McCampbell v. Vastine ( 1860 )

Wrisht, J.

The demurrer to defendant’s amended answer was properly sustained.

Granting that it would be sufficient, as a general rule, to negative the words of the covenant contained in the deed, the negation should relate to the title at the time of the conveyance. This answer says that “plaintiff had no title what-ever to said land,” &c., but whether this want of title was before or after the conveyance is not averred.

Not only so, but it was not sufficient to allege merely a failure of title. In Brandt v. Foster et al., 5 Iowa 287, the practice of setting out the deed as a part of the answer was condemned; Stockton, J. saying that it would have been better “to set out tbe covenants claimed to have been broken, .upon tbe breach of which defendants rely for their defense.” In that case however, besides setting out the deed, defendants aver that plaintiff had no valid title at the date of the deed, but that the title to the same was in one Snyder, who had subsequently given.notice to defendant Foster to quit the possession, &e. In this case the answer contains no such averment. • It is said that, at some time, (but when, is left entirely indefinite,) plaintiff had no title, but who had the title even at this indefinite time is not stated.

The answer instead of showing a failure in the quantity of the land conveyed, shows that -defendant obtained at least twenty acres more than, the aggregate claimed and set up therein. ...

Judgment affirmed.