Long v. Sinclair

• Decision Date: 09 January 1878
• Court: Michigan Supreme Court
• Parties: John R. Long v. Robert P. Sinclair

38 Mich. 90

John R. Long v. Robert P. Sinclair

Supreme Court of Michigan

January 9, 1878

Submitted October 31, 1877

Case made from the Superior Court of Grand Rapids.

Covenant for breach of warranty. The facts are stated.

Judgment affirmed with costs.

D. E Corbitt (on brief) for plaintiff. A judgment for value in ejectment amounts to an eviction, White v. Whitney 3 Met. 31; Eastabrook v. Smith, 6 Gray 572; Donnell v. Thompson, 10 Me. 170; Stewart v Drake, 4 Halst. 139; Paul v. Whitman, 3 W. & S., 407; Turner v. Goodrich, 26 Vt. 709; King v. Kerr, 5 Ohio 154; Martin v. Atkinson, 7 Ga. 228.

Thomas B. Church (on brief) for defendant.

OPINION

Marston, J.

The plaintiff Long brought an action of covenant for breach of warranty. In his declaration, in setting up the breach, he averred that one John McFee, who had a lawful right and title to the premises, "by due process of law, entered into the same, and upon the possession of said lands and premises and ejected, expelled and removed the said plaintiff against his will from the possession, etc., * * * and that the legal title or right of the said John McFee, by which he attained his judgment of ejectment against the said plaintiff, was not" etc. The proof showed an action of ejectment to have been commenced by McFee against Long to recover these and other premises, a verdict of the jury in favor of the plaintiff in that action in which they found the value of certain improvements and also of the premises had there been no improvements, an election by the plaintiff to abandon the premises to the defendant at the value as estimated by the jury, and thereupon a judgment rendered in favor of the plaintiff and against the defendant in that case for the sum of eight hundred dollars, by the jury so estimated, with costs. The defendant on the trial below in this case claimed that the evidence did not support the allegation in the declaration; that the declaration averred a judgment in an action of ejectment and an eviction thereunder, whereas the judgment offered in evidence was one for the payment of money only, and upon which a writ of possession could not issue. The court below held that the plaintiff must under his declaration prove a judgment in ejectment according to Comp. L., § 6234, and gave plaintiff leave to amend his declaration, which was not accepted. We think the court was correct in holding that there was a variance between the...