Ostrow v. Lesser ( 1915 )

BIJUR, J.

Plaintiff’s claim ultimately resolved itself into a demand for the amount of an incumbrance based on a breach of warranty of title. Plaintiff was defendant’s grantee under a deed containing a warranty against incumbrance. When plaintiff conveyed to one Jans, it was discovered that there existed a lien on the property in the form > of a judgment against defendant’s grantor. Thereupon plaintiff claims to have paid to Jans the amount of this judgment, with -interest to date. It was not shown that Jans took title subject to the incumbrance, nor that the incumbrance was removed by payment of the judgment. Under the circumstances, plaintiff cannot recover. See Delavergne v. Norris, 7 Johns. 358, 5 Am. Dec. 281.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.