Coursen v. Canfield and Van Syckle.

4th. The written agreement executed by Shaw, was given to secure Canfield against some possible contingency, or supposed infirmity in Shaw's title. It is a distinct and independent covenant, in no wise connected with the deed of conveyance, and, as to it, the personal responsibility of Shaw. The damage which Canfield may suffer from a breach of this agreement if any, are unliquidated and uncertain, and cannot be ascertained now, or in this suit. Long's Adm'r v. Long, supra.

5th. The alleged oral agreement set up in the answer, is not proved, but on the contrary, is disproved; no such agreement was ever made.

6th. There is no proof that Shaw, the covenantor, is not responsible, and able to respond to any judgment for damages, which may be recovered against him.

If, however, the question of title can be considered, if it be considered that such a defence can be set up, then we contend that the title in Shaw at the time the mortgage was given, was a fee simple, indefeasible.

1st. Although by the will of Robert C. Shaw, from whom title to part of the premises conveyed by Shaw to Canfield and covered by the complainant's mortgage, was derived, the fee given to the sons was limited by executory devise to the survivors; by the codicil executed nearly seven years later, this limitation or condition was removed, and the lands which came to Andrew Shaw and his brothers, from the father, which form a part of the premises conveyed by said Andrew to Canfield, were devised to them in severalty and in fee simple, absolute. The intention of the testator in this respect is clear, and this will govern in the construction. Redf. on Wills 359, § 27; Smith v. McChesney, 2 McCarter 359.

2. By the will of Andrew Shaw, deceased, the premises devised to John, Job, George, and Andrew, part of which are covered by this mortgage, were devised subject to a like condition. The entire interest of the brothers, John, Job, and George, in the premises in question, which they had, or

Coursen v. Canfield and Van Syckle.

might have had, under the will of Andrew Shaw, deceased, and also under the will of their father, was conveyed to said Andrew W. Shaw before the conveyance made by him to said Canfield, and thus the title to the whole has become absolute and perfect.

No damage, therefore, can arise to Canfield, or his grantee, from a breach of Shaw's warranty, or of the covenants in his written agreement with Canfield.

Mr. Ludlow McCarter, with whom was Mr. Hamilton, for defendants.

The bill is filed on bond and mortgage given by Canfield to Andrew W. Shaw, assignor of the complainant, for part of the purchase money of lands conveyed by Shaw to Canfield.

The defence is that the title of Shaw being defeasible, subject to his dying without issue, with remainder over, in that case, to his surviving brother and sisters, (Shaw, at that time, and still, having had no issue,) that it was agreed, therefore, that Canfield should pay part of the purchase money, giving a mortgage for the remainder, and Shaw executed a deed poll, covenanting to perfect the title by procuring deeds of release from those holding these executory interests; that these covenants of Shaw have not been performed; that the defendant is ready and willing to pay the mortgage, but insists, first, that his title should be perfected according to the covenants in the deed poll.

1. The deed, the mortgage, and the deed poll, all bearing the same date, and relating to the same matter, are to be construed together as forming one transaction. 2 Parsons on Con. (5th ed.) 503, and cases cited in note; Cornell v. Todd, 2 Denio 130; Flagg v. Munger, 5 Seld. 483.

2. The covenants in the deed poll are conditions precedent to the payment of the mortgage, since they go to the whole of the consideration. 1 Parsons on Con. (5th ed.) 464; Pepper v. Haight, 20 Barb. 429.

(a.) These contingent interests which Shaw, by this deed. poll, covenanted to get released to the defendant, were

Coursen v. Canfield and Van Syckle.

assignable, and might be released to the owners under the statute of March 14th, 1851, Nix. Dig. 149, as well as by the common law. 2 Washburn on Real Prop. 367, and cases cited.

(b.) The title to the whole of the property was defeasible, and the contract to perfect this title went, therefore, to the whole of the consideration.

(c.) The whole transaction shows that it was a contract to convey the entire estate, and the parties could have intended but one thing, i. e. that the conveyance of the entire estate should be a condition precedent to the payment of the mortgage. Roffey v. Shallcross, 4 Madd. Ch. 122; 1 Esp. 346; Judson v. Wass, 11 Johns. 525.

(d.) The performance of these covenants and the conveyance of the entire estate, is thus "a condition going to the essence of the contract;" and the failure to perform this makes a total failure of consideration, and the mortgage given for this consideration of no effect. 2 Parsons on Con. (5th ed.) 464; Lucas v. Godwin, 3 Bing. N. C. 746.

3. A court of equity, in a case once properly before it, will do all in its power to settle the rights of all the parties justly and equitably, in one decree. Couse v. Boyles, 3

Green's Ch. 212.

(a.) The answer of the defendant admits the mortgage, and that he is ready and willing to pay it, as soon as his title to the land is perfected, according to the contract of the mortgagee and the intention of the parties. The bill, on the other hand, contains no such offer to perform on the part of the complainant.

(b.) Shaw has not performed his part of the agreement. Defendants' title is as defective now as when these deeds were given, and is liable, at any moment, to be swept from under him. Should this court now compel him to pay the mortgage, and Shaw die without issue, (and he has none now) he would lose his land and be left without a remedy, although having paid its full and entire value. Shish v. Foster, 1 Ves. 88; Knapp v. Lee, 3 Pick. 452.

Coursen v. Canfield and Van Syckle.

4. The general rule is conceded, that a court of equity will not entertain, as a defence to a mortgage, defect in title, since it is not the province of this court to go into an investigation of title, settle these issues of fact and law, and determine the title in this collateral way.

The rule must, however, be restrained and interpreted by the reasons upon which it is founded, and such has always been the ruling of our courts. Coster v. Monroe Manf. Co., 1 Green's Ch. 467; Couse v. Boyles, 3 Green's Ch. 212.

(a.) In the former of these cases cited, the defect in title had been proven in an action at law, and was allowed as a defence to the mortgage, the court holding, not that a defect in title was no defence, but that it could not inquire into it. The defect, however, being established elsewhere, it was admitted as an equitable defence.

In the latter case, the defence of a deficiency in the number of acres sold was allowed, the court citing, with approbation, Coster v. Monroe Manf. Co.

(b.) Here the defect in title was admitted by the seller, and as a part of the terms of the sale he expressly covenants and agrees to cure the defect immediately. Is not the defect of title, therefore, clearly established, and does not the reasoning of Coster v. Monroe Manf. Co. apply equally here?

The court is not asked to go into an investigation of the title, but simply to allow it as a defence when it is admitted by the acts and covenants of the mortgagee, and to decree that these covenants, the performance of which was expressly made by the parties a condition precedent to the payment of the mortgage, should first be performed.

(c.) The case differs radically from that where a warranty deed only is taken. If a purchaser relies solely upon this, and enters into the enjoyment of the property, so long as he is protected in such enjoyment he clearly should not, and will not be permitted to allege defect in the title, and to set up speculative difficulties as a defence to the mortgage. Here, however, there is something more, i. e. the covenants in the deed poll, expressing, both actually and legally, the

Coursen v. Canfield and Van Syckle.

intent of the parties that the defect in the title should be cured before the mortgage becomes payable.

5. The assignee of the mortgage (the complainant) stands in the same position as the mortgagee, and took the mortgage subject to all the equities between the assignor and other parties, whether these equities be latent or not. Conover v.

Van Mater, 3 C. E. Green 481.

6. The payment of the mortgage should, therefore, be suspended till the performance of the covenants in the deed poll, and the complainant's bill should be dismissed.

THE CHANCELLOR.

The suit is for the foreclosure of an ordinary mortgage. By the terms of it, both principal and interest are due. The defence is, that the mortgage was in part payment of the purchase money of the mortgaged premises, and given at the delivery of the deed; and that at the same time the mortgagee executed a covenant under seal to the purchaser, that he would immediately procure releases of their title from certain persons named, who were reputed to have some claim on the lands. That this covenant was part of the transaction of selling the land, and was in pursuance of the agreement by which the land was purchased, that it would not have been purchased without such agreement, and that the releases have never been procured.

The answer sets up that there was a verbal agreement, that the mortgage should not be due or payable until the releases were procured. But of this there is no proof whatever; the answer is no proof, as in this particular, it is not responsive to the bill, but sets up new matter in avoidance.

The covenant and mortgage must be construed together as part of one transaction, and as if they had been contained in the same instrument. And then the question is resolved into this, would the breach of a covenant by the mortgagee contained in a mortgage, preclude him from foreclosing it? The covenants in this case are independent. The mortgagee agreed to procure the releases forthwith, abso