48 Mich. 140 | Mich. | 1882
Johnson sued- HoLensworth upon a covenant contained in a deed of conveyance, which he counted upon as a covenant against encumbrances. The only question which the record presents is, whether the plaintiff was correct in his construction of the covenant.
The deed bears date November 13, 1875. It purports to-convey a certain lot of land in Washington, D. C., “subject to the sum of sixteen hundred dollars, existing as an encumbrance on said lot, and secured by two deeds of trust; ” and it contains the following covenant: “ And the said parties of the first part [Hollensworth and wife] for themselves and for their heirs, executors and administrators do hereby covenant promise and agree to and with the said party of the second part, his heirs and assigns, that they, the said parties of the first part and their heirs shall and will warrant and forever defend the said piece or parcel of ground and premises and appurtenances unto the said party of the second part, his heirs and assigns, from and against the claims of all persons claiming or to claim the same or any part thereof by, from, under or through them or any of them, and against all persons whomsoever and all claims whatsoever except the sum of sixteen hundred dollars hereinbefore assumed by the party of the second part, with the interest thereon.” Following this was a covenant for further assurance.
To show a breach of the covenant the plaintiff gave evidence that the encumbrances by the two deeds of trust exceeded the sum specified by nearly three hundred dollars. He also showed that the whole amount had fallen due, and that he had made ■ payment in full, without awaiting foreclosure or other proceedings for collection. This constituted the plaintiff’s case.
It must be conceded that the covenant is peculiar in form. It is a warranty of title as against the grantors and all persons claiming under them or either of them, and as such would run with the land in subsequent conveyances. If this were all, the existence of an encumbrance would be no breach, though it might result in a breach if it should ■ever be enforced against the land. But we think there is something more here than a warranty of title. There is no fixed or essential form for any covenant; a* covenant is merely a promise under seal, and to ascertain what it is in legal import, we have only to see what the promissor has undertaken for; in other words, what is the legal interpretation of the language in which the promise is expressed. In ordinary deeds of conveyance several covenants are usually contained, and some of these are likely to be such as will run with the land and some not. Each covenant may constitute a separate sentence, but they may all be blended in a single sentence as well, and a single promise may embody the substance of several covenants, and thus constitute an undertaking to protect against existing claims or defects, and also to give assurance for the future. The promise now under consideration is one of this peculiar form. The same promise constitutes a covenant of warranty
The conclusion is that the judgment entered for the plaintiff should be affirmed with costs.