Desvergers v. Willis

Bleckley, Judge. H, at the time land is purchased with warranty against incumbrances, there be two roads upon the premises, both known to the purchaser, he believing that one of them is a public road, and the other a mere temporary track which he can discontinue or obstruct at pleasure; and if, several years thereafter, a breach of the warranty be urged as a [390] defense to an action brought for the purchase money, and it then appear that the supposed temporary track was the true public road, and, therefore, not subject to be closed or obstructed; and if judgment be, nevertheless, rendered against the purchaser for the whole unpaid balance of the purchase money; and if, after levy upon property to satisfy the judgment, the purchaser file a bill to enjoin the execution and to open the judgment, on the ground that there was a breach of the warranty, consisting in the fact that the road believed to be a public road at the time the purchase was made, is no more subject to be appropriated by the purchaser than the true public road, the same being a private way, and, as such, subject to a perpetual easement in favor of certain persons, of whose rights the purchaser was ignorant until since the levy upon his property; the bill averring, also, damage from this breach, and want of means in the warrantor to respond; the injunction should not be granted unless it appear that the purchaser had a good excuse for not ascertaining the existence of the newly discovered right of private way, while the whole subject matter was under investigation in the original suit, and before judgment was rendered. In view of the facts in the record, the excuse relied upon is not sufficient; and there was no error in refusing the injunction. The case is controlled by the want of diligence. We need not rule on the merits of the bill in other respects. Though the covenant against incumbrances came into the common law action by way of defense, the principle of the Code, §2939, applies. That principle is, that all breaches occurring up to the commencement of action must .be included. Judgment affirmed.