Shanahan v. Perry

| Mass. | Feb 28, 1881

Gray, C. J.

This is an action of contract upon the covenant against incumbrances in a deed from the defendant to the plaintiff, dated June 3, 1879, which describes the granted premises by metes and bounds, and as being the premises conveyed to the grantor by deed from Mary E. Schofield dated June 7, 1877: ~ and contains, after the description of the premises, this clause: “ This conveyance is made subject to a mortgage deed of thirty five hundred dollars from said Mary E. Schofield to Seth Clarke of Salisbury, recorded with Middlesex Deeds South District, lib. 1423, fol. 84;” and a covenant that the premises “are free from all incumbrances except as aforesaid.” After the execution and recording of this conveyance, the mortgagee therein named demanded and obtained of the plaintiff the sum of two hundred and forty-five dollars for interest (apparently one year’s interest at the rate of seven per cent) which had accrued upon the mortgage before the date of the conveyance.

J. R. Murphy, for the plaintiff. T. Weston, Jr., for the defendant.

Upon these facts, the plaintiff contended that the defendant's covenant was against all incumbrances in excess of thirty-five hundred dollars; but the Superior Court ruled otherwise, and in our opinion rightly. The mention in the defendant’s deed to the plaintiff of an existing mortgage of a certain amount from a certain mortgagor to a certain mortgagee, recorded in a certain book and page in the registry, is only by way of description and identification of that mortgage, which, to the extent of all sums due thereon for principal or interest, is a single incumbrance; and that incumbrance is excepted out of the defendant’s covenant.

Judgment affirmed.