Julliand v. Burgott

11 Johns. 6

• Court: New York Supreme Court
• Decided: January 15, 1814
• Status: Published

Opinion

Per Curiam.

Without noticing other points in the case, the or 5 declaration is bad in substance, in not assigning a sufficient breach. The breach is, that the defendants “ did not free the land from all legal encumbrances, either by deed, mortgage, or otherwise, then in existence and binding on the premises, by the 20th of February, 1812.” This was following and negativing the very words of the condition of the bond; but unless such an assignment necessarily amounts to a breach, it is insufficient, and here it. does not; for non constat, that there vras any existing encumbrance on the 20th of February, 1812. The condition spoke hypothetically of legal encumbrances, either by deed, mortgage, or otherwise, then in existence. It did not refer to any particular encumbrance, nor was any alluded to in the recital to the condition. By the generality of the terms, and by the words or otherwise, it is most apparent that the bond ivas taken for greater caution, and to guard against any such encumbrance •which might then lie in existence. It was incumbent, therefore, on the plaintiff to have shown at least some existing encumforance at the commencement of the suit, or on the 20th February, the time referred to in the bond. He has shown none; there is, then, no certain cause of action appearing in the declaration, and the defendants are entitled to judgment, with leave to the plaintiff to amend on the usual terms.

Judgment for the defendants-