Stowell v. Bennett

34 Me. 422

Opinion

Howard, J.

When the defendant conveyed to the grantor of the plaintiff, there° was an outstanding mortgage upon a portion of the premises, which constituted a breach of his covenants against incumbrances. The plaintiff has succeeded to the rights of his grantor, in respect to the covenants, and having duly filed a release for his use, may maintain this action. R. S. c. 115, <§> 16.

The paramount right of the mortgagee may ripen into an absolute title, or it may be extinguished before an entry to foreclose, or before foreclosure. But it still exists as an in- cumbrance only, to be discharged, or to become an unconditional estate, and operate as a breach of the covenants of warranty, as may be determined by subsequent events. The plaintiff having neither purchased it, nor discharged the mortgage, can have judgment for only nominal damages. Bean v. Mayo, 5 Maine, 94; Randall v. Mallett, 14 Maine, 51; Prescott v. Turner, 4 Mass. 627; Delavergne v. Norris, 7 Johns. 358; Stanard v. Eldridge, 16 Johns. 254; 2 Greenl. Ev. § 242.

Shepley, C. J., Tenney, Wells and Appleton, J. J. concurred.

Defendant defaulted.