Day v. Chism - 23 U.S. 449 (1825)
U.S. Supreme Court
Day v. Chism, 23 U.S. 10 Wheat. 449 449 (1825)
Day v. Chism
23 U.S. (10 Wheat.) 449
In a declaration upon a covenant of warranty, it is necessary to allege substantially an eviction by title paramount, but no formal terms are prescribed in which the averment is to be made.
Where it was averred in such a declaration
"that the said O. had not a good and sufficient title to the said tract of land, and by reason thereof the said plaintiffs were ousted and dispossessed of the said premises by due course of law,"
it was held sufficient as a substantial averment of an eviction by title paramount.
Where the plaintiffs declared in covenant both as heirs and devisees, without showing in particular how they were heirs and without setting out the will, it was held not to be fatal on general demurrer.
Such a defect may be amended under the thirty-second section of the Judiciary Act of 1789, ch. 20.