Swett v. Patrick , 12 Me. 9 ( 1835 )

Weston C. J.

The covenant of warranty, upon which the defendant was charged, is one of indemnity. He had been seasonably notified of the suit, in which the paramount title was established ; and is therefore liable for costs. The cases cited for plaintiff show, that the costs of defending are to be allowed on the covenant of warranty. The plaintiff had a right to defend. He was justified in making every fair effort to retain the land, which he must be understood to have purchased for his own convenience. An equivalent in value might not be equally satisfactory. If the defendant was apprized of the infirmity of his title, he should have stepped forward and relieved the plaintiff, by making the best adjustment he could with the adverse claimant. In that way he might have protected himself from costs. The plaintiff could not defend without counsel; and if employed, they must be paid. It does not appear that he incurred any unnecessary expenditure.

The opinion of the Court is, that the plaintiff is legally entitled to the damages found.

Judgment on the verdict.