Smith v. Cannell , 32 Me. 123 ( 1850 )

Tenney, J.

An absolute deed and a mortgage of the same land given at the same time by the grantee to the grantor, to secure the consideration, are regarded as one transaction ; but the law will adjudge priority of operation, for otherwise the tendency would be to defeat, railer than to carry into effect, the intention of the parties. Hubbard v. Norton, 10 Conn. 422. When both such deeds contain covenants of warranty, the covenants are not considered to be mutually acted upon, each by the other, and their operation thereby destroyed ; those in the mortgage do not estop the party claiming to recover upon those in the absolute deed. Ibid. Brown v. Staples, 28 Maine, 497.

The grantor in the absolute deed has sold the land ; the mortgagee has pledged it only, for the security of the purchase money. By the sale the grantor received a consideration, and is bound by his covenants to indemnify the grantee for all defects in the title, and for incumbrances existing at the time of the conveyance.

As between these parties, the purchaser really pledges nothing but the interest, which he obtained under the deed to him, and is answerable to him for no imperfection in the title, existing before the conveyance. Haynes v. Stevens, 11 N. H. 28.

If the mortgage is redeemed, it has discharged its office as security, and ceases to be operative. If it is foreclosed, the title, which passed by the absolute deed, is restored to the grant- or, or those who claim under him. And the one having the mortgagee’s right after foreclosure of the mortgage, cannot be allowed to recover damages for a breach of the covenant therein, made by the mortgagee, or existing at the time of his conveyance ; for the effect of such recovery would be, to obtain all that he parted with in the conveyance, and the value of the incumbrance, which he is relieved from removing by the foreclosure. Such consequences would be unjust.

An inchoate right of dower is an existing incumbrance on the land, within the meaning of the covenant against incumbrances. Porter v. Noyes, 2 Greenl. 22; Shearer v. Ranger, 22 Pick. 447.

At the time Bartlett sold and conveyed to the defendant, Frances S. Bartlett being then his wife, the covenant in that deed against incumbrances was broken, and in an action therefor, it would have been no defence, that the defendant had given a mortgage to Bartlett at the same time with a similar covenant.

The plaintiffs claiming under an assignment of that mortgage, and several mesne conveyances, they can trace their supposed right to recover in this action only through that assignment. Each person, while he held the interest of the mortgagee, could equally with the plaintiffs maintain the action for the breach of this covenant. If any one, so holding the interest, had released the covenant, no subsequent grantee could make the breach thereof available. And if for other reasons, any one in the chain of title under the mortgage is precluded from maintaining an action for the same cause, his grantee could acquire no right superior to that, of him from whom he derived his title. The mortgagee having no ground of action for the breach, which he had covenanted against, could not impart to any one a right, which he did not possess.

Neither the insolvency of Bartlett’s estate, which would render a claim against it of little or no value ; nor the lapse of time, which might prevent its allowance, can have the effect to take away the defence, which was once open.

Plaintiffs nonsuit.