Abby v. Goodrich ( 1809 )

By the Court.

The question on this motion is, whether Ebenezer and David White, who, with Daniel White, conveyed to Samuel Abby, under whom the plaintiff claims, all the title and claim, which the plaintiff has in the land in dispute, by their joint deed, with covenants of warranty and seisin, are so interested in the event of this suit, that they cannot be admitted as witnesses on the part of the plaintiff, to testify concerning the metes and bounds and location of the lands by them conveyed in their deed, and the dividing line between their land and the plaintiff’s, and between the plaintiff’s and the defendant’s; notwithstanding the plaintiff has executed to them an ample i’eíease of all his claim and demand on said covenants, by an instrument in writing, duly executed, acknowledged and recorded ?

The deed from said Ebenezer, David, and Daniel, was a conveyance of thirteen acres, bounded east on the lands of the defendant, and west on the lands of the grantors. The witnesses offered are directly interested in fixing the dividing line as far eastward as possible on the land claimed by the defendant; because having sold only •thirteen acres off the east end of the tract they owned, the farther to the east they can fix the line, and location of that part conveyed to Abby, the more land they will retain to themselves westward of it.

The release of the covenants does not, in any maimer, affect this interest. The plaintiff releases only his own claim on the covenants: The covenants run with the land : The release contains no quit-claim of title, and was not a subject of record.

That this suit is in trespass, and does not preclude another trial of the same matter in an action of disseisin, makes no difference. The witnesses are interested in the event of the suit, although the decision may not be final, and me parties may, in another suit, further controvert their claims.

New trial not to be granted.