| Vt. | Feb 15, 1841
The opinion of the court was delivered by
This was an action on the covenant of warranty. Three questions are presented by the case.
1. Whether the copy of the deed from the defendant to Nathaniel Wilson was admissible in evidence, the same not having been acknowledged until the 16th of July, 1834.
2. Whether the record of the suit in favor of Pitkin, the present plaintiff, against Robert Spencer, was sufficient evidence to show a breach of the covenant of warranty.
3. Whether the rule of damages laid down by the county court was correct.
On the first question there can be no doubt. The object of an acknowledgment of a deed is to authorize the proper officer to record it, and it supersedes the necessity of proving the execution when it is produced in court. It is, therefore, wholly immaterial at what time it is made. The original deed, if neither acknowledged nor recorded, might have been proved on the trial of this cause.
On the second question, we would remark, that, in the action of covenant, it is necessary to allege an eviction by a person having a lawful title, or what is equivalent thereto.
Where reliance is had on"an eviction to maintain the action, it is necessary that it should appear, not only that the eviction was by one having title, but that such title was not derived from the covenantee; and it is necessary, in such a case, to aver that the person evicting had a lawful title, which accrued before the date of the conveyance or covenant declared upon. How the allegation, in this respect, should be, in a case similar to the one now before us, where a person to whom a deed of warranty has been given of land to which the grantor had neither title nor possession, and where the grantee may be prevented from occupying the land in consequence of the possession of another equally wanting a legal title, is not the question now before us. That such a state of facts will warrant a recovery on the covenant of warranty, has been decided in the case before alluded to.
The evidence required to prove that the person in possession had such a title as to warrant a recovery on the covenant, is the question now to be considered.
When an action of ejectment is brought against a person in possession under a deed, with covenant of warranty, and he gives notice to a grantor, and a recovery is had against him, the record of such recovery is evidence that he was evicted by a person having an elder and better title, unless it is shown that the recovery was had in consequence of a title derived by the act or negligence of the grantee subsequent to the date of the deed.
If no such notice is given of the pendency of the action of ejectínent, the recovery may be evidence of an eviction, but, according to the decision of Williams v. Wetherbee, 2 Aik. 329" court="Vt." date_filed="1827-03-15" href="https://app.midpage.ai/document/williams-v-wetherbee-6570323?utm_source=webapp" opinion_id="6570323">2 Aik. 329, it must be accompanied with other evidence that it was had on the strength of an elder and better title. Possibly it
In the case before us, the plaintiff did not rely on proving an eviction, but he gave in evidence the record of a judgment in an action of ejectment, brought by him against one Robert Spencer, at the term of the supreme court in Caledonia county, in March, 1837, in which a judgment was rendered in favor of Spencer. It appears from that record, (for a case was-made in the county court, stating the facts, which was carried to the supreme court, on exceptions,) that the plaintiff' read in evidence the deed from the defendant to Wilson, and; from Wilson to him, and offered a vendue deed from Robert Whitelaw, as collector of a town tax, to the defendant, together with the previous proceedings under the act granting the tax, to authorize the collector to give the deed; and, also;, it appears from the record that Spencer was in possession. A recovery was had in that action by Spencer, as the plaintiff failed to show the previous proceedings correct, so as to authorize Whitelaw to deed to the defendant. If notice had been given by the plaintiff to the defendant, requiring him to make out his title, agreeably to his covenant, the record would have been conclusive evidence, as it appears the plaintiff attempted to set up a title in Leavitt, and failed, but did not fail in consequence of any act or neglect of his.
But notice was not given. The defendant was not, therefore, precluded from proving, in this action, a good title to the land conveyed.
The record was prima facie evidence of what is equiva^ lent to an eviction, and also that the plaintiff did not fail of recovering in consequence -of any act or neglect of his, inasmuch as it appears that he attempted to show evidence of a title in the defendant, such as appeared on the records of the town, and it is also evidence that Spencer was in possession. This was sufficient to support this action, unless the defendant proved a good title in himself-at the time of the conveyance to Wilson. The covenant obligated him to establish such a title, when legally called on so to do. As he was not notified of the pendency of the action of ejectment, he might*
On the subject of damages, the rule was laid down that the plaintiff should recover for the value of the land, in the case of Parks v. Bates. As to the legal cost and expense in the action of ejectment, the case of Smith v. Compton, 3 Barn. & Ad. 407, is a very decisive authority, not only that there may be a recovery on the covenant when no notice had been given of the former suit in ejectment, but also that the recovery should be for the necessary cost and expense in that suit, as well as for the value of the land. The judgment of the county, court is affirmed.