Gragg v. Richardson

By the Court.

Benning, J.

delivering the opinion.

In this case, Richardson, the purchaser holding Gragg’s warranty, Avas never in possession. He sued to get the possession but failed in his suit — judgment going for his adversary, one Hill. Of this suit, Gragg had notice; and he took a part in its prosecution.

Was the judgment in this suit evidence of a breach of Gragg’s warranty P

The ordinary case is this; the purchaser goes into possession, then, the person holding the paramount title, sues him for the possession, and he notifies his warrantor of the suit; judgment, nevertheless, goes against him, and. under it, he is turned out of possession.

And in this, the ordinary case, the judgment is evidence of the existence of an adverse title, paramount to that conveyed by the warrantor; and the eviction is under that judgment. In this the ordinary case, then, the judgment, and the eviction under it are together evidence of an eviction and a paramount, title; and that makes the breach of a warranty.

What is the difference between this, the ordinary case, and the present case ? In the ordinary case, the purchaser after getting possession is turned out of it, by a suit against him, of which his warrantor has notice; in the present, case, the purchaser can never get possession ; not even by the the aid of a suit of which his warrantor has notice, and in the prosecution of which he takes part.

The chance which the warrantor in the one case, has ©f asserting his title, is as good as the chance which the warrantor in the other case, has of asserting his title; the purchaser who is prevented from ever getting the possession, is at least as bad off, as the purchaser who having got the possession is turned out of it; a judgment against the purchaser when he brings the ejectment and vouches his warrantor, is as much evidence of an adverse title paramount to the warrantor’s as is the judgment when the ejectment is brought against the purchaser, and he vouches the warrantor.

There is, then, no substantial difference, between the ordinary case, and the present case.

This being so, then, the judgment in Richardson’s suit against Hill for the land, was evidence of breach of Gragg’s warranty. It was evidence, that Richardson was kept out of possession by a title paramount to that which he derived from Gragg. To be kept out of possession by such a title as hat, was a breach of the warranty.

And if this be so, it seems manifest, that the Court below was right, in the charges which it refused to give ; and also in those which it gave, except one. And, with that exception, we think that the Court was right.

The exception is, the charge, that Richardson was entitled to recover of Gragg, the fees he had paid his lawyers, in the suit brought by him to recover the land.

"We do not know of any law to authorize this charge. None was read to us. We, must, therefore, hold the charge as unauthorized, and, consequently, must order a new trial unless these fees are remitted.

Nothing that has been said, is to be construed as meaning, that the judgment in the suit between Richardson and Hill, is conclusive on Gragg.

Judgment reversed.