Andrews v. Appel

ITardin, J.: It is settled by authority that the grantor who gives a covenant against incumbrances, is liable only to the extent of the consideration money received. (Dimmick v. Lockwood, 10 Wend., 151.) It is also settled that the recovery can be had,'only of the amount actually paid to relieve against the incumbrance, and not for an incumbrance outstanding and not paid off. (Delavergne v. Norris, 7 Johns., 358.) The plaintiff is the grantee and assignee of the covenants contained in the deed of the defendants, and after becoming such, paid off the taxes laid by assessment upon the lands, and thus [433] redeemed the lands from the sale, made to enforce the taxes. The taxes were liens upon the lands when the covenant of defendants was made. Under such circumstances, the plaintiff was the real party in interest, who sustained actual damages, having acquired the right to enforce the covenant, by an equitable and incidental assignment, against incumbrances given by the defendants. (2 Story Eq., § 1040; Roberts v. Levy, 3 Abb. Pr., N. S., 316; Ernst v. Parsons, 54 How. Pr., 164, note; Trustees of Columbia College v. Lynch, 70 N. Y., 440; Barnes v. Mott, 64 Id., 402; Prescott v. Trueman, 4 Mass., 627; Hall v. Dean, 13 Johns., 105; Colby v. Osgood, 29 Barb., 339; Richard v. Bent, 59 Ill., 38; S. C., 14 Am. R., 1, and cases there cited from five States.) Such a rule avoids a circuity and multiplicity of actions. The objection existing at common law, that a covenant or chose in action was not assignable, has been obviated by our modern legislation. The actual damages accrued when the incumbrance was paid off to save the title from passing under the tax sale. If it was made in good faith, upon a valid and paramount claim, to avoid a loss of title, and an actual eviction, the right of redress was as perfect as though an actual eviction had taken place. (Sweetman v. Prince, 26 N. Y., 224; Burt v. Dewey, 40 Id., 283; Bordwell v. Collie, 45 Id., 497; Delavergne v. Morris, 7 Johns., 358.) This covenant against incumbrances is coupled with one for quiet enjoyment of possession of the premises, and the two covenants, according to some authorities, may be construed together, ■and both be held to run with the land. (Budd v. Marshall, 22 Alb. L. J., 257; 42 L. T., N. S., 793; 2 Wait Actions and Defenses, 380.) We think the plaintiff entitled, upon the facts established, to recover of the defendants, and the County Court, therefore, properly reversed the judgment of nonsuit; and we must, therefore, affirm the judgment of the County Court of Monroe county. Judgment affirmed. Taícott, P. J., and Smith, J., concurred. Judgment of the county court affirmed.