Durham v. Alden , 20 Me. 228 ( 1841 )

The opinion of the Court was delivered by

Shepley J.

It appears from the agreed statement, that the demandant as mortgagee in fee held the title to seven eighths, and had an indefeasible title to the other eighth, of a tract of land, of which the demanded premises were a part. And that he united with his mortgagor in a deed conveying the premises to Daniel Merrill, from whom the tenants derive their title. By this deed the demandant conveyed one eighth and his mortgagor seven eighths with warranty. Admitting the covenants to be several and not joint, the effect of this transaction is, that the demandant knowingly becomes a party to the most solemn assurance made by his mortgagor under his hand and seal, that the seven eighths “ are free of all incumbrances” and that “ he has good right to sell and convey the same.” And he does this, whthe he held a mortgage covering the premises, on which was then due more than double the amount of the purchase money, without causing any exception of his own title to be introduced ; and without giving any information to the purchaser, that he claimed any title, or that the grantor’s title was defective. Under such circumstances he is as much bound by the declarations of his mortgagor as if they were his own. It would be a fraud upon the purchaser to permit him now to disturb that title. Wendell v. VanRensellaer, 1 John. Ch. 344; Storrs v. Barker, 6 id. 166; l Story’s Eq. 376; Hatch v. Kimball, 16 Maine R. 146. It would be no legal excuse, if done through ignorance or inattention, for it is more just, that he should be the loser under such circumstances than that the innocent and faultless purchaser should.

Judgment for the tenants.