Merritt v. Byers

• Decision Date: 08 April 1891
• Citation: 46 Minn. 74,48 N.W. 417
• Parties: MERRITT v BYERS ET AL.
• Court: Minnesota Supreme Court

46 Minn. 74

48 N.W. 417

MERRITTvBYERS ET AL.

Supreme Court of Minnesota.

April 8, 1891.

(Syllabus by the Court.)

1. In a conveyance of land the covenant of freedom from incumbrance was qualified by excepting a specified mortgage, and the subsequent covenant of warranty was qualified by a different specific exception (the taxes for a certain year.) Held, that the express qualification of the latter covenant forbids the implication that it was intended to be further qualified by excepting also the mortgage, as in the former covenant.

2. One who accepts a conveyance of land expressly subject to a specified valid mortgage, the consideration paid being measured by the fact that the land is thus held for the satisfaction of the debt charged upon it, thereby relinquishes the benefit of former covenants of warranty, as respects such incumbrance. A remote covenantor is not estopped by his covenants to purchase the mortgage, and to enforce it against the estate thus held.

Appeal from district court, Hennepin county; HOOKER, Judge.

Chas. J. Bartleson, for appellant.

Keith, Evans, Thompson & Fairchild, for respondents.

DICKINSON, J.

This is an action to foreclose a mortgage. This relief was denied, and the plaintiff appealed from an order refusing a new trial. The mortgage was executed by the plaintiff and his wife, he being the owner of the land, to one Whitcomb, in 1885, to secure the plaintiff's promissory note for $2,000. After that the title passed, through mesne conveyances, to the plaintiff's wife. In 1886, the plaintiff's wife then owning the premises, the same were conveyed by warranty deed, in which her husband, the plaintiff, joined, to Clark and Higbee. This deed contained the covenants of the grantors that the granted lands “are free from all incumbrances, except two certain mortgages,-one for the principal sum of six thousand dollars, ($6,000,) and one for the principal sum of two thousand dollars, ($2,000;) and that the said parties of the second part, their heirs and assigns, shall quietly enjoy and possess the same, and that the said parties of the first part will warrant and defend the title to the same against all lawful claims, except taxes for 1885.” The following year-1887-the plaintiff paid $1,000 on the above-specified mortgage for $2,000. In June, 1889, the title theretofore conveyed to Clark and Higbee was transferred by deed, with a general covenant of warranty, to the defendant Annie M. Byers. By this deed the land was conveyed expressly “subject to *** one mortgage for $2,000, on which $1,000 has been paid, *** with interest at seven per cent. on said $1,000 from October 27, 1888.” The mortgage here referred to was the same mortgage before mentioned, and which is sought by this action to be foreclosed; the plaintiff having, in August, 1889, paid the amount then unpaid on the mortgage, and having procured it to be assigned to him.

On the point that the court erred in refusing to allow a reformation of the deed, we only deem it necessary to say that the evidence was conflicting, and the right to a reformation was not so clearly established as to justify an interference with the finding of the court. The evidence of the parol agreement, contrary to the legal effect of the covenants, admissible for the trial of the issue of a mistake in the deed, was limited to that issue. We are now to decide whether the plaintiff was estopped by the covenants in his deed to Clark and Higbee from enforcing this mortgage against the land, and particularly whether the covenant of warranty, the generality of which is only expressly qualified by the exception of “taxes for 1885,” is to be construed as being otherwise unrestricted, and hence to obligate the covenantors to defend the title even as against rights arising through the enforcement of this mortgage. If the covenant of warranty is qualified only by that specific exception, and is otherwise of general effect, the plaintiff would be thus estopped. It is thus general, subject only to the specified exception as to the taxes for 1885, unless the express excepting of the mortgages from the covenant of freedom from incumbrance is by implication to be construed as being also applicable to and qualifying the covenant of warranty. It is only by such an implied qualification of the covenant of warranty that the plaintiff can resist the conclusion that he is estopped. The mere fact that the mortgages were excepted from the covenant as to incumbrances had not the effect to subject the land in the hands of the grantees to the satisfaction of the mortgages. Such exception, considered alone, merely limited the operation of the covenant as to incumbrances by excluding the mortgages therefrom. Calkins v. Copley, 29 Minn. 471,13 N. W. Rep. 904. We do not decide whether, if the covenant of warranty were in general terms, without being expressly restricted by the one specified exception of taxes for 1885, it should be construed to have been the intention of the parties that the express qualification of the covenant as to incumbrances should also be applicable to and limit the subsequent covenant of warranty. Bricker v. Bricker, 11 Ohio St. 240, may be referred to as supporting the view that the latter covenant should be thus qualified by intendment. Opposed to this are Estabrook v. Smith, 6 Gray, 572;King v. Kilbride, 58 Conn. 109, 19 Atl. Rep. 519. See, also, Bennett v. Keehn, 67 Wis. 154,30 N. W. Rep. 112;Sumner v. Williams, 8 Mass. 162, 202;Duvall v. Craig, 2 Wheat. 45;Rowe v. Heath, 23 Tex. 614; Norman v. Foster, 1 Mod. 101; Howell v. Richards, 11 East, 633; 3 Washb. Real Prop. 672. But, whatever may be the proper construction of the covenants in such a case, that now before us is controlled by the fact that the covenant of warranty is qualified by...