Frank v. Cobban

20 Mont. 168 | Mont. | 1897

Hunt, J.

The convenant of the defendants, who conveyed the premises to plaintiff, was broken by reason of the fact that at the time of the deed the premises were not free, clear, discharged, and unincumbered of and and from all charges, taxes, assessments, and incumbrances, as agreed by the terms of the deed to plaintiff. This is indisputable. But plaintiff, after the delivery to him of the deed, and upon the same day, executed the mortgage to defendants, wherein he expressly covenanted, promised, and agreed to and with defendants to pay and discharge at maturity all such taxes or assessments, liens, or other incumbrances then subsisting or thereafter to be laid or imposed upon the premises granted, or which might be, in effect, a prior charge upon them to the? mortgage.

The answer avers that this express covenant, agreement, and promise in the mortgage on plaintiff’s part was made in consideration of the payment to plaintiff of the amount described in the mortgage and certain notes.

The allegations of the answer being stipulated to be the truth, we find that the plaintiff, by the terms of the mortgage, agreed to do that which respondents, by their prior contract, were bound to do. The provision of the deed is, therefore, inconsistent with the terms of the mortgage in respect to the payment of the taxes in question. In such cases the terms of the later contract wilt be deemed- impliedly to discharge the terms of the prior one inconsistent with the new. So, in this case, there being no fraud or mistake pleaded, as the latest expression of the agreement of the parties, the covenant by plaintiff to pay taxes then subsisting must be held to supersede the original covenant of the defendants in the-deed in respect to the payment by them of such taxes. (Clark, Cont. page 612; Chrisman v. Hodges, 75 Mo. 413; Paul v. Meservey, 58 Me. 419.)

When plaintiff executed the mortgage and its covenants, he waived any right of action accruing to him from a breach of the promise to pay the taxes made to him by the defendants-in his deed, and he is in no position to ask for reimbursement of sums due on assessments for the taxes which subsisted when he executed the mortgage wherein he deliberately agreed to pay the same.

Appellant makes the point that a release or contract made to supersede a contract, if relied on as a defense, must be specially pleaded. Defendants have, however, set forth the mortgage contract as part of their answer, and insert in the body thereof the covenant and agreement to pay the taxes, and allege that such payment was made under the obligation imposed by the provision of the mortgage quoted in the answer. This, we think, was sufficient to enable defendants to avail themselves of the defense of a release. Finding no error in the record, the judgment must be affirmed.

Affirmed.

Pemberton, C. J., and Buck, J., concur.