Rees v. Ringler ( 1910 )

Opinion by

Henderson, J.,

The defense which the appellants set up, arises out of an alleged breach of the covenant of general warranty contained in a conveyance of land made by Thomas Rees to Ellen M. Ringler on June 30, 1902. It appears from the affidavit of defense that the land formerly belonged to one Baer, who conveyed the surface to Hay and the minerals to other parties and that the grantees of the minerals were liable according to the terms of the grant for any damage done to the surface. The further allegation is that when Rees and one Ehlen were the joint owners of the property prior to the conveyance of Rees to the defendant they made a conveyance to the Keystone Coal Company wherein as owners of the surface they released that company, its lessees and assigns, from liability for all damages to the surface by reason of the removal of the pillars and ribs necessary for the support of the surface and by said conveyance permitted the coal company, its lessees and assigns, to remove all coal from under the surface without liability for any injury to the surface. The averment on which the defendants rely to introduce their set-off is “that in the deed from said Rees to said defendant a special reference is made to the said deed from W. J. Baer to said J. M. Hay and the rights of the parties as established by said conveyance, and defendant believed from representations made to her at the time said conveyance was made and from the conveyance itself, that her rights were the same as those of J. M. Hay as acquired by virtue of the deed as aforesaid, and she was not aware of any release of surface damages or any conveyance by which the owner of the surface would be debarred in any. way from maintaining an action for damages to the surface by reason of the mining and removing of the coal.” No other part of the affidavit sets forth any ground of defense. We have before us only the scire facias and the affidavit of defense, and the rights of the appellants cannot be considered except as presented in the affidavit. The “special reference” in the deed from Rees to Mrs. Ringler is not set out. Neither is there any statement of the representations made to Mrs. Ringler at the time her deed was delivered which induced her to believe that her rights were the same as those acquired by J. M. Hay, nor are we informed by whom the representations were made. There is also a failure to set. forth the nature of the damage and its amount. It may be that the appellants have a meritorious case arising out of the covenant in the deed to Mrs. Ringler, but the affidavit of defense does not exhibit the necessary facts to make such defense available. Without an examination of the deed from Rees to Mrs. Ringler there is no means of determining what the rights of the appellants are and this deed is not before us. It is unnecessary to cite authorities to show that averments in affidavits of defense must be definite and that where it is proposed to introduce a set-off the character and extent of the set-off must be set out in specific terms. The assignment of error must, therefore, be dismissed. We do this, however, without prejudice to the appellants’ right at law.

The judgment is affirmed.