[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 234
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 235 The defendant, Mrs. Capron, agreed to warrant and defend the land conveyed to the plaintiff against any person lawfully claiming the same, "according to a mortgage that day assigned tothe said Cornish," and the controversy between the parties to this appeal hinges upon the meaning and force of the phrase italicised. It is impossible to know with certainty what was in the minds of the parties when that phrase was used. It was preceded by a formal and complete covenant of warranty, and the force and effect of that covenant should not be cut down by any words of doubtful import, much less by words to which it is difficult to assign any definite meaning. It is probable that the parties meant *Page 237 by the phrase quoted one of two things: (1) Either that the plaintiff should have for his protection the Watson mortgage, at the same time assigned to him, and that he should hold that mortgage as collateral security to the covenant, and that he should have the right in case Watson did not pay the Banks mortgage to enforce the Watson mortgage according to its terms, and to thus indemnify himself, so far as he could for any damage he might sustain from a breach of the covenant. (2) Or that he should have the same protection against the Banks mortgage which Watson in his mortgage had agreed to give her, and whichever of these meanings we attribute to this language the same result is accomplished. We are at least unable to see that this uncertain language cuts down or limits the liability of Mrs. Capron upon her covenant, and so no error was committed in giving that covenant the force and effect provided in the judgment.
Watson not having paid the Banks mortgage, Mrs. Capron, if she had retained the Watson mortgage, could have foreclosed it for her indemnity, and the plaintiff, as her assignee, may enforce it to the same extent as she could if she had not assigned it.
There is no plausibility in the claim that the covenant for quiet enjoyment was not broken. The title was swept away by the foreclosure of the Banks mortgage, and the plaintiff relinquished possession of the land as he was bound to do after the foreclosure and sale and the conveyance made in pursuance thereof.
We see no reason to doubt that the judgment is right and it should be affirmed with costs.
All concur.
Judgment affirmed. *Page 238