Welbon v. Welbon

67 N.W. 338, 109 Mich. 356, 1896 Mich. LEXIS 859

• Court: Michigan Supreme Court
• Decided: May 19, 1896
• Status: Published

Opinion

Grant, J.

{after stating the facts). The decree, we think, cannot be sustained for several reasons:

1. The defendants were not personally liable for the debt secured by the mortgage. It was therefore erroneous to enter a decree against them for any deficiency. Complainant alone was personally liable for the debt, and had paid it.

2. In the deed to his children complainant reserved a life estate in himself. It was his legal obligation to-pay the interest upon the mortgage during the existence of the life estate. The decree was erroneous in including interest.

3. The deed contains the following covenant:

“The said party of the first part, for himself, his heirs, executors, and administrators, does covenant, grant, bargain, and agree to and with the said parties of the second part, their heirs and assigns, that at the time of the en-sealing and delivery of these presents he is well seized of the above granted premises in fee simple; that they are free from all incumbrances whatever, except a certain mortgage given by him to Joseph M. Thompson, dated October 1, 1883; and that he will, and that his heirs, executors, and administrators shall, warrant and defend the same against all lawful claims whatsoever.”

The covenant of warranty contains no exception, and the previous mention of the existence of this incumbrance does not take it out of his covenant of warranty to defend the title against all lawful claims whatsoever. In other words, there is no limitation placed upon this covenant. Sandwich Manfg. Co. v. Zellmer, 48 Minn. 408.

The decree must be reversed, with costs of both courts, and the bill dismissed.

Montgomery, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.