Bowman v. Whittemore

1 Mass. 184

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1804
• Status: Published

Opinion

Sewall and Thacher, justices,

thought that the release made the witnesses competent; that the whole right, both to the land and the covenants, being now in the defendant, he might dispose of either as he thought proper; and that he might * therefore release his right in the covenants so as to operate against a future assignee of the estate.

Parsons and Putnam for the demandants. Deocter and Jackson for the defendant.

Sedgwick, J.,

contra, was of opinion, and principally for the reasons given by the counsel for the demandants, that such release could not operate against a future assignee of the estate without notice, and that covenants running with the land could never be extinguished as to such assignee, except by a reconveyance of the estate to the grantor. The release would undoubtedly bind the releasee and his heirs, but not his assignee.

(1)

The witnesses were admitted.

Note. — Quiere whether, in this case, the defendant claiming under a deed of release and quitclaim, is such an assignee of Mary Gray as would enable him to maintain an action of covenant against her heirs. If he be not, then his grantee certainly could not.

l) It is obvious that some of the benefits intended to be secured by the registry acts would be defeated by suffering the release of the present possessor of an estate to operate against subsequent assignees. Purchasers might be induced to buy the estate in reliance upon the covenants of former grantors, of which they might be deprived by secret releases. It was twice ruled by the late Ch. J. Parsons, in Middle-sex, that a release unrecorded is not sufficient to remove the incompetency of a witness.