Richstein v. Welch

• Citation: 83 N.E. 417,197 Mass. 224
• Parties: Mary RICHSTEIN v. James WELCH.
• Decision Date: 27 January 1908
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 224

83 N.E. 417

Mary RICHSTEIN v. James WELCH.

Supreme Judicial Court of Massachusetts, Essex.

January 27, 1908

Jan 27, 1908.

COUNSEL

Louis S. Cox, for the plaintiff.

W Coulson (D.J. Coulson with him,) for the defendant.

OPINION

BRALEY J.

If the plaintiff has been evicted by a paramount title from the easement in the alleyway which passed under the deed as appurtenant to the premises, the defendant's covenant of warranty was broken, and she became entitled to recover damages for the breach. Gilman v. Haven, 11 Cush. 330; Tobey v. Taunton, 119 Mass. 404; Kramer v. Carter, 136 Mass. 504, 507, 509; Smith v. Richards, 155 Mass. 79, 82, 28 N.E. 1132. Upon the estate was a stable used by the plaintiff's husband, the only entrance to which for horses was by a door which opened on the westerly side of the way, and a dispute as to her title having arisen between the plaintiff and one Bergeron, an abutting owner on the easterly side, he brought an action of tort in the nature of trespass in which he finally obtained judgment for nominal damages. At the trial, the plaintiff relied upon the judgment as conclusive proof of an ouster from any use of the way. If the defendant had not been notified of the former action, still the record was admissible to prove an eviction when supplemented by the evidence introduced by the plaintiff, that title was directly put in issue. Merritt v. Morse, 108 Mass. 270. But not having been originally a party to the action, he would not be concluded unless not only notice of the action was given to him, but he was tendered the opportunity to take upon himself its defence. The earlier practice was to vouch in the warrantor so that he would be estopped to deny the title by which the tenant suffered an eviction, and while formal notice in writing, because of the ease and accuracy of proof thereby afforded, is desirable, yet it may be oral. The warrantor whether he appears and defends, or makes default, is then considered in law so far a party or privy as to be concluded by the judgment. If the defendant was seasonably notified, and offered the defence, this was sufficient to enable him, if possible, to protect the title, and avoid an action for damages on his covenant. Oliver's Prec. (4th Ed.) 840; Jackson on Real Actions, 14; Chamberlain v. Preble, 11 Allen, 370, 374; Boyle v. Edwards, 114 Mass. 373, 375; Richmond v. Ames, 164 Mass. 474, 476, 41 N.E. 671; Consolidated Blasting Machine Co. v. Bradley, 171 Mass. 127, 50 N.E. 464, 68 Am. St. Rep. 409. No set form of words, however, being required, if the testimony of the plaintiff, and that of her husband, was believed, the defendant, notwithstanding his evidence, was fully informed not only that an action had been begun, but that the plaintiff's easement in the passageway was disputed, accompanied by a request to contest the claim. The jury were justified in answering this question in the affirmative, and the defendant's exception to the admission in evidence of the record cannot be sustained.

A more important question is the conclusiveness of the judgment. The declaration in the action for trespass consisted...