Kirkpatrick v. Miller

Citations

• 50 Miss. 521

Syllabus

<p>1. Covenants of Warranty — Breach thereof. — The authorities are not agreed as to the extent of the general covenant of warranty, and what will constitute a breach thereof. It is generally conceded, that if the vendee is sued in ejectment, or a demand of the premises is made hy the owner of the better title, he may surrender the land and resort to his covenant. Loomis v. Bedell, 11 N. H., 74.</p> <p>2. Same — Same— Eviction. — An eviction under legal process is not necessary to give the covenantee a remedy on the warranty. It is not necessary for him to defend against a title which he is satisfied must eventually prevail. Hamilton v. Cutts, 4 Mass., 349. If liis title was invalid he might abandon the possession.</p> <p>3. Same — Constructive Eviction — General Bíjle. — The great weight of American authority is, that if the covenantee has been obliged to purchase a paramount title, which was being asserted against him, and under which he must ultimately be evicted, this amounts to a constructive eviction, and he may sue upon the covenant. Estabrook v. Smith, 6 Gray, 572.</p> <p>4. Same — Bule in this State. — In this state the covenant is given a more restricted operation and the cases confined within narrower limits the doctrine of technical eviction. The rule established by the cases is, that in order to recover upon the covenant, there must be an eviction or there must, at the time of the sale, have been an adverse possession under paramount title, holding the vendee out. Burrus v. Wilkinson, 31 Miss., 537; Witty v. Hightower, 12 S. & M., 481; Dennis v. Heath, 11 S. & M., 218.</p> <p>5. Same — Bulb in Equity. — Whilst a court of equity holds the vendee to entire good faith to his vendor, and will not permit him to buy in an outstanding title or incumbrance and set it up in opposition to his vendor, yet it will lend its aid to reimburse all reasonable advances expended to fortify the title. At the same time it will rebuke every attempt by the purchaser to invali