Withers v. Pricket

16 Ky. 192, 1 Litt. Sel. Cas. 192, 1814 Ky. LEXIS 12

• Court: Court of Appeals of Kentucky
• Decided: October 19, 1814
• Status: Published

Opinion

Opinion of the Court, by

Judge Owsley.

Pricket sold to Withers a parcel of land and gave his deed of covenant, in which, among other things, he covenanted that he was owner of the land, &c.

Withers brought suit on this covenant, and after reciting the same in substance, alleged for breach, that Pricket was not, at the date of the covenant or any time thereafter, the owner of the land, &c. Pricket craved oyer of the covenant and demurred to the declaration, and the same being joined by Withers, judgment was awarded thereon in favor of Pricket; from which judgment Withers has appealed to this court.

We are unable to perceive any possible grounds upon which the decision of the court below in sustaining the demurrer to the declaration, can be maintained. The plaintiff declared on the covenant according to its legal operation, and assigned breaches substantially in the words of the covenant. He clearly, according to any principle of pleading, manifested a good cause of action in his declaration.

The judgment must, therefore, be reversed with costs, the cause remanded to the court below, and the defendant there have leave to withdraw his demurrer, should he apply for leave to do so, and plead to the action.