Hollinsworth v. Johnson

• Decision Date: 12 April 1882
• Citation: 11 N.W. 843,48 Mich. 140
• Court: Michigan Supreme Court
• Parties: HOLLINSWORTH v. JOHNSON.

11 N.W. 843

48 Mich. 140

HOLLINSWORTH v. JOHNSON.

Supreme Court of Michigan

April 12, 1882

A deed purporting to convey a lot of land subject to an existing encumbrance of $1,600, contained a covenant whereby the grantor undertook to warrant and defend the land to the grantee, his heirs and assigns, against all persons claiming under the grantors and also "against all persons whomsoever and all claims whatsoever," except the said sum of $1,600. Held, that this was a covenant against encumbrances as well as a covenant of warranty.

It appearing that the encumbrance was $1,900 instead of $1,600 this covenant was immediately broken, and the grantee in making payment could recover the excess in a suit upon it.

No particular form of words is necessary to constitute a covenant. It is a promise, and the question is what it is the parties understood by it.

Several covenants may be embraced in a single sentence or embodied in a single promise.

Encumbrances are "claims," and a covenant against all "claims" must be held to embrace encumbrances.

Error to Oakland.

Burtt & Crofoot, for plaintiff in error.

R.A Parker, for defendant in error.

COOLEY J.

Johnson sued Hollinsworth upon a covenant contained in a deed of conveyance, which he counted upon as a covenant against encumbrances. The only question which the record presents is whether the plaintiff was correct in his construction of the covenant.

The deed bears date November 13, 1875. It purports to convey a certain lot of land in Washington, D.C., "subject to the sum of $1,600, existing as an encumbrance on said lot, and secured by two deeds of trust;" and it contains the following covenant: "And the said parties of the first part [Hollinsworth and wife] for themselves and for their heirs, executors and administrators do hereby covenant promise and agree to and with the said party of the second part, his heirs and assigns, that they the said parties of the first part and their heirs shall and will warrant and forever defend the said piece or parcel of ground and premises and appurtenances unto the said party of the second part, his heirs and assigns, from and against the claims of all persons claiming or to claim the same or any part thereof by, from, under or through them or any of them, and against all persons whomsoever and all claims whatsoever except the sum of $1,600 hereinbefore assumed by the party of the second part, with the interest thereon." Following this was a covenant for further assurance.

To show a breach of the covenant the plaintiff gave evidence that the encumbrances by the two deeds of trust exceeded the sum specified by nearly $300. He also showed that the whole amount had fallen due, and that he had made payment in full without awaiting foreclosure or other...