Comstock v. Son

Holmes, J.

This is an action on the covenant of warranty in a conveyance of land by the defendant to the plaintiff. The execution of the deed is admitted, and the evidence tended to show an eviction of the plaintiff by paramount title. The case comes before us on exceptions to the refusal of the court to give certain rulings. We will take up successively those which were argued.

I. The first ruling asked was that the deed was without consideration and void. A deed is not void as between the parties if without consideration, nor is want of consideration an answer to an action upon a covenant. Mather v. Corliss, 103 Mass. 568, 571 . Furthermore, there was evidence that the plaintiff furnished a consideration. He was making a claim on the defendant, seemingly in good faith, upon the defendant’s promise to pay a note for one thousand dollars, made by the plaintiff at the defendant’s request, and used by the latter. The main, if not the only defence, was a discharge in bankruptcy, the effect of which seems to have been disputed. The conveyance was made in satisfaction of the plaintiff’s claim. Allis v. Billings, 2 Cush. 19 , 26.

2. The next request to be considered was that the evidence “ sustained an equitable defence,” under the St. of 1883, c. 223, § 14. We understand this to mean, that the evidence required, and not merely that it warranted, a finding for the defendant on this ground. The argument seems to be that the present deed conveyed no title and was void, because the defendant previously had conveyed the premises by a mortgage, and that the plaintiff had notice of the facts because he was the mortgagee. But a *391 deed, is not void simply because it fails to convey a good title. Still less are the covenants so, which are framed to meet that very contingency. It was said, that there was mutual mistake. But the plaintiff, and probably the defendant, understood what land was conveyed by the present deed. They used the language and did the thing which they meant to do. The only mistake on the plaintiff’s part was one into which he was led by the defendant’s statement, and consisted in supposing that the defendant had not conveyed the premises previously by the mortgage. The mistake was of the class which go only to motives, and probably more would have to be shown to authorize a rescission even in favor of the plaintiff. When there has been a breach of the covenant of warranty there generally has been a mistake of this sort as to the title of the grantor, but it hardly is a ground on which the grantor can expect to be relieved of his covenant.

3. The last point argued is that the plaintiff can recover only nominal damages. As we have said, the evidence showed an eviction and breach of the covenant of warranty. If these facts were proved, there is no reason why substantial damages should not be recovered. Estabrook v. Smith, 6 Gray, 572 . Mather v. Corliss, 103 Mass. 568 . Exceptions overruled.