Davenport v. Muir

• Decision Date: 19 January 1830
• Citation: Davenport v. Muir, 26 Ky. 310 (Ky. Ct. App. 1830)
• Parties: Davenport v. Muir.
• Court: Kentucky Court of Appeals

26 Ky. 310

Davenport v. Muir.

Court of Appeals of Kentucky.

January 19, 1830

Covenantor.Covenantee.Notice of Suit Pending.Judge.

Denny for plaintff.

OPINION

ROBERTSON CHIEF JUSTICE:

Davenport sold and conveyed to Muir a tract of land, and covenanted to warrant and defend the title, against all claims whatsoever.

Muir being evicted, by judgment on ejectment against him, brought an action of covenant against Davenport, on the warranty in his deed.

Davenport pleaded that Muir was not evicted by a title paramount to that which he derived from the deed to him; and on the issue formed on this plea, the jury found a verdict for Muir, on which the court gave judgment.

Before the trial, Davenport moved for a continuance, on the ground that witnesses were absent, whom he had summoned, and by whom he could prove that his title was superior to that, on which the judgment of eviction had been rendered.But the court overruled the motion, because Davenport admitted, on cross examination, that Muir had given him verbal notice of the pendency of the action of ejectment against him.

As we are of opinion that the declaration is substantially good the only question which we shall decide, is, whether Davenport made out sufficient cause for a continuance?

If covenantor be notified of pending of suit against covenantee, judgment against latter, evidence against former, that recovery was obtained by paramount title.

If the covenantor be notified of the pendency of the suit against his covenantee, the judgment against the latter is evidence against the former, that the recovery was obtained by paramount title.If the notice be sufficient, the judgment will be conclusive, unless it had been obtained in consequence of some fact which occurred...