Waldron v. M'Carty

3 Johns. 471

• Court: New York Supreme Court
• Decided: November 15, 1808
• Status: Published

Opinion

Spencer, J.

delivered the opinion of the court. The question submitted to our consideration is, whether, under the circumstances of this case, there is art eviction within the terms or spirit of the covenant. After a full examination of the cases relative to this point, and especially those cited on the argument, we do not find one, where an action of covenant has been brought on a covenant for quiet enjoyment, in which it is not expressly allegéd, that there was an entry and expulsion from the possession, or some actual disturbance in the possession. The allegation of an entry and expulsion are so much of the essence of the action, that there are several cases in which issue is taken on that fact, notwithstanding, in those very cases, a lawful title, superior to the one conveyed by the deed containing the covenant for quiet enjoyment, is alleged.

* In good sense, the covenant for quiet enjoyment has reference merely to the undisturbed possession, and not to the grantor’s title. In the present case, judging from the deed, it was never the intention of the grantor to covenant, that the lands were free from incumbrance. From precedents, and as no authority has been shown, that the covenant for quiet enjoyment is broken by any othe? acts than an entry and eviction, or a disturbance of thq possession itself, we are of opinion that the demurrer is well taken. Whether there is any remedy by any other suit, or ^ an7 ot^er court, is not for us to inquire. It is enough that we are satisfied that the remedy now sought is not such as the law affords.

The Court are, therefore, of opinion, that the defendí ant must have judgment.

Judgment for the defendant.

1 Lev. 301. 2 Saund. 181 n. 10.