Gleason v. Smith

41 Vt. 293

• Court: Supreme Court of Vermont
• Decided: August 15, 1868
• Status: Published

Opinion

The opinion of the court was delivered by

BaRRett, J.

Action, covenant broken. The covenant is contained in a deed of the defendant as administrator of John Dewey’s estate, and it is that he would warrant and defend against all persons claiming the same by, from or under the said Dewey or the defendant. The alleged breach consists in the fact that Dewey had given Dunn a contract to convey on certain conditions, and Dunn was in possession, claiming under said agreement ; that the plaintiff notified the defendant that he (the defendant) should be at the trouble and expense of prosecuting a suit against Dunn to get him off the place, which notice the defendant did not regard ; and the suit was successfully prosecuted by the plaintiff against Dunn, ejecting him, and recovering a bill of costs which could not be collected of Dunn, on account of his poverty. The damage claimed is the amount of this bill of costs.

It is urged that the covenant embraces, by its terms and legal effect, persons making unfounded, as well as valid, claims, and that therefore it was the defendant’s duty, under the covenant, to take the burden of contesting Dunn’s claim, and proving it to be unfounded, and of ejecting him from the premises. We think the language can be construed as meaning only such persons as had claims, valid claims, not pretenses of claims without legal foundation and right.

This suit is certainly of novel impression, and no case has been cited, and no principle or precedent occurs to us, that would countenance the recovery claimed. (,

The judgment is affirmed.