Samuel v. Peyton

Chief Justice Siiarswood delivered the opinion of the court, March 3d 1879. In Moore’s Appeal, ante, 450, which has just been decided, it has been held by this court that the conveyance of land “under and subject” to a mortgage or other encumbrance, is of itself a covenant of indemnity only for the protection of the vendor. It was shown in that case, on a review of the authorities, that it was only where there was [470] an express agreement to pay the encumbrance, or where such agreement might be implied from the circumstances that there was liability to the encumbrancer or that he could sue in the name of the vendor to his use. The vendor must sue, and must show that he • has been damnified, or at least must show that his danger of damnification is imminent. The special pleas in this case, not only expressly denied any agreement by the defendant to pay the mortgage, but averred a state of things which showed that his vendor never could be damnified. If it was expressly agreed that the first • grantee from the party creating the encumbrance should not be personally liable — it is evident that no subsequent grantee could become so without his own express agreement. The first link in the chain, by w'hich a subsequent grantee might be called upon to indemnify his vendor would be wanting. On the demurrer to the special pleas of the defendant we think he was entitled to judgment. Judgment reversed, and now judgment for the defendant on the demurrer.