
    James P. J. Morris, Respondent, v. Henry G. Hay, Appellant.
    First Department,
    April 7, 1916.
    Beal property— warranty of title—breach—lands situated in foreign State — when State court has jurisdiction—pleading —failure properly to allege eviction by paramount title.
    Where a grantor of lands situated in another State has made a covenant warranting title and the grantee, having himself conveyed with similar warranties, has been compelled to make good to his grantees for an eviction by one having paramount title, the assignee of his claim against the original grantor for breach of warranty, may sue in the courts of this State, for the claim rests upon privity of contract, not privity of estate.
    
      It seems, that where a claim for a broken covenant rests upon privity of estate only, action can only be brought in the jurisdiction where the lands are situated.
    
      But the complaint in such action for breach of covenant is demurrable where it merely alleges that the subsequent grantee "was evicted by a paramount title, there being no allegations showing that the title under which the eviction occurred existed prior to the defendant’s warranty.
    Appeal by the defendant, Henry G. Hay, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of February, 1916, granting the plaintiff’s motion for judgment on the pleadings.
    
      Kenneth B. Halstead, for the appellant.
    
      Nelson Zabriskie, for the respondent.
   Smith, J. :

Defendant’s demurrer has challenged the sufficiency of the complaint. In November, 1905, the defendant and his wife conveyed to one Denver Greenamyer certain real estate in the State of Colorado. In the deed the title to the said premises was warranted. Thereafter, and in 1901, the said Greenamyer conveyed the said premises, with covenant of warranty, to Edward F. Denny and D. M. Utter. The complaint then proceeds: That the defendant and the said Mary A. Hay have not warranted and defended the whole of said premises to the said Denver Greenamyer and his assigns, but on the contrary, as the plaintiff is informed and believes one Asher B. Wilson, lawfully claiming the said premises last above-described by a paramount title by virtue of a conveyance made to him by one Edwin 0. Webster as trustee, afterwards duly commenced as plaintiff an action or proceeding in the District Court of Washington County, State of Colorado, againt the said Edward F. Denny and D. M. Utter as defendants by service upon them, duly and personally made, of the summons and complaint, or other process and papers therein or in which the said Edward F. Denny and D. M. Utter voluntarily and duly appeared; the said Court being a court of competent jurisdiction and having jurisdiction thereof by the laws of the State of Colorado to hear and determine actions or proceedings relating to the title and possession of real property situated within the said State of Colorado and within the territorial jurisdiction of said Court, as the premises in question were, which Court also had jurisdiction of the persons of the parties thereto and of the said subject matter thereof; and did on or about the 6th day of April, 1910, recovera judgment or decree which was duly given and rendered by said Court against the said Edward F. Denny and D. M. Utter and in favor of the said Asher B. Wilson, whereby it was decreed that the plaintiff, the said Asher B. Wilson, is the owner in fee simple absolute and in possession of the said premises last above-described, which judgment or decree was on or about the 29th day of April, 1910, duly filed and recorded in the office of the Clerk and Becorder of the County of Washington, in the State of Colorado, within which said property is situated, and that said judgment or decree was thereafter and on or about the 19th day of November, 1913, duly affirmed by the Court of Appeals of the State of Colorado, which is a court of competent appellate jurisdiction; and that on or about the 6th day of April, 1910, the said Asher B. Wilson lawfully entered the said premises last above named and ousted the said Edward F. Denny and D. M. Utter therefrom and still lawfully holds them out of the same. ”

The complaint then alleged that the said Greenamyer was compelled to make good his warranty to Denny and Utter in the sum of $1,019.40, and that plaintiff holds the claim of said Greenamyer against this defendant by an assignment duly made. The second cause of action is in all respects similar to the first, except as it refers to a different piece of land.

This complaint is challenged upon two grounds:

First. That Greenamyer could not sue in this State for a breach of covenant of warranty on lands in another State, and to support this ground the case of Keyes & Marshall Bros. Realty Co. v. Trustees (146 App. Div. 796; affd., 205 N. Y. 593) is cited. In that case a subsequent grantee of the defendant of lands in another State passing over his immediate grantor was suing upon the covenant of warranty of the defendant, and basing his right upon the privity of estate, as the covenant ran with the land. It was there held that where the right of action rests upon the privity of estate only the action was local and could not be brought in a State other than the State in which the land was located. In the case at bar, however, the action is brought by the assignee of the immediate grantee of the defendant. The immediate grantee rests his claim upon privity of contract, not privity of estate, and no authorities are cited holding that where the claim for a broken covenant rests upon privity of contract the action cannot be brought in any State other than that in which the land is situated. I think that the learned Special Term properly decided, therefore, that the case cited was no authority for dismissing plaintiff’s complaint.

The second ground upon which the complaint is challenged is that the complaint is defective for lack of averment that the subsequent grantee was evicted by title paramount to that which the defendant warranted. The mere allegation that he was evicted by paramount title might be supported by proof of a paramount title given by the defendant’s grantee, plaihtiff’s assignor, prior to the title given to the party evicted, which fact would impose no liability upon the defendant. The allegation that the defendant has not warranted and defended said premises to the said Gfreenamyer is not sufficient as an allegation of fact that the title paramount by which the party was evicted was one paramount to the title the defendant warranted. The allegation is purely a conclusion of law, and adds nothing to the bare allegation of fact that the subsequent grantee was evicted by a paramount title.

A mere reference to these allegations of the complaint would seem to be sufficient to show that a cause of action has not been alleged against the defendant. There is specific authority, however, for such a holding in Folliard v. Wallace (2 Johns. 395), where Kent, Ch. J., speaks of the averment that the title under which the eviction occurred existed prior to that warranted by defendant as “An indispensable averment.”" In Webb v. Alexander (7 Wend. 281) a similar complaint was held defective. At page 286 the opinion reads: “ The second count is also defective; it states, indeed, that on the 27th of April, 1823, Lawyer, lawfully claiming 47 acres, commenced an action, but it does not state that at the date of the conveyance, to wit, the 23d of April, Lawyer had any claim, and non constat but he derived title from the plaintiffs. * * * The plaintiffs should have averred that Lawyer, before, or at the date of the covenant, had lawful title, and by virtue of that title entered and ousted the plaintiffs. ”

In Beddoe’s Executor v. Wadsworth (21 Wend. 120) a similar complaint was held to be defective, the court saying: “This count is defective in not averring that the eviction was by a title paramount to that of the defendant.” (Citing cases.) (See, also, Kelly v. Dutch Church of Schenectady, 2 Hill, 105; Crisfield v. Storr, 36 Md. 129.)

The order must, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave to the plaintiff to amend the complaint within twenty days after service of a copy of this order, with notice of entry thereof upon the attorney for the plaintiff, and on payment of the costs of the motion and the costs of this appeal.

Clarke, P. J., McLaughlin, Dowling and Davis, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to plaintiff to amend on payment of costs.  