Mayo v. Babcock

40 Me. 142 | Me. | 1855

Rice, J.

The case comes before us on a demurrer to the declaration. In the defendants’ argument several objections have been urged against the competency of the plaintiff to maintain this action. Whether the defendants can avail themselves of these objections on general demurrer, may admit of doubt. Upon that point, however, we now give no opinion.

The plaintiff’s intestate claimed title to the premises by virtue of a quitclaim dbed from the defendants, in which is found the following covenantSo that neither the grantors, nor their heirs, or any other person, or persons, claim* ing from or tinder them, or in their name, right, or stead of them, shall or will, by any way or means, have, claim, or demand any right or title to the aforesaid premises, or their appurtenances, or to any part or. parcel thereof forever.”

This deed contains no covenants of seizin, of good right to convey, of freedom from incumbrances, nor of general warranty, but simply a covenant'of non-claim.

The covenant of non-claim asserts nothing respecting the past or the present. It is only an engagement respecting future conduct. Pike v. Galvin, 29 Maine, 183.

The breach set out in the plaintiff’s declaration is, “ that at the time of making and executing said deed, the said tenements were not free from all incumbrances and claims, from and under them, the said defendants, but that a portion of the said premises had, prior to that date, been sold and conveyed to William and Jeremiah Colburn, for the non-payment of taxes assessed on a portion of said property, amounting, when the plaintiff paid the same, on the 10th of February, 1853, to the sum of twenty-four dollars and fifty-six cents; also the plaintiff was compelled to .pay, and did pay, to the treasurer of the town of Orono, to redéern another portion of said property from the taxes and interest, and expenses on aoGount of the same, on the 20th day of July, 1853, the further sum of forty-three dollars and seventy-three cents; each of said several taxes having been assessed upon said property prior to the date of the deed aforesaid, and were and remained unpaid, and a claim and incumbrance apon said property when said property belonged to the defendants.”

The defendants only covenant against claims .arisiug from or under them. Incumbrances upon the estate, which did' not thus originate, are not within the terms of their covenants.

The plaintiff alleges, that the taxes which he has-been compelled to pay, were assessed upon the premises prior to the date of the defendants’ deed; but how long prior, or whether the premises were owned by the defendants at the time when the taxes were assessed which the plaintiff has paid, does not appear. It therefore does not appear that this claim or demand for taxes, originated from, by, or under the defendants. The declaration must therefore be adjudged bad, on demurrer.