Potter v. Kitchen
The Superior Court of New York City
Appeal from a judgment rendered for the defendant on the decision of a Referee. The action is for the recovery of damages for the alleged breach of the covenants in a deed from the defendant to the plaintiff, purporting to convey certain land in the State of Illinois, (the N. W. qr. sec. No. 13, town. 8, south, range 3, west of the fourth principal meridian in the Military Bounty Tract,) “being the same tract of land as conveyed by Abel Thompson to Moses Ward by deed,”…
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Appeal from a judgment rendered for the defendant on the decision of a Referee. The action is for the recovery of damages for the alleged breach of the covenants in a deed from the defendant to the plaintiff, purporting to convey certain land in the State of Illinois, (the N. W. qr. sec. No. 13, town. 8, south, range 3, west of the fourth principal meridian in the Military Bounty Tract,) “being the same tract of land as conveyed by Abel Thompson to Moses Ward by deed,” dated, &c., “ and by Moses Ward conveyed to the said Ziba H. Kitchen," (the defendant,) by deed dated, &c. The covenants were…
1Opinion of the Court
By the Court—Slosson, J.
The simple and only question presented by this appeal is, whether the plaintiff was bound, on these pleadings, to prove affirmatively want of title in the defendant, his grantor, or whether the affirmative of the issue was not with the defendant, to show title in himself at the time of the grant; in other words, on which party the burden of proof as to title rested.
The cause of action, is the breach by the defendant of his covenant of seizin, and the form adopted in this complaint of stating that cause of action, by alleging the breach in the words of the *572covenant…
2Cases cited3 opinions
- Marston v. HobbsMassachusetts Supreme Judicial Court · 1807
- Whitney v. LewisNew York Supreme Court · 1839
- Lawrence v. WrightThe Superior Court of New York City · 1853
3Cited by3 opinions
- Woolley v. . NewcombeNew York Court of Appeals · 1882
- Stearn v. HesdorferNew York Court of Common Pleas · 1894
- Woolley v. NewcombeNew York Court of Common Pleas · 1880