Emory Burrage versus Joseph Smith, 16 Pick. 56

Wilde J. delivered the opinion of the Court. This was an action of covenant broken, brought by the assignee of the grantee of a small parcel of land against the original grantor ; and the plaintiff relies on an ouster by Elisha Vose and Joshua Vose, they having a paramount right and tide. To prove the ouster, the plaintiff called Peter T. Vose, who, with his wife Anna, conveyed the premises with warranty to E. and J. Vose ; and he was admitted, notwithstanding the objection of the defendant to his competency.

And we think he was rightly admitted, as he had no direct interest in the event of the cause, and the verdict and judgment, if the defendant should have prevailed in this case, could not be given in evidence against the witness in an action on his warranty. It would not appear but that the plaintiff’s action failed for want of proof of an ouster. It would not prove that E. and J. Vose had no right to enter. But the principal objection relied on by the counsel for the defendant is, that there was no sufficient proof of an ouster. We think, however, that the evidence is sufficient and fully sustains the verdict.

The case shows that E. and J. Vose’s title was decided in their favor in the spring of 1832. It is not so expressly reported, but the fact has been so stated and not denied. The witness entered in June next after, and cut wood as the general agent of E. and J. Vose; and he was authorized so to enter and cut wood by E. and J. Vose, as the witness testified. A written power was not necessary. Nor was it necessary for the witness to declare, that he entered tc oust or dispossess the plaintiff The plaintiff was not present and such a declaration would be vox et preterea nihil. Tolman v. Emerson, 4 Pick. 163.

And moreover, the entry and cutting by the agent of E. and J. Vose was a lawful disturbanee, and so a breach of the defendant’s covenant. Sprague v. Baker, 17 Mass. R. 590 ; Wotton v. Hele, 2 Saund. 181 ; Waldron v. M‘Carty, 3 Johns. R. 464 ; Kortz v. Carpenter, 5 Johns. R. 120. The right of E. and J. Vose to enter and cut wood was not questioned. If they had no right to enter and cut, then indeed this action could not be maintained. But the trial proceeded on the ground, that they had the right, and it is not now denied.

But it is contended, that there should have been proof of notice to the plaintiff, of the disturbance. This is to be presumed from his bringing the action; indeed the averment in the declaration shows, that the plaintiff had knowledge of the ouster or disturbance, and relied on it as a breach of the defendant’s covenant. Then it was objected, that there was no evidence of notice to the defendant of the disturbance, and that the plain tiff had yielded to it. But no such evidence was necessary. By bringing the action the plaintiff shows, that he had submitted to the paramount right of E. and J. Vose.

He had undoubtedly a right so to submit, without bringing a fruitless action. Judgment according to verdict.