Banks v. Whitehead , 7 Ala. 83 ( 1844 )

GOLDTHWAITE, J.

— The effect of a general covenant of warranty, was very fully considered in Caldwell v. Kirkpatrick, 6 Ala. Rep. 60.] The question here is as to the necessary averments in a declaration to show a breach of this warranty. The plaintiff alledges, in substance, that at the time of the sealing and delivery of the deed to him, that another person than the grantor had the lawful freehold title, and possession, and still continues so to have; by reason whereof the plaintiff is, and always has been, unable to obtain possession!

■ The case cited is conclusive to show that proof of these facts is sufficient to constitute a breach of the warranty. To the same effect is Cummings v. Kennedy, 3 Litt. 118. In the case of Crawford’s heirs v. Pendleton, the declaration is to the same effect as here, except it is added, as a consequence of the inability to obtain possession, that the plaintiff had been evicted; and the Court refused to arrest the judgment although the supposed defect of the breach was urged as a reason to .do so. It certainly is unnecessary to alledge more than is necessary to be proved in an action like thisand although the strictly formal course would have been to alledge an eviction, we feel constrained to decide that the averments here are equivalent to the assertion of a legal ouster. In doing so, we do not conceive we in any manner trench on the rules which govern this covenant, for under the averments of this declaration, the plaintiff would be held to proof that the possession was in another; and after his grantor’s title had been shown, it would also be necessary, in order to sustain the action, to show that it was inferior in legal strength to the title held by the individual in possession.

Judgment affirmed.