King v. Kilbride

• Decision Date: 09 December 1889
• Court: Connecticut Supreme Court
• Parties: KING v. KILBRIDE et al., (two cases.)

19 A. 519

58 Conn. 109

KING

v. KILBRIDE et al., (two cases.)

Supreme Court of Errors of Connecticut.

Dec. 9, 1889.

Appeal from superior court, New Haven county; FENN, Judge.

Actions by John King against William B. Kilbride and the Fountain Water Company to foreclose two mortgages. There was a decree for plaintiff in both cases, but in one of them for a less amount than he claimed. From this plaintiff appeals, and the water company appeals from both. The indebtedness sought to be secured in the second case was. described in the mortgage as a note of $1,500, the time and manner of payment to be as therein appears. By the conditions of the note itself, the maker promised to pay $18, on the first day of a certain month, and thereafter the sum of $18 on the first day of each succeeding month, until the entire sum of $1,500 should be paid, with interest at 6 per cent. per annum, payable semi-annually, on such sum as shall be due; the right being reserved to make payments to any extent, and at any time, in excess of said $18 per month.

H. L. Hotchkiss and C. J. Atwater, for plaintiff. W. H. Williams and E. B. Gager, for defendant Fountain Water Company.

ANDREWS, C. J. These are two actions, between the same parties, brought on separate mortgages, and each claiming a foreclosure and the possession of the same land. It appears that on the 1st day of June, 1887, the plaintiff owned two tracts of land,—one containing ten acres, and the other, his homestead, containing one acre. On that day he mortgaged both pieces to Thomas A. Nelson, to secure his note for $1,100, payable to said Nelson or order, on demand, with interest. On the 29th day of the same month he sold and conveyed the 10-acre piece to William B. Kilbride by a deed in which the covenant against incumbrances and the covenant of warranty were as follows: "And that the same is free from all incumbrances whatsoever, except a certain mortgage to Thomas A. Nelson, dated June 1st, 1887, for $1,100. And furthermore, I, the said grantor, do by these presents bind myself and my heirs forever to warrant and defend the above granted and bargained premises to him, the said grantee, his heirs and assigns, against all claims and demands whatsoever." On the same day Kilbride mortgaged the same land to the plaintiff, to secure the sum of $1,500, by a deed in which the covenants were identical with the covenants in the plaintiff's deed to him. Kilbride orally agreed to assume and pay the note to Mr. Nelson as a part of the payment for the land. He went into immediate possession of the land so conveyed to him, and on the 15th day of August following conveyed a portion of it to the Fountain Water Company by a deed containing all the covenants, without any exception. All of these deeds were put upon record at once. It is found that the water company had no notice, actual or constructive, of the oral agreement by Kilbride to pay the Nelson mortgage, except so far as the recording of the deeds is such notice; and it is also found that the water company took its deed in good faith, and paid full value for its land. The plaintiff has remained ever since the owner and in possession of the homestead. Kilbride proved to be insolvent, and left the premises; and the plaintiff, on the 27th day of October of the same year, in order to protect his second mortgage interest in the 10-acre tract, purchased of Mr. Nelson the note and mortgage which he had previously given to him, and Mr. Nelson thereupon transferred and assigned to the plaintiff, by a proper release deed, all his right, title, and interest in the note and mortgage; and the same are now the property of the plaintiff. The first action is brought by the plaintiff as assignee and holder of his own note to Mr. Nelson, and in the complaint he claims a foreclosure of the 10-acre piece, with possession of the same, unless the water company or Kilbride shall pay the whole amount due on that note. The defense in this action sets up, among other things, the covenant of warranty contained in the plaintiff's deed to Kilbride. The reply to the defense is a denial. The judgment apportions the debt between the two pieces of land mortgaged by the plaintiff to Mr. Nelson according to their value, and decrees a foreclosure of the 10-acre piece unless the defendants, or one of them, shall pay the sum of $556.20, and grants execution in ejectment if the money is not paid within the time limited. From this judgment the plaintiff and the Fountain Water Company both appeal. The plaintiff's reasons of appeal are that the court erred in not requiring the defendant to pay the whole of the Nelson note. The second and third reasons of appeal of the water company are, in substance, that the court erred in holding that the plaintiff was entitled to maintain the suit notwithstanding his covenant of warranty.

It appears from the finding that the plaintiff did make the covenant of warranty as alleged by the defendants, and as appears by his deed, portions of which are recited above. The covenant of warranty is a contract by which the grantor of land undertakes to protect the land granted from all lawful claims and demands existing at the time of the grant, and the contract is made not only with his immediate grantee, but with whomsoever may become the owner of the land by a title derived through the grantee. Booth v. Starr, 1 Conn. 244; Mitchell v. Warner, 5 Conn. 498; Rawle, Gov. (4th Ed.) 334; 3 Washb. Real Prop. (4th Ed.) 466; 2 Sugd. Vend. (Perkins' Ed.) 240....