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Potter v. Kitchen.

ral averment in which title is denied to be in the defendant, and was manifestly intended by the pleader to assert such want of title, in the double form of an assertion of a proposition and a denial of the contrary of it. The complaint was perfect without it, (or must, on this appeal, be assumed to be so;) and I do not think is hurt by it. If it had asserted in whom the title was, the consequences might have been different; but as it is, it is in reality but a denial of title in the defendant, and nothing more. Besides, all the reasons which, in this peculiar action, would throw the burden of proof on the defendant are as applicable, with this allegation in the complaint, as they would have been if it had no place in that pleading. If, by reason of it, the burden of proof was on the plaintiff, he would be obliged to prove an absolute title in some other party; whereas, as all the cases hold, he is not presumed to know the exact condition of the title of his grantor. This is the reason given in the books why the burden of proof is on the defendant. He has purchased in reliance upon the covenant of title; and when that is impeached or denied, the grantor is bound to assert and maintain it. In the language of the case in 14 Johnson's Reports, "it is enough if he suspects the grantor's title to be defective. He is not bound to wait in suspense until by possibility he can find out in whom the title really is." If the defendant had no title when he made his conveyance, the covenant was broken the moment it was made, and for this reason, all that the plaintiff need allege is simply a breach of the covenant, by negativing the words of it. A breach of the other covenants can only be shown by matters occurring after they are made; and, hence, it is necessary to allege and prove such subsequent matters. The case of a breach of the covenant of seizin and the right to convey is, in respect to the order of proof, strictly exceptional.

I think the case of Abbott v. Allen, above cited, conclusive on this question; and to the same effect are numerous other authorities. The case of Marston v. Hobbs, (2 Mass., 433,) asserts the same thing. The rule is laid down in Bradshaw's case, (9 Coke's R., 60,) and has been fully recognized by our own decisions; nor has any distinction been made between the case of a covenant of seizin in a lease, which was Bradshaw's case, and that of a covenant in a deed in fee. Of both it is true that it lies more in the

Potter v. Kitchen.

knowledge of the grantor what estate he hath than in that of the grantee.

In Abbott v. Allen, the breach was assigned generally in the words of the covenant-the conveyance being in fee. The plea was that the defendant was lawfully seised, &c., in the words of the covenant, and the replication was, that the defendant was not seised, &c.; still following the words of the covenant, and repeating the allegation of the breach as laid in the complaint. The defendant demurred to the replication on the ground that it did not show in whom the title was, whereby the defendant was not seised, &c. The very point, therefore, which party was to allege, and consequently prove, the actual title, was involved, and the Court held the demurrer ill taken, and gave judgment for the plaintiff; and it seems, by a note at the foot of the case as reported, that they also gave judgment in the same manner, on the same question, in another case, not reported. (Sebeer v. Kimball.)

In Glinister v. Audley, (Sir Thos. Raymond's R., 14,) on a demurrer to a similar replication, (the conveyance being in fee,) the point relied on was, that "the plaintiff ought to have shown of what estate the defendant was seised, in regard he had departed with all his writings concerning the land, in presumption of law, and therefore the plaintiff well knew the title ;" and it was contended that it was not like Bradshaw's case, "because there the covenant was with the lessee for years, who had not the writings;" but it was held that the breach was well assigned according to the words of the covenant, and judgment was given for the plaintiff.

The case of Salman v. Bradshaw, (Cro. Jac., 304,) was on breach of covenant in a lease, the covenant being that the lessee had lawful estate to let for the term, the assignment of the breach was general in the words of the covenant, and held good.

In Abbott v. Allen, the language of the Court is unqualified. The grantor, giving such a covenant, is not bound to deliver to his grantee the prior deeds and evidences of his title. The legal presumption is that he retains them. The grantce relies on the covenant of the grantor that he has a good title, "and until the grantor discloses his title, he (the grantee) holds the negative merely, and is not bound to aver or prove any fact in regard to an outstanding title. Prima facie the grantee is to be presumed

Potter v. Kitchen.

ignorant of the real state of the title. The grantor is not bound unless by suit to explain his title."

The whole subject is reviewed in a learned note (10) in 2d Saunders' Reports, 181, a., and the distinction between this and the other covenants in a deed pointed out, and the cases cited.

The case of Tallmadge v. Wallis, (25 Wend., 107,) is not in conflict with Abbott v. Allen. The only question in that case was whether a plea of want of seizin in the grantor was a good defense to an action on the bond for the purchase money, and it was held that it was not because such a plea did not show a total want of consideration, and therefore as a plea in bar was defective. Had it shown that the defendant had been evicted, or that the grantor, the plaintiff, had no estate in the premises, or that some other person had the entire estate, it would have gone to the whole consideration; but the plaintiff may have had no legal seizin in fee, and yet have had a title by occupancy, which passed under the deed, and thus furnished some consideration for the bond. The case arose on a demurrer to this plea.

To the same effect is Whitney v. Lewis. (21 Wend., 131.) The case of Kennedy v. Newman, (1 Sandf. Sup. C. R., 187,) is relied upon by the defendant as showing that the affirmative of proof is with the plaintiff in this action. We are unable to perceive this. The suit was evidently on the covenant against incumbrances, and the incumbrance set up in the complaint and attempted to be proved, was a lien acquired by a purchaser at an assessment sale before the conveyance to the plaintiff, and which the plaintiff had bought off, and the Court held that the plaintiff had failed to establish all that was necessary to show a valid assessment, and a nonsuit was directed. The head note would seem to indicate that the action was on the covenant of seisin; but if it were, the question of who had the affirmative of the issue, could not have arisen, since the plaintiff set out the assessment sale and his settlement with the purchaser in his complaint, and the defendant pleaded no such assessment. Under such a state of pleadings, the burden of proof was necessarily on the plaintiff.

We think the Referee erred in his conclusions, and that there should be a new trial, costs to abide the event.

Judgment reversed, and new trial ordered accordingly.

Weldon v. The Harlem Railroad Co.

JOHN WELDON, Plaintiff and Respondent, v. THE HARLEM RAILROAD COMPANY, Defendants and Appellants.

J. WELDON and WIFE, Plaintiffs and Respondents, v. THE HARLEM RAILROAD COMPANY, Defendants and Appellants.

1. In an action against a Railroad Company, to recover damages alleged to have been caused by the negligence of the defendants' driver in the management of his team in taking it through a public street after it had been detached from a car it had been drawing, a verdict for the plaintiff will be set aside as contrary to evidence, where the testimony is uncontradicted that the manner in which the team was managed was such as had been pursued by this and other similar Companies for years without accident, and was considered by those engaged in such business as safe and discreet, especially where it is proved that the injury was caused by an unexpected and wanton assault by a third person upon the team, by which it was frightened and rendered unmanageable, and while frightened and unmanageable ran over the plaintiff.

2. The Company is not responsible for such act of such third person, though he may have been at the time employed by it in some capacity, he not being at the time of such act actually attending to any business for which he had been employed, or acting in any matter in behalf of the Company. (Before BOSWORTH, Ch. J., and HOFFMAN and MONCRIEF, J. J.)

Heard, December 8th; decided, December 31st, 1859.

IN each of the two cases of John Weldon, plaintiff, against the New York and Harlem Railroad Company, defendants, and John Weldon and Wife, plaintiffs, against the same Company, the defendants appeal from an order denying a motion for a new trial.

The evidence was the same in the one action as in the other. The plaintiff and his wife, on Sunday evening, December 21, 1856, while crossing Fourth avenue in New York city, between 27th and 32d streets, were run over by a span of horses belonging to the defendants, and then in charge of their driver, who was taking them from 27th street, where he had detached them from a car he had been driving, to the stables of the Company.

Reardon, the driver, was at the time riding one of the horses, and while thus taking them to the stables, one Butler, who had

Weldon v. The Harlem Railroad Co.

previously been employed by the Company as an extra man in the stables, struck the horses, frightening and making them unmanageable, by reason whereof they ran over and injured John Weldon and his wife. One action is brought to recover damages for injuries to the husband; the other to recover damages for injuries to the wife.

Each plaintiff recovered a verdict, and in each case the defendants moved for a new trial. The motions were denied, and from the orders denying them the defendants appealed to the General Term. The two appeals were argued together. The evidence, as it was viewed by the Court, is succinctly stated in its opinion.

C. W. Sandford, for appellant.

G. Dean, for respondents.

BY THE COURT-BOSWORTH, Ch. J. In these actions the evidence is the same in the one as in the other. In each the plaintiff obtained a verdict. In each the defendants moved for a new trial, on the ground that the verdict is against evidence, and that motion was denied. From the order denying it the defendants appealed to the General Term. The only question is, whether the verdict is so clearly against evidence that it is the duty of the Court to set it aside for that cause. The plaintiffs were run over, in the evening of the 21st of December, 1856, while crossing Fourth avenue, by a span of horses owned by the defendants, and at the time in charge of their driver.

The horses had been attached, in the afternoon of that day, to one of the short cars of the plaintiffs, running between 27th street and the Astor House, and had been detached from the car at 27th street, shortly prior to the accident, and the driver was, at the time of the accident, riding the off horse. The two horses were harnessed together, having between them the pole which is attached to the car when it is in use, and the whiffletrees were attached to the pole, and one end of the pole in the rear of the horses' feet was on the ground. There was no negligence or mismanagement on the part of the driver, unless it was negligence or mismanagement to go through the streets of the city with a span of horses as these were taken.

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