40 Vt. 485 | Vt. | 1868
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,”