Juliand v. Burgott , 11 Johns. 477 ( 1814 )

Yates, J.

delivered the opinion of the court. This bond is not tantamount to a covenant for quiet enjoyment. It is given for the performance of an act by a certain day, particularly stated in the condition, and for the non-performance of which the plaintiff is entitled to his action. ■ The words in the condition are, “ And it is expressly understood and agreed between the parties to these presents, that the said Peter and Garrit are to see the lands freed from all encumbrances, by the 20th day of February, 1812.”

The plaintiff states in his declaration a mortgage duly registered, the parties to it, the amount secured by it, that it existed when the bond was executed, and that it remained unsatisfied on the 20th of February. This is sufficient, without showing an eviction. No molestation in the possession of the premises was essential to the remedy ; nor was it necessary that proceedings should be had on the mortgage, by foreclosure, or otherwise. The injury to the plaintiff exists without it. It is enough that the encumbrance had not been removed at the time stipulated by the defendants.

The case of Van Slyck v. Kimball, (8 Johns. Rep. 198.) cited by the defendants, cannot affect this decision. There the defendants had sold to the plaintiff a piece of land, and covenanted • with him to indemnify, and save him harmless, from all demands, dues, and dapnages whatsoever, which might happen or arise to him from a certain mortgage on the same land. The court decided, that this was tantamount to a covenant for quiet enjoyment, against the mortgage, and that the plaintiff could not main tain an action for "a breach of the covenant, without showing an eviction under the mortgage, because it was the very essence of the covenant, that he should show himself damnified by being disturbed in the enjoyment of the property, by due course of law, before he could sustain his action on the covenant, and ``which could only be shown by an eviction; but it is not so in the case before us. The covenant is, that all encumbrances should be removed by the defendants on a given day, which has not been done. The defendants, therefore, are in default, and the declaration sets forth the whole with proper averments; the plaintiff, consequently, is entitled to judgment.

Judgment for the plaintiff.