Stanard v. Eldridge , 16 Johns. 254 ( 1819 )

Spencer, Ch. J. delivered the opinion of the Court.

la Sedgwick v. Hollenback, (7 Johns. Rep. 380.) the Court tie» c^ed that a mortgagor is considered as seised, until a foreclosure of the equity of redemption, if possession be not delivered to the mortgagee. In the case of Runyan v. Mersereau, (11 Johns. Rep. 538.) we went the whole length of deciding that mortgages are to be regarded as mere securities for money, and that the freehold continues in the mortgagor.

In the present case, however, the covenant is not only that the defendant was seised of an absolute and indefeasible estate of inheritance, but it is superadded, that he is so seised, “ without any manner of condition to alter, change, determine, or defeat the same.” In this respect, the covenant is broken by the existence of the mortgage upon the premises. In effect and substance, it is a covenant against incumbrances : The case of Delavergne v. Norris, (7 Johns. Rep. 358.) is, therefore, applicable. We there held, that in a suit upon covenants against incumbrances, unless the covenantee had extinguished them, as he well might for his own security, and if they were still outstanding, the damages were but nominal; for that there ought not to be a recovery of the amount of an incumbrance on a. contingency, when the covenantee might, perhaps, never be disturbed by it. It is supposed that this principle is not applicable here, for it is stated in the case, that no bond was given; still the mortgagor might be sued on the covenant to pay the money, which is imported in every mortgage. We ought not to refine on this salutary principle, that before there can be a recovery on a covenant against incumbrances, the covenantor must pay and satisfy them.

Judgment for the plaintiff, for six cents damages only.