Desvergers v. Wielis

• Decision Date: 31 January 1876
• Parties: Maxime J. Desvergers et al., plaintiffs in error. v. Francis M. Wielis, administrator, defendant in error.
• Court: Georgia Supreme Court

56 Ga. 515

Maxime J. Desvergers et al., plaintiffs in error. v. Francis M. Wielis, administrator, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1876.)

Warranty. Roads. Before Judge Tompkins. Chatham Superior Court. May Term, 1875.

Reported in the decision.

Rufus E. Lester, by brief, for plaintiffs in error.

Howell & Denmark, for defendant.

Warner, Chief Justice.

The plaintiff, as the administrator of W. F. Willis, sued the defendants on a promissory note given by them to his intestate for the sum of $833 33. The defendants pleaded that the note was given for a part of the purchase money of a certain described tract of land purchased by them of the plaintiff's intestate in his lifetime, who, by his deed of conveyance of said land to them, covenanted and warranted the title thereto to be free and discharged of, and from all manner of incumbrances whatsoever. The defendants allege that said covenant was broken in this, that at the time of making said deed the said bargained premises were not free from incumbrances, but on the contrary, before the making of said deed, for a long time, there had been, and then was, and ever since *hath been, a public road running through said land, to the use of which road the public generally had at that time acquired, and have continued to exercise, this right, which defendants are unable to prevent, to their damage, $1,000 00. The jury, under the charge of the court, found a verdict for the plaintiff for the full amount of the note. The defendants made a motion for a new trial on the several grounds therein set forth, which the court overruled, and the defendants excepted.

The court charged the jury "that if the defendants knew, at the time of the purchase of the land, that there was a road existing upon it, either a public or a private road, they cannot avail themselves of the warranty against incumbrances." A general warranty of title to land against the claims of all persons includes in itself covenant of a right to sell, and of quiet enjoyment and of freedom from incumbrances: Code, section 2603. The question made by the record in this case is, whether a public road on the land, which fact was known to the purchaser at the time of his purchase, is. in this state, a breach of a covenant of warranty against incumbrances? The decisions of the courts of this country are not uniform upon this question, but the weight of authority, we think, is that the existence of a public road on the...