Woolley v. Newcombe
New York Court of Common Pleas
Appeal from a judgment of this court entered upon a dismissal of a complaint. The action was brought to recover damages for a breach of a covenant of seizin in a deed by defendant to plaintiff.
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Appeal from a judgment of this court entered upon a dismissal of a complaint. The action was brought to recover damages for a breach of a covenant of seizin in a deed by defendant to plaintiff. The complaint alleged the making of a covenant by the defendant, that he was seized of an indefeasible estate in fee of certain premises, and had good right and full power to convey the same in fee simple absolute to tlie plaintiff; and further alleged that the defendant liad not good right and full power to convey the same absolutely; and that the plaintiff was thereby dam'aged, &c. The answer…
1Opinion of the CourtJ. F. Daly, J.
Ithas been held in this state that in an action for the breach of the covenant of seizin in a deed of *76land, the plaintiff in his complaint may assign the breach by simply negativing the words of the covenant, and if the answer aver the contrary,—i. e., that the defendant was the true and lawful owner,—in the exact words of the covenant, the defendant holds the affirmative of the issue and the burden of proof, and must prove his title (Potter v. Kitchen, 5 Bosw. 566; Abbott v. Allen, 14 Johns. 248). The supreme court of Michigan (25 Mich. 32, Ingalls v. Eaton) has decided, however, that where,…
2Cases cited4 opinions
- Ingalls v. EatonMichigan Supreme Court · 1872
- Abbott v. AllenNew York Supreme Court · 1817
- Lawrence v. WrightThe Superior Court of New York City · 1853
- Potter v. KitchenThe Superior Court of New York City · 1859