Bryant v. Wilson

Alvey, C. J., delivered the opinion of the Court. The bill in this case was filed by the vendee of a lot of ground in the City of Baltimore against the vendors, for a specific performance of the contract of purchase. The defendants demurred to the bill and the demurrer was sustained by the Court below. The bill charges the making of the contract, and the performance thereof, or tender of performance, by the plaintiff, and the refusal to perform by the defendants, according to what is alleged to be the requirement of the contract of sale.

The contract exhibited, dated the 8th of September, 1888, and signed by the defendants, describes the property, and states the price at which it was agreed to be sold to be $1,700, and by which contract the receipt of $300 on the purchase is acknowledged by the defendants. The property, according to the terms of the contract, was sold to remain subject to a ground rent of $135 per annum; and then follows -this stipulation: “We agree to complete the repairs, which we have heretofore contracted for, at our own expense, on the said building; and we further agree to execute within thirty days a deed of said property to the said J. W. Bryant, ⁴⁴² clear of all incumbrance, except the ground-rent aforesaid; and we also agree at the same time to assign the policy we hold on said property to said Bryant, upon his executing to us a good and sufficient mortgage for the $1,400,” payable in the manner specified in the contract. It is alleged by the plaintiff in his bill, that, having in other respects performed his part of the contract, he tendered to the defendants a deed of the property to be executed by them, and a mortgage to secure the balance of the purchase money, as required by the contract; and that in the deed, prepared and presented for execution, was inserted this clause or covenant: “And the said Wilson and Hunting agree with the said J. W. Bryant that the said property is clear of all incumbrance, except the ground-rent aforesaid;” but that the defendants refused to execute the deed and accept the mortgage, for the reason, as they contend, “that the terms ‘clear of all incumbrance, except the ground rent, ’ have reference solely to the property, and are simply declaratory of what they have agreed should be the condition of their title to it, as to incumbrances, at the time'of making the deed, and not that the deed should contain a covenant against incumbrances.” And this seems to have been the view of the Court below, but in which view we cannot concur. The object of the stipulation against incumbrances was to assure and protect the vendee, and to relieve him of all danger that could result from the possible existence of incumbrances, whereby his estate might be lessened in value, and he be disturbed in the peaceable enjoyment thereof.

And that being so, it is quite immaterial that it is not alleged in the bill for specific performance that the property is, to the knowledge of the plaintiff, subject to incumbrances; for whether the vendee has knowledge of the existence of incumbrances or not, at the time of taking the deed with covenant against ⁴⁴³ incumbrances, "his rights on the covenant