40 Mich. 65 (Mich. 1879), Berry v. Whitney

Citation:40 Mich. 65
Opinion Judge:Marston, J.
Party Name:Lucy Berry v. Channing Whitney
Attorney:A. L. Millard and A. Howell for complainant and appellant. Stacy & Underwood for defendant and appellee.
Judge Panel:Marston, J. The other Justices concurred.
Case Date:January 15, 1879
Court:Supreme Court of Michigan

Page 65

40 Mich. 65 (Mich. 1879)

Lucy Berry


Channing Whitney

Supreme Court of Michigan

January 15, 1879

Submitted October 31, 1878; November 1, 1878

Page 66

Appeal from Lenawee. Submitted October 31 and November 1, 1878. Decided January 15, 1879.

Affirmed with costs.

A. L. Millard and A. Howell for complainant and appellant. Clauses struck out of an instrument may be regarded in construing it, 2 Pars. Con. [4th ed.], p. 14, n (2); Strickland v. Maxwell, 2 Cr. & M., 539. It is as usual to covenant against known as against unknown encumbrances, Smith v. Lloyd, 29 Mich. 382. Equity will not relieve one as against a subsequent purchaser for a mistake of law, 1 Story's Eq., Jur., §§ 111, 113, 116, 137; Hunt v. Rousmaniere, 1 Pet. 17; Shotwell v. Murray, 1 Johns. Ch., 512; Barnes v. Bartlett, 47 Ind. 98. The meaning indicated by the words of a deed must be taken to show the intention, 1 Spence's Eq. Jur., 556; parol evidence cannot be introduced to vary its terms (Adair v. Adair, 5 Mich. 204; Fuller v. Parrish, 3 Mich. 211; Hyde v. Tenwinkel, 26 Mich. 93; Beers v. Beers, 22 Mich. 42) nor to add to them (Sutherland v. Crane, Walk. Ch., 523) nor to avoid or restrict the covenant of warranty, Rathbun v. Rathbun, 6 Barb. 107; Movan v. Hays, 1 Johns. Ch., 342; Estabrook v. Smith, 6 Gray 579; general covenants will not be cut down unless it clearly appears that the parties so intended, 2 Sugd. on Vendors, 104, § 2, and where covenants are of diverse natures and concern different things, restrictive words added to one shall not control the generality of the others although they relate to the same land, id., 114, § 8; Rawle Cov. of Title, 516, § 4; the covenant against encumbrances and the covenant of warranty are distinct and an exception in one does not extend to the other, id., 497; Howell v. Richards, 11 East, 633; Sumner v. Williams, 8 Mass. 162; Bemis v. Smith, 10 Metc. 194; Donahoe v. Emery, 9 Metc. 63; the covenant of warranty runs with the land, and the assignee of it is not affected by any equities between assignor and covenantor, Rawle Cov. of Title, 376; Suydam v. Jones, 10 Wend. 180; Whitman v. Weston, 30 Me. 285; Brown v. Staples, 28 Me. 497; 1 Story's Eq. Jur., §§ 108, 139, 165, 434, 436, and the covenantor cannot show that a less consideration was paid than is stated in the deed, for the purpose of affecting the assignee, Greenvault v. Davis, 4 Hill 648.

Stacy & Underwood for defendant and appellee. The consideration expressed in a deed is only prima facie evidence of the actual consideration, which may be shown by parol to be more or less than is expressed, Marston v. Hobbs, 2 Mass. 433; Smith v. Strong, 14 Pick. 128; Bullard v. Briggs, 7 Pick. 533; Belden v. Seymour, 8 Conn. 304; Dexter v. Manley, 4 Cush. 26; Bingham v. Weiderwax, 1 Comst. 509; M'Crea v. Purmort, 16 Wend. 460; Smith v. Lloyd, 29 Mich. 382; Morse v. Shattuck, 4 N.H. 229; Sedgwick on Damages, 174-8. Of repugnant clauses in a deed, the earlier prevails, 2 Pars. Cont., 513. A general covenant of warranty does not conclusively extend to incumbrances of which a purchaser knows at the time of contracting and agreed to discharge as part of the price, Allen v. Lee, 1 Cart. [Ind.], 58; Ellison v. Ellison, 1 Lead. Cas. in Eq., 297, n. Where a deed recites that a mortgage encumbers the premises and contains a general covenant of warranty besides, the recital qualifies the covenant, Jackson v. Hoffman, 9 Cow. 271; Bricker v. Bricker, 11 Ohio St., 240; Jackson v. Stackhouse, 1 Cow. 122; Potter v. Taylor, 6 Vt....

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