Ingersoll v. Hall

30 Barb. 392, 1859 N.Y. App. Div. LEXIS 59

• Court: New York Supreme Court
• Decided: December 5, 1859
• Status: Published

Opinion

By the Court, T. R. Strong, J.

I am satisfied that the covenant in the deed from the plaintiff and others to the defendant Wright is merely for quiet enjoyment. The first clause is in the usual form of such a covenant; and the latter clause defines in part what the former is to embrace1—“hereby intending,” &o. There is nothing in the last clause manifesting an intention to vary the nature of the covenant, or to do more than to make it certainly applicable to disturbances of thé possession by virtue or in consequence of “ any lien, judgment or incumbrance,” &c. as in that clause mentioned. It was not necessary in order to bring such disturbances within the covenant; and its insertion must be referred to a spirit of great caution. The legal import and effect of the covenant are wholly unaffected by it. . •

[Monboe General Term, December 5, 1859.

I am also satisfied that upon the facts proved, and under the authorities in this state, there has been no breach of that covenant. The mere purchase of an outstanding title, subject to a life estate in the premises, by a grantee, whose title is also subject to that life estate, the owner of which outstanding title had given notice of his right, and that it was his intention to enforce the same as soon as he could, is not, under our law, an eviction. There has been no interference with the possession under the outstanding title; and no submission to the title further than always occurs on the purchase of such a title.

In my opinion, therefore, the judgment, at special term, should be affirmed with costs.

T. R. Strong, Welles and Johnson, Justices.]