Hannah v. Henderson

• Decision Date: 31 May 1853
• Citation: 4 Ind. 174
• Parties: Hannah v. Henderson
• Court: Indiana Supreme Court

4 Ind. 174

Hannah v. Henderson

Supreme Court of Indiana

May 31, 1853

ERROR to the Marion Circuit Court.

The judgment is affirmed with costs.

J Davis, for the plaintiff.

O. H Smith and S. Yandes, for the defendant.

OPINION

Davison J.

Covenant by Hannah against Henderson. The declaration alleges, inter alia, that the defendant, on the 6th of June, 1838, by deed in fee, conveyed to the plaintiff certain real estate therein described, and situate in Madison county; and that the defendant, by said deed, covenanted for himself, &c., the aforesaid real estate forever to warrant and defend to the said plaintiff, his heirs, &c., against the claim or claims of all and every person whomsoever.

The breach assigned is, that one John Bullard, in the month of August, 1830, obtained a judgment against one John Berry, in the Quarter-session Court of the county of Granger, and state of Tennessee, for 1,225 dollars and 97 cents, with costs; that after said judgment was obtained, the said Berry died intestate at said county of Madison, seized in fee of the undivided half of the premises described in the deed; that at the February term, 1841, of the Madison Circuit Court, the said Bullard recovered a judgment upon the judgment so obtained in the said Quarter-session Court, against the administrator of said deceased, for 1,848 dollars and 50 cents, with costs, &c.; upon which last judgment execution was issued, and afterwards returned "no property;" and that the said Bullard afterwards, on his petition filed in the same Court against the administrator, heirs, and terre tenants of said deceased, obtained an order that execution be issued on the said last judgment, and levied on the undivided half of the real estate described in said deed, and that the same should be sold for the satisfaction of said judgment, interest and costs; and that the plaintiff, to avoid a sacrifice of said real estate on execution, (much of which he had conveyed away by deeds of general warranty), and still further ruinous litigation, was compelled to pay off said judgment, interest, and costs, to the amount of 3,000 dollars.

The defendant craved oyer of the covenant, and demurred to the declaration. Demurrer sustained and judgment for the defendant.

The demurrer admits the facts set forth in the declaration. The only covenant contained in the deed is a general warranty. And the question presented by the record is, should the plaintiff have alleged an eviction?

The plaintiff contends that an action may be sustained for a breach of this covenant without actual eviction, if there be such a claim against the premises that by a prosecution of it to final...