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( No. 26.)

By several heirs, on behalf of themselves and numerous other

heirs (some of whom are unknown), on a covenant of warranty on eviction of the heirs holding as tenants, after the death of the grantee.!

SUPREME COURT-RENSSELAER COUNTY.

A. K., B. K. and C. K., for themselves and all other heirs of A. J. K., deceased,

agt. C.F. G.

The abovenamed plaintiffs, on their own behalf as well as on the behalf of all others similarly situated, that is to say, all the heirs-at-law of A. J. K., deceased, complain of the defendant, and allege the following facts, constituting their cause of action : That the plaintiffs are heirs-at-law of A. J. K., late of

-, deceased, who died intestate on the 10th day of June, A. D. 1856, leaving no widow, father, mother, children, or brother or sister him surviving.

That the heirs-at-law of said A. J. K. are the children,

· This seems manifestly a case in which one or more of the parties in interest may sue for the benefit of the whole, within that provision of section 119 of the Code which applies the rule to cases where the "parties are very numerous, and it may be impracticable to bring them all before the court.

In this case it will be seen that the heirs are numerous, and some of them are unknown and cannot be ascertained by the plaintiff, and therefore it is impossible to bring them before the court. The action is for the breach of a covenant of quiet enjoyment and warranty, which runs with the land, and therefore must be brought by the heirs, and cannot be by the personal representatives. (Pleadings, 142, 143.)

or descendants of the children, of his three brothers, who are now deceased, to wit: [Naming the brothers,) and that plaintiffs are all the children of one of said brothers, to wit:

That the other two brothers died, each leaving a large family of sons and daughters, and that several of such sons and daughters are also dead, leaving children them surviving, the names or places of residence of all of whom are not known to, and cannot be ascertained by, the plaintiffs, and the whole number of the heirs of said A. J. K. is upwards of fifty.

That on the 5th day of July, 1850, the said defendant and his wife executed and delivered to the said A. J. K., in consideration of the sum of $- then and there paid to them, a conveyance, with the usual covenants of warranty, &c. (Here set forth substance of the deed, and the covenant of quiet enjoyment and warranty in full ; or, if it be preferred, set out the deed in full, or annex copy of it to the complaint, with the allegation, a copy of which is hereto annexed, and forms a part of the complaint.]

That said A. J. K. thereupon went into possession of said premises, and continued in such possession, by himself or his tenants, up to the time of his death, as aforesaid, and after his death the said plaintiffs, A. K., B. K. and C. K., as tenants under an unexpired lease from said A. J. K., continued in possession until evicted by defendant as hereinafter stated.2

The foregoing allegations are necessary in such a complaint, in order to show, within the decision in the case of Habicht v. Pemberton (4 Sand., 657), that the parties are numerous, and that their common interest is such as would enable them all, if parties before the court, to maintain the action.

% The action is maintainable by the heirs only, because the eviction or breach of the covenant was after the grantee's death. Had the eviction been of the grantee in his lifetime, the action should The plaintiffs further allege, that one B. L. P., who, at the time of making the said warranty deed or conveyance, and continually from thence until and at the time of the eviction hereinafter mentioned, had, as plaintiffs are informed and believe, and still has, lawful right and title to said premises, with the appurtenances paramount to said defendant and his grantees, did, under execution and due process of law, issued on a judgment obtained in this court against the plaintiffs in an action to recover possession of said premises, after a trial thereof on the merits, he, the said defendant, having been duly notified on the commencement of said action to come in and defend the same, enter into the said premises and upon the possession thereof, and ejected and removed therefrom said plaintiffs," so holding possession either as tenants of said

have been brought by the personal representatives. A covenant real ceases to be such when broken, and no longer runs with the land, and the right of action descends to the personal representative, and not to the heir. (Beddoe v. Wadsworth, 21 Wend., 120).

1 Covenants for quiet enjoyment and warrantee are broken only by an actual eviction and ouster of possession. (See, among other cases in our own courts, Miller v. Avery, 2 Barb. Ch. R., 582; Bank of Utica o. Mersereau, 3 Barb. Ch. R., 528; Webb v. Kelly, 6 Wend., 281 ; Kelly v. Dutch Church of Schenectady, 2 Hill, 105; Batterman 0. Pierce, 3 Hill, 171, 176; Greenby v. Wilcox, 2 John., 1; Folliard D. Wallace, 2 John., 395; Kent v. Welch, 7 John., 258; Shepherd 7. Ryers, 15 John., 497.) And the allegations in the complaint should therefore show that there has been a breach of the covenant by an eviction or ouster.

But eviction by legal process is not necessary to found an action on the covenant. Whenever the grantee is ousted by one having a lawful right to the property, paramount to the title of the grantor, the covenants are broken, and the grantee may sue. (Greenvault v. Davis, 4 Hill, 643.) And it seems even that the grantee can recover, though he voluntarily give up possession to an adverse claimant; but he takes upon himself the burden of proving paramount title in such other. (Stone u. Hooker, 9 Cow., 154; Fowler v. Poling, 6 Barb., 165.)

A. J. K., deceased, or for themselves and said other heirs, and every part thereof, [or if from a part only, set forth what part,) and still keeps and holds said plaintiffs and heirs from the possession and occupancy thereof; and said defendant has thereby broken and failed to perform his said covenant in this, to wit, that he has not, at all times, peaceably and quietly, &c., (set forth language of covenant.]

By reason whereof the said plaintiff's, for themselves and all other heirs so as aforesaid, have not only lost said lands and tenements, but also divers sums of money by them expended in repairs and improvements thereon, and the costs and charges of defending said action to recover possession, amounting in all to the sum of $

Wherefore the plaintiffs, in behalf of themselves and all other heirs of said A. J. K., demand judgment against the defendant for the sum of $- with interest thereon from the

besides costs,
G. L. F.,

Plaintiffs' Attorney.

day of

1

The two foregoing precedents are drawn under the provisions of section 119 of the Code, to illustrate the application of the rule, that one or more persons may sue for the benefit of the whole, when the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court." That section also provides that they may not only sue but "defend, for the benefit of the whole.” This does not, however, it is thought, give the plaintiff the right to sue one or more on a joint liability or interest, where the other parties are known, but he should bring them all before the court as defendants. If some of the parties who should be defendants are unknown, as in the case of a partition suit (in which it is expressly authorized by statute), a complaint in which is given, ante, page 241, this section of the Code undoubtedly applies, and one or more of the defendants might put in an answer, either by way of defence or (6.) COMPLAINTS AGAINST PERSONS SEVERALLY LIABLE ON SAME

OBLIGATION OR INSTRUMENT, 8120 OF THE CODE.

(No. 27.)

Against first and third endorser of promissory note.'

SUPREME COURT COUNTY OF RENSSELAER.

A. B.

agt.
C. D. and E. F.

The complaint of the abovenamed plaintiff respectfully shows to this court, that one P. C., on the 1st day of

See also, ante, Nos. 4, 5, 6, for precedents against different parties on promissory notes. counterclaim, as well for themselves as for all others similarly situated. Such an answer will be found in a subsequent part of this volume.

The rule as to parties defendants, in this respect, as established by the Code, is, no doubt, the same with that heretofore existing in equity, and is well stated by Justice Story, in Mandeville and others

. Riggs, 2 Peters' U. S. R., 487: “One of the great principles upon which courts of equity generally require all persons who are known and within reach of its jurisdiction to be made parties, is to prevent future litigation, and to take away multiplicity of suits. It is a matter of justice, as well as of convenience, that all the parties who are ultimately liable to contribution should, when practicable, be brought before the court, so that the equities between them may be adjusted, as well as the right of the plaintiff. There are exceptions, it is true to the rule, but they are founded upon special considerations, such as where a decree of contribution would be useless, or where the proceeding would defeat the jurisdiction of the court, and the parties are not indispensible to a decree, or where the convenient administration of justice forbids it in the particular case.

The section under consideration also provides that when the consent of a person who ought to have been joined as plaintiff cannot be

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