Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1905-12-12

intestate. and that she is liable in this
action for their payment.
| THE nIaiptiff is entitled to Judgment
upon the first count in it's writ for
1 $3.50 and interest at per cent. from
| C.cf.Xs. .soz;;s under the second count for
4 s. No lptepst att psE certss from
Ut R spA Sg% undeEtt3f thru. couha
fforT Sss3 sEs saHds intersat 6sVerG Hslit.
/ froifi March f6..s 1862; under the Fourth
| count for $135.00 and interest at per
| cent. from March 25, 1902, under the
fifth count for $500 and interest at 6
per cent. from March %, 1902, and I'M
| der the sixth count for $l52.61 and in
terest at E per cent. from May 8, 1902.
Hon. Charles w. Jones. clerk of
courts for kennebec county, received
the following rescripts from the law
| court, Monday:
Knox county. William H. Glover ct
| al. versus Clara Z. O'Brien ct. al.
Rcscript by Whitehouse, J.
| 1t is undoubtedly a well settled gen.
eral rule respecting the assignment of
breaches Of covenants. that the plaintiff
may allege the breaches generally by
simply mega living the words of the
covenant, but the exception to this
rule, is equally well recognized that
when such a general assignment does
not clearly and necessarily show a
breach, special averments are re-
nuireG. The covenant against incum-
ORANGES and that of general warranty
come within the exception and bre.ches
Of those covenants must be specifically
cat fn,fJ, ch ~, l,o of
oriner. the nature of the incumbrance
complained of and in case of the latter
a disturbance of title or possession by
a paramount title equivalent to an
eviction
On the other hand the covenant that
| the defendant was lawfully seized in
fee of the premises, and the covenant
that she had good right to sell and con-
vey the same to the plaintiffs, fall with
in the rule, and it was only incumbent
| upon the plaintiffs to negative the
words of the covenants. But it has
| been seen that the plaintiffs were not
content to rely upon such a general as
signment of the breaches of these
covenants but supplemented it with a
specification of the grounds upon which
they relied to establish the breach of
| these covenants. Their declaration
| proceeds as with a videlicet to state
the particular facts constituting the
breach 1t AYERS that the defendant
before the date of her deed to the
plaintiffs "by a deed" duly sealed, ex-
ecuted and acknowledged, did convey
said premises to one Charles Steere of
Boston and did convey and part with
the title (Which she held in the prem
Uses and that before making her deed to
the plaintiffs she was not the owner
and had no right to convey said prem
Uses"
The plaintiffs We're not compelled by
the rules of pleading to specify the
cause of the breach of these covenants
but having elected to do so, they
are confined to the ground stated in
| the specification, and the defendant
would be warranted in relying upon the
facts thus stated in the specification
as the only cause relied upon by the
plaintiffs. If, therefore, the facts stated
in the specification may all be true
and still it does not necessarily follow
that either of these covenants has
been broken. the assignment Of
breaches is not sufficient. Assuming
that The deed could not operate as a
conveyance of the title to Steero with
out q delivery. and that the averment
Of 4 conveyance by necessary implica-
ton includes a delivery, still the speci-
Gcation is defective for the reason that
it does not allege that the deed to
Steere was recorded. All that is stat
ed in the plaintiffs specification may
be true and yet the plaintiffs may have
received Il good title. and it would not
appear either by express words or
necessary implication that any cove
nant had been broken. If this specifi-
cation could be construed to apply also
to the general covenant of warranty, it
would be equally unavailing. If it
dot S not apply to this covenant there
| is no specification of the breach of it.
Neither does the declaration specify the
nature Of the incumbrance alleged to
constitute a breach of the covenant
against membranes. The breaches
| Of these last named covenants are
| therefore rot well assigned, and the
| entry must be
Exceptions sustained.
| Demurrer sustained.
| Reed Dec. 18th, 1905.