Emerson v. Proprietors of a Tract of Land in Minot

1 Mass. 464

Opinion

* 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 enjoyment. The plaintiff has shown none, and therefore has shown no cause of action.

The plaintiff had leave to discontinue.