Page:Federal Reporter, 1st Series, Volume 2.djvu/127

 120 FEDERAL SEPOBTEB. �Pateiok V. Leach and othera. �{Oireuti Court, D. Nebraska. May 7, 1880.) �CovENANTS OF Warranty— Depencks.— In an action for breach of covenant of warranty, the defence that the covenunt sued upon wis a joint one, and that it was sued upon as several, can be mado undcr an answer denylng there is anything due. �Dbbd^Statbmbnt of Consideuation. — The statement of the considera- tion in a deed ïb prima fade only, and may be rebutted. �Bame—Estoppel— Waste.— One who bas given a deed of lands with covenants of wananty is estopped from denying that the grantee 13 the owner, and canhot complain of waste coinmitted by such grantee. �Warranty — Covenant — Damages. — In an action for breach of covenant of warranty the measure of damages is the consideration money, with interest. �J. M. Woolworth, for plaintiff. �J. G. Corwin and John D. Hoive, for defendants. �McCraey, C. j. Bill in equity seeking to recover judgment for damages of a covenant of warranty in a deed of real estate, and for an accounting, to the end that the sum recovered may be set off against a certain judgment held by defendant David Leach against plaintiff. �Defendant asks leave to amend hia answer by alleging the foUowing f acts : �First. That the warranty deed upon which plaintiff sues was not the deed of David Leach alone, but the joint deed of David Leach and Jane E. Leach, his wife. The latter is not joined. The original answer is in efïect a deniai of the right of plaintiff to recover, and it is not necessary for defendant to plead specially that the covenant of warranty was joint, and not joint and several. �The plaintiff must make out his case, and the defence now Bought to be specially pleaded can be insisted upon under the pleadings as they stand. If the plaintiff is not entitled to recover on the covenants in the deed sued on, when he cornes to offer it in evidence that defence can be made. It is not necessary to consider now whether the husband can be sued alone upon a covenant of warranty contained in a deed exe- ����