Smith v. Lloyd
| Decision Date | 08 July 1874 |
| Court | Michigan Supreme Court |
| Parties | William Smith v. Zina Lloyd |
Heard April 29, 1874
Error to Superior Court of Detroit.
Covenant. Plaintiff brings error. Reversed.
Judgment reversed, with costs, and a new trial granted.
A. F Wilcox, for plaintiff in error.
Ward & Palmer, for defendant in error.
Graves, Ch. J., did not sit in this case.
This was an action of covenant brought by the plaintiff against the defendant in error upon the covenant against incumbrances in a deed of conveyance of land executed by defendant to plaintiff September 10th, 1867.
The covenants in the deed (of defendant and wife), upon one of which the action is brought, are somewhat peculiar and are in these words: "And the said parties of the first part, for their heirs, executors, administrators, do covenant, grant, bargain and agree, to and with the said party of the second part, his heirs and assigns, that at the time of the ensealing and delivery of these presents, they are well seized of the premises above conveyed, as of a good, sure, perfect, absolute and indefeasible estate of inheritance in the law, in fee simple; and that the said lands are free from all incumbrances whatever; and that the above bargained premises in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against all and every person, or persons, lawfully claiming or to claim the whole or any part thereof, they will forever warrant and defend, except as to a certain mortgage of seven thousand three hundred dollars, made by the parties of the first part to Margaret Davidson et al.; this deed is given subject to said mortgage."
The mortgage alluded to had been executed some time previous to this deed, for the principal sum of seven thousand three hundred dollars, and at the time of the deed there was, besides the principal, two hundred and thirty-seven dollars of accrued interest unpaid; making the actual amount of the mortgage incumbrance, at the time the deed was executed, seven thousand five hundred and thirty-seven dollars.
A mortgage was introduced in evidence, given back to defendant by plaintiff upon the same land, at the date of the deed, for four thousand seven hundred dollars; and there was oral evidence tending to show that the whole purchase price of the land sold to the plaintiff was fourteen thousand dollars, and that plaintiff paid down in cash two thousand dollars, which, together with the mortgage of four thousand seven hundred dollars, given by defendant, made six thousand seven hundred dollars, leaving just seven thousand three hundred dollars, the amount of the prior mortgage incumbrance stated in the covenants of the deed, and subject to which the deed was given.
As this evidence was in no way contradictory of the deed, or any of the mortgages, but went to show the circumstances with reference to which the covenant in question was made, and the whole transaction, of which the deed formed but a part, I think it was admissible. It tended clearly to show that the prior mortgage was assumed as part of the purchase money, and the amount at which it was so received.
It is therefore too clear to admit of any doubt, that the plaintiff, upon his own showing, could have no cause of action under his first count, which was for the whole amount of the incumbrance created by the mortgage; and the only question for consideration relates to his right to maintain the action under the second count for the accrued interest of two hundred and thirty-seven dollars in excess of the sum mentioned in the covenant.
The court charged, at the request of the defendant, that plaintiff had not proved the cause of action alleged in either count. He also further charged that the proper construction of the covenants in the deed was not that the amount of the mortgage incumbrance did not exceed seven thousand three hundred dollars at the time of the execution of the deed, but that the sum mentioned must be considered as matter of description only, inserted for the purpose of identifying the mortgage, and that the clause in question cannot be considered as a guaranty that the sum mentioned constituted the whole amount of the mortgage incumbrance.
This, so far as the charge of the court is concerned, presents the only question in the case
But another, and (in logical order) a preliminary question is raised by the counsel for the defendant in error, that whether the court was correct or not as to the particular ground upon which he rested his charge; that the plaintiff cannot recover upon the covenant in question, because the defendant did not covenant for himself, but only for "his heirs, executors and administrators." The covenants are introduced by this language: "And the said parties of the first part, for their heirs, executors, administrators, do covenant, grant, bargain and agree to and with the said party of the second part, his heirs and assigns, that," etc., then follow the covenants, first, of seizin; second, against incumbrances; and third, of warranty. If no other covenant but that of warranty, which looks only to the future, and the breach of which could only occur in the future, had followed the introductory words, there might or might not (I express no opinion upon it) have been plausible reasons for saying the covenant was intended to bind the heirs, executors and...
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...character as an incumbrance, but may and often does lead to the purchaser's requiring the grantor to protect him by covenants. Smith v. Lloyd, 29 Mich. 382. a covenant is made against all incumbrances, without exception, knowledge of the existence of one incumbrances, can not take that incu......
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