Hamilton v. Wilson
New York Supreme Court
THIS was an action of covenant brought by the plaintiffs, as heirs at law of James Hamilton, deceased, against the defendants. The declaration set forth a deed for certain lands in the military tract, made and executed by the defendant to James Hamilton, in his life-time, bearing date the 7th September, 1791. The deed was in the usual form, containing the covenant of seisin, &c.
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THIS was an action of covenant brought by the plaintiffs, as heirs at law of James Hamilton, deceased, against the defendants. The declaration set forth a deed for certain lands in the military tract, made and executed by the defendant to James Hamilton, in his life-time, bearing date the 7th September, 1791. The deed was in the usual form, containing the covenant of seisin, &c. The plaintiffs alleged that the defendant, at the time of the delivery of the deed, was not seised, &c. and that he had not kept-his covenant, &c. Plea, the general issue. A motion was now made in arrest of judgment,…
1Opinion of the CourtVan Ness, J.
The breach assigned in this declaration is, that the defendant was not seised. The covenant, therefore, was broken, the moment the deed was executed; and the ancestor had a perfect right of action for damages in his life-time. The question then is, whether, upon his death, this right of action descended to his heirs, or to his personal representatives ?
The covenant here was not connected with the estate, because, as no estate passed by the deed to the ancestor, none descended to his heirs. Real covenants, such as run with the land only, go to the heir. The right of the ancestor was a mere…
2Cited by19 opinions
- Kimball v. BryantSupreme Court of Minnesota · 1879
- Lawrence v. MontgomeryCalifornia Supreme Court · 1869
- Eastabrook v. HapgoodMassachusetts Supreme Judicial Court · 1813
- Adams v. . ConoverNew York Court of Appeals · 1882
- Brooks v. SmithTennessee Supreme Court · 1860
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