Moore v. Frankenfield

• Decision Date: 18 March 1879
• Citation: 25 Minn. 540
• Parties: EDWARD MOORE <I>vs.</I> JACOB FRANKENFIELD.
• Court: Minnesota Supreme Court

25 Minn. 540

EDWARD MOOREvs.

JACOB FRANKENFIELD.

Supreme Court of Minnesota.

March 18, 1879.

Appeal by defendant from an order of the district court for Sibley county, Macdonald, J., presiding, refusing a new trial.

S. & O. Kipp, for appellant.

L. M. Brown, and J. F. Walsh, for respondent.

CORNELL, J.

The action, as stated in the complaint, is founded upon an alleged breach of a covenant for quiet enjoyment contained in a deed from the defendant to the grantor of the plaintiff, which purported to convey to the covenantee therein, her heirs and assigns, the whole of a certain tract of land, comprising seven acres more or less, and therein described as "out-lot No. 5, in Camorand's addition to the town of Henderson," for the sum of one hundred dollars, the consideration expressed in the deed. The breach alleged consists in an eviction of the plaintiff from a portion of said lot, which is described by metes and bounds as a strip of land containing one and 89-100 acres of land, by reason of a paramount title in one Desilitz.

A covenant for quiet enjoyment goes only to the possession, and not to the title; and when the covenantee, or, as in this case, his assignee, takes and holds possession under the deed, there must be an actual lawful eviction from the premises, or some disturbance of that possession, to constitute a breach of the covenant. So long as the actual possession of the property remains in the covenantee or his assignee, an action for a breach of the covenant will not lie, though there may exist in fact an outstanding paramount title, the enforcement of which would work a change in the possession. Webb v. Alexander, 7 Wend. 281.

The only evidence introduced in this case touching the fact of possession and of an eviction, was the record of a judgment in partition, and the proceedings in a certain action for partition, between the plaintiff and one Desilitz, which was instituted by the latter in the district court of Sibley county. As appears from such record, that action was brought by Desilitz, in January, 1874, for a partition of said out-lot 5, and an adjoining tract of seven acres known as out-lot 6, in said addition, his claim being, as stated in the complaint in that action, that both these out-lots constituted but one tract and that plaintiff and Desilitz were seized in fee of said entire tract, as tenants in common; the former, of the undivided seven-sixteenths thereof, and the latter of nine-sixteenths. Upon the basis of the...