Lothrop v. Snell

65 Mass. 453

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1853
• Status: Published

Opinion

Bigelow, J.

The covenant in the deed from Cyrus Lothrop to Susannah Snell is a covenant of limited warranty, or, as it is sometimes termed, a covenant of non-claim. with a special warranty. Rawle on Covenants for Title, 238; Newcomb v. Presbrey, 8 Met. 406; Gibbs v. Thayer, 6 Cush. 32. The defendants could maintain no action upon this covenant against Cyrus Lothrop until there was a breach, nor can they set off against the note in suit in the hands of the plaintiff a claim for damages which have never yet been suffered. It is a familiar rule, that no action will lie on a covenant of warranty or non-claim, until an eviction or ouster can be shown. In the present case, there was not only no evidence to show a breach of the covenant of Cyrus Lothrop, but it appeared that the grantee had never been disturbed in her possession and enjoyment of the estate conveyed to her. Upon this state of facts, the plaintiff was clearly entitled to recover the full amount due on the note, and the court below erred in instructing the jury to make any deductions therefrom.

Exceptions sustained.