Foster v. Woodward , 141 Mass. 160 ( 1886 )

W. Allen, J.

This is an appeal from the decision of commissioners appointed by the Probate Court on the insolvent estate of John Seekel, deceased, disallowing the claim of the plaintiff, and is submitted on agreed facts.

In 1869, Seekel bought of one Presbrey a piece of land which was subject to a mortgage made by Presbrey to the Bristol County Savings Bank to secure his promissory note for $2500. The- deed from Presbrey to Seekel excepted the mortgage from the covenant against incumbrances, and contained these words: “ which mortgage the aforesaid Seekel assumes and is to pay and save me harmless for the same, that being a part of the aforesaid consideration.” On May 6, 1871, Seekel, by deed of that date, remised, released, and quitclaimed the land to the plaintiff, covenanting that the premises were free from incumbrances made or suffered by him, and that he, his heirs, &c., would warrant the same against the lawful claims and demands of all persons claiming by, through, or under him. This deed, though delivered in 1871, was not recorded until 1880. The mortgage of Presbrey was unpaid and undischarged until 1873, when Seekel gave a mortgage on the land to the Bristol County-Savings Bank, which had no notice of his deed to the plaintiff, to secure his own note for $2500, and the note of Presbrey was then paid and his mortgage discharged. Seekel's note was wholly unpaid, and the mortgage was undischarged, when this appeal was taken. Pending the appeal, the land has been sold under the power in the mortgage for less than sufficient to pay the note.

J. Brown, for the appellant. Cr. E. Williams, for the appellee.

The mortgage given by Seekel in 1873 could not be a breach of the covenant against incumbrances in his deed of 1871. That covenant was against incumbrances existing when it was made, and must have been broken then, if at all. The agreement of Seekel to pay the Presbrey mortgage was with Presbrey alone, and did not make it a mortgage “ made or suffered ” by him, within the meaning of his covenant with the plaintiff.

Giving the mortgage to the Bristol County Savings Bank by Seekel was not a breach of the covenant of warranty in his deed to the plaintiff. It did not constitute an eviction. Whether the entry and sale by the mortgagee worked a breach of that covenant is a question which cannot arise on this appeal. There had been no breach of that covenant when the appeal was brought; and we cannot consider a cause of action, if any there be, which has arisen since.

It is not necessary to consider whether an action of tort would lie upon the facts stated. If there was any such cause of action, it must have arisen when the mortgage was given, on July 25, 1873. Seekel died on January 25, 1880; and the statute of limitations, set up in the answer, in substance, is a defence.

Decision of commissioners affirmed.