Marshal v. Sprott ( 1798 )

President.

If an action be brought on the covenant, Sprott can recover damages for any default of Marshal. Marshal, having no knowledge of any adverse possession, went to make a settlement according to his article. He found another in possession, and could not proceed to make his settlement, without taking possession by force, (which would have been an offence) or prosecuting an ejectment. He was not obliged to do this ; but, in such a case, had a right to say, that the bargain, from this material defect, an adverse possession, became void, and he had a right to demand back his money. The defendant seems to have been conscious of this, and proposed to do precisely the same thing. I can see no use in the evidence offered. But, if the defendant’s counsel think otherwise, we will reserve the point.

There was a verdict for the plaintiff.