[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 294
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 295
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 296 We think the judgment should be modified so as to limit the warranty in the deed directed to be executed by the defendant, to a warranty against his own acts. The redemption lease was a part of the transaction between Mr. and Mrs. Elliott and the defendant. By its terms the defendant agreed in substance to convey the land to John S. Elliott *Page 297 upon his paying to the defendant the sum loaned with interest, at any time within two years after the execution of the lease, by a "good warranty deed and in fee simple." But the deed executed by the wife being in law a mortgage, her title to the land was not divested thereby, and it would be inequitable to compel the defendant, in an action to which the wife is not a party, to convey the land to the husband by deed of general warranty. The substance of the agreement between the defendant and John S. Elliott was an undertaking on the part of the defendant to convey his mortgage interest to the husband by deed purporting to convey the land on his paying the amount for which he held the land as security. The scope of the warranty to be given should be limited as above stated, and the transaction was, as is found and as is now conceded by both the parties to the action, a loan of one thousand dollars by the defendant to the plaintiff, or to the plaintiff and his wife, upon the security of the wife's land, and that the deed was in fact a mortgage. The court ought not to compel the defendant to convey with a warranty broader in scope than the interest which he had, the situation being known to all the parties to the transaction at the time the agreement was executed. The plaintiff is willing to accept specific performance on the terms indicated, and the defendant now professes to be willing to perform the agreement if he shall be relieved from the obligation to convey with general warranty. He insisted in his answer and on the trial that his right to the property had become absolute by reason of the lease having been assigned without his consent, contrary to a covenant therein. But this claim is without foundation as is satisfactorily shown in the opinions delivered at the Special and General Terms. It is found that the wife on the trial disclaimed any title to the premises. But her title has never been conveyed by any deed or writing, and such a parol disclaimer, or any circumstances tending to raise an estoppel against her, leaves the matter so uncertain that the defendant ought not to be compelled to convey upon the assumption that her title has been divested, or upon the ground that an implied power *Page 298 to convey the fee was vested in the defendant under the lease and the deed of the wife executed contemporaneously therewith.
The judgment should be modified in accordance with this opinion, and as modified affirmed.
The attitude of the defendant in the litigation has been such that we think he should not be relieved from payment of costs, notwithstanding the judgment is modified in his favor.
Judgment modified, and as modified affirmed, with costs.
All concur.
Judgment accordingly.