Hurd v. Smith

Elbert, O. J. The defendants set up in their answer six separate defenses. A demurrer was sustained as to the second, third, fourth and fifth defenses, and overruled as to the first and sixth. The defendants stood by their fifth defense, and took leave to amend as to the others. This action waived their right to assign error on the action of the court in sustaining the demurrer, except as to their fifth defense. The fourth defense was not amended and must be considered as abandoned. The amendments made to the second and third defenses were of immaterial matters, and in. nowise changed the nature of the defense sought to be interposed, the sufficiency of which had already been passed upon by the court. There is no substantial difference between the defenses as they stood and the defenses as amended, and it was entirely within the discretion of the court to strike the amendments from the files. In the case of Heaton v. Myers, 4 Col. 62, the court says: ‘ A defendant has no right to continue to present the same defense by different pleas. Parks v. Holmes, 22 Ill. 522. Nor may he repeatedly refer to the decision of the court, the legal sufficiency of the same defense, under the guise of an amended plea.” The fifth defense was bad. Our statute does not in terms create implied covenants. It is also a rule that where there are express covenants in a deed, other covenants will not be implied. Willard, Peal Estate and Con. 411; Frost v. Raymond, 2 Caine’s, 190; Van DuKam v. Van DuKam, 11 Johns *122; Finley v. Stere 23 Ill. 56. This disposes of the argument of counsel concerning the implied covenants of the deeds set up. There was but the one covenant in the deeds set forth in the defendants’ answer—the covenant of warranty. If the costs and counsel fees paid out and expended in and about the eject [240] ment suit are recoverable at all, they are recoverable only as damages resulting from a breach of the covenant of warranty in the plaintiff’s deed. In actions for breach of this and other covenants contained in conveyances of real estate, costs and counsel fees incurred in defending the grantor’s title, are by some of the States allowed as damages resulting from a breach of the covenant. Sedgwick Meas. Dam. "*176-*182, and cases cited. There is no breach of a covenant of warranty until eviction. Sedgwick Meas. Dam. *152-*158. No eviction is alleged by the defense in this case ; on the other hand, it shows that the action of ejectment is still pending and undetermined. There being no breach, there could be no recovery. The demurrer was properly sustained. By their first defense the defendants claimed a set-off of ten dollars, with interest from January 1, 1870. By their sixth defense they claimed a set-off of $45.45, taxes paid January 14th, 1878, for and on behalf of the plaintiff, with interest at the rate of ten per cent, per annum. The plaintiff admitted these two claims and consented to their allowance. Through some inadvertence in the entry of judgment, no allowance of interest was made on these items of set-off. For this reason the judgment is reversed and the cause remanded, with directions to enter judgment, corrected in this particular. Reversed.