Quackenboss v. Lansing

6 Johns. 49

Opinion

Per Curiam.

There is a sufficient assignment of a breach. The covenant was, that the defendant would “ warrant and defend the sale of the negro to the plaintiff, against all persons lawfully claiming any estate, right or title to her.” This is a general covenant of a right to convey, and the plaintiff avers, that the defendant had no such right, because the negro was free. The defendant was to warrant and defend the sale, whereas, by the averment, it appears that the sale was null and void, and nothing passed by it. The demurrer is grounded on a mere quibble upon the words of the covenant. If she is free, she is a person claiming a lawful right to herself, in opposition to the claim, or right, set up by the deed. This satisfies the words of the covenant ; but covenants are to be construed according to the spirit and intent. The substance of this covenant was, that the defendant would warrant the sale; and if the negro was free, the sale was void, and the covenant Immediately broken. It did not require that an eviction or disturbance should be shown. The averment, that she was free, was equivalent to showing an eviction ; for it showed that the plaintiff was ousted of all right and lawful possession.

Judgment for the plaintiff.