Hood v. Clark

37 So. 550, 141 Ala. 397

• Court: Supreme Court of Alabama
• Decided: November 15, 1904
• Status: Published

Opinion

SHARPE, J.

The only warranty contained in the deed made by defendant to plaintiffs pursuant to the foreclosure -sale i.s that which the statute (Code) attaches to the words “grants, bargains and sells” appearing in the deed. Under the uniform construction given (.hat statute' those words import a covenant only against incumbrances done or suffered by the grantor and not against incumbrances generally. — Heflin v. Phillips, 96 Ala. 561; Parker v. Parker, 93 Ala. 80; Roebuck v. Duprey, 2 Ala. 535; Griffin v. Reynolds, 17 Ala. 198.

A mortgagee is not by reason of his mere relation to or interest in the mortgaged property under any legal duty to pay taxes on the same. — Cooley on Taxation, 812. The stipulation respecting taxes contained in the mortgage purported not to require but only to authorize' the holder of the mortgage to pay delinquent taxes on the property. Tine' tax lien discharged by plaintiffs from the property they purchased was not of defendant’s creation nor did it exist through any fault of defendant, therefore even if the words “grants, bargains and sells” he deemed1 to import a personal covenant having effect as a. statutory warranty, yet the existence of the tax did not constitute a. breach of the warranty. Thé payment of taxes by plaintiffs not having been induced by defendant or made in discharge of any obligation resting on him, cannot he recovered for under the common counts of t-hei complaint.

Judgment affirmed.