62 Mich. 369 | Mich. | 1886
This was an action of assumpsit, containing one count upon a covenant and the common counts.
The case seems to have been tried below on the understanding all round that it was a suit arising under the covenant against incumbrances, and on that theory the court below decided very justly that it was barred, because not sued on within six years. This has been frequently decided in this Court, and it has also been decided that such a cause of action does not pass with the land. Davenport v. Davenport, 52 Mich. 587.
It is now claimed by plaintiff that the special count set up a constructive eviction, which would be a breach of the covenant of warranty. Upon the hearing we were of the impression that this point was not in the case, and was not raised below; but, on looking at the whole record, we discover that a regular foreclosure sale was made out, and a purchase by plaintiff within six years of the adverse foreclosure title, and tenancy under it, and that the computation of damages is consistent with that claim. As the court below took the case from the jury, we do not think we are authorized to say the point was not in the case. It would be a hardship to deprive plaintiff of a legal right on the doubt whether it had been abandoned. While we are greatly inclined to think this point was not so presented below as to call the judge’s attention to it, we must go by the record. Plaintiff, so far as we can see, had a right to have the case laid before the jury under the covenant of warranty. We are therefore compelled to reverse the judgment and grant a new trial, but we are disposed to treat it as a mistrial rather than direct error, and shall give no costs of reversal.