Estabrook v. Smith

Metcalf, J. The court are of opinion that the plaintiff cannot maintain this action on the covenant against incumbrances. The condition as to the erection of a house made the estate defeasible; but this was not an incumbrance within the legal meaning of the covenant against incumbrances; nor has the estate been defeated by breach of that condition. [577] This action can be maintained, if at all, only on the covenant of warranty. To maintain an action on that covenant, the plaintiff must show an eviction, or what is tantamount to an eviction. And this is shown by the facts. The plaintiff paid a mortgage on the land, against which he could not make any legal defence, and thus bought in a paramount right, for the purpose of preventing an actual eviction. This entitles him to an action on the covenant of warranty, unless that covenant is to be restricted in the manner insisted on by the defendant. Whitney v. Dinsmore, 6 Cush. 128, 129, and cases there cited. The defendant insists that the exception of the mortgage, in the covenant against incumbrances, extends to the covenant of warranty; so that the plaintiff’s claim is excepted from the latter covenant against the lawful claims of all persons, just as it would have been, if to that covenant, as it stands in the deed, had been added the words, “ except against those claiming under the mortgage above named.” The question, how far and in what instances words of restriction or qualification, annexed to one covenant in a deed conveying real estate, are to be extended to other covenants therein, was discussed by Parker, J. in Sumner v. Williams, 8 Mass. 214; and the adjudged cases have since been fully collected and compared in Sugden on Vendors, c. 14, § 3, Platt on Covenants, c. 11, § 7, and Rawle on Covenants, c. 10. It would therefore be a superfluous labor, in this case, to comment on those numerous decisions, and the distinctions between them. We need do no more than to state the ground of the opinion which we have formed, that the defendant’s covenant of warranty is not restricted nor limited by his restricted covenant against incumbrances. That ground is, that the two covenants are not connected covenants, of the same import, and directed to one and the same object. This point was adverted to by Sewall, J. in Sumner v. Williams, 8 Mass. 202, 203, and in some of the earliest English decisions on this subject, and is illustrated and applied in the case of Howell v. Richards, 11 East, 633. There it was decided that the covenants for good title, and for right to convey, “ notwithstanding any act done by the [578] grantors,” did not restrain nor qualify the succeeding covenant for quiet enjoyment, “ without the lawful let or disturbance of the grantors, or their heirs or assigns, or of any other person oi persons whatsoever.” We refer to the whole of Lord Ellen-borough’s opinion, quoting only the following passages : “ The covenant for title, and the covenant for right to convey, are connected covenants, generally of the same import and effect, and directed to one and the same object; and the qualifying language of the one may therefore properly enough be considered as virtually transferred to and included in the other of them. But the covenant for quiet enjoyment is of a materially different import, and directed to a distinct object.” “ And it is perfectly consistent with reason and good sense, that a cautious grantor should stipulate in a more restrained and limited manner for the particular description of title which he purports to convey, than for quiet enjoyment.” “ He may very readily take upon him an indemnity against an event which he considers as next to impossible, whilst he .chooses to avoid a responsibility for the strict legal perfection of his title to the estate, in case it should be found at any future period to have been liable to some exception at the time of his conveyance. He may have a moral certainty that the existing imperfections will be effectually removed by the lapse of a short period of time, or by the happening of certain immediately impending or expected events of death or the like. But these imperfections, though cured, so as to obviate any risk of disturbance to the grantees, could never be cured by any subsequent event, so as to save a breach of his covenant for an originally absolute and indefeasible title. The same prudence therefore, which might require the qualification of one of these covenants, might not require the same qualification in the other of them, affected as it is by different considerations, and addressed to a different object.” See also Smith v. Compton, 3 B. & Ad. 189, and Kern v. Strong, 9 Irish Law Rep. 74, 82. So, in the case at bar, the defendant might well covenant to warrant against the eviction of the plaintiff by the holder of the mortgage, though he could not covenant against all incum [579] brances, without rendering himself forthwith liable to an action, for nominal damages at least, for breach of such covenant. And by the terms of his deed he has covenanted against the eviction to which the plaintiff has been subjected. If, as the defendant offered to prove at the trial, the plaintiff agreed “ to take the premises subject to said mortgage,” then that agreement should have appeared, in some way, in the deed, or in some othej written instrument.' It was as easy to except the claim on the outstanding mortgage from the covenant of warranty, as from the covenant against incumbrances, if such was the understanding of the parties. But nothing is clearer than that the parol evidence, which was offered to control the covenant in the deed, was inadmissible. The plaintiff is to have judgment for damages to the amount of the mortgage debt and interest thereon. He has been damnified to exactly that amount. Exceptions overruled.