Norton v. Jackson
California Supreme Court
Appeal from the District Court of the Seventh Judicial District, Solano County. This action was brought upon a promissory note for $800, given by the defendants to the plaintiff and one McCord, for the purchase of certain property in Solano County.
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Appeal from the District Court of the Seventh Judicial District, Solano County. This action was brought upon a promissory note for $800, given by the defendants to the plaintiff and one McCord, for the purchase of certain property in Solano County. The defendants in their answer admit the execution of the note, but allege that the land was sold by the plaintiff with covenant of warranty; and that owing to a defect or want of title of the plaintiff, the consideration for which the note was given had entirely failed. At the time this suit was brought the defendants were in the enjoyment and…
1Opinion of the CourtHeydenfeldt, J.
Bryan, J., and Murray, C. J., concurred.
Where land is sold with covenant of warranty, accompanied with a delivery of possession, for which the purchaser gives a note for the purchase money, the promise to pay, and the warranty, are independent covenants, and the enforcement of the one, is not dependent upon the performance of the other.
It has therefore been held by all sound decisions, that an action upon the covenant of warranty would not lie until eviction. The reason of this principle is founded upon the position, that there can be no approximation to a correct measure of damages. It would…
2Cases cited5 opinions
- Clemens v. LogginsSupreme Court of Alabama · 1840
- Thornberry v. ThornberryCourt of Appeals of Kentucky · 1823
- Griswold v. New-York InsuranceNew York Supreme Court · 1806
- Starke v. HillSupreme Court of Alabama · 1844
- Wade v. KilloughSupreme Court of Alabama · 1833
3Cited by3 opinions
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