Prichard v. Atkinson
Superior Court of New Hampshire
Covenant broken. The plaintiff alleged in his declaration, that the defendant, by deed, dated December 10, 1813, conveyed to him a tract of land in Boseawen, and by the same deed covenanted with the plaintiff, that the same land was free of all incumbrances. The breach of the covenant assigned was a public highway laid out across the land, previously to the said conveyance. The plea of the defendant traversed the existence of a highway ; «pon which issue was joined.
Read the full summary
Covenant broken. The plaintiff alleged in his declaration, that the defendant, by deed, dated December 10, 1813, conveyed to him a tract of land in Boseawen, and by the same deed covenanted with the plaintiff, that the same land was free of all incumbrances. The breach of the covenant assigned was a public highway laid out across the land, previously to the said conveyance. The plea of the defendant traversed the existence of a highway ; «pon which issue was joined. Upon the trial of that issue here, at August term, 1825, the plaintiff produced the copy of a record, as follows’ : “ A return…
1Opinion of the CourtRichardson, C. J.
If the objection made in this case, that a highway is not an incumbrance within the meaning of the covenant, stated in the declaration, were well founded, there is no doubt, that judgment must be arrested. But this exception cannot be sustained. A highway is clearly an obstruction to the exercise of that dominion over land, which a lawful owner is entitled to exercise, and as such must be considered as an in-cumbrance. The case of Kellogg vs. Ingersoll, (2 Mass. Rep. 92,) is directly in point.
It is not improbable, that individuals sometimes inadvertently convey lands, through which there are…
2Cases cited2 opinions
- Sharp v. ClarkMassachusetts Supreme Judicial Court · 1806
- Edeck v. RamuerNew York Supreme Court · 1807
3Cited by7 opinions
- Whittier v. VarneySuperior Court of New Hampshire · 1839
- Barker v. ClarkSuperior Court of New Hampshire · 1828
- Wiggin v. ExeterSuperior Court of New Hampshire · 1842
- Dearborn v. Boston, Concord & Montreal RailroadSuperior Court of New Hampshire · 1851
- State v. New-BostonSuperior Court of New Hampshire · 1840
2 more not listed; retrieve them via the Exa API.