dissenting. — I do not concur in the foregoing opinion, but have not the time or space to state at length my reasons for my dissent. I can only state briefly, that the plaintiff, Ingalls, as the mortgagor of the real estate in controversy to the defendant, Cooke, became bound by the common law and equitable rule, and certainly by our statute (Revision, § 714; Code of 1851, § 458), to pay the taxes upon the mortgaged property until foreclosure sale. This is conceded in the majority opinion, and cannot be questioned. The fact that there were two mortgagors and two mortgagee's, while this controversy is between only one of each, does not affect the question, because each is liable for and to the extent of the joint obligation of himself and co-mortgagor and co-mortgagee.
Now, even if it be conceded that the defendant is liable on his covenant tS the plaintiff in this action, it is also true that the plaintiff is liable for the same amount to the defendant, upon his (the plaintiff’s) and his co-mortgagor’s obligation, to pay the taxes which constitute the incumbrance upon the property, and the breach of covenant complained of and sued for. To avoid circuity of action, this defendant would be entitled to set up this obligation of plaintiff as a counter claim, or to show that if the plaintiff recovers of him, he may by his suit recover of plaintiff for the same thing, and thereby defeat the action. This he has done, and no judgment should have been rendered against him. *565But there is a clear and, by the authorities, unquestioned ground of defense, and it is this: that in case of a reconveyance to the vendor by a purchaser from or under him, such purchaser’s general covenants, notwithstanding they are general, are nevertheless limited to defects or incumbrances erected by himself, and not to those of the vendor, or any prior to him in the chain of title. Kellogg v. Wood, 4 Paige Ch., 614; Cole v. Lee, 30 Maine, 39; Rawle on Covenants for Titles, 459,525. In this case the plaintiff, Ingalls, was the vendor and grantor of the defendant, who was the purchaser from him; and under the rule just stated his covenants to his vendor are limited to incumbrances made or suffered by himself, and do not extend to the incumbrances made or suffered by his vendor, the plaintiff. But we have seen that the incumbrance in controversy was made or suffered by the plaintiff, the vendor. The defendant, therefore, is not liable to him for the amount paid to discharge it. In my opinion the judgment ought to be
Reversed.