58 Barb. 36 | N.Y. Sup. Ct. | 1870
The covenant on which this action was brought is the general covenant, to warrant and defend the premises conveyed, against all lawful claims. This covenant, as had been repeatedly held, includes the! covenant for quiet enjoyment, and the true meaning of if is, that the grantee and his heirs and assigns shall not be’ deprived of possession by force of a paramount title. It »
Whatever may be the rule elsewhere, it is certainly well settled in this State, by a long and uniform course of adjudication, that such a covenant is only broken by an actual eviction from the premises. The rule as laid down by Kent, in his Commentaries, on this question, has always been followed in this State, and is too well settled to be changed or disturbed, at this day, even were a change desirable, which I think it is not. (4 Kent's Com. 471. Waldron v. McCarty, 3 John. 471. Kortz v. Carpenter, 5 id. 120. Kent v. Welch, 7 id. 258. Vanderkarr v. Vanderkarr, 11 id. 122. Kerr v. Shaw, 13 id. 236. Whitbeck v. Cook, 15 id. 483. Rickert v. Snyder, 9 Wend. 416. Beddoe v. Wadsworth, 21 id. 120. Fowler v. Poling, 6 Barb. 165. Bank of Utica v. Mersereau, 3 Barb. Ch. 528. lngersoll v. Hall, 30 Barb. 392.)
The plaintiff here has never been evicted, as he was never in possession. Ho one ever went into possession under or through the grant to Frizelle; consequently actual eviction from the premises, as derived from that grant, was impossible. Without possession there can be no actual eviction. At the time of the grant to Frizelle, the premises were in possession of other persons claiming ad-adversely to him and to the defendant, his grantor. Those persons, and others claiming under them, were permitted by Frizelle and those deriving title from or through him, to remain undisturbed until their adverse possession ripened into a good title as against Frizelle. The plaintiff and others, claiming under or through Frizelle, have not lost their land by a title paramount, existing at the time the covenant in question was made by the defendant, but by their own laches in suffering an imperfect and inferior claim of title to become a legal title paramount to theirs. In any view the plaintiff* could not be allowed to recover for a failure of title by such means.
The judgment of the special term must therefore be affirmed.
Justice Talcott, who tried the' action as referee, did not sit in the case.
Mullin, P. J., and Johnson, Justice.]
