{
  "id": 11277216,
  "name": "David Coble v. Wm. Wellborn, ex'r of Wm. Bell",
  "name_abbreviation": "Coble v. Wellborn",
  "decision_date": "1830-06",
  "docket_number": "",
  "first_page": "388",
  "last_page": "390",
  "citations": [
    {
      "type": "nominative",
      "cite": "2 Dev. 388"
    },
    {
      "type": "official",
      "cite": "13 N.C. 388"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "13 Johns. 236",
      "category": "reporters:state",
      "reporter": "Johns.",
      "case_ids": [
        374523
      ],
      "opinion_index": 0,
      "case_paths": [
        "/johns/13/0236-01"
      ]
    }
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  "last_updated": "2023-07-14T18:28:37.349944+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "David Coble v. Wm. Wellborn, ex'r of Wm. Bell,"
    ],
    "opinions": [
      {
        "text": "Ruffin, Judge.\nThe want of an eviction of the Plaintiff is decisive of the case against him, and makes it useless to consider the other points debated. 1 strongly incline, indeed, to the opinion, that there is a general warranty in the deed. For the history of the deeds and devises does not relate to the title, but to the identity of-the land, as it appears to me from the words, \u201c the same, being a tract purchased,\u201d &c. They are words'' of more perfect description.\nBut the Plaintiff cannot recover without showing au eviction. Our warranty is construed to be a covenant for quiet possession, and not of seisin. Nothing but a disturbance of the possession is a bread! of it. It is not a covenant, that another has no right, but that if he hath, he will not use it to disturb the bargainee\u2019s possession.. qpije eviction may be with, or without legal process j but there must be an eviction in one wav or the other, and upon paramount title. The mere judgment in eject-menj 0(1\u00a1y establishes the title, which existed before. For any thing we know, the warrantor may, after such recovery, satisfy the true owner, and so the vendee may never be disturbed in his possession. This point was directly ruled in Kerr v. Shaw, (13 Johns. 236.) and the difference between a covenant for quiet possession, and one for title or against encumbrances, is strongly exemplified by that and another case in the same book. (Hall v. Dean, id. 105.)\nThe case of Williams v. Shaw, (N. C. T. R. 197,) has been cited for the Plaintiff. But- that differs from this. There was a recovery of real damages in an action of trespass quare clausum fregil; which is evidence of a disturbance in itself; since that action implies, that the Plaiiitiff is in possession, and the recovery implies, that the Defendant\u2019s entry was a trespass on the possession, and that he cannot re-enter without committing another trespass. No man is compelled to be a trespasser, and therefore when it has been judicially ascertained that another is in by better title, it follows that he is kept out; \u2022which is equal to being turned out. The whole terms on the nature of this covenant, technically considered.\nPer Curiam. \u2014 Let the judgment of the Court below be reversed, and judgment of nonsuit entered.",
        "type": "majority",
        "author": "Ruffin, Judge."
      }
    ],
    "attorneys": [
      "Nash & Badger, for the Defendant, insisted,",
      "Gaston, for the Plaintiff,"
    ],
    "corrections": "",
    "head_matter": "June, 1830.\nDavid Coble v. Wm. Wellborn, ex'r of Wm. Bell,\nFrom Guilford.\nAn actual eviction is indispensable to sustain an action upon a covenant of quiet enjoyment. Therefore, where there had been a reco very in ejectment, upon title paramount, and before the issuing of a writ of possession, or any actual disturbance of his possession; the Defendant in the ejectment purchased from the Plaintiff\u2014 held that there was no breach of the covenant for quiet enjoyment.\nBut a recovery m trespass quare clausmn freg-it is tantamount to an eviction \u2014 as a judgment in that action implies that the Plaintiff is in possession, and the entry of the Defendant a trespass, which the law compels no man to commit.\nThe case of Williams v. Sham (\"N. 0. Term Sep. 197) approved by Ritein, Judge.\nIt seems that a recital in a deed purporting to convey a fee, from which it appears that the vendor has but an estate for life \u2014 but which was intended only to describe the land conveyed, does not qualify a covenant of quiet enjoyment, so as to confine it to the life of the vendor.\nThis was an action of Covenant for* the breach of a covenant of quiet enjoyment, contained in a deed executed by the Defendant\u2019s testator to the Plaintiff, the material parts of which are as follows: \" Have granted, J\u2018 bargained, &c. unto D. C. his heirs, &c. all that tract \u201c of land, situate, &o. the same being a tract purchased \u201c by John M* Gee from Hugh Smith, and by the said \u201c M\u2019Gee willed to his daughter Jane, and by her bus-<f band John Wellborn, conveyed to me the said W. B. \u2014 - (t and I the said W. B. do hereby covenant, promise and \u201c agree to, &c. with the said D. C. bis heirs and assigns, \u201c to warrant and forever defend the said granted pre-t( mises, against me, my heirs, and against the lawful \u201c claims of any other person, &c.\u201d\nAfter the death of John Wellborn, and before the com-\u00a1mepcement of this action, Jane Wellborn, his widow, the person mentioned in the deed as Jane, the daughter of John M\u2019Gee, brought an ejectment against the Plaintiff, and obtained a verdict and judgment for the premises conveyed by the deed above recited. \u2014 After this recovery, the Plaintiff purchased tiie land from Jane Wellborn, who never sued out a writ of possession \u2014 neither was the Plaintiff ever evicted, unless the .said recovery was an eviction.\nFor the Defendant, it was objected, that these facts did not, in law, amount to an eviction.\nHis Honor Judge Norwood reserved the point, and a verdict was taken for the Plaintiff. Upon which, judgment for the Plaintiff was afterwards entered, and the Defendant appealed.\nNash & Badger, for the Defendant, insisted,\n1st.- That the covenant did not extend to any thing but the life-estate conveyed by John Wellborn to the Defendant\u2019s testator, and by him to the Plaintiff.\n2d. That no breach of the covenant could be. inMfred from the facts stated in the case, as there was no eviction.\nGaston, for the Plaintiff,\ncited Williams v. Shaw, (N. C. Term Hep. 197.)"
  },
  "file_name": "0388-01",
  "first_page_order": 406,
  "last_page_order": 408
}