
    No. 1350.
    Kibler v. Luther.
    November Term, 1882.
    March 6th, 1883.
    
      Moorman & Simians, for appellant. Geo. Johnstone, contra.
   Opinion by

Mr. Justice McGowan,

Plaintiff conveyed a strip of land for valuable consideration to a municipal corporation, with a warranty in words following, to wit: “and I hereby bind myself, &c., to warrant and forever defend all and singular the said premises unto the said intendant and wardens, and their successors in office, as public lands, not to be occupied by any building or obstruction of any kind, but to be kept open at all times for the use of the public,” &c. Plaintiff brought this action alleging that defendant had built upon and now occupied a portion of said land, and demanded its possession and damages. A demurrer that the complaint did not state facts sufficient to constitute a cause of action, and that there was a defect of parties defendant, the town council of the corporation, was sustained by the Circuit Court (Pressley, J.) Plaintiff appealed. Held—

1. That the concluding words of the warranty imposed a duty upon the town, but it was doubtful whether they created a condition, but, if a condition, the grantor could not maintain an action for the land until he had made entry upon it after condition broken, or made claim, if entry was impossible. Hammond v. Railroad Company, 15 8. C. 34.

2. The town council was a necessary party.

Judgment affirmed.  