157 Mass. 57 | Mass. | 1892
This is a writ of entry to foreclose a mortgage. The case on the agreed facts, so far as it needs to be stated, is this. One Waterman made a first mortgage, and later a second mortgage. The first was foreclosed and the land subsequently
Our decision will turn on the construction of the second mortgage deed. In the granting part of this deed the land is stated to be “conveyed subject to” a certain right of drainage, a certain easement, “ and the mortgage hereinafter named.” The covenants are as follows: “ And I, the said grantor, for myself and my heirs, executors, and administrators, do covenant with the said grantees and their heirs and assigns, that I am lawfully seised in fee simple of the aforegranted premises; that they are free from all encumbrances, except a certain mortgage given by me to the Boston Five Cents Savings Bank, dated March 1, 1872, to secure the sum of forty thousand dollars, the right of drainage and the easement aforesaid ; that I have good right to sell and convey the same to the said grantees, and their heirs and assigns forever, as aforesaid; and that I will, and my heirs, executors, and administrators shall, warrant and defend the same to the said grantees and their heirs and assigns forever, against the lawful claims and demands of all persons, except the right of drainage and the easement aforesaid.”
The arguments on the one side and the other are very evenly balanced. If the granting part of the deed stood as now, and was followed by general covenants with no exceptions, the warranty would be held to be limited to what purported to be conveyed, that is, to the land subject to the mortgage, etc., and would not extend to the mortgage. Brown v. South Boston Savings Bank, 148 Mass. 300, 304. Freeman v. Foster, 55 Maine, 508. Jachson v. Hoffman, 9 Cowen, 271, 273. On the other hand, if the granting part simply described the land, not mentioning the mortgage, and the covenants were in their present form, the warranty would extend to the mortgage, and the demandant would be entitled to prevail. Estabrook v. Smith, 6 Gray, 572.
It is argued in the present case that the words “ the same,”
Judgment for demandant.