2 Barb. 300 | N.Y. Sup. Ct. | 1848
The view that I have taken of this case renders it unnecessary for me to consider the effect of the sale in the foreclosure shit, upon the covenants contained in the deed from Mrs. Ellsworth to Bouton. For the purposes of this suit, I shall consider the defendant St. Felix as standing in the same position, and as possessing the same rights, as he would have done if he had been the client and immediate grantee of Bouton; and I have no doubt that the law requires me to do so;
It will be more convenient to consider the second question first in order; for, if there was not a sufficient consideration, it becomes immaterial whether such an agreement as is alleged, was actually made or not. There were five covenants contained in the deed from Mrs¡ Ellsworth to Bouton: the covenant of seisin-—-of power to convey—for quiet possession—of warranty—and a covenant against incumbrances. The first two were broken, if at all, immediately upon the execution of the deed, and gave a right of action to (he original grantee and covenantee. They were covenants which did not pass with the land, and, being merely choses in action, were not assignable. (Greenby v. Wilcocks, 2 John. 1. Hamilton v. Wilson, 4 Id. 72. Masten v. Hobbs, 2 Mass. Rep. 439. Mitchell v. Warner, 5 Conn. Rep. 497. 4 Kent’s Com. 471. Cro. Eliz. 863.) The covenants of warranty and for quiet enjoyment are, in their legal effect, one and the same. And in speaking of them I shall designate them by the more appropriate term, as applicable to a fee simple, of covenant of warranty. It is upon this covenant, which is one that runs with the land, that the defendant contends the consideration for the alleged agreement is founded. It is not pretended that there has been any eviction of the defendant, or that he has ever had any right of action against the covenantor founded upon a breach of any of his covenants; but merely that there was, at the time of the alleged agreement, a subsisting covenant, upon which the defendant would have a right of action, in case he should be evicted from the premises ; and that such covenant furnished a sufficient consideration for the alleged agreement. Before