Davidson v. Cox

Decision Date26 May 1881
Citation9 N.W. 95,11 Neb. 250
PartiesSAMUEL P. DAVIDSON, PLAINTIFF IN ERROR, v. JOHN A. COX, DEFENDANT IN ERROR
CourtNebraska Supreme Court

RE-HEARING of the case reported in 10 Neb. 150, where it is stated at length.

AFFIRMED.

Davidson & Easterday, for plaintiff in error. A mortgagee, under a mortgage containing covenants of warranty, so far as is necessary to protect his interest, is entitled to the benefits of the covenants as completely as a grantee under a deed containing such covenants. Rawle on Covenants, pp. 26 27, 29, 32, 344, 346. 2 Wash. Real Prop., 159. White v Whitney, 3 Met., 81. Harper v. Perry, 28 Iowa 58. Lockwood v. Sturdevant, 6 Conn. 378. Wright v. Sperry, 21 Wis. 334. Lloyd v. Quimby, 5 Ohio St. 262.

B. F. Perkins, for defendant in error. The covenant of warranty relates only to the condition of the title. A mortgage conveys no title, vests no estate, but is a mere pledge or security. Hurley v. Estes, 6 Neb. 386.

OPINION

MAXWELL, CH. J.

This is an action by a junior mortgagee upon a covenant of warranty in the deed of the grantor of the mortgagor. The plaintiff alleges in his petition that on the twenty-first day of April, 1876, the defendant conveyed to one Elizabeth L. Richards, the north-east quarter of the north-east quarter of section 5, in township No. 6 north, of range 10 east, by warranty deed; that by said deed the defendant covenanted with said Richards that he held said premises by good and lawful title; that he had good right and lawful authority to sell the same, and that they were clear and free from all liens and incumbrances whatsoever; and further covenanted to warrant and defend the same against the lawful claims of all persons whomsoever; that on the twenty-first day of April, 1876, Richards mortgaged said premises to the plaintiff to secure the sum of $ 40, with interest, which mortgage was duly recorded; that said mortgage contained covenants of general warranty; that notwithstanding the covenants in said deed and mortgage, there existed prior to the twenty-first of April, 1876, certain mortgages on said premises to P. D. Cheney and others, which were foreclosed on the sixteenth day of October, 1877, and said premises ordered sold; that under said decree said premises were sold, and the sale thereof confirmed, but the proceeds of said sale were applied exclusively to the payment of said senior mortgages, and that the whole amount due the plaintiff on the mortgage from Mrs. Richards is unpaid, and that she is insolvent. It is also alleged that the purchaser is in possession of the premises in question. No relief is sought against Richards. The plaintiff asks for a judgment against Cox for the sum of $ 40, with interest from the twenty-first day of April, 1876.

A covenant of warranty runs with the land, and may be availed of by suit...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT