Lively v. Rice

• Decision Date: 27 November 1889
• Citation: 150 Mass. 171,22 N.E. 888
• Parties: LIVELY v. RICE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 171

22 N.E. 888

LIVELY v. RICE.

Supreme Judicial Court of Massachusetts, Franklin.

November 27, 1889

COUNSEL

S. Sanders, for plaintiff.

S.T Field, for defendant.

OPINION

MORTON C.J.

On May 10, 1883, the defendant was the owner of a piece of land in Rowe, which was subject to two mortgages made by him. On that day he conveyed the land to one Sanders. The covenants in the deed are as follows: "And I do hereby for myself and my heirs, executors and administrators covenant with the grantee, and his heirs and assigns, that I am lawfully seised in fee-simple of the granted premises; that they are free from all incumbrances except two mortgages,--one held by Jason A. Rice, of Shelburne Falls, Mass., for twelve hundred dollars, and one held by Luther Keyes, of Greenfield, Mass., for five hundred dollars, which mortgages said Sanders assumes and agrees to pay; that I have good right to sell and convey the same as aforesaid; and that I will, and my heirs, executors, and administrators shall, warrant and defend the same to the grantee, and his heirs and assigns, forever, against the lawful claims and demands of all persons." On April 4, 1889, said Sanders conveyed the premises to the plaintiff by a deed in which he covenanted "that I am lawfully seised in fee of the aforesaid premises; that they are free of all incumbrances, except two mortgages,--one held by Jason A. Rice, of Shelburne Falls, Mass., and one held by one Keyes, for $500, which mortgages said Lively assumes and agrees to pay." Afterwards Jason A. Rice, the holder of the first mortgage, demanded payment of his mortgage, and notified the plaintiff that if it was not paid he should foreclose the mortgage. The plaintiff neglected to pay the mortgage, and it was duly foreclosed by a sale. He claims that this foreclosure was an eviction, and that he is entitled to recover the value of the land of the defendant under his covenant of warranty in the deed to Sanders.

It was the duty of the plaintiff to pay the Rice mortgage. He now seeks to found upon his own violation of duty a claim against the defendant. The rules of law do not lead to any such unjust and absurd result. Taking the whole deed together it is clear that it is not the intention or the scope of the covenant of warranty to embrace the two mortgages and warrant against them. In construing a deed, as in construing other contracts, the primary object and duty of the...