Van Nest v. Kellum

Decided December 8, 1860

Indiana Supreme Court · decided 1860-12-08

<p>In a suit for breach of covenant, it is sufficient to aver the breach negatively, in the words of the covenant; but such averment does not necessarily involve the right to recover more than nominal damages, and would not constitute a defense to an action for purchase money, beyond the amount of one cent.</p>

Relies on Small v. Reeves · Martin v. Baker

Good law ✅— No negative treatment on recordhow we know

Decided 1860-12-08

How this case has been cited

Cited by 6 later decisions — most recently June 1885

6 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Per Curiam.

¶1Suit to foreclose a mortgage. Answer: that it was given to secure the last installment- of the purchase money of a lot of ground, for which a deed, with covenants of title, was executed; and that the seller had not a title in fee. A demurrer was sustained to the answer. Judgment for plaintiff.

J. Bradley and B. J. Woodward, for appellant.J. B. Niles, for appellee.

¶2In a suit for breach of covenant, it is sufficient to aver the breach negatively, in the words of the covenant. Martin v. Baker, 5 Blackf. 232; Floom v. Beard, 8 id. 76. Such averment makes the pleading good, but would not necessarily involve a right to recover more than nominal damages.

¶3But a breach of covenant that would sustain an action only to the extent of nominal damages, will not constitute a defense to a suit for unpaid purchase money, beyond the amount of one cent. Small v. Reeves, 14 Ind. 163.

¶4The judgment is affirmed, with 1 per cent, damages and costs.