Wood v. Forncrook

3 Thomp. & Cook 303

Opinion

Mullin, P. J.

The plaintiff was rightly nonsuited as no eviction was proved.

The owner of the legal title to uninelosed and uncultivated land is presumed to be in possession, as possession in law follows the title.

To entitle a plaintiff to recover damages for the breach of the covenant for quiet enjoyment an eviction must be proved, or he may, in the event of his title being divested by a superior title, surrender possession to the owner of the superior title, or notify his grantor that he relinquishes all claim to said premises, or he may show that the owner of the superior title has offered them for sale. St. John v. Palmer, 5 Hill, 599; Greenvault v. Davis, 4 id. 643; Cowdrey v. Coit, 44 N. Y. 382; Home Life Ins. Co. v. Sherman, 46 id. 370.

Although the title of plaintiff was divested by the foreclosure of the mortgage and sale of the premises thereunder, the plaintiff’s possession has never been disturbed, nor has he surrendered possession, nor has the purchaser at the sale sold or offered, or even threatened to sell the premises; but on the contrary, has recognized plaintiff’s title as still valid. The judgment must be affirmed.

Judgment affirmed.