Kerr v. Shaw & Shaw

13 Johns. 236 | N.Y. Sup. Ct. | 1816

Per Curiam.

The agreement upon which this action is founded is very inartificially drawn, but it amounts, substantially, to a promise or warranty of quiet enjoyment, by the plaintiff of the lot of land therein described, against all persons except the lord of the soil. But, according to the case of Sears v. Brink, (3 Johns. Rep. 210.,) the contract is void under the statute of frauds. The agreement is not” under seal, nor is there any consideration expressed in the writing to support the promise; and in the case referred to, it is decided that the consideration, as well as the promise, must be in writing ; and that parol evidence is not admissible to prove the consideration. But if this objection was removed, there' is not enough, shown to entitle the plaintiff to recover in this action.. If the agreement is’to be considered equivalent to a covenant, for quiet-enjoyment, no sufficient breach has been shown. .This eovenaqt is broken 'only, by an eviction or actual ouster. It relates-to the possession only, not; to the title, There must, therefore, be a disturbance of the. possession in order to amount to a breach of such a ..covenant. The case Of Waldron v. M'Carty, (3 Johns. Rep. 471.,) is .very strong on this point. In that case the land, when sold and conveyed, was incumbered.. with a mortgage* which was,- Afterwards, foreclosed in chancery, and sold, and purchased: in by the grantee in the deed; -and this-was held to be no .breach of the Covenant for quiet-enjoyment. - The same principle is/aeffipted,.'and confirmed by the case of Korts v. Carpenter, (5 Johns. Rep. 120.,) where the court say it is A technical rule,-that nothing amounts, to a breach of this Cover-pant but an actual eviction or disturbance of the possession of the covenantee. , In the case before us there is, to be sure, a judgment against the plaintiff, and nothing wanting but a writ of possession to constitute a breach of the promise.'. But this being a technical rule,, applicable to this covenant, the covenantor ought- not to stop short of an actual ouster, if he means to rely Upon his covenant; he has no right tó make Any compromise until an actuaTbreach has been shown.; The defendants aré’, a,cÉordingly, entitled to judgment. . • ,

Judgment forihe defendants.