Martin v. Cowles
| Citation | 19 N.C. 101 |
| Court | United States State Supreme Court of North Carolina |
| Decision Date | 31 December 1836 |
| Parties | JOHN MARTIN v. JOSIAH COWLES. |
1. In an action for the breach of a covenant for quiet enjoyment, the record of a recovery in ejectment by a third person against the vendee, effected after notice to the vendor of the pendency of the ejectment, is not conclusive evidence against the vendor, of the superior title of such third person.
2. It seems that such record is not any evidence of title against the vendor.
The cases of Saunders v. Hamilton. 3 N. C. 282; Shober v. Robinson, 6 N. C. 33; and Williams v. Shaw, 4 N. C. 630, approved.
After the new trial granted in this case at December Term, 1834, (18 N. C., 29) it was again tried at Surrey on the last Circuit, before Dick, J., when in addition to the facts as they appeared on the former trial, it was admitted by the defendant that he had notice of the pendency of the action of ejectment, brought against the plaintiff's tenant. Upon this case the plaintiff's counsel moved the court to instruct the jury that the plaintiff was entitled to recover his purchase money, and the costs of the action of ejectment, but his Honor
declined giving the instruction; and a verdict being rendered for the defendant, the plaintiff appealed.
GASTON, Judge: The only question on this appeal, is, whether in an action brought by a vendee, against his vendor, for a breach of the covenant for quiet enjoyment, a recovery in ejectment by a third person against the vendee,effected after notice to the vendor of the pendency of the ejectment, is conclusive evidence of the title of the lessor of the plaintiff.
We have no hesitation in answering this question in the negative. In our opinion, the record of the judgment is not only not conclusive evidence, but is not any evidence of title, against the vendor. It would be repugnant to principle, to bind any one by a judgment in a suit, where, if an opposite judgment had been rendered, he could derive no benefit from it, to which suit he was not a party, nor had it in his power to become a party, and where he could not challenge the inquest nor examine witnesses, nor exercise any of the means provided by law for ascertaining the truth, and asserting his right. In real actions a warrantor might be made a party by voucher; in ejectment a landlord may come in to defend the possession of his tenant; but there is no provision in law, by which a vendor can be brought in to vindicate the possession of his vendee. To a judgment against the...
To continue reading
Request your trial
-
Cover v. McAden
...the indemnitor to controvert the matter anew upon an action against him upon the indemnity contract or obligation." True, in Martin v. Cowles, 19 N.C. 101, approved Wilder v. Ireland, 53 N.C. 85, it was held that a judgment in ejectment against the vendee is no evidence of a defect in the t......
-
Cover v. Mcaden, (No. 550.)
...indemnitor to controvert the matter anew upon an action against him upon the indemnity contract or obligation." True, in Martin v. Cowles, 19 N. C. 101, approved in Wilder v. Ireland, 53 N. C. 85, it was held that a judgment in ejectment against the vendee is no evidence of a defect in the ......
-
Jones v. Balsley
...to the recovery on the covenant that notice of the adverse suit shall have been in any way given." This court, in Martin v. Cowles, 19 N. C. 101, approved in Wilder v. Ireland, 53 N. C. 85, held that a judgment in ejectment against the vendee is no evidence of a defect in the title of the v......
-
Jones v. Balsley
...indispensable to the recovery on the covenant that notice of the adverse suit shall have been in any way given." This court, in Martin v. Cowles, 19 N.C. 101, approved Wilder v. Ireland, 53 N.C. 85, held that a judgment in ejectment against the vendee is no evidence of a defect in the title......