Blood v. Wilkins

Adams, J.

*567

í conveynaimsat?s^e" factionot

*566 The deed from plaintiff to defendants contained *567 a covenant of warranty that the premises were free from incmubrances. The defendants claim that plaintiff cannot now be allowed to show that there were incumbranees in contravention of the .covenant in the deed.

The money, however, which was borrowed by plaintiff and secured by the said conveyance, was sufficient to pay the incumbrances. As between plaintiff and defendants, therefore, it was free from incumbrances within the meaning of the covenant. Where the covenantor furnishes the covenantee money sufficient to discharge a specific incumbrance, and the covenantee undertakes to discharge it, the covenant is satisfied. In this case, the moment the loan was effected the money loaned beeame plaintiff ’s money, although she allowed it to remain in defendants’ hands for the discharge of the incumbrances in question.

ITad she made a sale and absolute conveyance to defendants with the same covenant against incumbrances, and incumbranees existed, but plaintiff advanced to defendants money to discharge them, with an agreement upon their part that the money should be so applied, and the money through their fault was not so applied, it would hardly be claimed that under such circumstances plaintiff would be liable to defendants for breach of the covenant. As between plaintiff and defendants, the incumbrances would have been discharged so far as the covenant was concerned. We think, therefore, it was proper for plaintiff to show that of the money borrowed by her of defendants they retained enough to discharge the incumbrances in question, under an agreement to dischage them, and that they failed to do it.

2.-: damages. There only remains to be considered what is the measure of their liability. Where one person furnishes money to an-to discharge an incumbrance from the land of the person furnishing the money, and the person undertaking to discharge the incumbrance neglects to do it, and the land is lost to the owner by reason of the incumbrance, the measure of damages may be the money furnished, with interest, or the value of the land lost, according *568 to circumstances. If the land owner has knowledge of his agent’s failure in time to redeem the land himself, his damages will be the money furnished with interest.

But if the land owner justly relies upon his agent, to whom he has furnished money to discharge the incumbrance, and the land is lost without his knowledge, and solely through the fault of the agent, then the agent will be liable for the value of the land at the time it is lost.

In the present case we think the land was lost wholly through the defendants’ fault, and without any knowledge on the part of the plaintiff that the land had not been redeemed from the tax sales.

Evidence was introduced to prove the value of the land so lost, on the 18th of November, 1874, the day on which plaintiff offered to redeem from defendants. We think plaintiff should have shown what was the value of the land at the time when the time of redemption from tax sales expired. Prom that time the plaintiff was virtually divested of her title. She might not have been dispossessed then; but from that time she could not sell the property. She should, therefore, be allowed the value of the property at that time, with interest at six per- cent. Whether anything should be deducted therefrom on account of any rents and profits she has received, if any, we will not now determine, as no such question has yet been raised.

We think the defendants’ claim against the plaintiff was usurious, and the judgment of the court below in favor of the school fund will be allowed to stand. The finding of the court below as to the amount due on the mortgage will also be allowed to stand. The case must be remanded for the purpose of taking testimony in regard to the value of the property lost under the tax sales at the time it was lost. The defendants should be charged with the value of the property and interest, and a balance struck between the parties and a decree rendered accordingly.

Eeversed.

Justice Eotiirook does not concur.