Miner vs. Clark, 15 Wend. 425

The Opinion of the Court was delivered by the Chief Justice as follows: It was objected, on the trial, that the deed from the defendant to the plaintiff should not be given in evidence, because oyer had not been given of the certificate of acknowledgment endorsed upon it. The objection was properly overruled. The certificate of acknowledgment or proof of the instrument constitutes no part of the deed itself.

A more important question is whether parol notice to the defendant of the commencement of the ejectment suit was sufficient The object of the notice is to inform the grantor that a suit has been brought against his grantee; the grantor is supposed to be better able to defend such a suit, and by his covenant he has undertaken to warrant and defend the grantee against the claims of all persons. A parol notice gives the information to the grantor.quite as well as a written one; and as there is no technical rule requiring such a notice to be in writing, no writing is necessary.

The party making this objection should have produced some authority to sustain it; none has been produced, and probably because none can be found. I have already remarked, that the object of giving notice is to inform the grantor of the assertion of a claim against which he has covenanted that he will warrant and defend his granted. If we regard the plain import of the language used, it is the grantor who is to defend, and not the grantee; and if we regard the reason and propriety of the case, we come to the conclusion that the grantor must defend or not at his peril after notice.

Such it is believed is the common sense of the case. The first case in our courts on the subject of notice is Blaisdell v.Babcock,1 Johns. R. 517. The plaintiff bought a horse of the defendant, which was claimed by one Snow. An action of trover was brought by Snow, of which the plaintiff gave the defendant notice. It does not appear whether a written notice was given; the point was not raised. The defendant attended one term of the court, with witnesses to defend the title to the horse which he had sold to the plaintiff, but did not attend when the cause wás tried.

The record of Snow’s recovery was received in evidence, though the judge told the jury it was not conclusive. On a motion for a new trial, the court said that the record was proper evidence, because without it an eviction could not have been shown; that the first notice given to the defendant was sufficient, and that he was bound to take notice of the subsequent proceedings. The same, point was recently decided in error, in the case of Rogers v. Kneeland, 13 Wendell, 123. The case of Stone v. Hooker, 9 Cowen 154, was an action upon an agreement to indemnify.

A suit was brought against the plaintiff: he gave notice of it to the defendant and requested him t«$ attend, but he did not. The plaintiff recovered the amount of a judgment against himself in favor of others who he had! agreed to indemnify upon the strength of the defendant’s promise to him, even though one of those judgments was obtained by confession. It appeared, however, that there were several suits, and after one suit had been tried it would have been useless to have contested the dthers. Mr.

Justice Wood-worth remarks, that having given a cognovit, he was bound to show that the defendant was not prejudiced by it, which in that case he did do. The cáse of Jackson v. Marsh, 5 Wendell, 44, goes farther, and states that after notice to the grantor of suit brought, and a refusal by him to defend, the grantee is not bound to defend. At all events, I apprehend enough was done in this case.

A plea was put in, as was stated by counsel; and though the record states that judgment was obtained by default, it is inferrible from the case that such de-' fault was at the circuit, and of course a plea must have been put in. If notice of the suit had not been given to the defendant, it would have behooved the plaintiff to have shown that a full defence was-made, and that the defendant, if notice had been given, could not have defeated á recovery. In the present case the defendant has nb just ground of complaint.

He was permitted and attempted to show that there was no ground for the recovery against the plaintiff, but in that he failed. Baker was a competent witness. He had no interest in "this cause; his credibility was before the jury. The jury were satisfied that there was no collusion betwen him and the plaintiff, and I cannbt say that their verdict is against evidence. That was a question for the jury, and their decision Should not be disturbed fexcept in a clear case. New trial denied-. The following dissénting opinion was delivered by Mn Justice BronsOn :