Tibbetts v. Leeson

• Decision Date: 28 November 1888
• Citation: 18 N.E. 679,148 Mass. 102
• Parties: TIBBETTS v. LEESON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 102

18 N.E. 679

TIBBETTS v. LEESON.

Supreme Judicial Court of Massachusetts, Essex.

November 28, 1888

COUNSEL

Caleb Lamson, for plaintiff.

Niles & Carr, for defendant.

OPINION

DEVENS J.

The covenant against incumbrances in an ordinary deed of conveyance extends to all adverse claims or liens on the estate conveyed, whereby the same may be defeated, wholly or in part, whether the claims be uncertain, contingent, or otherwise. Shearer v. Ranger, 22 Pick. 447. At the time the deed to the plaintiff was made there were on record four tax deeds of the premises to other persons, but the plaintiff did not claim that any valid title had passed by either of them. They did not, therefore, constitute any incumbrance upon the plaintiff's estate when he brought his action. His estate could in no way be defeated or diminished by their existence on the record. Pub.St. c. 126 § 18, provides that: "Whoever conveys real estate, by deed or mortgage, containing a covenant that it is free from all incumbrances, when an incumbrance appears of record to exist thereon, whether known or unknown to him shall be liable, in an action of contract, to the grantee his heirs, executors, administrators, successors, or assigns for damages sustained in removing the same." Subsequent to the commencement of the action, the plaintiff made certain expenditures in removing these apparent incumbrances from the record, by obtaining releases, recording them, etc. Although the plaintiff had made no such expenditure at the time of bringing her action, she contends that she was then entitled to nominal damages; and at the time of the trial was entitled, in addition, to the expenses which she had then actually incurred. This claim cannot be maintained. The statute was not intended to declare that to be an incumbrance which was not so, according to legal definition; but in view of the embarrassment arising from titles appearing by the record, yet having no actual existence in fact, parties actually removing the same, who had received a deed containing a covenant against incumbrances, were unable to obtain the damages sustained thereby. What effect, if any, the section may have as to the rule of the common law that an action on the covenant cannot be brought by the heir or assignee of the covenantee, in case there was in fact an incumbrance also on record, we have no occasion now to consider. Clark v. Swift, 3 Metc. 390; Croc...