King v. Kilbride , 58 Conn. 109 ( 1889 )

Andrews, C. J.

These are two actions between the same parties brought on separate mortgages and each claiming a foreclosure and the possession of the same land. It appears that on the first day of June, 1887, the plaintiff owned two tracts of land, one containing ten acres and the other, his homestead, containing one acre. On that day he mortgaged both pieces to Thomas A. Nelson to secure his note for $1,100, payable to said Nelson, or order, on demand, with interest. On the 29th day of the same month he sold and conveyed the ten acre .piece to Wm. B. Kilbride, by a deed in which the covenant against incumbrances and the covenant of warranty were as follows:—“ And that the same is free from all incumbrances whatsoever, except a certain mortgage to Thomas A. Nelson dated June 1st, 1887, for |1,100. And furthermore I, the said grantor, do by these presents bind myself and my heirs forever to warrant and defend the above granted and bargained premises to him the said grantee, his heirs and assigns, against all claims and demands whatsoever.” On the same day Kilbride mortgaged the same land to the plaintiff to secure the sum of .^1,500 by a deed in which the covenants were identical with the covenants in the plaintiff’s deed to him. Kilbride orally agreed to assume and pay the note to Mr. Nelson as a part of the payment for the land. He went into immediate possession of the land so conveyed to him, and on the 15th day of August following conveyed a portion of it to the Fountain Water Company, by a deed containing all the covenants without any exception. All of these deeds were put upon record at once.

It is found that the Water Company had no notice, actual or constructive, of the oral agreement by Kilbride to pay the Nelson mortgage, except so far as the recording of the deeds is such notice. And it is also found that the Water Company took its deed in good faith and paid full value for its land.

The plaintiff has remained ever since the owner and in possession of the homestead. Kilbride proved to be insolvent and left the premises. And the plaintiff on the 27th day of October of the same year, in order to protect his second mortgage interest in the ten acre tract, purchased of Mr. Nelson the note and mortgage which he had previously given to him, and Mr. Nelson thereupon transferred and assigned to the plaintiff, by a proper release deed, all his right, title and interest in the note and mortgage, and the same are now the property of the plaintiff.

The first action is brought by the plaintiff as assignee and holder of his own note to Mr. Nelson, and in the complaint he claims a foreclosure of the ten acre piece, with possession of the same, unless the Water Company or Kilbride shall pay the whole amount due on that note. The defense in this action sets up, among other things, the covenant of warranty contained in the plaintiff’s deed to Kilbride. The reply to the defense is a denial. The judgment apportions the debt between the two pieces of land mortgaged by the plaintiff to Mr. Nelson according to their value, and decrees a foreclosure of the ten acre piece unless the defendants or one of them shall pay the sum of $556.20, and grants execution in ejectment if the money is not paid within the time limited. From this judgment the plaintiff and the Fountain Water Company both appeal. The plaintiff’s reasons of appeal are that the court erred in not requiring the defendant to pay the whole of the Nelson note. The second and third reasons of appeal of the Water Company are in substance that the court erred in holding that the plaintiff was entitled to maintain the suit notwithstanding his covenant of warranty.

It appears from the finding that the plaintiff did make the covenant of warranty as alleged by the defendants and as appears by his deed, portions of which are recited above.

The covenant of warranty is a contract by which the grantor of land undertakes to protect the land granted from all lawful claims and demands existing at the time of the grant, and the contract is made not only with his immediate grantee but rvith whomsoever may become the owner of the land by a title derived through the grantee. Booth v. Starr, 1 Conn., 244; Mitchell v. Warner, 5 Conn., 498; Rawle on Covenants for Title, (4th ed.,) 834; 3 Washburn’s Real Property, (4th ed.,) 466; 2 Sugden on Vendors, (Perkins’s ed.,) 240. It is not necessarily an undertaking that there is no incumbrance on the land at the time, but it is an undertaking that the purchaser and his assigns shall at all times enjoy the land free from all such incumbrances. Williams v. Wetherbee, 1 Aiken, (Vt.,) 233; Rawle on Covenants (4th ed.,) 215; Whitney v. Dinsmore, 6 Cush., 124; Russ v. Steele, 40 Verm., 310.

Of this covenant any act tantamount to an eviction of the grantor would be a breach and subject the grantor to damages. As if the grantee should upon demand yield the possession to one having a better title; Sterling v. Peet, 14 Conn., 245; or surrender to a mortgagee by a prior deed. Hamilton v. Cutts, 4 Mass., 349; Sprague v. Baker, 17 Mass., 586. A judgment in ejectment would clearly be such an act.

The judgment of foreclosure and ejectment requires of the defendants a payment of money to their own grantor, and upon their failure to do so authorizes him to evict them ; that is—todo the very act which he has covenanted with them shall not be done by any one. Such a judgment must be erroneous. And this judgment is erroneous unless there is in the case something by which the plaintiff is relieved from the obligation of his warranty. Is there any such thing ?

So far as the Water Company is concerned the oral agreement by Kilbride to pay the Nelson note may be laid out of the case. It is found that the company had no notice of that agreement except so far as the record of the deed is actual or constructive notice. The record disclosed an express covenant by the plaintiff to protect the defendants in their possession of the land against all claims and demands whatsoever. When there is an express contract in writing respecting any matter there can never be an implied one in addition to it. Brown v. Fales, 139 Mass., 21. Still less can there be any implication contrary to the writing. Burnes v. Scott, 117 U. S. R., 582; Allen v. Rundle, 50 Conn., 9.

It is claimed by the plaintiff that the Nelson mortgage was excepted out of the covenant of warranty in his deed to Kilbride; that the exception-of it from the covenant against incumbrances ought to be construed as an exception of it from the covenant of warranty. This is really an argument the other way. That an exception -was made from one covenant in a deed is an argument that no exception was intended from any other. It shows that the attention of the grantor was called to the matter of making exceptions and that presumably he made all the exceptions he desired to. The principle applicable is found in the maxim that the express mention of one person or thing is the exclusion of others. Besides, these covenants are distinct and have reference to different kinds of liability. A man may not choose to guarantee his title generally, and yet may readily undertake that his grantee shall not be disturbed. 2 Sugden on Vendors, (Perkins’s ed.,) 281; Howell v. Richards, 11 East, 638, 643; Estabrook v. Smith, 6 Gray, 572.

It is further urged that the covenant of warranty in Kilbride’s mortgage deed to the plaintiff operates in some way to prevent the Water Company from taking anything under the plaintiff’s covenant of warranty in his deed to Kilbride. How it has this effect is not shown. The Water Company is not in privity with either of the parties as to that covenant. That is a matter between other persons by which it can neither be harmed nor helped. Certainly the plaintiff cannot be discharged from his covenant to the Water Company because some one else has warranted the same land to him.

The equitable doctrine of notice so strongly urged and apparently so much relied on by the plaintiff seems to us to have no application in the case. It is not a question here of notice, but whether or not the plaintiff shall keep his covenant. It cannot be denied that the Water Company had notice that the Nelson mortgage covered the' ten acre piece of land. It had notice of every thing which appeared on the record. By the same record from which the company derived such notice it learned that the plaintiff had covenanted to warrant and defend that very piece of land from all claims and demands, not excepting the Nelson mortgage. If there was any defect or uncertainty in the notice which the record gave it was because the plaintiff was himself wanting in care in not making his deeds more specific. He is invoking the doctrine of notice. He ought not to expect others to obtain more knowledge from his deeds than he put into them. He certainly cannot take any advantage from his own omissions. He is the one to be bound by the notice given rather than the Water Company by the notice received, if there is any difference; especially as it is more than likely that the Water Company bought its land relying on his warranty and upon his ability as well as on bis willingness to fulfill it.

There is error in the judgment and it is reversed so far as it is against the Fountain Water Company.

In the second suit a foreclosure and the possession of the same ten acre piece is claimed unless the defendants or one of them shall pay the instalments due on Kilbride’s note to the plaintiff and secured by his mortgage deed of the 29th day of June, 1887. The court ascertained the amount due on the note the day judgment was rendered to be 146.44, and decreed a foreclosure unless the same was paid, together with a judgment in ejectment to be enforced on failure of payment at the expiration of the time limited. The Water Company appealed from this judgment on the ground that the indebtedness sought to be secured by the mortgage was not sufficiently described in it.

We think there is no error. The judgment in this case is fully sustained by the reasoning in the very recent case of Winchell v. Coney, 54 Conn., 24, which is applicable to this case; reasoning which we have no need to repeat and no disposition to change.

In this opinion the other judges concurred.

Note.—The point decided in the last paragraph of the opinion will not be understood without a statement of the facts upon which the question of the insufficiency of the description of the mortgage debt in the complaint is made. In the complaint the debt is thus described:—

“ On the 29th day of June, 1887, the defendant, William Kilbride, owed the plaintiff fifteen hundred dollars, as evidenced by his note for fifteen hundred dollars, payable in monthly installments of eighteen dollars each, the first installment being payable August 1st, 1887, and thereafter on the first day of each succeeding month till the entire sum be paid, with interest at six per cent., payable semi-annually, on such sum as should be due ; reserving the right to make any payment on said note, of more-than eighteen dollars, at his option.”

The note was as follows:—

“Seymour, June 29th, 1887.

“On the 1st day of August, 1887, I promise to pay to the order of John King the sum of eighteen dollars, and thereafter the further sum of eighteen dollars on the first day of each succeeding month until the entire sum of fifteen hundred dollars shall have been paid; any fraction of said sum to complete said entire sum of fifteen hundred dollars to be paid together with the last payment, with interest at six per cent, per annum payable semiannually upon such sum as shall be due. The maker of this note hereby reserves the right, which is granted to him by the payee, that he shall have the right to make payments to any extent upon this note at any time and to any amount in excess of said eighteen dollars per month. Yalue received.” (Signed.)