Watts v. Welman, 2 N.H. 458

Watts v. Welman

2 N.H. 458 | Superior Court of New Hampshire | 1822

Richardson, C. J.

The plaintiff alleges, that the defendant conveyed to him a tract of land, and covenanted with him that it was free of all incumbrances ; and he assigns as breach of the covenant, that the land was under a mortgage to one S. Jones. The defendant admits that he made the covenant, and that the land was under a mortgage to Jones ; but he says that the plaintiff ought not to maintain this action, because the land, which lie the defendant conveyed to the plaintiff, was conveyed in consideration of an agreement on the part of the plaintiff to pay or cause to be paid the money due on the said mortgage. To this the plaintiff detours, and the question is, whether Jones’ mortgage is as between these parties, and under the circumstances of ihe case tobe considered as an incumbrance upon the land. *460within the meaning of the defendant’s covenant at the tí mi of the conveyance? It seems to us very clear, that it is not to be so considered. The moment the land was conveyed by the defendant to the plaintiff, the debt due to Jones became the debt of the plaintiff, and ought as between him and the defendant to be considered as paid, and as no longer an incumbrance upon the land. The case is in principle the same as if the defendant had conveyed the same parcel to Jones with a similar covenant, in satisfaction of Jones'1 debt, ant] Jones had brought an action on the covenant, and set out his mortgage as a breach of it. In the case of Fitch vs. Baldwin,(1) the court say, “ it never can be permitted to a “ person to accept a deed with covenants of seisin, and then a turn round upon his grantor and allege that his covenant “ is broken, for that at the time he accepted the deed, he “ himself was seized of the premises.” And we are of opinion, that the plaintiff in this case can never be permitted to assign as a breach of the defendant’s covenant, a mortgage which he himself, for an adequate consideration, had undertaken to discharge.

(1) 17 John.

Judgment for the defendant.