
    Anne M. M. Kidder, Plaintiff, v. George Bork, Respondent.
    (Superior Court of Buffalo,
    General Term,
    May, 1895.)
    There can be no breach of a covenant of warranty and peaceable enjoyment without an eviction or the establishment of facts showing a paramount title.
    A complaint alleging the making and delivery by defendant of a deed with covenants of warranty and peaceable enjoyment; that the premises were subject to a tax which the grantee was obliged to pay, and that, in an action to foreclose the purchase-money mortgage given back on the conveyance of the property, brought by the assignee of the mortgage, it was decided that the plaintiff was entitled to judgment of foreclosure and sale for the amountof the mortgage, less the tax so paid, but which does not allege that any judgment had been rendered adjudicating such tax a lien upon the premises, or that any judgment was entered in the foreclosure action, does not state facts sufficient to constitute a cause of action for breach of the covenants.
    Demurrer to complaint on the ground that it fails to state a cause of action.
    
      Ralph Stone, for plaintiff.
    
      George W. Cothram,, for defendant.
   Hatch, J.

The allegations of the complaint are, in substance, that one Zieman and wife made and executed their certain bond and mortgage upon premises described, for securing the payment of $940.12, and delivered the same to defendant. That on the same date defendant conveyed to said Zieman and wife, by deed of warranty, with covenant of quiet and peaceable possession, the premises described in the mortgage; that said mortgage and deed were duly recorded. That thereafter defendant, for a good consideration, assigned said mortgage to the plaintiff, and covenanted therein that there was due thereon $940.12, with interest. That at the time of the making and delivery of the said deed the premises were not free from incumbrance, but were subject to certain outstanding taxes duly assessed, charged and levied upon the premises by the city of Buffalo and the officers thereof in the sum of $137.65, which tax was due and unpaid, and at the time of the delivery of the deed was a lien and incumbrance upon the premises. That by reason thereof the said Zieman was obliged to and did pay the sum of $143.16 in extinguishing the lien of said taxes upon said premises, said premises having been sold therefor, and that said sum of money so paid is an offset against said mortgage in the hands of the plaintiff. That an action was brought in the Superior Court of Buffalo to foreclose said mortgage, wherein this plaintiff was ¡plaintiff and said Zieman and wife and another were defendants; that issue was joined therein, and the action tried before the court without a jury, and the court decided that the plaintiff was entitled to a judgment of foreclosure and sale of the premises for the amount due upon the bond and mortgage, less the sum of $143.16 and interest thereon. Demands judgment for said last-named sum, with interest and costs. There is nothing set out in the complaint showing any covenant in the deed against incumbrances. Plaintiff’s claim, therefore, rests upon a claimed breach of the covenant of warranty and peaceable enjoyment. But there can be no breach of such covenant without an eviction or by the establishment of facts showing paramount title. Mead v. Stackpole, 40 Hun, 473 ; Boreel v. Lawton, 90 N. Y. 293,

There is nothing appearing in the complaint to show that his possession was for a moment disturbed, or that a paramount title in fact existed, and consequently there was no breach of the covenant. There is no allegation that any judgmept was ever entered adjudicating that the taxes Avere a lien upon the premises, or that any judgment Avhatever was entered in the foreclosure action. The decision of a court upon issues Avhich never passed into judgment cannot avail the party. As this court is unable to see what the issue was presented by the pleadings, or if the pleadings were admissible for that purpose, or any other purpose, it would still be in the dark respecting what the court adjudicated. The judgment roll is essential and necessary to establish such facts. Forsyth v. Campbell, 15 Hun, 235 ; Baker v. Kingsland, 10 Paige Ch. 355; Lansing v. Russell, 3 Barb. Ch. 325.

The pleading, therefore, fails in the statement of a cause of action. Judgment should be directed sustaining the demurrer, with costs, with leave to the plaintiff to serve an- amended complaint within twenty days on payment of costs.

White, J., concurs.

Titus, Oh. J. I concur in the last reason stated in this opinion.

Judgment for defendant sustaining demurrer, with leave to plaintiff to amend complaint on payment of costs.  