Welbon v. Welbon

• Decision Date: 19 May 1896
• Court: Michigan Supreme Court
• Parties: WELBON v. WELBON ET AL.

67 N.W. 338

109 Mich. 356

WELBON v. WELBON ET AL.

Supreme Court of Michigan

May 19, 1896

Appeal from circuit court, Washtenaw county, in chancery; Edward D. Kirne, Judge.

Bill by Isaac Welbon against Mary Jane Welbon and others to foreclose a mortgage. There was a decree for complainant and defendants appeal. Reversed.

John H. Powell, for appellants.

John P. Kirk, for appellee.

GRANT, J. (after stating the facts).

The decree, we think, cannot be sustained for several reasons:

1. The defendants were not personally liable for the debt secured by the mortgage. It was therefore erroneous to enter a decree against them for any deficiency. Complainant alone was personally liable for the debt, and had paid it.

2. In the deed to his children complainant reserved a life estate in himself. It was his legal obligation to pay the interest upon the mortgage during the existence of the life estate. The decree was erroneous in including interest.

3. The deed contains the following covenant: "The said party of the first part, for himself, his heirs, executors, and administrators, does covenant, grant, bargain, and agree to and with the said parties of the second part, their heirs and assigns, that at the time of the ensealing and delivering of these presents he is well seised of the above-granted premises in fee simple; that they are free from all incumbrances whatsoever, except a certain mortgage given by him to Joseph M. Thompson, dated October 18, 1883; and that he will, and that his heirs, executors, and administrators shall, warrant and defend the same against all lawful claims whatsoever." The covenant of warranty contains no exception, and the previous mention of the existence of this incumbrance does not take it out of his covenant of warranty to defend the title against all lawful claims whatsoever. In other words, there is no limitation placed upon this covenant. Manufacturing Co. v. Zellmer (Minn.) 51 N.W. 379. The decree must be reversed, with costs of both courts, and the bill dismissed.

LONG, C.J., did not sit. The other justices concurred.