Mills v. Rice, 3 Neb. 76

Mills v. Rice

3 Neb. 76 | Neb. | 1873

Gantt, J.

The petition states that the defendant for the consideration mentioned in the deed, sold and conveyed in fee-simple to the plaintiff, lot eight in block eight, in a certain addition to the town of Kankakee in the state of Illinois, and covenanted to the plaintiff, that he was seized in fee of the premises; that he had a good right to convey the same; that said premises were free from all incumbrances; that the said plaintiff should quietly enjoy the same, and that the defendant and his heirs, executors and •administrators would forever warrant and defend the title to the said premises against the lawful claims of all persons. The breaches alleged are, that the premises were not free from incumbrances; that the plaintiff had not been permitted to enjoy said premises, or to enjoy them *85at all, and that the defendant failed to warrant and defend the title to said premises.

These allegations simply-negative the words of the covenants against incumbrances and for quiet enjoyment and warranty. But in pleading the breaches there is the further averment that at the time of the conveyance by defendant to plaintiff, there was an outstanding title, adverse to that conveyed by defendant to plaintiff, which has since ripened into a perfect and indefeasible title to the premises, under which the premises have been sold, and the plaintiff has been deprived of the right and title to the same, and was ousted and dispossessed wholly from all possession, right and title to the same by due course of law.

To this petition the defendant interposed a general demurrer; and in support of the demurrer it was argued that to merely negative the covenants is not sufficient to maintain the action, except in covenants of seizin and right to convey.

The rule of law seems to be well settled, that in actions for breach of covenants of warranty, and for quiet enjoyment, it is not sufficient to merely negative the words of the covenants, for these, coven ants protect only against an’ oiister from the possession or enjoyment of the premises; and there can, therefore, be no breach assigned without alleging substantially an eviction by title paramount. Rawle on Covenants, 181, 308. Paul v. Whitman, 3 Watts and Sergeant, 410. Sedgwick v. Hollenback, 7 Johns, 380. Blanchard v. Hoxie, 34 Maine, 378. Wait v. Maxwell, 4 Pick., 87. Hayes v. Bickerstaff, Vaughan, 118.

But in Witty v. Hightower, 12 Smedes and Marshall, 478, it is said that an averment of “an actual ouster, or eviction, or holding out under paramount title” is necessary; and in Day v. Chism, 10 Wheat, 451, it is held that although an eviction must be substantially alleged, yet *86no formal words are prescribed with wbicb the allegation is to be made. “It is not necessary to say in terms, that the plaintiff Has been evicted by title paramount to that of the defendant.” The averment that the defendant “had not a good and sufficient title to the said tract of land, and by reason thereof was ousted and dispossessed of said premises by due course of law,” says the court, “contains all the facts which constitute an eviction by title paramount.” Banks v. Whitehead, 7 Ala., 85. Reese v. McQuilkin, 7 Indiana, 451.

In the case at bar, the plaintiff has alleged that by reason of an outstanding, adverse title, which has ripened into a perfect and indefeasible title, he was ousted and dispossessed entirely from all possession of said premises by due course of law. I think this allegation of title paramount, and of breach of covenant by ouster and dispossession by due course of law, brings the case sufficiently within the rule laid down in the cases above cited.

Another objection raised to the pleading is, that the plaintiff avers that he has not been permitted to enjoy the premises at all, which, perhaps, is equivalent to alleging that he had not been able to obtain possession of them,— and also avers that he was ousted and dispossessed of them by due course of law. These averments are inconsistent; but if the inconsistency could not be taken advantage of by motion, yet, still, as is said in Day v. Chism, 10 Wheat, 458, “the allegation that possession has never been obtained is immaterial, because not a breach of the covenant, and may be disregarded on general demurrer.”

It is, however, contended that the petition is too nnoeytain and indefinite. It is true the case is not stated with that definiteness, precision, and consistency which should be obtained in pleadings; but it is said that the “sufficiency of pleadings, as to certainty, precision, definiteness, and consistency of allegation, which do not amount to such absolute omission as to constitute no ground of *87action or defense, must be taken advantage of or objected to by motion,.under the provisions of the code, and can afford no ground for demurrer or assignment of error.” Trustees, etc., v. Odlin, 8 Ohio State, 296.

In respect to the statute of limitations raised on the demurrer, it is only necessary to remark that the face of the petition does not show when the right of action accrued by reason of ouster and dispossession of the premises, and therefore, so far as the action rests .on the breach of the covenants of warranty and for quiet enjoyment, this ground of defense is not well taken on the demurrer.

I am of the opinion that there is substance enough in the petition to maintain it against a general demurrer, and therefore, the judgment must be reversed, and the cause be remanded for further proceedings; and it will be in the power of the district court to allow the plaintiff to amend his pleading.

Reversed and remanded.

Lake, Oh. J., and Maxwell, J., concur.