Brown v. South Boston Sav. Bank

• Decision Date: 03 January 1889
• Citation: Brown v. South Boston Sav. Bank, 148 Mass. 300, 19 N.E. 382 (Mass. 1889)
• Parties: BROWN et al. v. SOUTH BOSTON SAV. BANK.
• Court: Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 300

19 N.E. 382

BROWN et al. v. SOUTH BOSTON SAV. BANK.

Supreme Judicial Court of Massachusetts, Essex.

January 3, 1889

COUNSEL

B. Wadleigh R. Lund, and S.W. Harmon, for plaintiffs.

Benjamin Dean, J.A. Sawyer, S.A.B. Abbott, and G.A. Sawyer, for defendant.

OPINION

DEVENS J.

The plaintiffs in the case at bar bring a bill in equity claiming that a certain mortgage held by defendant on the premises of plaintiffs, which are now in its possession under proceedings to foreclose, should be deemed to be discharged from the mortgage upon the ground that the debt is fully paid and satisfied, and further praying that if it shall be held that said mortgage debt is not now paid and satisfied that they may be allowed to redeem the premises.

On July 28, 1875, Ella R. Anderson owned certain real estate in Andover, of which the premises were a part; and on the same day, with her husband, executed and delivered to the defendant a mortgage deed of the said real estate to secure a note of $10,000. On July 28, 1875, the Andersons executed and delivered to Elizabeth Riley a mortgage deed of the same for the sum of $1,500, which was subordinate to that of defendant. On December 10, 1875, Mrs. Anderson--her husband assenting thereto--conveyed to Stephen W. Harmon a portion of the real estate included in these two mortgages, which is that now alleged to belong to the plaintiffs. The consideration for this conveyance, and for a secured note of $1,500, was a conveyance by Harmon to her of an estate in Jamaica Plain whose cash value over and above the mortgages thereon is found to have been $3,250. The deed of Mrs. Anderson conveyed this portion of the real estate to Harmon by metes and bounds, and after this description a clause is added: "Subject to a mortgage of $10,000 to the South Boston Savings Bank, and another mortgage of $1,500." The covenants in the deed were as follows: "And I, the said grantor, for myself and my heirs, executors, and administrators, do covenant with the said grantee and his heirs and assigns that I am seised lawfully in fee-simple of the afore-granted premises; that they are free from all incumbrances except as aforesaid; and said grantor covenants for her heirs and assigns with grantee, heirs and assigns, that all incumbrances on the within estate shall be removed within ninety days from the date hereof, excepting a mortgage of $3,500; that I have good right to sell and convey the same to the said grantee and his heirs and assigns, forever, as aforesaid; and that I will, and my heirs executors and administrators shall warrant and defend the same to the said grantee and his heirs and assigns, forever, against the lawful claims and demands of all persons claiming by, through, or under me." On May 22, 1876, Harmon conveyed the premises to the plaintiff B.F. Brown, for whom he had acted as trustee, "subject to the incumbrances therein named, which the said Ella R. Anderson has agreed to remove." B.F. Brown, on October 23, 1876, conveyed a portion of the premises to Elvira A. Stone, with a covenant against all incumbrances except those named in Harmon's deed; and on October 1, 1877, Stone conveyed the same to Annette E. Brown, the other plaintiff, subject to a mortgage previously made to B.F. Brown. On May 17, 1876, the defendant, in consideration of $7,569, principal and interest, which were indorsed upon the mortgage note of $10,000, released to Mrs. Anderson all of the real estate mortgaged by her to defendant, which she had not conveyed to Harmon. An unpaid balance was thus left on the note of $3,000, with interest from January 28, 1876. As a further consideration for said release, and as an inducement thereto, and as collateral security for the payment of the balance of the $10,000 note, the defendant received from Mrs. Anderson a joint and several note for $3,000, signed by Joseph B. Anderson and Isaac Eames. On May 11, 1876, in consideration of $1,000 and $94.67 interest, Mrs. Riley released to Mrs. Anderson the same portion of real estate which had been released by defendant. The mortgages on the real estate conveyed to Harmon, and by him conveyed to Brown, were thus reduced to $3,500. The plaintiff B.F. Brown made three several payments of interest on the balance of $3,000 due on the $10,000 note, the last payment being on May 7, 1877; and, no further payment being made, the defendant entered on the premises on March 7, 1878, for the purpose of foreclosing its mortgage on the same. The defendant knew at the time of its release to Anderson of the deed to Harmon, and subsequently endeavored to induce Harmon to sign a writing agreeing that the estate conveyed to him should be subject to the mortgage given to Anderson, notwithstanding defendant's release to her. Up to July 28, 1878, the plaintiff B.F. Brown also endeavored to buy the Anderson mortgage from and settle with defendant.

It appeared on the evidence that at the time of defendant's release, and also at the present time, the estate released to Mrs. Anderson was of the value of $15,000, and that conveyed to Harmon of $4,000. It is the contention of the plaintiffs that as the defendant has released the larger portion of the property covered by the mortgage with a knowledge of the covenants made by Anderson, the full value of the property so released should be applied on the mortgage note; that the covenants of Anderson to remove the incumbrances on the portion conveyed to Harmon, and to save Harmon harmless therefrom, in law would amount to a full covenant against them so far as they were made by Anderson, which includes defendant's mortgage. To sustain this position the plaintiffs rely much on Estabrook v. Smith, 6 Gray, 570, but the cases are quite distinguishable. It was there held that a covenant against all incumbrances in a deed of land, except a certain mortgage to a third person, followed by a general covenant of warranty, did not except the mortgage from the covenant of warranty, and this upon the ground that the two covenants were not connected covenants of the same import, and directed to one and the same object. But while covenants may be, and often are, distinct from each other, and made for different objects, all are necessarily connected with the granting portion of the deed, and with the description of the premises there given, and must be applied to that. The words "subject to a mortgage of $10,000 to the South Boston Savings Bank, and another mortgage of $1,500," are not added to the description of the land in the granting part to identify it, but to qualify the estate granted; and to that description, as thus qualified, the warranty applies. It receives its full force when applied to the subject of the grant, and that must be held to have been an equity of redemption; otherwise the qualifying words are treated as without force. When the words, "the afore-granted premises," or "the same," are found in the habendum clause or in the covenants, it is to an estate granted which is subject to certain mortgages that they relate. The precise question here discussed has been passed upon with a similar result elsewhere. Kinnear v. Lowell, 34 Me. 299; Freeman v. Foster, 55 Me. 508. In Wood v. Boyd, 145 Mass. 176, 13 N.E. 476, where certain premises were conveyed, "reserving to the owner of the estate and others adjoining on the south a right of passage-way over the within granted premises," etc., it is said: "The granted premises which are covenanted to be free from incumbrances is not the land in fee, but the fee diminished by existing easements which are excepted out of the grant. Such easements are not incumbrances upon the granted premises." That the covenants in a deed of real estate must be limited and restricted to the grant has been often held. Hoxie v. Finney, 16 Gray, 332; Sweet v. Brown, 12 Metc. 175.

While the estate conveyed was described as subject to the two mortgages, respectively, of $10,000 and $1,500, the grantor covenanted that these should be removed within 90 days excepting a mortgage of $3,500. The effect of this was, when he accepted the deed, that the grantee agreed to hold his estate...