Swett v. Patrick , 11 Me. 179 ( 1834 )

Mellen C. J.

delivered the opinion of the Court.

The deed of which oyer is prayed and which is set out by the defendant in his demurrer, conveyed an estate in common to the three grantees, Swett, Partridge, and Warren. Tenants in common have several freeholds, and if disseised, could not, at common law, join in a writ of entry against the disseisor; though by our statute of 1826, ch. 347, they may n-ow join in such an action, if they are inclined so to do; but they are not obliged to; nor, if they do join, is the nature of the estate and the tenancy thereby changed. The authorities cited by the plaintiff’s counsel, clearly shew that the covenant of warranty, which runs with the land, where there are two or more grantees and covenantees. is a several covenant with each of the grantees in common; and each, on eviction by elder and better title, may sue alone for his damages. In the present case, it does not appear that either of the other grantees has been evicted or has any cause of action; we are not to presume that, as to either of them, the covenant of warranty has been violated. The first count sets forth that covenant only, and alleges a breach of it, and if there had been no other count, there could be no question that the action would be maintained on undisputed principles. But it is contended by the defendant’s counsel, that the second count, in which all the covenants in the deed are declared upon, and the breach of all is alleged, contains an averment which is fatal to the plaintiff’s asserted right of action, set forth in the first count; namely, that at the time of the execution of the deed, the defendant was not seised; and that so, no estate whatever passed by the deed; and, of consequence, that the covenant of warranty was not broken; because, as no estate passed, the plaintiff could never be evicted of any estate. Supposing then, that the action for breach of the covenant of seizin must be joint, still if the averments in the second count cannot have any influence on the first count, the action is well maintained. In the case of Hacker v. Storer, 8 Greenl. 228, it was decided, that where the declaration contained but one count in which the plaintiff declared on all the covenants in the deed, being the covenant of seizin, of freedom from in-cumbrances and to warrant and defend the premises, the action could not be maintained, as the count was a felo de se: but we consider the principle of law to be otherwise where there are several distinct counts, as in the case before us. Both the counts are good, separately considered; and where there are several counts, the merits of each are to be considered without reference to the others. No one count can be aided by another; aver-ments in one count cannot be applied to sustain another; and for the same reason, they cannot be applied to defeat another. Each count, like each plea, where there are several, must stand by itself and be judged of independently. The authorities cited to this case seem clearly to establish it. Our opinion therefore is, that the demurrer must be overruled and judgment be entered for the plaintiff: because upon a general demurrer to a declaration, if any one count is good, the action is maintained.