| Mich. | Nov 14, 1890
The plaintiff traded a house and lot in the city of Lansing, heavily mortgaged, for a farm in Wheatffeld township, also largely incumbered, and which mortgage was then in process of foreclosure. The deed of defendants conveying the farm was, in form, a usual warranty deed. The covenant" against incumbrances is full and without limitation against <fall incumbrances whatever;” but, in the covenant to warrant and defend against lawful claims, the mortgage then being foreclosed is mentioned and excepted.
At the time the trade was made, one Bellinger was in possession of the farm under a verbal agreement with defendants. The plaintiff claimed that, when she • received the warranty deed of the defendants, Albert Clark told her that Bellinger had no right to stay upon the premises any longer than until such time as defendants should make a sale of the farm; that the agreement between him and defendants was that his lease should terminate as soon as a sale of the premises was made. Defendants claimed that they informed plaintiff that Bellinger was obliged to leave, under the terms of his lease, as soon as a sale was made and his interest in the crops was purchased; if such interest was not purchased, then he would be entitled to remain and harvest them. Upon this conflict of claims, the jury found with the plaintiff.
The exchange of property took place May 9, 1889. Notice was given Bellinger May 10, 1889, and possession demanded, but he refused to leave the premises, and remained upon them until he harvested his crops in the fall. In proceedings taken by plaintiff to recover possession from Bellinger before a circuit court commissioner the decision was against ■ plaintiff, June 22, 1889. June
This instruction is assigned as error. The position of the defendants in support of the judgment is that the plaintiff, by accepting the deed with Bellinger upon the premises, acquired all the rights as landlord that defendants had, and assumed all the responsibilities; that where land is conveyed in the possession of another, and the rent passes to the grantee as an incident of the reversion, it would seem impossible to call such a lease an incumbrance. Counsel cite, to sustain this position, Rawle, Cov. § 78; Lindley v. Dakin, 13 Ind. 388" court="Ind." date_filed="1859-11-15" href="https://app.midpage.ai/document/lindley-v-dakin-7034433?utm_source=webapp" opinion_id="7034433">13 Ind. 388; Page v. Lashley, 15 Id. 152; Kelluin v. Insurance Co., 101 Id.
In this case, if parol proof was admissible to vary or rebut the covenant in the deed, still .the circuit judge was wrong in his instructions to the jury, because the plaintiff, under her theory, was informed that Bellinger had no right to occupy the premises for a moment after notice of the sale, and she never recognized any right in Bellinger to remain on the premises, and never accepted him as her tenant. But in this State no parol proof is admissible in an action upon covenants to show that an existing incumbrance was to be regarded in fact as no incumbrance. “It is as usual, and certainly as competent, to covenant against known as unknown incumbrances or defects of title;'' and, with a covenant of this kind, the purchaser is not called upon for the exercise of any diligence. Smith v. Lloyd, 29 Mich. 382" court="Mich." date_filed="1874-07-08" href="https://app.midpage.ai/document/smith-v-lloyd-7927765?utm_source=webapp" opinion_id="7927765">29 Mich. 382, 389. And it is said that the fact of the purchaser having notice of an incumbrance is the very
The judgment is reversed, with costs, and a new trial granted.