Hall v. Allis

• Decision Date: 07 November 1900
• Citation: 47 A. 362,73 Conn. 238
• Court: Connecticut Supreme Court
• Parties: HALL v. ALLIS.

47 A. 362

73 Conn. 238

HALL

v. ALLIS.

Supreme Court of Errors of Connecticut.

Nov. 7, 1900.

HALL, J. The facts proved by the extrinsic evidence, as stated in the finding, strongly favor the construction of the covenant in question contended for by the defendant. I cannot concur in the conclusion reached by the majority of the court,—that the record shows that, in the transaction with the plaintiff, the defendant and E. P. Yale were but one party, or that they were to be so regarded in their dealing with the trustees, Sloper and Minor. On the contrary, as I interpret the finding, neither the plaintiff nor any other party to the transaction understood that the defendant was the purchaser of the plaintiff's land, or that he was to pay for it, or that he was to own or pay for the brick stock, or was to have any interest in it, except as a security against loss by having mortgaged his property, or that he was to do anything further in the transaction than to give a second mortgage upon property worth $12,000, subject to a mortgage to Yale College of $8,000, to secure the payment of E. P. Yale's notes to the plaintiff. If the defendant also undertook to save the plaintiff harmless from the first mortgage, which, under the present circumstances, would require him to pay the E. P. Yale notes of $6,000, with unpaid interest, such promise must be found in the language of the mortgage deed. The language of the covenant of the mortgage, "and save the grantee harmless from all incumbrances to date," should not be construed as a promise to protect the plaintiff against the first mortgage. Such a construction would give to these words a meaning inconsistent with that of the other covenants of the deed, and would make them a covenant to protect the fee of the land against all incumbrances, instead of an undertaking to protect the equity of redemption, which was alone conveyed by the mortgage, and which, from the entire language of the deed, was, I think, all that was intended to be protected, as a security to the plaintiff. The defendant was not personally liable, ever, to Yale College, for the first mortgage debt, as it appears that the bond and mortgage for $8,000 was given by E. P. Yale before the defendant became the owner of the property. As indicating that it was not the intention of the defendant to assume the $8,000 mortgage, or to protect the plaintiff from that incumbrance, we find in the mortgage deed from the defendant to the plaintiff—First, that the mortgage to Yale College is expressly excepted from the covenant against incumbrances; second, that it is also excepted from the final covenant to warrant and defend the premises conveyed; and, third, that the defendant expressly covenants what he will do regarding the first mortgage, namely, that he will keep all interest on it paid when due. These covenants should be held to so qualify the absolute covenant in question, that its true meaning is to save the grantee harmless from all incumbrances other than the first mortgage. It is true that the exception of a certain mortgage from the covenant against incumbrances has been held not to necessarily relieve the grantor from liability under the covenant of warranty, from the operation of which the mortgage is not excepted, upon the ground that such qualified and absolute covenants are not of the same import, and therefore not necessarily inconsistent with each other, since a grantor may be unwilling "to guaranty his title generally, and yet may readily undertake that his grantee shall not be disturbed"; the deduction drawn from the existence of such absolute and limited covenants in the same deed being "that the covenantor admits that there is an incumbrance upon the property, but undertakes and warrants that it shall never disturb the title of the grantee." King v. Kilbride, 58 Conn. 109-117, 19 Atl. 519; Esterbrook v. Smith, 6 Gray, 572; 8 Am. & Eng. Enc. Law (2d Ed.) p. 75. But these cases do not assume to state it as a rule that a covenant of warranty which is absolute in its terms will always be so construed, although a prior mortgage be excepted from the covenant against incumbrances. Undoubtedly the true rule is to ascertain from the entire instrument the real intention of the parties, and to construe the...