
    Albert A. Cornish, Resp’t, v. Cornelia A. Capron et al. App’lts.
    
    
      (Court of Appeals,
    
    
      Filed December 13, 1892.)
    
    Deed— Warranty—Covenants.
    Defendant, after a formal and complete covenant of warranty, also-agreed to warrant and defend certain land conveyed to plaintiff against any person claiming the same, “ according to a mortgage that day assigned to the said Cornish.” Held, that the force and effect of the formal covenant should not be cut down by the terms of the special warranty.
    Appeal from judgment of the supreme court, general term,, fourth department, affirming judgment for plaintiff.
    In June, 1870, Jay Capron borrowed of Mary Banks the sum of $4,000, for which he gave her his bond conditioned for the payment of that sum January first, 1880, with interest, and as collateral security for the payment of that sum, he with his wife, Cornelia A Capron, gave to Mrs. Banks a mortgage on four parcels of land, designated in this record as 1, 2, 3 and 4. In April,, 1874, Mr. and Mrs. Jay Capron deeded parcel Ho. 1 to Platt E,. Capron, and in June, 1877, they conveyed to Elias Spencer parcels 3 and 4, and Spencer, in the deed to him, assumed and agreed, to pay the Banks mortgage. Prior to that time Spencer had also-become the owner of parcel Ho. 2. In June, 1877, Spencer conveyed parcels Hos. 2, 3 and 4, and also another parcel designated as Ho. 5, to Mrs. Capron. Parcel Ho. 5 was not covered by the-Banks mortgage. In April, 1887, Mrs. Jay Capron, for the consideration of $5,122.20, conveyed parcels Hos. 2, 8 and 5 to-James Watson, who paid $1,122.20 of the purchase price in cash and for the balance he assumed and agreed to pay the Banks'mortgage of $4,000, with interest thereon from January 1, 1878. To secure the payment of this sum Watson on the same day gave-back to Mrs. Capron a mortgage for $4,500 covering the lands conveyed to him, and in that mortgage he agreed with her that he-would pay, or cause to be paid the Banks mortgage according to the conditions thereof; that in case he, his heirs and assigns, should fail to pay Mrs. Banks, or her heirs and assigns, the principal sum of $4,000, and interest thereon, as conditioned in her mortgage, it should be lawful for Mrs. Capron to demand payment of the sum of $4,500 mentioned in the mortgage to her, which should become due and payable at once, and that it should then be proper for the owner or holder of the Watson mortgage to collect the same and after paying the Banks mortgage and all interest and costs thereon, to pay over the balance to Watson, his heirs and assigns; but that if the Watson mortgage failed to pay and satisfy the Banks mortgage, then Watson was to pay the deficiency. In July, 1883, Mrs. Capron, in consideration of $1,075, paid to her, conveyed parcel No. 4 to the plaintiff, and in the deed she covenanted that the premises so conveyed “in the quiet and peaceable possession of the said Cornish, his heirs and assigns, she would warrant and defend against any person lawfully claiming the same, according to a mortgage that day assigned to the said Cornish.”
    On the same day, and as a part of the same transaction, and resting upon the same consideration, the defendant Cornelia A. Capron assigned to the plaintiff the Watson mortgage, with the bond accompanying the same, and the money due, or to grow due, thereon, he to have and hold the same according to the conditions of the mortgage, but in no case to discharge the mortgage without the consent of Mrs. Capron, unless the Banks mortgage was fully paid and satisfied. The Watson mortgage so assigned has ever since been the property of the plaintiff. In 1887 the Banks mortgage was foreclosed, and in pursuance of the judgment of foreclosure all the premises therein described, including parcel No. 4, were sold to the defendant Bielby, and he took possession of the same. Thereafter the plaintiff commenced this action to foreclose the Watson mortgage and to recover damages against Mrs. Capron for breach of the warranty contained in her deed to him of parcel No. 4. The action was brought to trial, and the court at special term found that there was a breach of the warranty contained in the deed of Mrs. Capron to the plaintiff; that by reason of the breach the plaintiff was entitled to recover of her the sum of $1,075, with interest; that the plaintiff had the right to enforce the Watson mortgage for his own benefit to the extent of his claim against Mrs. Capron for breach of her covenant above referred to;. that the plaintiff was entitled to judgment of foreclosure, and that out of the proceeds of the sale, after payment of costs and expenses of the sale and of the action, the sum of $1,075 and the interest be paid to the plaintiff, and that if there should not be enough to make such payment, a judgment for the deficiency be entered against Mrs. Capron. Mrs. Capron filed proper exceptions to the findings of the trial court, and from the judgment entered appealed to the general term and then to this court. '
    
      Wm. E. Scripture and Oswald P. Backus, for app’lts; D. E. Wager, for resp’t.
    
      
       Affirming 36 St. Rep., 1019.
    
   Per Curiam.

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 to the 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 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.  