Templeton v. Jackson

BIRCH, J. In this case, which was an action of assumpsit upon the common counts, the plaintiff read, in support of his right to recover, a deed executed by the defendant, acknowledging the receipt from the plaintiff of $600, and warranting to him a pre-emption title to a quarter section of land. Upon a compromise with other conflicting claimants at the land-office, the plaintiff was permitted to enter one-half of the land thus conveyed to him, and another half-quarter section adjoining it. There was testimony that the plaintiff professed himself satisfied with the arrangement which the defendant had been instrumental in thus procuring to be made for him. This, however, is deemed immaterial, as the question upon which the case turned, in the Circuit Court, and the only one material to be considered here, is whether the action of assumpsit was maintainable under such circumstances, or whether the plaintiff must not proceed (if at all) either upon his covenant of warranty, or by bill in equity. Although the tendency of modern jurisprudence has been to somewhat enlarge the scope of the action adopted in this case, we find no authority, either in the text books or reports, which would justify us in allowing it the latitude necessary to a recovery here. On the contrary, we have met with numerous analogous negative adjudications, with the reasoning of which we entirely concur. Let the judgment of the Circuit Court be therefore affirmed.