Pence's Heirs v. Duvall's Heirs

48 Ky. 48 | Ky. Ct. App. | 1848

Judge Bkeck

delivered the opinion of the Court.

The objection to the declai'ation that the right of action was in the -administrator, and not the heirs of Coonrod Pence, is invalid. The-covenants of warranty in the deeds from Duvall to Pence, passed with the land, and as the alleged eviction was after the land had descended to. Pence’s heirs, they were entitled to maintain the action, and not the administrator.

Nor is the declaration deemed defective because it contains no averment that the eviction was under an adverse paramount title, to that of the grantor, Thompson Duvall, The warranty was against the claim of the said Duvall and his wife, and their heirs, and also against the claims of all persons whatsoever. The eviction is alleged to have been by the heirs of the wife, upon title descended to them from her. And as there is an express covenant of warranty against her and her heirs, it was not necessary to aver that the eviction was under a paramount title: Patton vs Kennedy, (1 Marshall, 389.)

his tille, il is sufficient to aver an eviction by such tille without aveiring that itwas paramount Patton vs Kennedy, (1 Marshall, 389.) A plea to an action of covenant on a deed for breach of warranty, averring that the consideration recited in the deed to have been paid, is not paid, is not a good plea. The criterion of damages in an action for breach of waivanty, is the consideration agreed to be paid by the vendee. McHenry, Throop fy Johnston for plaintiffs; Cates for defendants.

The other objections to the declaration being also deemed untenable, it results that the Court below erred in sustaining the demurrer.

The defendant’s third plea is manifestly bad, and the demurrer to it should have been sustained. •

• We are also of opinion that the defendant’s fifth plea is insufficient. It alleges that the consideration recited in the deed, as paid for the land, had not been paid, or any part thereof. It seems to us that fact cannot be rendered available at law, as a bar to the plaintiff’s action.

The criterion of damages in a case of this kind, is the value of the land at the time of the sale and interest, and the best evidence of that value, is held to be the price given, or the purchase money, not the amount actually paid at the time, but the amount secured or stipulated to be paid. We do not perceive any principle upon which the failure of the grantee to pay the stipulated price, can absolve the grantor from his covenant. The demurrer should, therefore, have been sustained.

Wherefore, the judgment is reversed and the cause remanded, with directions to overrule the defendant’s demurrer to the declaration, and to sustain the plaintiff’s demurrers to the defendant’s third and fifth pleas, and for further proceedings.