Bacon v. Lincoln , 58 Mass. 210 ( 1849 )

Wilde, J.

This is an action to recover damages for a breach of the covenant of seizin contained in the deed of the defendant, by which he conveyed, or the deed purported to convey, to the plaintiff, a certain tract of land, situate in the county of Hamilton, state of New York, and known as No. 5, on a map of township No. 38, in said county, filed in the office of the clerk of Montgomery county in said state.

At the trial, the plaintiff offered evidence to prove, that the township had never been divided into lots; and it was thereupon ruled by the court, that if no such lot existed as that described in the deed to the plaintiff, this action upon the covenant of seizin could not be maintained.

This ruling, in our opinion, is not well founded; for the defendant covenanted that he was seized of the lot described in the deed, and if no such lot existed, that amounted to a breach of the covenant.

It has been objected, that the breach of the covenant is not well assigned, and that the declaration should have averred that there was no such lot as that described in the deed; but we think such an averment is not required by the • rules of pleading. The general rule is, that breaches of covénant may be assigned generally, by negativing the words of the covenant; and this rule is applicable to the breach of the covenant of seizin; Marston v. Hobbs, 2 Mass. 43437; and there is no necessity of a special assignment. The covenant that the defendant was seized of the lot described in the deed implies that there was such a lot.

Exceptions sustained.