10 Watts 413 | Pa. | 1840
The opinion of the court was delivered by
The terms of the covenant, on the part of the plaintiffs below, being “ to make and execute to the defendant, his heirs and assigns, a good and sufficient deed for the said piece of ground in fee simple, with general warranty, of a clear title, and free from all incumbrances,” cannot be satisfied merely by the execution and tender of a deed of conveyance containing a covenant to that effect, when a defect in the title or an incumbrance on the estate appears or is shown to exist; because, from the language of the covenant, it is manifest that it was the intention of the parties at the time, that the title to the estate and the estate itself, should be free from all objection or defect and incumbrances at the time of the deed’s being executed. The insertion, however, of such a covenant in the deed, would doubtless be requisite for the purpose
Then what is the title which the plaintiffs below have shown for the ground sold by them to the defendant? They, as it appears, are invested with the title, or right which Theodosia Woods had to it; but she had no claim, excepting what she had acquired under the conveyance from James Ross, Henry Woods, and John M’Donald, Esqrs.; because they could only convey what they had at the time; and it is perfectly clear, that at the time they conveyed to Mrs Woods, they had no interest or authority whatever in or over the ground, excepting what was vested in them by the mortgage, which they had taken of Samuel Thompson; for, under the authority given to them by the will of their testator, they had by their deed of conveyance divested themselves of all their right and authority so acquired, and thereby invested Samuel Thompson with the fee simple estate in the ground, which remained in him, so far as it was not affected by the mortgage. The mortgage, however, in lato, merely stripped Thompson of the legal title; but in equity, it being considered a security simply for the payment of the debt mentioned in it, he still continued'to be the owner of the ground in fee; and the judgment of Gano, as soon as obtained, became a lien upon it as such, subject, however, to the prior lien created by the mortgage.
Judgment reversed, and judgment for the defendant.