BENDER v. FROMBERGER, 4 U.S. 436 (1806)

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BENDER v. FROMBERGER, 4 U.S. 436 (1806)

4 U.S. 436 (Dall.)

Bender v. Fromberger. Supreme Court of Pennsylvania. December Term, 1806

COVENANT. On the trial of the cause in March T. 1806, it appeared, that the defendant and his wife had sold and conveyed a tract of land to the plaintiff for 2390 dollars, by deed dated the 8th of September 1797; and had therein covenanted, 'that the defendant was lawfully seised of a good, sure and indefeasible estate of inheritance, in fee simple, in the said land, and had good right, full power, and authority, in his own right, to grant and convey the same to the plaintiff in fee.' The deed, also, contained a special warranty against the grantor and his heirs, and all persons claiming under them. Bender took possession of the premises and made considerable improvements, as well in fences and buildings, as in the cultivation of the soil; so that the property was valued, in May 1802, at 5000 dollars. An ejectment was brought, however, at the suit of Benjamin Hilton against Bender, in the Circuit Court of the United States; and, after a trial, verdict, and judgment for the plaintiff, a Hab. Fac. Possess. issued returnable to May T. 1802, upon which the possession was delivered on the 4th of February 1802. Bender then instituted the present suit, in which the declaration stated the covenant, that the defendant was seised of an indefeasible estate in fee simple, and that he had a good right to convey the same to the plaintiff; and assigned as a breach, that the defendant was not so seised, nor had he good right to convey the said land in fee to the plaintiff. Profert of the deed was made, but oyer was not demanded. The defendant pleaded Non infregit conventionem, on which issue was joined; and, also, performance with leave, &c. to which the plaintiff replied, generally, non-performance, and issue was thereupon joined. At the trial of the cause, in March term 1806, upon the recommendation of the Court, and with the consent of the parties, a verdict was taken in these terms: 'The jury find for the plaintiff 6232 dollars 50 cents: but if the Court shall be of opinion, that the plaintiff is not entitled to recover the value of the improvements made by him, after he purchased of the defendants, then they find damages 2979 dollars 14 cents, and 6 cents costs.' [Footnote 1]

Page 4 U.S. 436, 437

Before the argument, on the point, which the jury had thus submitted to the court, a motion was made in arrest of judgment, on the following grounds: 1st. That the declaration was vicious, inasmuch as it did not assign a legal breach of the covenant. 2d. That there was not, in any part of the pleadings, sufficient matter, for the court to render judgment in favour of the plaintiff. 3d. That it is apparent on the record, that the plaintiff has no cause of action. In support of these objections, it was argued, for the defendant, 1st. That the declaration does not aver, that the recovery in Hilton's lessee v. Binder, was upon a title paramount. Freem. 122. Hob. 12. 4 Co. 80. Cro. J. 674, 5.Hob. 34. Ca. temp. Hardw. 271. Cro. E. 917. Cro. J. 315. Cro. E. 823. Cro. Car. 5. Vaugh. 118. 2 Vent. 61. Cro. J. 444. 1 Mod. 292. 1 Lev. 301. 3 Mod. 135. 3 T. Rep. 584. 2d. That although the modern authorities admit, that it is sufficient, if the breach is assigned in the same general words, as the covenant; yet, in that case, it is necessary, that the replication should be more specific and particular. Cro. E. 544. Cro. J. 171. 4. T. Rep. 620. For non infregit conventionem is no plea, unless the breach is assigned affirmatively. Co. Litt. 303. 6. And it is a rule in pleading, th t you cannot go to issue on a general averment of performance. 3 Woodes. 93. Cowp. 578. 3d. That the declaration contains a profert of the deed; and, according to the practice of Pennsylvania, oyer must be presumed, [4 U.S. 436, 438]

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