Jarvis v. Deane , 56 Me. 9 ( 1868 )

Dankorth, J.

The plaintiff’s title to the premises claimed in his writ is founded upon a mortgage from the defendant to himself, dated Nov. 7, 1849, containing the usual covenants of warranty, with a foreclosure of that mortgage, which seems to have been in strict conformity to the statute and duly recorded. •

This entitles the plaintiff to recover unless the defendant can show a better title in himself. This he undertakes to do by producing a lease from Charles Albro, executed by an attorney, and dated July 4, 1865, and a mortgage from himself to Cyrus Lothrop, dated March 4, 1844, of which Al-bro claims to be the owner. The tenant does not disclaim any title to the premises and l’ely upon that of another, but claims title in himself by virtue of his lease. This, bearing date subsequent to the plaintiff’s mortgage, is not of itself sufficient, nor can it derive any vitality from the mortgage to Lothrop, for the tenant having, in his deed to the plaintiff, not only covenanted that no such incumbrance upon the land existed, but that he would " warrant and defend the same to the said Jarvis * * against the lawful claims and demands of all persons,” is now, by a familiar principle of law, estopped by his covenants from setting up that deed. Hence, his title fails and there must be an unconditional

Judgment for the plaintiff.

Appleton. C. J., Cutting, Kent, Walton, Dickerson and Barrojvs, JJ., concurred.