Ingalls v. Eaton

• Decision Date: 23 April 1872
• Citation: 25 Mich. 32
• Court: Michigan Supreme Court
• Parties: Joseph Ingalls v. William Eaton

25 Mich. 32

Joseph Ingalls v. William Eaton

Supreme Court of Michigan

April 23, 1872

Heard April 19, 1872

Error to St. Clair Circuit.

Judgment of the circuit court affirmed with costs.

Trowbridge & Atkinson, for plaintiff in error.

No counsel appeared for defendant in error.

Cooley J. Christiancy, Ch. J., and Campbell, J., concurred. Graves J., did not sit in this case.

OPINION

Cooley J.

In this case the plaintiff sues on a covenant of seizin contained in a conveyance of lands made to him by the defendant. The breach is assigned in general terms, not pointing out any specific defect. The plea, as required by our practice, is the statutory general issue. On the trial the plaintiff put his deed in evidence, and then rested. The defendant put in no proof, and the circuit judge held that the plaintiff was not entitled to recover. This ruling is all that is before us for review.

It is insisted for the plaintiff that, in an action on a covenant of seizin, when the covenant is proved, the burden of proof is cast upon the defendant to show that he has conveyed such a title as he has warranted. If this is so, it is probably the only instance in the law in which the mere assertion of a claim against a party is sufficient prima facie to establish it. The doctrine is nevertheless urged upon us as reasonable, inasmuch as the facts concerning the title may be supposed more particularly within the knowledge of the covenantor, than of his grantee. There may be some force in this; but as a suit is not likely to be brought until some defect comes to the knowledge of the grantee, there can be no particular hardship in calling upon him to point it out. It is also suggested that in the absence of all evidence concerning the title, the plaintiff would be entitled to recover, because the government is presumptively the owner of all lands in the new States, until it is shown to have parted with its title. This, however, we think not strictly accurate. The presumption of ownership in the government is sufficient to support its own conveyance until overcome by evidence; but as the government holds the public domain only for the purposes of sale, the presumption of continued ownership in a settled part of the country, rapidly becomes very faint, and can have little influence in a controversy between parties whose contract assumes the land in controversy to be private property. Obviously the presumption of continuance of government title is very different from that which supports the titles of individuals.

The plaintiff in the main, however, relies upon certain adjudicated cases, which are supposed to cast the burden upon the defendant in these actions. The leading case is Hancock v. Field, Cro. Jac., 170. That was a suit on a covenant to repair. "An exception was taken to the declaration because the breach was assigned in not delivering up the house well repaired at the end of the term; and he doth not show in what point it was not well repaired. Sed non allocutor; for the breach being according to the covenant, it is sufficient. But if the defendant had pleaded that at the end of the term he had delivered it up well repaired, then if the plaintiff will assign any breach, he ought particularly to show in what part it was not repaired, so as the defendant might give particular answer thereto. And Williams, Justice, said it was so resolved in the case of Boyle v. Saxye, that in a declaration in an action of covenant it sufficeth to assign a breach as general as the covenant is." This case is sufficient to support the plaintiff's form of declaring, but it can aid him no further. If the pleadings had gone to an issue as suggested by the court, it is obvious that the plaintiff would have held the affirmative, and would have been called upon to prove the particular defect complained of. An issue in the precise form suggested was made up in Sedgwick v. Hollenback, 7 Johns. 376.

The first American case cited is Marston v Hobbs...