78 Ky. 352 | Ky. Ct. App. | 1880
delivered the opinion of the court.
The appellant, P. C. Butt, on the nth of August, 1875, purchased of the appellee, George W. Riffe, two contiguous tracts of land, in the county of Lincoln, for which he paid in hand $4,000, and executed four notes for $2,119. each. A conveyance was made of the land, retaining a lien for the unpaid purchase money, and containing a covenant on the part of the appellee that he would give to the appellant “free and full possession of the land on the first of January, 1876, and warranting the title unto the said Butt, the appellant, against the claims of all persons whatsoever.”'
It is maintained by counsel for the appellee that the existence of the right to a passway over the land sold appellant was a mere encumbrance, and not embraced by a covenant
In the case of Sprague v. Baker (17 Mass.) the words of the covenant are, “to warrant and defend against the lawful claims and demands of all persons.” At the date of the .grant to Hutchings, who was the original grantee, there was ■a mortgage on the land, and the mortgagee claimed the right to enter or the payment of his debt. The vendee of the land, to avoid a suit, paid off the mortgage, and the court iheld there could be no question as to the breach, and although a mortgagee may not maintain an ejectment under the law of this state, still hé can subject the estate to the payment of the mortgaged debt due by the grantor, and thus deprive the grantee of title.
At common law the warranty extended to everything issuing out of the land, such as rents, &c. ; and Woodward,
Judgment reversed, and cause remanded, with directions to overrule the demurrer to the counter-claim, and for further-proceedings not inconsistent with this opinion.