Gerald v. Elley

Servers, Ch. J. 1. conveynanis.' —- The answer does not state that these parties agreed or contracted that the incumbrances should be exempted from the operation of the covenants, In fact, nothing was said by either party in reference to this matter. The legal effect of a deed of the character of the one in question was not considered or thought of, by the defendant at least. Tie was asked this question during his examination as a witness: “You knew the railroad was there, but did you know it was an incumbrance such as you [324] would have to defend against or make good?” To this he replied: “No,.sir; I did not. I did not understand.your former question in regard to it. I did not understand that it was, or I certainly should have done it.” From this it is apparent the deed contains just what the defendant intended. ' .There was no mistake made by the draftsman. It is clear the defendant was mistaken in the legal effect of the covenants in the deed, but we are unable to see there was any mistake of fact, or that the deed was not drawn in accord with what both parties intended. ' Conceding that the plaintiff knew of the incumbrance, and that he traded his farm for that of the defendant, this would not make the legal effect of such a contract in anywise different from what it would be if the plaintiff had paid five thousand dollars in cash. The question is, did these. parties contemplate the incumbrance, and contract or agree that it should be excepted from the operation of the covenants? We feel constrained to say that under the allegations in the answer, and the evidence, we are compelled to answer this question in the negative. 2_. _. right otway. There is nothing different shown in the testimony from the very common case where a party sells and conveys land on which there is located a railway, the existence of which was known to the other party, and the premises are conveyed with the usual covenants without excepting such incumbrance therefrom. In' such case there can be no relief because of the grantor’s negligence, or his want of legal knowledge. There is no mistake of fact in such case. The judgment of the District Court must be reversed, and the cause remanded with directions to dismiss the equitable answer, and to proceed with the trial of the action at law. Reversed.