Niles v. Sawtell

7 Mass. 444

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

Opinion

, The plaintiff declares in a plea of covenant broken, upon a deed of the defendant, by which he, as collector of taxes for the plantation of Bakerstown, conveyed to one John Glover, in fee simple, certain lands in Poland, formerly part of Bakerstown, with a covenant of general warranty to Glove", his heirs and assigns, against the lawful claims and demands of all persons. The declaration then alleges a conveyance of the lands from Glover to the plaintiff in fee, and an eviction of one Joseph Thurlo, “ assignee of the plaintiff of the same lands, by the proprietors of Bdkerstown, * by virtue of a lawful title and claim [ * 445 ] thereto; whereby the said plaintiff, as the assignee of the said lands, and his assigns, remain undefended against the lawful claims of all persons.”

Whitman for the plaintiff.

The defendant pleaded eight several pleas in bar, to several oí which the plaintiff demurred, and the defendant joined in demurrer

The cause was coming on for argument at this term, when Emery, of counsel for the defendant, suggested that there was no allegation in the plaintiff’s declaration that he was answerable to Thurlo, his assignee, on account of the eviction stated; and that without such allegation he had shown no cause of action against the defend ant. And of this opinion was the Court. The plaintiff thereupon obtained leave to amend his declaration, to which, when amended, the defendant had liberty to plead anew.