39 Mass. 447 | Mass. | 1840
drew up the opinion of the Court. The only question presented by the statement of facts in this case is, whether an inchoate or contingent right of dower is an existing incumbrance, amounting to a breach of a covenant against incumbrances. We had thought that this question had been settled affirmatively ; but as a doubt was suggested by Story J., in the case of Powell v. Monson, &c. 3 Mason, 355, we have taken time to look into the authorities on this point.
The case of Wood v. Stratton was cited by the plaintiff’s counsel, in which it was said this question had been decided affirmatively by this Court. That case was not reported; but we have examined the pleadings in the case, and we find that the question was raised and so decided. The question has been decided in the same way in New York and in Maine. Such was the decision in Jones v. Gardiner, 10 Johns. R. 266, and in Porter v. Noyes, 2 Greenl. 27. In the latter case the question was argued by able counsel; and it was objected then, as it has been in this case, that an inchoate right of dower is a mere possibility of incumbrance, too remote and uncertain to be regarded by the law. The objection was overruled, and, as we think, according to the true meaning of the covenant against incumbrances. That covenant ought to be liberally construed, so as to extend to all claims and liens, whether contingent or not. In Prescott v. Trueman, 4 Mass. R. 627, "t was held, that a paramount right is an incumbrance, although perhaps it might never be enforced against the grantee. And it is remarked by Parsons C. J., in delivering the opinion of
This reasoning is applicable to all incumbrances depending on a future contingency ; and it is founded on the principle, that the usual covenant, in deeds of conveyance, against incumbrances, extends to all adverse claims and liens on the estate conveyed, whereby the same may be defeated, wholly or in part, whether the claims or liens be uncertain and contingent or otherwise. The beneficial interest which a mortgagee has- in an estate mortgaged, for the purpose of securing him against future liabilities, or for future advances, is uncertain and contingent, but such a mortgage is undoubtedly an incumbrance. And so is an attachment, although depending on many contingencies. It has been argued, that an attachment is not an incumbrance, within the meaning of the covenant against incumbrances ; and the case of Barnard v. Fisher, is relied on as establishing this principle. But that case only decides, that where there are two attachments on real estate, and the second attaching creditor extends his execution on the estate before judgment is rendered in the suit wherein the previous attachment had been made, the appraisers would ,not be authorized to deduct from the appraised value of the land, the supposed amount of he incumbrance from the previous attachment. The proper course in such a case is, for the second attaching creditor to continue his action until the suit, on which the prior attachment was made, is concluded. And that would be the proper course to pursue, if an action were brought for the breach of a covenant against an incumbrance, by an attachment of the estate conveyed before the conveyance. But there is no necessity of any ■such delay as to other incumbrances, especially where the plaintiff is only entitled to nominal damages. The only question therefore in this case is, whether an inchoate right of dower is an incumbrance, and we have no doubt, for the reasons given, and on authority, that it is.
Judgment for the plaintiff.
