Snyder v. Lane

Davison, J.

The appellee, who was the plaintiff, sued Snyder upon the covenants in a deed of conveyance. In the complaint, it is alleged that Snyder, by deed in fee, conveyed certain lands in Wayne county, to the plaintiff; and that in and by said deed it was covenanted, 1. That the lands were unencumbered. 2. That the grantor is lawfully seized, &c. 3. That he will warrant and defend against all claims, &c.

The breach assigned is, that the lands, at the time of the conveyance, were lawfully encumbered by a mortgage executed by one James A. Culbertson, a former owner, to the state, for the use of the surplus revenue fund, to secure the payment of 291 dollars with interest, &c. And. it is averred that the plaintiff, on the first of June, 1857, the above *425 sum being due and payable, fully paid the same to the auditor of said county, and procurred the incumbrance to be removed and satisfied; wherefore he demands judgment, &c. The defendant answered, 1. That the plaintiff, when he purchased the lands, had full knowledge of the existence of the mortgage. 2. That by the laws of Indiana extending the time for the payment of mortgages to the surplus revenue fund, the mortgage in question is not yet due, and payment thereof could not be required, &c.

Demurrers to the answer. The causes of demurrer are thus stated: Plaintiff demurs to the first paragragh because “the knowledge of the incumbrance is immaterial, as the defendant has expressly covenanted against it.” And as to the second paragraph plaintiff says that “the mortgage was an incumbrance, and he had a right to remove it, and sue on his covenant.” The demurrers were sustained, and final judgment given for the plaintiff.

The appellee contends that the demurrers should have been set aside, because they do not specify either of the six causes prescribed by the statute. See 2 R. S. p. 38, § 50. We have decided that in the assignment of such causes, the language of the statute need not be pursued. It will be sufficient if they designate, certainly, the alleged defects to which they refer. Lagow v. Neilson, at this term (1) . In the case at bar, the assignments point out the objections relied on with a sufficient degree of certainty. Hence, the questions raised by the demurrers are properly before us for consideration.

The next inquiry relates to the first defense. Does mere notice to the vendee, at the time he receives his déed, of an existing incumbrance, exclude it from the operation of an express covenant against incumbrances? This question is settled in Medler v. Hiatt, 8 Ind. R. 171. There it was held that such incumbrances are not presumed to be so excluded, though their existence was known to the vendee when the deed was executed. This authority is directly in point. It follows that the first paragraph of the answer constitutes no bar to the action. t

The second defense is also defective. The mortgage, *426 by its terms, was due and payable, and being a valid incumbrance, the vendee had a perfect right to pay the money and sue on his covenant. We have been referred to no statute, nor do we know of any, applicable to the mortgage in question, enlarging the time of its payment; but suppose the existence of such statute, it would not, it seems to us, bind the vendee to suffer an incumbrance calculated to impair the validity of his title, to rest on the land.

J. S. Newman and J. P. Siddall, for the appellant. J. Perry, for the appellee.

Per Curiam. — The judgment is affirmed with 5 per cent, damages and costs.

Ante, 183.