Kent v. Welch

7 Johns. 258

• Court: New York Supreme Court
• Decided: November 15, 1810
• Status: Published

Opinion

Per Curiam.

Here are two covenants in this deed; 1. The implied covenant or warranty in law, by force of the word give, and which is good only for the life of the grantor; 2.The express covenant on the warranty against all claims and demands. But before there can be any remedy upon either covenant, there must be a lawful eviction averred and shown, and the declaration is bad for want of this averment. The implied covenant here is a covenant of warranty, and so it appears from the cases referred to in the opinion of the court in Frost v. Raymond; (2 Caines, 188.) and it is well understood that under a covenant of warranty the plaintiff must show an eviction. (2 Johns. Rep. 1.) This objection is fatal to the plaintiff’s action.

Even if the word give implied a covenant of seisin, as the counsel must have supposed; yet as there was an express covenant of warranty, it would have qualified and restrained the implied covenant within the import and effect of the express covenant, so that the former never shall be broader than the latter. This is also a settled rule, as appears from Noke's case, (4 Co. 80.) and the other authorities referred to in 2 Caines, 192. On no ground, therefore, can the plain» tiff recover.

Judgment for the defendant.