Bennet v. Kennedy

7 Wend. 163

• Court: New York Supreme Court
• Decided: May 15, 1831
• Status: Published

Opinion

By the Court,

Sutherland, J.

The evidence clearly establishes a breach of the condition of the bond. The condition was that the defendant would not permit any canal or ditch to be cut or dug through the land conveyed to him by the plaintiffs’ ancestor, to accommodate another grist-mill, &c. The plaintiffs’ ancestor, upon receiving this bond, conveyed the land to the defendant by an absolute warrantee deed. The defendant afterwards conveyed the land to a third person, without any restriction as to to the right of building a mill and digging a canal through the premises. The grantee of course had a right to use the premises in any manner he pleased, as the defendant’s covenant did not attach to the land, being in a collateral instrument. He accordingly built a mill, and dug a canal through this land to accommodate the mill. This canal was, in judgment of law, within the meaning of the defendant’s covenant dug by his permission, inasmuch as his absolute conveyance gave to his grantee a right to dig it.

The evidence as to the subsequent purchase by the defendant of the premises from the state did not vary the rights of the plaintiffs. The purchase must be considered as made by the ancestor of the plaintiffs, in order to confirm his title. The ancestor was to pay for the grant from the state, and for aught that appears did pay; but it is not material whether he did or not. There was no eviction, and if there had been, it would not have been admissible evidence, I apprehend, in this case. The damages of the plaintiffs were clearly proved.

Judgment for plaintiffs.