150 Mass. 171 | Mass. | 1889
On May 10, 1888, the defendant was the owner of a piece of land in Rowe, which was subject to two mortgages made by him. On that day he conveyed the land to one Sanders. The covenants in the deed are as follows: “ And I do hereby, for myself and my heirs, executors, and administrators, covenant with the grantee and his heirs and assigns, that I am lawfully seised in fee simple of the granted premises, that they are free from all incumbrances, except two mortgages, one held by Jason C. Rice of Shelburne Falls, Mass., for twelve hundred dollars, and one held by Luther Keyes of Greenfield, Mass., for five hundred dollars, which mortgages said Sanders assumes and agrees to pay; that I have good right to sell and convey the same as aforesaid, and that I will, and my heirs, executors, and administrators shall, warrant and defend the same to the grantee and his heirs and assigns forever against the lawful claims and demands of all persons.”
On April 4, 1889, said Sanders conveyed the premises to the plaintiff by a deed in which he covenanted “ that I am lawfully seised in fee of the aforesaid premises; that they are free of all incumbrances, except two mortgages, one held by Jason C. Rice of Shelburne Falls, Mass., twelve hundred dollars, and one held by one Keyes for five hundred dollars, which mortgages said Lively assumes and agrees to pay.” Afterwards Jason C. Rice, the holder of the first mortgage, demanded payment of his mortgage, and notified the plaintiff that, if it was not paid, he should foreclose the mortgage. The plaintiff neglected to pay the .mortgage, and it was duly foreclosed by sale. He contends that this foreclosure was an eviction, and that he is entitled to recover the value of the land of the defendant under his covenant of warranty in the deed to Sanders.
It was the duty of the plaintiff to pay the Rice mortgage; he now seeks to found upon his own violation of duty a claim against the defendant. The rules of law do not lead to any such unjust and absurd result. Taking the whole deed together,
The case at bar differs from the case of Hstabrooh v. Smith, 6 Gray, 572, in the fact that in the deed in that case there was no provision that the grantee should assume and pay the mortgage, and the court did not find evidence of a clear intention that the grantee should take the premises subject to the mortgage. This difference, is vital, as the existence of such a provision in the case at bar shows clearly that it was the intention of the parties that the grantee should pay the mortgages, and that the grantor was not to be called upon to warrant or indemnify the grantee against them.
Judgment for the defendant affirmed.