Gennings v. Norton , 35 Me. 308 ( 1853 )

Shepley, C. J.

The plaintiff purchased a tract of land of Samuel Pierce on January 23, 1824, which was subject to a mortgage previously made to James Gower.

The bond upon which this suit has been commenced, was executed on the same day by Pierce and by the defendant, and another person, as his sureties, with a condition providing, that they “ shall clear the property conveyed by said deed from the incumbrance of said mortgage, and save the said Gennings harmless from all damage, cost and injury on account of said mortgage.”

It appears, that the mortgage had been executed on December 25, 1820, to secure the payment of certain notes, the last of which did not become payable before September 15, 1828. Two suits were commenced by Galvin S. Douty, an assignee of that mortgage, on January 28, 1851, to recover possession of the premises. One of these suits was against the plaintiff, and the other against Benjamin and Newman S. Allen, to whom a part of the premises had been conveyed by the plaintiff’, by a deed containing covenants of warranty. This suit upon the bond was commenced on February 4, 1851, before the session of the court, to which those two suits were made returnable.

1. The counsel for the defendant insists, that the bond contains a single covenant only, and that a cause of action accrued thereon more than twenty years before the commencement of this suit, which is barred by the statute of limitations, c. 146, § 11, providing, that all personal actions shall be brought within twenty years after the accruing of the cause of action.

If the bond could be regarded as containing only a single covenant or stipulation, this objection might be fatal. No time being named in the bond when the estate should be cleared from the incumbrance, the law would allow a reasonable time for it after the mortgagee would be obliged to receive payment.

When a reasonable time after Sept. IS, 1828 had elapsed, a right of action would accrue to the obligee ; and more than twenty years had elapsed since that time before the commencement of this suit.

The bond cannot be regarded as containing but one stipulation. The obligors engage not only to clear the property from the incumbrance, but to save the obligee harmless from all damage, cost and injury, on account of it. The obligee might be subjected to cost and injury without having discharged the mortgage, and the obligors might then pay the debt, and extinguish the mortgage, and if the stipulations were regarded as single, the obligee would be without remedy to recover damages for the cost and injury, to which he had been previous!}7 subjected. This could not have been the intention of the parties. There are two distinct clauses, and the language used will not admit the construction insisted upon.

2. It is insisted, that there had been no breach of the covenant to save harmless, when this suit was commenced.

The plaintiff does not prove, that he had paid any thing before that time on account of damages or costs. The only injury, which he appears then to have suffered, arose out of the commencement of the suits to recover the estate from him and from his grantees. He was then liable to be seriously injured thereby, and it would be his duty as a prudent man to take measures immediately to ascertain, whether the incumbrance had been extinguished and to make all needful preparations to defend those suits unless satisfied upon investigation, that no defence could be legally made.

This duty he must be presumed to have performed. He appears to have applied to counsel and to have concluded to have a suit commenced. A liability to injury attended with any inconvenience or damage to the obligee, on account of the neglect of the obligors, will constitute a breach of a bond to save harmless. Lyman v. Lull, 4 N. H. 497. The Court, being authorized by agreement of parties to draw such inferences as a jury might, must conclude that the plaintiff was subjected to loss of time, if not to expense, within a week after two suits had been commenced to take the estate from him and from his grantees after it had been for so long a time quietly enjoyed, and that he was not therefore saved harmless.

3. It is insisted that the plaintiff cannot be entitled to recover for damages, suffered after the commencement of the suit and before the close of the trial. It is admitted, that the decision was otherwise in the case of Gardner v. Niles, 16 Maine, 279; but it is said, that the reason for such a decision under the statute then in force, providing a remedy for the recovery of further damages for other breaches by writ of sci. /«., does not exist under the present statute providing such a remedy by a new suit upon the bond.

Although the remedies are different under the different statutes for the recovery of further damages, for other breaches, there is no material difference in the mode provided for the assessment of damages in an action after proof of a breach of the bond. Under each statute, judgment is to be entered for the penal sum, and execution is to be issued for the amount of damages proved. The damages, for which execution is to be issued, may be composed in part of damages suffered at any time before the conclusion of the trial.

4. As the plaintiff received a release of the covenants, contained in his conveyance to the Allens, it is insisted, that he cannot recover for the amount paid to Ilouty to satisfy his judgment recovered against the Allens. The satisfaction of that judgment extinguished the mortgage, which included the estate of the plaintiff as well as the estate conveyed to the Allens. The estate of the plaintiff continued to be liable to be taken to pay the whole amount due upon the mortgage after judgment had been recovered against the Allens. He might therefore relieve his estate from the incumbrance which it was the duty of the defendant to have extinguished; and he may recover for that amount in this action. But he cannot recover for the costs paid in the suit, Douty against the Allens. Nor for the counsel fees paid in that suit. He was under no obligation to make such payments after he had received a release of the covenants contained in his conveyance to the Allens. Having made voluntary payments to them or for them, they do not constitute a legal claim against the defendant.

He will be entitled to recover the amount paid to extinguish the mortgage; for the counsel fees in the action against himself; the amount paid to witnesses in same action ; the amount paid for taking a deposition in same, and the agreed sum for his personal expenses and time.

Defendant defaulted.