May 28, 1913. The opinion of the Court was delivered by
MR. CHIEF JUSTICE GARY.
This is an action for damages, alleged to have been sustained by the plaintiff, on account of a breach of the warranty in the deed described in the complaint.
The defendants demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. His Honor, the Circuit Judge, overruled the demurrer and the defendants appealed.
In order to understand the questions involved, it will be necessary to set out the complaint and the exceptions, in the report of the case.
We will consider the exceptions in regular order:
First Exception. Paragraph four of the complaint is indefinite and uncertain, in that it fails to allege clearly, whether R.R. Briggs intended to bind himself individually or the trust estate, by the covenant of warranty therein mentioned. The said section on the one hand, alleges, that he bound himself, his heirs, executors and administrators, to warrant and forever defend the premises, against his heirs, etc., while, on the other hand, it alleges, that he was acting as trustee in warranting the title. In such a case the remedy is not by demurrer, but by a motion to make the complaint definite and certain.
Second Exception. The complaint alleges a breach of the covenant of warranty. If R.R. Briggs intended to warrant the title individually (and as we have shown, there are allegations to that effect), then his estate is liable for damages arising from such breach.
Third Exception. This exception cannot be sustained, for the reason that there is nothing in the record, showing that his Honor made the ruling mentioned in the exception.
Judgment affirmed.