Potter v. Taylor

The opinion of the court was delivered by Royce, J. — This action is founded on a covenant against incumbrances, which, being unqualified and absolute as it relates to the mortgage in favor of Crane, became at once broken by the existence of that incumbrance. A oause of action had there [679] fore accrued on account of that mortgage when this suit was commenced. It is true, as the law is now settled, that the plaintiff would be entitled to nominal damages only, except for actual payments made upon the mortgage. And in this instance the mortgage was paid off after tlje action was instituted. That payment,"however, was not the ground of action, but a consequence of it. It was a loss necessarily resulting to the plaintiff, from the breach of covenant which constitutes the cause of action; and as such it was properly included in the damages recovered. In the defendant’s deed, next after the usual covenants, the following words were inserted: — “ Excepting the amount of a mortgage held by Bradford Kinney, on which is due about eighteen tons of hay.” And the question is, whether the mortgage to Kinney is thereby wholly excluded from the operation of all the covenants, or the covenants are only qualified by these expressions, leaving the defendant answerable for what was due on the mortgage beyond the eighteen tons of hay. On the one side, we are asked to construe the latter clause of the sentence as an estimate intended only for description; on the other, as an allegation of the sum due, by which the defendant is bound. As the instrument is drawn, it is doubtless susceptible of these different interpretations, and the intention of the parties must be the first and main guide of construction. Here a portion, at least, of the mortgage was excepted from the covenants, and was thereby left as a lien upon the estate for the plaintiff to discharge. The price of the land must therefore have been calculated with reference to the incum-brance upon it created by the mortgage. The amount of that incumbrance was a matter peculiarly within the defendant’s knowledge, he being the mortgagor. Under these circumstances a sum is specified as the amount due on the mortgage. This is not to be regarded as an unmeaning or inadvertant act, but as the result of some mutual design. As a mere description of the mortgage, it was a most imperfect and uncertain test of identity; but considered as a stipulation, limiting the extent of the incumbrance, it was consistent with the apparent justice of the transaction, and the probable expectations of both parties. Indeed, it is difficult to assign a motive for inserting any particular sum as due on the mortgage, unless it was to fix a line of mutual responsibility in regard to that incumbrance. We arc satisfied that this is the sense in which the contract is to be [680] understood. The covenant, as qualified by the exception, amounts to this, that the estate is free from all incumbrance, except the value of eighteen tons of hay, which is due upon mortgage t0 Kinney. Consequently, if a greater amount was due on that mortgage, the covenant was falsified and broken. Judgment of county court affirmed.