25 Or. 305 | Or. | 1894
The alleged errors relied upon by the defendant may be divided into two classes: First, the rulings and instructions of the court treating .the action as being for a breach of warranty and not for deceit; and, second, to the rejection of testimony offered by him. The errors assigned under the first class are: 1. In overruling defendant’s motion for a nonsuit. 2. In refusing to instruct the j ury to find for the defendant. 3. In giving the following instructions: “I have already stated to you that the gist of this action is a covenant of warranty against any incumbrance of the land, and we have to look at it in that point of view. If you believe from the testimony that the consideration of the purchase was nine hundred dollars cash, the eight-hundred-dollar note and mortgage, and one thousand dollars for the release of the mortgage upon the property held by the building and loan association, then the defendant became bound to clear the property of all liens, not included in these three items, viz., nine hundred dollars cash, the eight-hundred-dollar note and mortgage of her own making, and the one thousand dollars to the loan company; and, if he failed to do it, or if the one thousand dollars would not do it at that time, and more had to be paid in order to accomplish it at that time, then the defendant is responsible for the amount required to remove the lien of that mortgage, and free the property from incumbrance, and no more. As to what was due on the day of the execution of this deed to satisfy that mortgage, you will remember what the evidence of the witnesses was, whether it was seventeen hundred dollars and some odd dollars, more or less, whichever it was you will remember; and if you find that the agreement concerning the sale was that one thousand dollars only should be paid to the
There seems' to be no controversy in relation to the amount that plaintiff was to pay in order to discharge the incumbrance. Both parties appear to agree that one thousand dollars was the correct sum, and hence the true consideration is expressed in the deed; but the defendant contends that this sum was not payable until the maturity of the mortgage, unless the stock held as collateral security for the payment of the loan had reached its par value before that time, while the plaintiff contends that she was to have a perfect title to the property free from all incumbrances, upon the payment of the amount agreed upon. The chief question in issue was: When, under the agreement, was this sum payable? No response to the questions propounded to the witnesses Northup and Mackenzie, with the purpose avowed by counsel could have tended to determine this issue, and besides the mortgage would have furnished the best evidence upon this question.
Another reason for rejecting the evidence is that a covenant against incumbrances is broken if the land at the time of the conveyance is subject to an incumbrance not excepted in the deed, which upon its delivery entitles the vendee to nominal damages: Rawle on Covenants, 89. The doctrine is also well settled that if the covenantee has extinguished the incumbrance he is entitled to recover the amount paid for it: Pillsbury v. Mitchell, 5 Wis. 17; Eaton v. Lyman, 30 Wis. 39. As the mortgage to the association was a valid lien upon the premises at the time of the conveyance, not excepted from the operation of the covenant, which plaintiff has discharged, it follows that she is entitled to recover whatever sum she has paid out for that purpose in excess of the amount she had agreed to pay. The judgment of the lower court must be affirmed. Affirmed.