Merritt v. Wyatt

SOMERVILLE, J. — Some of the grounds of demurrer are general, and, of the assigned grounds directed against the second count of the complaint, the only ones argued in brief are (1) that it does not appear that defendant had any notice of the eviction suit against the Dickson devisees; (2) it does not appear when the covenant was breached; and (3) it does not appear that the persons evicted were the same persons to whom Dickson devised the precise land. It is not necessary, in an action like this, to either aver or prove that the defendant warrantor was notified of the eviction against the plaintiff or his vendee.— Chestnut v. Tyson, 105 Ala. 149, 162, 16 South. 723, 53 Am. St. Rep. 101. Nor is it necessary, in ordinary cases such as this, to allege when the covenant was breached by eviction from the warranted premises, for that fact is relevant only upon the question of limitation of the action, and the limitation must, of course, be pleaded as a defense. It sufficiently appears from the complaint, though in awkward sequence of averment, that the devisees of E. H. Dickson, who were ousted by De Bardeleben, were the devisees of the property in question. Unquestionably the count is defective in several particulars. — Copeland v. McAdory, 100 Ala. 553, 13 South. 545; Chestnut v. Tyson, supra. Its actual defects are, however, not pointed out by any appropriate assignment of the demurrer, and are not available here. The complaint stated, for all of its defects, .a substantial cause of action, and on the undisputed facts plaintiff was entitled to a recovery. The judgment will be affirmed. Affirmed. McClellan, Mayfield, and Sayre, JJ., .concur.