RICHSTEIN v. WELCH

Covenant. Way. Judgment. Res Judicata. If a grantee of land under a warranty deed, which conveys a right of way in an alleyway as appurtenant to the land, is evicted from the use of such alleyway by a paramount title, the covenant of warranty is broken.

In an action for a breach of a covenant of warranty in a deed of real estate, consisting of the plaintiff's alleged eviction from the use of an alleyway adjoining the premises in which the plaintiff was granted a right of way by the deed, the record of a judgment against the plaintiff in an action for trespass, brought against the plaintiff by a third person because of the plaintiff's use of the alleyway, is admissible in evidence to prove an eviction when supplemented by evidence showing that the title was put directly in issue and evidence that the defendant was informed that the action for trespass had been brought and was requested to defend the action and contest the claim of the third person.

In an action for a breach of a covenant of warranty in a deed of real estate, consisting of the plaintiff's alleged eviction from the use of an alleyway adjoining the premises in which the plaintiff was granted a right of way by the deed, the plaintiff, to show an eviction, put in evidence the record of a judgment against him in an action for trespass brought by a third person because of his use of the alleyway. The declaration in the action for trespass consisted of two counts containing general allegations of title, with further averments of distinct trespasses, some of which related only to a use which might have been found to be in excess of the plaintiff's grant, while others rested upon a denial of his right to use the way for any purpose. All the allegations were put in issue by the answer, and there was a general judgment upon the merits for the third person who was the plaintiff in the action for trespass. The extent of the plaintiff's right of way in the alleyway was not defined in his deed. Extrinsic evidence was admitted from which it could have been found that the judgment in the action for trespass rested upon the sole ground that the third person who brought that action had a better title than the plaintiff. There was evidence that the defendant was informed of the action for trespass and was requested by the plaintiff to defend it. The presiding judge ruled that if the defendant was offered in a proper way the defence of the action for trespass the judgment was conclusive against him. Held, that this ruling was wrong; that after the evidence was presented it remained a question of fact for the jury to decide upon all the testimony, under suitable instructions, what issues actually had been tried and determined in the action for trespass in which the judgment was obtained, and that it was erroneous to say that as matter of law the defendant was estopped by the judgment to deny the eviction.

BRALEY, J.

If the plaintiff has been evicted by a paramount title from the easement in the alleyway which passed under the deed as appurtenant to the premises, the defendant's covenant of warranty was broken, and she became entitled to recover damages for the breach. Gilman v. Haven, 11 Cush. 330. Tobey v. Taunton, 119 Mass. 404. Kramer v. Carter, 136 Mass. 504, 507, 509. Smith v. Richards, 155 Mass. 79, 82.

Upon the estate was a stable used by the plaintiff's husband, the only entrance to which for horses was by a door which opened on the westerly side of the way, and a dispute as to her title having arisen between the plaintiff and one Bergeron, an abutting owner on the easterly side, he brought an action of tort in the nature of trespass in which he finally obtained judgment for nominal damages. At the trial, the plaintiff relied upon the judgment as conclusive proof of an ouster from any use of the way. If the defendant had not been notified of the former action, still the record was admissible to prove an eviction when supplemented by the evidence introduced by the plaintiff, that title was directly put in issue. Merritt v. Morse, 108 Mass. 270. But not having been originally a party to the action, he would not be concluded unless not only notice of the action was given to him, but he was tendered the opportunity to take upon himself its defence. The earlier practice was to vouch in the warrantor so that he would be estopped to deny the title by which the tenant suffered an eviction, and while formal notice in writing, because of the ease and accuracy of proof thereby afforded, is desirable, yet it may be oral. The warrantor whether he appears and defends, or makes default, is then considered in law so far a party or privy as to be concluded by the judgment. If the defendant was seasonably notified, and offered the defence, this was sufficient to enable him, if possible, to protect the title, and avoid an action for damages on his covenant. Oliver's Prec. (4th ed.) 840. Jackson on Real Actions, 14. Chamberlain v. Preble, 11 Allen, 370, 374. Boyle v. Edmands, 114 Mass. 373, 375. Richmond v. Ames, 164 Mass. 467, 476. Consolidated Lasting Machine Co. v. Bradley, 171 Mass. 127. No set form of words, however, being required, if the testimony of the plaintiff, and that of her husband, was believed, the defendant, notwithstanding his evidence, was fully informed not only that an action had been begun, but that the plaintiff's easement in the passageway was disputed, accompanied by a request to contest the claim. The jury were justified in answering this question in the affirmative, and the defendant's exception to the admission in evidence of the record cannot be sustained.

A more important question is the conclusiveness of the judgment. The declaration in the action for trespass consisted of two counts containing a general allegation of title, with further averments of distinct trespasses, some of which related only to a use which might have been found to be in excess of the plaintiff's grant, while others rested upon a denial of her right to use the way for any purpose. While all the allegations were put in issue by the answer, the judgment upon the merits was general, and may have been rendered upon either or all of the issues which could have been tried within the pleadings. But, if conclusive between the parties or their privies in a subsequent action for the same cause, this rule is inapplicable where the second action is for a different cause, unless it appears that the issue subsequently raised had been actually tried and determined in the first action. Although the defendant was estopped to deny his grant, yet, as the extent of the easement was not defined in the deed, oral evidence was competent to show the measure of this right as prescribed at the date of the conveyance. Tobey v. Taunton, ubi supra. If it were found, that the grantee either had exceeded her rights, or was without title because her grantor was not seised, the plaintiff in the first action was entitled to judgment. To ascertain what questions had been decided, the parties were accordingly permitted to introduce extrinsic evidence from which it could have been found that the decision rested upon the sole ground that Bergeron had the better title. But even then, it finally remained for the jury under suitable instructions to decide upon all the testimony, what issues had been actually tried and determined. The ruling, that as matter of law the defendant was estopped by the judgment, was wrong. Foye v. Patch, 132 Mass. 105, 110, 111. Cotter v. Boston Northern Street Railway, 190 Mass. 302, 303, where the later cases are collected.

Because of this error there must be a new trial, and we do not deem it necessary to consider other questions raised by the exceptions.

Exceptions sustained.