Carter v. Peak

• Decision Date: 13 January 1885
• Citation: 138 Mass. 439
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Josiah H. Carter v. John C. Peak & another

138 Mass. 439

Josiah H. Carter v. John C. Peak & another

Supreme Judicial Court of Massachusetts

January 13, 1885

Argued November 14, 1884.

Suffolk.

Contract for breach of the covenant against incumbrances, contained in a deed of land from the defendants to Edgar A. Hallett.The breach relied on was the taxes assessed, May 1, 1881, on the premises conveyed.Answer, a general denial, and that Hallett agreed to pay these taxes.Trial in the Superior Court before Brigham, C. J., who allowed a bill of exceptions, in substance as follows:

The plaintiff put in evidence the deed of the defendants to Hallett, dated August 13, 1881.This deed contained the usual covenants against all incumbrances.

Against the objection of the defendants, certain deeds were admitted in evidence, which showed that the premises, through several mesne conveyances, were conveyed to the plaintiff on November 27, 1882.This last conveyance was "subject to all unpaid taxes."

It was admitted that the taxes assessed upon said premises on May 1 1881, were unpaid at the time of the delivery of the deed to Hallett, and that they were paid by the plaintiff on May 12 1883.

The judge ruled, that the action could be maintained; and that no defence was disclosed by the evidence; and directed a verdict for the plaintiff for the amount of said taxes and interest thereon.The defendants alleged exceptions.

Exceptions sustained.

D. C. Linscott, for the defendants.

B. E. Perry, for the plaintiff.

Field, Devens, & Colburn, JJ., absent.Morton, C. J.

OPINION

Morton, C. J.

The lien for the taxes assessed in 1881 was an incumbrance upon the estate existing at the time the defendant gave his deed to Hallett.The covenant in that deed against incumbrances was broken as soon as it was made, and a right of action for the breach immediately accrued in favor of Hallett.At common law this right of action is not assignable.This rule, if applicable, prevents the plaintiff from maintaining this action.Clark v. Swift, 3 Metc. 390.

But he contends that he is entitled to maintain it under our statute, which provides that "whoever conveys real estate by deed or mortgage containing a covenant that it is free from all incumbrances when an incumbrance appears of record to exist thereon, whether known or unknown to him shall be liable in an action of contract to the grantee, his heirs, executor, administrator, successors, or assigns,...