Waldron v. M'Carty
New York Supreme Court
THIS was an action of covenant. The declaration set forth a deed, by which the defendant, on the 1st May, 1799, conveyed to the plaintiff, in fee, a certain parcel of land, and therein covenanted for himself and his heirs, “ the premises thereby bargained and conveyed, in the quiet and peaceable possession of the plaintiff, his heirs and assigns, forever to warrant and defend;” The plaintiff then averred, that at the time of executing the deed to him, the premiseS were…
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THIS was an action of covenant. The declaration set forth a deed, by which the defendant, on the 1st May, 1799, conveyed to the plaintiff, in fee, a certain parcel of land, and therein covenanted for himself and his heirs, “ the premises thereby bargained and conveyed, in the quiet and peaceable possession of the plaintiff, his heirs and assigns, forever to warrant and defend;” The plaintiff then averred, that at the time of executing the deed to him, the premiseS were subject to* and incumbered with a mortgage, executed on the 1st May, 1790, by the defendant, to one Oothout, for securing the…
1Opinion of the CourtSpencer, J.
The question submitted to our consideration is, whether, under the circumstances of this case, there is art eviction within the terms or spirit of the covenant. After a full examination of the cases relative to this point, and especially those cited on the argument, we do not find one, where an action of covenant has been brought on a covenant for quiet enjoyment, in which it is not expressly allegéd, that there was an entry and expulsion from the possession, or some actual disturbance in the possession. The allegation of an entry and expulsion are so much of the essence of the action, that…
2Cited by17 opinions
- Marston v. HobbsMassachusetts Supreme Judicial Court · 1807
- Dyett v. PendletonCourt for the Trial of Impeachments and Correction of Errors · 1826
- Parkinson v. . ShermanNew York Court of Appeals · 1878
- McGary v. HastingsCalifornia Supreme Court · 1870
- Rea v. MinklerNew York Supreme Court · 1871
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