Bank of the State of Georgia v. O'Neal ( 1897 )

Lumpkin, P. J.

An action was brought by O’Neal against the Bank of the State of Georgia, in which it was sought to recover damages for an alleged breach of a covenant of warranty contained in a deed to land. The defendant filed a general demurrer, and also certain special demurrers; but the only error assigned in the bill of exceptions was the overruling of the general demurrer.

The headnote discloses the substance of what the plaintiff alleged as constituting the breach of warranty. As against a general demurrer, we think these allegations were sufficient to carry the case to a jury. If O’Neal, in order to prevent being evicted from the premises conveyed to him by the bank with a warranty of title, was, by reason of an action of ejectment brought against him by one lawfully claiming the land under an older and better title than that of the bank, compelled to pay money to the plaintiff in such action; and if O’Neal was thus constrained to buy up an outstanding “paramount title,” it seems clear that the bank’s covenant of warranty was broken. If the defendant, by special demurrer, had called upon the plaintiff to allege specifically how the title set up in the action of ejectment was “ older and better” than, and in what way it was “paramount” to, that of the bank, the question would have been different; but none of the special demurrers above alluded to went to this point.

A similar action was instituted against the bank by Parker; and as the question involved therein is identical with that presented in O’Neal’s case, these two cases were argued and have been considered together.

Judgment in each case affirmed.

All the Justices concurring.