
    WILLIAM S. CORWIN, Plaintiff and Respondent, v. EDWARD B. WESLEY, Defendant and Appellant.
    Chattel Mobtgage. Fobgeby of Makeb’s Name, Wabbanty Against, by Assi&nob. What woeds in the Assignment Constitute such Wabbanty.
    1. Describing the mortgage as “ A certain mortgage . . made by A. B.,” is a warranty that the signature of the name A. B. to the paper is not a forgery.
    3. A clause in the assignment whereby the assignor certifies to, and agrees with, the assignee that the amount secured thereby “ is now owing and unpaid, and said mortgage is outstanding and unpaid, and unsatisfied of record, and the same is a valid and effectual lien on the personal property mentioned in said mortgage as against the said assignor, or any act or deed of his,” constitutes a warranty that the signature of the name of the person described in the mortgage as the mortgagor is not a forgery.
    
      a. The words “as against the said assignor or any act or deed of his,” do not so qualify the other words as to prevent their operating as a warranty by the assignor to the above extent.
    1. This, although the assignment as sent by the assignee’s attorney to the assignor’s attorney for éxecu- . tion did not contain these words, but they were inserted by the assignor’s attorney, before execution of the assignment, the insertion not coming to the notice of the assignee’s attorney until some time after the delivery of the assignment, when no objection was made thereto.
    Before Barbour, Ch. J., Monell and Jones, JJ.
    
      Decided December 31, 1871.
    Appeal from judgment.
    One Elias B. Balcom being indebted to the plaintiff in about one thousand dollars, the plaintiff commenced a suit against him, and obtained a warrant of attachment against his property. A copy of the attachment was served by the sheriff of the county of ¡New York on one Hiram ¡R. Miles, on August 10, 1867, and on the defendant, September 25, 1867. On July 6, 1867, said Hiram Miles gave a chattel mortgage to said Balcom for thirty thousand dollars, which mortgage Balcom, on October 3,1867, assigned to the. defendant.
    On July 6, 1867, Balcom owed defendant about ten thousand dollars. After the discharge of the above-mentioned attachment, in manner as hereafter stated, defendant paid to Balcom a sum of two thousand five hundred dollars, and a further sum of six thousand dollars. It does not appear on what account these payments were made, nor under what liability the defendant was to make them. In October, 1867, when defendant went to collect the final installment on the thirty thousand dollar mortgage, he found the mortgage and the money secured thereby had been attached in some action against Balcom.
    On October 11, 1867, the defendant, under some arrangement between himself and Balcom, the particulars of which are not given, and pursuant to some agreement between Balcom and plaintiff, the terms of which do not distinctly appear, assigned to the plaintiff a chattel mortgage on certain property at Yonkers, purporting to be made by Mrs. Wilson, and given to secure three promissory notes, each for six hundred and sixty-six dollars and sixty-six cents, and dated March 12, 1867, and payable six, twelve and eighteen months after date; on which mortgage there was then due one thousand three hundred and thirty-three dollars and thirty-two cents, the first note having been taken up.
    The assignment described the instrument assigned as “a certain mortgage made” (not purporting to be made) “by Caroline E. Wilson and Thomas Wilson to me, the said Wesley,” and at the end contained the following clause:
    “And I certify and agree to and with the said William S. Corwin, that the sum of $1,333.32 is now owing and unpaid on said two notes, together with interest thereon, and said mortgage is outstanding and unpaid and unsatisfied of record, and the same is a valid and effectual lien on the personal property mentioned in said mortgage as against the said Wesley, or any act or deed of his.”
    On the receipt of the Wilson chattel mortgage and the above assignment thereof, the action against Balcom was discontinued, and the warrant of attachment against his property countermanded. The difference between the sum due on the Wilson mortgage and the debt due to plaintiff was afterwards paid by the plaintiff in groceries.
    In relation to the giving of the assignment of the Wilson mortgage, the following evidence was given:
    Mr. Butcher, who acted in the matter as counsel for plaintiff, testified, “Mr. Wesley came into my office and asked if Mr. Balcom had been there, I said yes ; he said, this is the mortgage, draw an assignment of it and take it around to Judge Fithian’s office, and if he approves it I will execute it.”
    The witness further testified that he drew the assignment and sent it to Mr. Fithian for his approval; that the assignment as he drew it, and when it was so sent, did not contain the words “as against the said Wesley, or any act or deed of his,” but that these words were interlined after the assignment left his office; that the day after he sent the assignment to Mr Fithian it was returned to him ; and thereafter he took proof of its execution, Mr. Fithian as subscribing witness proving it; after taking the acknowledgment he saw the interlineation. He, however, does not state when he first saw the interlineation.
    
      When the twelve months’ note executed by the Wilson mortgage became due, it not being paid, the plaintiff undertook to foreclose it, when Mr. Wilson filed a bill against the plaintiff to have it canceled, on the ground that the signature of her name to it was forged. That suit was defended, and resulted in a judgment of cancelment and perpetual injunction.
    It further appeared that the manner in which the defendant got the Wilson mortgage was this: Mr. Wilson had promised to give it to him on an afternoon, he came to him and told him he would have to take it up to Yonkers and have his wife sign, and that he would bring it next day. The next day Wilson brought it down, signed Caroline E. Wilson and Thomas E. Wilson, and he, the defendant, supposed it all right.. Defendant did not know, nor did he suspect or have any cause to suspect that the name Caroline E. Wilson was forged, until after the commencement of the Wilson suit.
    The judge charged the jury that the action was substantially based on the assignment of the Wilson mortgage ; that that assignment contained a guarantee that the assigned mortgage was a valid mortgage, outstanding, unpaid and unsatisfied, and was a valid and effectual lien on the property mentioned in it; and that the plaintiff, as matter of law, was entitled to recover on that guarantee.
    To' this charge defendant excepted. The only question left to the jury was as to the amount of damages.
    The jury rendered a verdict in favor of plaintiff for nineteen hundred and thirty-five dollars and thirty-six cents damages.
    From" the judgment entered on this verdict the defendant appeals.
    On the argument of the appeal it was conceded that the defendant had not warranted or guaranteed, or made any representations concerning the validity of the Wilson mortgage, otherwise than as contained in the assignment thereof.
    
      F. J. Fithian, of counsel for defendant, argued :
    I. There is no implied warrantee of title here to the mortgage. Such covenants exist only in cases of sales of chattels in the possession of the vendor at the time of sale. This was a sale of a chose m action. Defendant did not claim or assume to have either the title or possession of the mortgaged property, or any right to dispose of either (1 Pars, on Cont. 458, note h ; Hopkins v. Grinnell, 28 Barb. 533; Scranton v. Clark, 39 N. Y. 220 ; Dresser v. Aimsworth, 9 Barb. 619 ; Edick v. Crim, 10 Id. 445).
    II. There is here an express covenant in writing, and that has the effect, of itself, to negative any covenant, or warranty by implication (King v. Walsh, 7 Johns. 258 ; Vanderkarr v. Vanderkarr, 11 Id. 122 ; 2 Caines, 192; Hall v. Sampson, 19 How. Pr. 481, 489; 2 Pars. on Cont. 27).
    
    III. The defendant’s liability, then, must depend upon the construction to be given to the express covenant contained in the written assignment of the mortgage. And it is submitted that the warranty there is qualified and not absolute or full, and extends and was intended to extend only to agree and promise that the mortgage was an “effectual and valid lien” on the mortgaged property, so far only that no act or deed of defendant had been done or suffered to the contrary. 1. It is well settled that covenants are to be construed in accordance with their spirit and intent. And to such intent, when ascertained, particular words or grammatical rules must yield. So, where a written obligation entered into by several persons, was by its language Jo int, and not several, yet, it appearing from the general scope and tenor of the paper, that the parties intended to bind themselves individually: Held, the language must give way to the intent (Ludlow v. McCrea, 1 Wend. 228). So Woodruff, J., says : “It is well settled at the present day, although for a long time a 'oexata qucestio in England, that the grammatical sense is not to be adhered to either in a will or a deed where a contrary intent is apparent.” It was accordingly held, that the word “and” should be stricken from the agreement, and the word “or” substituted, so as to accord with the intent of the agreement. Jackson v. Topping, 1 Wend. 396. Again: where, by the general scope and tenor of the covenant in a deed, it was apparent that the grantor intended to warrant only against his own acts, the court rejected from the deed the words “party of the second part,” as being repugnant to the meaning (Saunders v. Betts, 7 Wend. 287; Knickerbocker v. Kilmore, 9 Johns. 106 ; Hoffman v. Damer, 2 Harr. (Penn.) 25; White v. Smith, 33 Penn. 186; Salmon Falls Co. v. Portsmouth Co., 46 N. H. 249; Karmuller v. Kratz, 18 Iowa, 352 ; Springston v. Sampson, 32 N. Y. 703; Rose v. Roberts, 9 Minn. 119; Jordan v. Dyer, 34 Shaw (Vt.), 104; Norton v. Woodruff, 2 Comst. 153; Ward v. Whitney, 8 N. Y. 442 ; Westcott v. Thompson, 18 Id. 363). And that other equally well settled rule “that whatever may be fairly implied from the terms or language of an instrument, is in judgment of law contained in it ” (Rogers v. Kneeland, 10 Wend. 218 ; 13 Id. 114). On the contrary, the construction claimed by the plaintiff is, to give no force or meaning whatever to the important addition to the covenant made by the defendant before signing ; to arbitrarily reject and expunge the words from the agreement, and hold the defendant to the performance of a covenant which he never entered into, and in respect to which, the proof is positive that he refused to execute or acquiesce in.
    
      Zimri Butcher, attorney, and Joseph H. Duke, of counsel for respondents, argued:
    “The assignment warranted that the sum of $1,333.32 is'now owing and unpaid on said two notes, together with interest thereon, and said mortgage is outstanding and unpaid, and unsatisfied of record, and the same is a valid and effectual lien on the personal property mentioned in said mortgage against the said Wesley or any act or deed of Ms.” These last words “ as against the said Wesley or any act or deed of his,” if limiting any provision in the assignment, have reference only to the last clause—“ and the same is a valid and effectual lien on the personal property mentioned in said mortgage.” They do not touch the other parts of the covenant. The defendant’s counsel claims that the whole covenant guarantees the plaintiff as to this mortgage only against the acts, or deeds, or omissions of the defendant himself. Although it may be conceded that the last clause as to the mortgage being a valid and effectual lien, &c., is a limitation of the covenant exclusively to the said Wesley and to his acts and deeds : yet this still clearly leaves without such limitation the previous words “and said mortgage is outstanding and unpaid and unsatisfied of record ; ”' the clause following and hereinbefore referred to being a distinct clause in which something is affirmed expressly and in a cumulative manner, with reference to the mortgage, as will appear by substituting for the word “same” the words “said mortgage,” in lieu of which it is used. A covenant that a mortgage is outstanding is a covenant that it continues to exist, and this implies its validity. It implies not-only that it has had, but that it still has a valid existence;—that it exists beyond its time.
   By the Court;—Barbour, Ch. J.

The description given of the property which is the subject of the sale, in the body of the assignment, is a representation, first, that the paper assigned is a mortgage, and, secondly, that such mortgage was made by Caroline and Thomas Wilson; and that representation constituted a warranty that such was the fact. •

hTo particular words are necessary to constitute a warranty. A representation that a horse is sound is a warranty, except as to defects which are patent or readily ascertainable; and, certainly, a bill of sale of one hundred barrels of superfine flour, which the purchaser has no means of inspecting because in closed casks, is a warranty that the article is what is known as superfine flour.

The particular agreement or stipulation which follows the assignment, in the same paper, was, in legal effect, also a warranty that the mortgage was then outstanding, or, in other words, in force as a mortgage ; and that warranty, it appears to me, is not limited by the words “ as against the said Wesley or any act or deed of his.” Be that as it may, however, it is enough, I think, to say that the defendant did sell and assign the instrument in question to the plaintiff as a mortgage made by C. and T. Wilson, and represented, and, ' therefore, warranted it to be so in his assignment. As I understand the case, that warranty was broken the moment it was made, because the paper assigned and described in the assignment as a mortgage made by C. and T. Wilson was not made by them, but was a forgery. The plaintiff, therefore, was entitled to recover.

The judgment should be affirmed, with costs.

Monell, J., concurred.

Jones, J. [Dissenting.]

The judgment below proceeded on the ground that defendant had warranted the Wilson chattel mortgage, and on that ground only ; and that ground only is now urged in its support.

The decision of the case turns on the effect to be given to the words “against the said Wesley, or any act or deed of his,” contained in the assignment of the mortgage.

The assignment, as originally drawn, did not contain these words ; and as it then stood it contained a full and absolute warranty. By agreement the assignment was sent to the defendant’s attorney for his approval. He did not approve of it in that form, but inserted the words in question.

The natural effect of these words is a declaration by the assignor that he will not covenant the validity of the mortgage except to the extent that he himself has not, by any act or deed, or in any other manner, done anything to impair its validity. The words have some meaning and were inserted for some object.

The only meaning they can have in the connection in which they are used is that above ascribed to them, and the only object of their insertion that of a limitation of the assignor’s liability. I see no escape from giving them this construction.

It is, however, insisted that they qualify the last covenant only, and that sundry of the words contained in the preceding covenants import a warranty of title, especially the word “outstanding.”

All the covenants, however, are contained in one sentence, the only mark Of separation being commas, and the words in question are at the end of the whole sentence, and they must, in my view, be taken as qualifying the whole.

It would be too forced a conclusion to hold that although by the concluding portions of the sentence he had qualified his warranty of validity, yet, notwithstanding, preceding words in the same sentence constitute a full warranty of validity without qualification.

I think the defendant cannot be held on the clauses contained in the assignment, and that the exception to the charge was well taken.

On a new trial other facts may be proved, and further evidence given which may fasten on him a liability on some other ground.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.  