jurisdiction, and the action was properly dismissed ; otherwise the justice had jurisdiction, and the judgment of the county court was erroneous. The action is for a breach of covenant in a deed of conveyance of real estate, alleged to have been executed to the plaintiff by the defendant as administrator of Elijah Hinkson. The covenants set forth specifically in the declaration as contained in the deed, include, among other covenants, most of the covenants usually contained in deeds of warranty ; and among them is a covenant that the intestate died seized of the premises. The fact that the deed which the declaration describes, and which the plaintiff would be bound to prove if the execution is denied, contains, among other covenants, a covenant of seisin and warranty of title, is no objection to the jurisdiction of a justice of the peace, unless the allegation of the breach tenders an issue as to the title. The date of the deed is May 21st, 1864. The only breach specifically alleged, is that the land was set in the defendant’s grand list of Bolton where it was situated, for that year ; that taxes were assessed upon that list against the defendant, put into the hands of the constable for collection, that the defendant was called upon to pay the tax and refused, and that he directed the land to be sold for the taxes, that the constable advertised the land for sale, and that on the day of the sale the plaintiff paid the taxes and costs to prevent the sale to some other person. It is evident that the title to the land is not involved in the proof of this breach. But the declaration immediately proceeds : “ And the plaintiff says the defendant has broken all of said covenants, and has refused to perform his covenants aforesaid, and the plaintiff in consequence-thereof, has been obliged to pay large sums of money to prevent being ejected from said land, which it was the duty of the defendant to. pay,” *488This allegation is relied on by the defendant’s counsel as ousting the justice of jurisdiction. Whether it has this effect, depends on the construction of the declaration. If it is treated as an allegation of an additional breach, as the defendant insists, it is fatal to the jurisdiction of the justice ; because it includes a breach of the covenant of seizin. But if it is but a legal conclusion which the pleader attempts to draw from the facts previously alleged, it has no such effect. If this allegation had commenced with the words, “ so that the plaintiff says the defendant has broken his covenants,” &e., which is the usual form of the concluding allegation in actions of covenant, there could be no doubt of its being a conclusion of law, and not an allegation of fact. The use of the word and, in place of the words, so that, is too trifling a departure from the precedents in such actions, to alter the construction ; especially as in other respects the allegation is in substance the usual concluding allegation in actions of covenant, and which is always held to be but a conclusion of law from facts previously alleged. This allegation therefore does not enlarge the breach previously assigned, or add to the scope of the declaration. Thus far the first count only has been noticed ; but the other count, so far as this question of jurisdiction is concerned, is the same in construction and legal effect. As it does not appear-from the declaration that the title to land is concerned, the judgment of the county court dismissing the action is erroneous, and the judgment is reversed and new trial granted.