7 Johns. 376 | N.Y. Sup. Ct. | 1811
The three first breaches in the declara» tjon are weq assigned. The two first are in the words of the covenant, and the third states, that the defendant himself entered and evicted the plaintiffs. In the case of a covenant for quiet enjoyment, an entry by the covenantor himself, tortiously and without title, is a breach. This was the doctrine in Corus’s case, (Cro. Eliz. 544, 1 Roll. Abr. 430. pl. 11.) and it was very pointedly and' strongly laid down in Crosse v. Young. (2 Show. 415.) But as the fourth breach, which was upon the covenant of warranty, does not state any eviction whatever, it is clearly bad, and it will be found that this defect was not cured by the replication.
The pleas were good and sufficient, and the nex't inquiry is respecting the replication.
The replication to the plea to the first and second breaches, assigns specially a breach in stating that the heirs of Bates were seised of three sevenths of the premises in fee. This was a good assignment; for if the defendant was not seised absolutely in fee of the whole right in the premises, his covenant was not true. He goes on and states two outstanding encumbrances, a mortgage and a judgment, and the question is, whether these were breaches of the covenant of seisin. He does not aver that the mortgage was foreclosed, or possession given, and until then the mortgagor is considered as seised, according to the doctrine of this court. A judgment is of itself no transfer of title, nor does it destroy the seisin of the defendant. So far the replication was filled with immaterial matter, and bad on special demurrer. The replication to the other pleas is bad in substance. It does not meet the fact charged of a lawful entry by the defendant under the title of the mortgage. Every fact in the replication to the first, second
Judgment for the defendant, with leave to amend on payment of costs.
