Definition of EVICTION


EVICTION

The loss or deprivation which the possessor of a thing
suffers,
either in whole or in part, of his right of property in such a thing, in
consequence of the right of a third person established before a compenent
tribunal. 10 Rep. 128, 4 Kent,Com. 475-7, 3 Id. 464-5.

2. The eviction may be total or partial. It is total, when the possessor
is wholly deprived of his rights in the whole thing, partial, when he is
deprived of only a portion of the thing, as, if he had fifty acres of land,
and a third person recovers by a better title twenty-five, or, of some
right in relation to the thing. as, if a stranger should claim and
establish a right to some easement over the same. When the grantee suffers
a total eviction, and he has a covenant of seisin, he recovers from the
seller, the consideration money, with interest and costs, and no more. The
grantor has no concern with the future rise or fall of the property, nor
with the improvements made by the purchaser. This seems to be the general
rule in the United States. 3 Caines R. 111, 4 John. R. 1, 13 Johns. R. 50,
4 Dall. R. 441, Cookes Term. R. 447, 1 Harr. & Munf. 202, 5 Munf. R. 415,
4 Halst. R. 139, 2 Bibb, R. 272. In Massachusetts, the measure of damages
on a covenant of warranty, is the value of the land at the time of
eviction. 3 Mass. R. 523, 4 Mass. R. 108. See, as to other states, 1 Bay,
R. 19, 265, 3 Des. Eq. R. 245, 2 Const. R. 584, 2 McCords R. 413, 3 Calls
R. 326.

3. When the eviction is only partial the damages to be recovered under
the covenant of seisin, are a rateable part of the original price, and they
are to bear the same ratio to the whole consideration, that the value of
land to which the title has failed, bears to the value of the whole tract.
The contract is not rescinded, so as to entitle the vendee to the whole
consideration money, but only to the amount of the relative value of the
part lost. 5 Johns. R. 49, 12 Johns. R. 126, Civ. Code of Lo. 2490, 4
Kents Com. 462. Vide 6 Bac. Ab. 44, 1 Saund. R. 204: note 2, and 322 a,
note 2, 1 Bouv. Inst. n. 656.


Source: Bouviers Law Dictionary 1856 Edition

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