Toney v. DeweyToney v. Dewey
For and in consideration of a recited consideration of $1,250 in hand paid to appellee, she sold and' conveyed to appellant certain realty in the city of Birmingham. Immediately aftеr the granting clause and the description of the property there followed in the deеd this language:
“This conveyance is made subject to a mortgage amounting to five thousand and no/100 dollars to the Mortgage Bond Company of New York; mortgage situated, lying, and being in the cоunty of Jefferson, state of Alabama.”
And then the habendum as follows:
“To have and to hold to the said Mrs. Arlie L. Toney, heirs and assigns forever, and we do for our heirs, executors, and administrators, covenant with the said Mrs. Arlie L. Toney, her heirs and assigns, that we are lawfully seised in fee simple of said premises; that they are free from all incumbrances except above-mentioned mortgage, and that we have a good right to sell and c.onvey the same as aforesaid; that we will, and our heirs, executors, and administrators shall, warrant and defend the same to said Mrs. Arlie L. Toney, her heirs, exeсutors, and assigns, forever, against the lawful claims of all persons.”
To prevent a foreсlosure appellant had found it necessary to make payments on the mortgage debt held by the Mortgage Bond Company of New York.
Appellant filed her bill in this cause upon the thеory that appellee’s covenant of warranty was not limited, qualified, or affected in any way whatsoever by the language of her deed quoted- first above. Appellant’s theоry cannot be maintained.
“While covenants may be, and often are, distinct from each оther, and made for different objects, all are necessarily connected with the granting portion of the deed and with the description of the premises there given, and must be apрlied to that. The words ‘subject to a mortgage of $10,000 to the South Boston Savings Bank, and another mоrtgage of $1,500,’ are not added to the description of the land in the granting part to identify it, but to qualify the estate granted; and to that description, as thus qualified, the warranty applies. It reсeives its full force when applied to the subject of the grant, and that must be held to have bеen an *534 equity of redemption; otherwise the qualifying words are treated as without force.” Brоwn v. South Boston Savings Bank,148 Mass. 300 ,19 N. E. 382 .
In Brown v. South Boston Savings Bank, supra, the Supreme Judicial Court of Massachusetts held the case of Estabrook v. Smith,
“It was there hеld that a covenant against all incumbrances in a deed of land except a cеrtain mortgage to a third person, followed by a general covenant of warranty, did not еxcept the mortgage from the covenant of warranty, and this upon the ground that the two covenants were not connected covenants, of the same import and directed to one and the same object.”
And in Freeman v. Foster,
“The question in that case,” referring to Estabrook v. Smith, “was hоw far words of restriction or qualification, annexed to one covenant in a deed conveying real estate, are to be extended to other covenants. It was held that the covenant for quiet enjoyment is of materially different import and directed to a distinct object from tie covenant for title, and therefore the qualifying language annexed to thаt covenant could not be transferred to and qualify the general covenant for title.”
Othеr cases cited by appellant have been examined without finding that they hold anything different frоm the rule of Brown v. South Boston Savings Bank, supra, which is supported by numerous authorities, and, as it appears to us, the clear weight of reason.
The corner stone of appellant’s case having been thus rejected, it follows that the circuit court committed no error in dismissing her bill.
Affirmed.