Philips v. Smith , 2 Daly 292 ( 1867 )

By the Court.—Vah Vorst, J.

The obligation relied on by the plaintiff, as the foundation for a recovery, is not an absolute promise on the part of the obligors to pay and .discharge the judgment in question. There is no absolute promise, even for its removal from the record.

If such had been the character of the undertaking, the defendants might well have been held liable in an action for the amount of the judgment, if the same had not been paid, discharged, or removed by the day named.

But the undertaking in question is of the nature of an obligation to indemnify against damage which the grantee of the premises might sustain, by force of “ the lien ” of the judgment. If there was no lien, there could be no damage.

The obligation assumed by the signors of this instrument is truly conditioned only.

They undertake that the property shall be released from “ the lien of the judgment ” on or before the 15th day of August, 1863.

Ii is quite clear that, if the judgment was not a lien on the property at the time of the conveyance to the plaintiff, then there was no incumbrance to be removed, and no damage could have occurred, or can happen, to the grantee of the premises by reason of the judgment, and no liability could arise under the bond.

The bond in question, by its terms, is no broader than the covenants of warranty in the deed.

No recovery could be had against the covenanters in the deed, unless the judgment was proved to be a lien on the premises, in which event damage would be presumed to follow.

The bond in question was, doubtless, exacted by the grantee as further security for the performance of the covenants in the deed, one of the grantors being a married woman.

In order to have entitled the plaintiff to recover in this action, he should have established, by affirmative proof, that Sparks, the judgment debtor, was seized of the premises, or of some part thereof, at the time of the docketing of the judgment, or subsequent thereto ; or, in other words, that the judgment was a lien on the property at the time of the conveyance thereof to the plaintiff.

This he failed to do, and the complaint was properly dismissed.

Judgment affirmed.