Hunt v. Amidon — 1 Hill & Den. 147

Majority

p. 147

Hunt vs. Amidon.

Headnote

The defendant sold certain real estate to W., who gave back a bond and mortgage, which the defendant assigned to T.; afterward, W. re-conveyed the premises to the defendant, who then deeded them to B., covenanting for quiet enjoyment, and B. conveyed to the plaintiff; whereupon T. proceeded to foreclose the mortgage, and, on the sale under it, the plaintiff became the purchaser: Held, that assumpsit as for money paid, &c. would not lie by the plaintiff to recover against the defendant the purchase money paid on the mortgage sale, even though the defendant had, on his selling to B., verbally promised him to pay off the mortgage; and consequently, evidence of the promise is, in such case, irrelevant and .inadmissible.

Semble, such promise could not have been available to B., had he retained the title, and become the purchaser under the mortgage; for, if made prior to, or contem-. poraneous with the sale to him, it was merged in the deed; and if after, there having been no eviction, it was without consideration.

A promise by the grantor to his grantee, to pay off an existing incumbrance, will not enure to one to whom the grantee subsequently conveys.

Assumpsit, on the money counts, tried at the Rensselaer circuit, before Cushman, C. Judge, in March, 1839. The plaintiff claimed to recover for money paid to the defendant’s use; and the case was this: In December, 1824, the defendant conveyed a farm, containing 43 acres of land, to Philip I. Wheeler; and Wheeler, at the same time,' gave back a mortgage, with a bond, to the defendant, to secure the payment of $550, with interest. In February, 1825, the defendant assigned the bond and mortgage to

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John Taylor. In January, 1828, Wheeler re-conveyed the farm to the defendant by quit-claim deed. In December, 1830, the defendant conveyed the farm, together with another piece of land, to Jonas B. Babcock, for the consideration of $1200; and the deed contained the usual covenant for quiet enjoyment■ Ifi October, 1834, Babcock conveyed the two pieces of land to the plaintiff, by quit-qlaim deed. Taylor, the assignee of the mortgage, foreclosed in chancery, making Wheeler, the mortgagor, and the plaintiff, who was then the owner, parties ; and there was a decree over against Wheeler for any balance which might not be raised by the sale of the premises, • The farm was sold under the decree, in October, 1836, and purchased by the .plaintiff for $470. This sum, with the interest on it, the plaintiff claimed to recover of the defendant as so much money paid to his use. The plaintiff gave evidence tending to show, that the defendant promised Babcock, when he conveyed to him, to pay off the mortgage. This evidence was objected to by the defendant, and exception was taken to the ruling of the judge in admitting it. Several objections were taken by the defendant to the plaintiff’s right to recover. The judge charged the jury, that if they believed the plaintiff’s farm had been sold under the decree in chancery to pay a debt which was the defendant’s to pay, then this equitable action for money paid to his use might be maintained for the amount which the plaintiff was compelled to pay to save his land. The defendant excepted. Verdict for plaintiff, $550,68. The defendant now moves for a nexv trial on a bill of exceptions.

M. T. Reynolds, for defendant.

D. L. Seymour & S. Stevens, for plaintiff.

It will not be necessary to examine all of the questions which were made on the trial. The statement of a few plain principles will be sufficient

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to dispose of the case. As there has been no eviction, there has been no breach of the covenant for quiet enjoyment in the defendant’s deed to Babcock. The action then rests on the promise which, it is said, the defendant made to Babcock, to pay oS the mortgage, The promise was made at the time the'deed was executed, and was merged in the written agreement. If it had been made after the conveyance, it would have been without consideration, and void. The remedy would be on the covenant in the deed. (Miller v. Watson, 5 Cowen, 195.) Although that case was several times before the court, the principle laid down at first was not afterwards departed from. The evidence to show a promise, was improperly admitted.

It follows, from what has been said, that Babcock, if he had paid'the money, could not maintain an action on the ground of a promise. But suppose he could. Aside from the covenant, which runs with the land, there is no privity between the plaintiff and the defendant, Surely, the promise did not run with the land, and so pass by Babcock’s deed to the plaintiff; and there has been no assignment of it in any other form. But if it had been transferred, the assignee could not sue in his own name.

The defendant is bound by express contract—the covenant for quiet enjoyment; and the plaintiff cannot recover on the ground of an implied promise.

New trial granted.