Osborne v. Atkins

72 Mass. 423

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1856
• Status: Published

Opinion

Thomas, J.

If, as the plaintiff claims, the interest of Ballard and wife was an incumbrance upon the estate, then, the covenant against incumbrances not running with the land, the plaintiff, as the grantee of Eli Osborne, could not sue upon it, and had no cause of action against the defendant.

But it is not so. Ballard and wife, in her right, held the one fifth part of the estate by an elder and better title; by force of which, under the petition for partition, the plaintiff was evicted. His remedy for such eviction was upon the covenant to warrant and defend. Upon that covenant he sued and recovered judgment. That judgment was on the same cause of action for which this suit is brought. The plaintiff can have but one action for that one breach; and the judgment in the first sub is a perfect bar to recovery in this.

Judgment for the defendant.