Smith v. Hogue

Citation19 N.D. 337,123 N.W. 827
PartiesSMITH v. HOGUE et al.
Decision Date19 November 1909
CourtUnited States State Supreme Court of North Dakota
OPINION TEXT STARTS HERE
Syllabus by the Court.

A covenant against incumbrances and a covenant of warranty contained in a deed to real property are separate and independent covenants of materially different import and directed to different objects, and there is no presumption that language qualifying one of these covenants was intended to be transferred to or included in the other.

An express exception, contained only in the covenant against incumbrances, in a deed to real property, of a mortgage upon the land, in the absence of qualifying words making the grant of the deed subject to such incumbrance, or making the restriction upon the covenant against incumbrances apply also to the covenant of warranty or generally to all the covenants of the deed, does not except such mortgage from the covenant of warranty. In such case the covenant of warranty may be regarded as full and general, and an action may be maintained upon it arising out of a failure of the grantor of the deed to protect the grantee in quiet enjoyment of the title conveyed by the deed against the mortgage mentioned in the covenant against incumbrances as well as any other paramount title.

The purchase by a warrantor of title to real property, of an incumbrance covered by his warranty for any purpose other than the protection of the title conveyed by him, and the assertion by him adversely to the title of his warrantee of paramount title based on such incumbrance, is a breach of the covenant of warranty. In equity the title so purchased by him inures wholly to the benefit of the warrantee, and a court of equity will not permit him to assert the same adversely to the title so warranted by him to such warrantee.

Plaintiff conveyed title to real property to defendant by a deed wherein he covenanted that he was “well seised in fee of the lands and premises aforesaid and had good right to sell and convey the same in manner and form aforesaid, that the same are free of incumbrances except a certain mortgage amounting to $400 in favor of W., and the above bargained and granted lands and premises in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against all persons lawfully claiming, or to claim the whole or any part thereof, the said parties of the first part will warrant and defend.” After the delivery of this deed and the payment of the consideration named therein to plaintiff, he purchased from W. the mortgage for $400 mentioned in the covenant against incumbrances and brought action to foreclose the same against defendant and his grantee.

Held, that the mortgage purchased by plaintiff was not excepted from the covenant of warranty contained in the deed or assumed by defendant, and that the purchase of the same by plaintiff inured wholly to the benefit of defendant, and plaintiff would not be permitted to maintain an action to foreclose the same against the land.

Appeal from District Court, Stutsman County; E. T. Burke, Judge.

Mortgage foreclosure by E. Delafield Smith against H. A. Hogue and others. Decree for plaintiff, and defendant Hogue appeals. Reversed, and action dismissed.

John Knauf, for appellant. Harold M. Smith, for respondent.

ELLSWORTH, J.

This appeal arises in an action to foreclose a mortgage given by one Gaub and wife upon certain lands situated in Stutsman county. It appears that on the 15th day of July, 1899, Gaub was the owner of the land in question, and on that day executed to the Winona Savings Bank of Winona, Minn., the mortgage which the action is brought to foreclose. Afterward Gaub conveyed his interest in the land to the plaintiff, Smith, who, with his wife joining, on April 30, 1901, executed and delivered to the defendant Hogue a deed of the premises in question, in which the consideration named is $400. The words of conveyance and of covenant contained in this deed are as follows: We do hereby grant, bargain, sell and convey unto the said party of the second part, his heirs and assigns forever, all that tract or parcel of land [here follows a description of the real property conveyed], to have and to hold the same, together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining, to the said party of the second part, his heirs and assigns, forever. And the said E. Delafield Smith and Annie M. Smith, parties of the first part, for their heirs, executors and administrators, do covenant with the said party of the second part, his heirs and assigns, that they are well seised in fee of the lands and premises aforesaid and have good right to sell and convey the same in manner and form aforesaid, that the same are free from all incumbrances except a certain mortgage amounting to $400 in favor of the Winona Savings Bank of Winona, Minn., and the above bargained and granted lands and premises in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against all persons lawfully claiming or to claim the whole or any part thereof, the said parties of the first part will warrant and defend.” The defendant Hogue paid in full the consideration named in the deed, and upon delivery of the deed took possession of the land, and continued in possession until April 29, 1902, when he entered into a contract of sale with the defendant Schaffer. Under this contract Schaffer took possession of the land, and continued to hold the same until the time of trial. On November 14, 1904, the plaintiff, Smith, obtained from the Winona Savings Bank an assignment of the mortgage executed by Gaub and wife, and thereafter, the same being unpaid when due, instituted this action for its foreclosure. The defendant Hogue made answer, setting out the conveyance to him by the plaintiff Smith and wife and the covenants hereinbefore quoted, contained in the deed, and claims that, the plaintiff having sold him the premises in question for a valuable consideration and under full warranty of title, the purchase by plaintiff of the mortgage sought to be foreclosed inures wholly to the benefit of the defendant, and that plaintiff should not be permitted to assert a paramount title obtained through the foreclosure of this mortgage, against either the defendant Hogue, or his grantee, Schaffer.

There can be no question but that the deed of plaintiff to Hogue contains a full covenant of warranty. The only point presented by this appeal is whether or not the recital, “except a certain mortgage amounting to $400 in favor of the Winona Savings Bank of Winona, Minn.,” contained in the covenant against incumbrances, excepts this mortgage from the warranty. In case it does, there is, of course, nothing to prevent the purchase by plaintiff of this mortgage and the assertion by him of any title obtained through its foreclosure. On the other hand, if this mortgage is not excepted from plaintiff's covenant of warranty, he will not, after warranting the title to this land, be permitted to purchase and assert adversely to his grantee, Hogue, a paramount title obtained in this or in any manner. The covenant against incumbrances and the covenant of warranty containedin the deed of plaintiff to Hogue are separate and...

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15 cases
  • Adam v. McClintock
    • United States
    • United States State Supreme Court of North Dakota
    • 5 Mayo 1911
    ...done in this case, is immaterial, as equity conclusively presumes she completed the title for the benefit of the mortgagee. Smith v. Hogue, 123 N. W. 827;Yerkes v. Hadley, 5 Dak. 324, 40 N. W. 340, 2 L. R. A. 363;Clark v. Baker, 14 Cal. 612, 76 Am. Dec. 449;Gardner v. Wright, 49 Or. 609, 91......
  • McDonald v. Finseth
    • United States
    • United States State Supreme Court of North Dakota
    • 8 Enero 1916
    ......McDonald.” It is true that under the holding of this court in the cases of Smith v. Gaub, 19 N. D. 337, 123 N. W. 827, and Sommers v. Wagner, 21 N. D. 531, 131 N. W. 797, Ernest Engel, the grantee of the Woodburys was not himself ......
  • Born v. Bentley
    • United States
    • Supreme Court of Oklahoma
    • 15 Julio 1952
    ...grantor through the foreclosure of a mortgage will inure to the benefit of the grantee and his assigns. The cases cited are Smith v. Hogue, 19 N.D. 337, 123 N.W. 827; Rooney v. Koenig, 80 Minn. 483, 83 N.W. 399; Tappan v. Huntington, 97 Minn. 31, 106 N.W. In view of the decisions of this co......
  • Merchants National Bank of Fargo, a Corp. v. Miller
    • United States
    • United States State Supreme Court of North Dakota
    • 18 Febrero 1930
    ...... connected covenants generally of the same import and effect. Howell v. Richards, 11 East, 633; Estabrook v. Smith, 6 Gray, 572; Welbon v. Welbon (Mich.) 67. N.W. 338; Rooney v. Koenig (Minn.) 83 N.W. 399;. Weeks v. Grace (Mass.) 80 N.E. 220; Bennett v. ......
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