
    Julliand against Burgott and Burgott.
    ALBANY,
    Jan. 1814.
    in an action of conditioned"*4 íánd &«efcom alt ’legal en-either by'deed ■or mortgage, or otherwise, now in existence and binding onthe premises, by the <20 Ih of February) 1&\2” the plaintiff assigned the breach by foliov/ingand negativing the words of the washeMinsuf-to bent,, as such assignments ■Aninecessarihi ¿reach,4 4°iid onght to have shown some existing encumbrance on the 20fch offeibruary, IS 12, or at the com. aiencemeutoi =-ie suit.
    THIS was an action of debt on a bond, dated 3d December,, 1811, with a condition that the defendants should secure certa™ ^anc's (S°M and conveyed by Peter Burgott and wife, by a warranty deed, dated the 30th of September, 1811, to Henry Van Vliet, and conveyed by him, by deed, dated the 3d of De~ cember, 1811, to the plaintiff) in the peaceable and quiet possession of the plaintiff, his heirs and assigns, “ free from all legal encumbrances, either by deed or mortgage, or otherwise, now in existence and binding on the premises,” &c. and it was expressly agreed and understood that the defendants were “ to see the lands free from all encumbrances, as above mentioned, by the 20th of February, 1812,” &c. The plaintiff averred that the defendants, although often requested, &c. did not free, nor cause freed, the land above described from all legal encumbrances, either by deed, mortgage, or otherwise, then in exist- , , . , . , , , „ _ , ence, and binding on the premises, by the 20th of February 1812, &c. in the words of the condition,
    The defendants demurred to the declaration, and there was a joinder in demurrer, which was submitted to the court without argument
   Per Curiam.

Without noticing other points in the case, the or 5 declaration is bad in substance, in not assigning a sufficient breach. The breach is, that the defendants “ did not free the land from all legal encumbrances, either by deed, mortgage, or otherwise, then in existence and binding on the premises, by the 20th of February, 1812.” This was following and negativing the very words of the condition of the bond; but unless such an assignment necessarily amounts to a breach, it is insufficient, and here it. does not; for non constat, that there vras any existing encumbrance on the 20th of February, 1812. The condition spoke hypothetically of legal encumbrances, either by deed, mortgage, or otherwise, then in existence. It did not refer to any particular encumbrance, nor was any alluded to in the recital to the condition. By the generality of the terms, and by the words or otherwise, it is most apparent that the bond ivas taken for greater caution, and to guard against any such encumbrance •which might then lie in existence. It was incumbent, therefore, on the plaintiff to have shown at least some existing encumforance at the commencement of the suit, or on the 20th February, the time referred to in the bond. He has shown none; there is, then, no certain cause of action appearing in the declaration, and the defendants are entitled to judgment, with leave to the plaintiff to amend on the usual terms.

Judgment for the defendants-  