111 Ga. 61 | Ga. | 1900
Lowery brought suit in Telfair superior court against Yawn, to recover damages for a breach of warranty in a deed. It appears from the evidence in the record that Yawn, on March 5, 1889, conveyed a certain lot of land to the plaintiff, containing the following warranty of title: “And the said party of the first part the said bargained property above described unto the said party of the second part, his heirs, executors,-and administrators, and administrators and assigns, against the said party of the first part, his heirs, executors, administrators, and assigns, and against all and every other person or persons, shall and will and does hereby warrant and forever defend by virtue of these presents.” Plaintiff introduced testimony showing a complete chain of title to the land covered by his deed in Norman W. Dodge under a deed dated June 9, 1888, from George E. Dodge. This title was traced back by competent evidence to the original plat and grant from the State of Georgia to Peter J. Williams, conveying the land in question on February 7, 1834. Plaintiff testified that Yawn made him a deed at the time it was dated, for which he paid him $250.00, the amount therein stated. ITe opened a farm on the lot, built a dwelling-house, and resided there. In two or three years after taking possession, the agents of Norman W. Dodge entered upon the land without plaintiff’s con
It is a well-recognized rule of law that it is not necessary that a tenant should be forcibly ejected or dispossessed of demised premises by process of law in order to maintain his action for a breach of warranty. We quote the following from 11 Am. & Eng. Ene. L. (2d ed.) 480 — 1: “As has been seen, an eviction by title paramount arises where athird person establishes a title to the demised premises superior to that of the landlord, and gains possession by virtue of that title. It is not necessary that the tenánt should be forcibly ejected or dispossessed of the demised premises by process of law, but he may peaceably yield possession to the person who has the superior title or who has been adjudged to be entitled to the possession, and treat himself as having been evicted.” To this text are cited quite a number of authorities from various States. In Martindale on Conveyancing, §170, it is stated: “It has been said that, to authorize a recovery upon the covenant of warranty or quiet enjoyment, there must be an eviction, the technical meaning of which is dispossession by judgment of law. But by the weight of authority, and upon principle, nothing more is necessary to sustain an action than an ouster by title paramount, or lawful disturbance. Thus, if one having a legal claim seeks to enforce it by expelling the tenant in possession, it is not necessary for him to wait for a judgment and actual eviction by process of
Judgment reversed.