Latham v. McCann

2 Neb. 276 | Neb. | 1873

Cbotjnse, J.

The question, whether a defendant in an action brought to foreclose a mortgage given to secure a balance of the purchase-móney for premises, for which he has received a deed with covenants of warranty, can, before eviction, interpose the defence of a want of title in his grantor, was, I think, rightly determined by the Court below.

The transaction between McCann and Bear seems to have been an ordinary sale of land, with no suggestion of fraud, accident, or mistake. Whether McCann bought with reference to the fact he now sets up as affecting the title of Bear or not, we cannot consider. To provide, however, against any disturbance of his possession, he accepted Bear’s covenant of warranty, — the grantor’s assurance that he should enjoy the premises without interruption by virtue of paramount title.

The parties, in this as in every other case, must be bound by the bargain they have chosen to enter into. The grantor might have demanded a covenant of seizin, — the assurance that the grantor had at the time of making his deed the very estate, both as to quantity and quality, that he professed to convey. In such case, a failure of title to the land might be interposed in an action on the mortgage. Rice v. Goddard, 14 Pick., 293; Tallmadge v. Wallace, 25 Wend., 107. So might he have reserved a portion of the pnrchase-money by agreement to await the clearing-np of any suspicion on the title; but he chose, for some reason, to accept a deed with covenants of warranty. He cannot now come forward and say that he will pay his note and 'mortgage upon certain alleged defects being remedied by Bear’s or his assignee’s procurement. To claim this is to ask the Court to make a new contract between the original parties. This we cannot do. With no fraud or mistake appearing, they must be held to that entered into by them. On the one side, the land has been conveyed by deed, with a covenant of the grantor that he will protect his grantee in the undisturbed possession of it: on the other hand, the grantee has promised to pay the sum expressed in the mortgage. The grantor, Bear, has kept the agreement on his part. McCann has neither been evicted ; nor, as appears, has there been any adverse claim asserted whatever. We cannot anticipate that any will be made; nor can we enter upon the uncertain task of inquiring into the validity or invalidity of any alleged adverse claims. It is the duty, therefore, of McCann to pay his obligation, and rely upon the covenant should he ever be molested in the possession of the land conveyed. Platt v. Gilchrist, 3 Sand., N. Y. Superior Ct. R., 118; Leggett v. McCarthy, 3 Ed. Ch., 126 ; Van Waggoner v. McEwen, 1 Gr. Ch. R., 412 ; Noonan v. Lee, 2 Black, U. S., 499; Thomas v. Powell, 2 Cox Ch. Cas., 394; Heath v. Newman, 11 Smedes & Marsh, 201; Wiley v. Fitzpatrick, 3 J. J. Marsh, 584.

The judgment of the Court below must be affirmed.

Judgment affirmed.