Vanderkarr v. Vanderkarr

11 Johns. 122 | N.Y. Sup. Ct. | 1814

Per Curiam.

The breaches assigned in the declaration are not warranted by the covenant. The only express covenant set out is a general warranty. And it is a well settled rule that all implied covenants are done away by express ones. (2 Caines’ Rep. 192.) It is unnecessary, therefore, to notice the general words in the deed; although they certainly imply no covenant of seisin. Under'the general covenant of warranty, the breaches assigned are, want of seisin, and that there is no such land as that described in the deed; neither of these are within the covenant. The former can only be properly assigned, under a covenant of seisin; and the latter amounts only to an ab legation that the grantor had no estate in the land which he undertook to sell, or that it is not truly described in the deed. These are no breaches of the covenant of warranty, according. to the decision of this court in the case of Kent y. Welch. (7 Johns. Rep. 258.) It is a well settled rule, that under a covenant of warranty, the plaintiff mu~t show a lawful eviction in order to maintain his action. (2 Johns. Rep. 4.) No eviction whatever is shown in the present case. The declaration, therefore, eannot be supported, and the defendant is entitled to judgment.

Judgment for the defendant.