Silverman v. Loomis

Mr. Justice Mulkey delivered the opinion of the Court: Silverman, on his purchase from Bunyan, having agreed to take up and surrender to Loomis the notes sued on, it is clear he was bound to do so unless he was relieved from the performance of that undertaking by reason of having been compelled to redeem the premises from sale under the Scribner mortgage, and whether he was so relieved or not, of course depends upon whether Loomis is liable to Silverman on the covenants in the former’s deed to Bunyan, and upon the decision of this question the case depends. The circuit court held, and we think properly, that the conveyance and reconveyance of the premises between Eunyan and Loomis by operation of law- canceled or extinguished the covenants in the latter’s deed as to all incumbrances covered by Runyan’s deed to Loomis. The object of the parties in having a covenant against incumbrances inserted in appellee’s deed upon his reconveyance to Eunyan, was doubtless to assure the property to the latter in the same condition it was in when conveyed by Eunyan ■ to Loomis, and nothing more; and to give it a wider range, by extending it to matters covered by Runyan’s covenants to Loomis, would be to make the parties severally, liable to each other on account of the same incumbrance. The enforcement of this liability by legal proceedings would give rise to circuity of action, and an unnecessary and useless expenditure of money in vexatious litigation, which the law ever abhors. To avoid these consequences, the law wisely construes such covenants as mutually canceling each other, so that no action can be maintained on them by either of the parties or their assignees. The assignee of a grantee can not recover on a covenant made by the latter’s grantor, where, by reason of matters apparent upon the record of deeds in the line of his title at the time of the assignee’s purchase, the grantee himself could not recover. The assignee, in such.,case, occupies no better position than the original covenantee through whom he claims. Silverman, having purchased with constructive notice of these two deeds, is conclusively presumed to have known and understood at the time of his purchase their legal effect, and he has no cause, therefore, to complain. The view here presented we understand to be fully sustained by well recognized legal principles. 2 Coke on Littleton, sec. 743; Brown v. Metz, 33 Ill. 339; Kellogg v. Wood, 4 Paige, 578. The judgment of the Appellate Court will be affirmed. Judgment affirmed.