Bean v. Mayo

Wes TON J.

delivered the opinion of the Court.

At the time the defendants entered into the covenant to the plaintiff declared upon, that the premises were free of all incumbrances, they were in fact incumbered by an existing mortgage to the plaintiff. It has been contended that the operation of this covenant must be limited to incumbrances made to third persons, and cannot be held to embrace such as may have been made to the plaintiff; but we cannot admit the soundness of this distinction. The covenant was general and unqualified. The plaintiff did not purchase the mere equity of redemption. The mortgage was not extinguished, as it respects the land to which the covenant attached. The plaintiff chose to retain his title as mortgagee, under the former conveyance. He might have assigned the mortgage, and his assignee would have had a lien upon the land, to the extent of the debt due. The covenant then was in strictness broken; and the plaintiff had Thereupon a right of action. The next question which arises is, for what amount of damages is he to have judgment ? The condition in the deed, creating the incumbrance, has not been broken. It is not certain that it ever will be. The defendants are entitled to the benefit of the term limited, within which they may perform the condition.' The plaintiff has no right to demand or to enforce payment at an earlier period. It is not pretended that he has removed, released, or extinguished the incumbrance; but it still remains as it existed on the day the deed declared upon was executed. Upon these facts we áre very clear that the damages to which he is entitled can be only nominal.

The plea in bar is adjudged bad; and judgment is to be rendered for the plaintiff for one dollar damages.