Harris v. Newell

8 Mass. 262

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1811
• Status: Published

Opinion

The covenantee in an action upon the covenant of warranty in a conveyance is entitled to nothing beyond the consideration paid and interest, until after eviction.

And now', at this term, the cause having stood over for the consideration of the Court, Bigelow, of counsel for the plaintiff, suggested that it has never been settled that, upon the issue of non est factum, the plaintiff shall not be permitted * to go into equitable considerations as to the amount of damages due him. In this case the plaintiffs proved, that there w'as a valid title paramount to that derived from the defendants, and that this title had already given rise to an action at law, by which the plaintiffs must inevitably lose the land. It would be a very great evil to persons thus situated, if they must lie by until an actual eviction from all the land took place, and in the mean time their warrantor might become insolvent, and so their legal remedy against him would be fruitless.

was stopped by the Court.

The plaintiffs’ counsel, perceiving that the Court were not inclined to set aside the verdict, had leave to discontinue, in order to bring their action after they should be evicted from the premises con veyed. (a)