Bowen v. . Beck , 1883 N.Y. LEXIS 398 ( 1883 )

The right of the plaintiff to recover in this action is not controverted, assuming that the clause contained in the conveyance of February 19, 1863, from Philip Murphy to the defendants Beck and Tucker, by which the grantees assumed and agreed to pay the mortgage from Murphy to Jackson on the land conveyed, and to which the conveyance was subject, amounts to a covenant of the grantees to pay the mortgage. Upon that assumption the defense of the statute of limitations, which is the only defense to the action, fails. The sole question therefore is whether the defendants, Beck and Tucker, can be charged as upon a covenant to pay the mortgage. We think this point ought not to be considered an open one in this court.

The question as to the effect of a mortgage assumption clause on the part of a grantee in a conveyance by deed-poll, signed by the grantor only, was considered in Atlantic Dock Co. v.Leavitt (54 N.Y. 35; 13 Am. Rep. 556), and the court by EARL, Commissioner, expressed the opinion that a grantee in such a deed becomes bound, upon acceptance, as covenantor to pay the mortgage. The decision of this point may not have been essential to support the judgment in that case, but the question was carefully considered by the court, and many authorities tending to sustain the conclusion reached, were cited, as well as numerous expressions of judges in the courts of this State, recognizing the doctrine maintained in the opinion.

Under these circumstances we do not feel at liberty to examine the question de novo, even if as an original question we might entertain doubts in respect to it. It is admitted by Mr. Platt, who questions the doctrine, that up to his time it had been accepted without scruple by the profession (Platt on Cov. 11). It has doubtless been acted upon in this State, with at least the apparent sanction of our courts, and it would produce injustice now to reject it and establish a different rule.

We may add in support of the judgment in the case now before us that the conveyance to Beck and Tucker purports to be an indenture which according to its proper signification is a deedinter partes or a mutual deed. It is said in Co. Litt. 231 a, "an indenture is a writing containing a conveyance, bargain, contract, covenants or agreements between two or more." And Sir Henry Finch in his Book on the Law, 109, speaking of the different kinds of deeds, says: "Indenture — that which is the mutual deed of both." The deed in this case was accepted by the grantees as an indenture, and it does not seem to be contrary to principle to hold that for the purpose of the remedy it shall be regarded as an instrument of the character expressed and as the deed of both parties.

The cases in New Jersey accord with the view taken in AtlanticDock Co. v. Leavitt (supra), Finley v. Simpson (2 Zab. 311), Sparkman v. Gove (27 Alb. L.J., 33).

We think the judgment should be affirmed.

All concur.

Judgment affirmed.