Emerson v. Proprietors of a Tract of Land in Minot
Massachusetts Supreme Judicial Court
This was an action of covenant. The declaration contained two counts. The first count stated that the defendant, by A, B, and C, a committee of said proprietors duly authorized, &c., did, at ——, on the 10th day of Feb. 1800, in consideration of-, paid by the plaintiff, by their deed, &c., convey and confirm to the plaintiff a certain tract of land [described] to hold to him, his heirs and assigns forever; and that the said A, B, and C, in their said capacity, and in the name…
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This was an action of covenant. The declaration contained two counts. The first count stated that the defendant, by A, B, and C, a committee of said proprietors duly authorized, &c., did, at ——, on the 10th day of Feb. 1800, in consideration of-, paid by the plaintiff, by their deed, &c., convey and confirm to the plaintiff a certain tract of land [described] to hold to him, his heirs and assigns forever; and that the said A, B, and C, in their said capacity, and in the name and behalf of said proprietors, did covenant and engage with the plaintiff to warrant and defend the said granted…
1Opinion of the Court
* Thacher, J.,
said he was clearly of opinion that no action could be maintained on this covenant without showing an eviction.
Sewall, J.,
said he retained the opinion which he had expressed the day before. No eviction is alleged ; the declaration is therefore wholly insufficient; and the pleadings are immaterial.
Sedgwick, J.,
said that he concurred, without a particle of doubt. This covenant has been for some time considered, here, as a personal covenant. If it be so, then it is in fact and in essence a covenant for quiet enjoyment; on which no action can be maintained till disturbance in that…
2Cited by14 opinions
- Mitchell v. WarnerSupreme Court of Connecticut · 1825
- Fowler v. PolingNew York Supreme Court · 1849
- Davis v. SmithSupreme Court of Georgia · 1848
- Rex v. CreelWest Virginia Supreme Court · 1883
- Caldwell v. KirkpatrickSupreme Court of Alabama · 1844
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