Subers v. Hurlock

Fowler, J., delivered the opinion of the Court. In the year 1854, James Hazle, of Queen Anne’s County, conveyed to Charles W. Hendrix an undivided half-interest in a farm in that county, by deed purporting to be a conveyance in fee simple; the said grantee at the same time taking from certain other persons a deed in fee of the remaining interest therein, it being conceded that the last named grantors had a right to convey. But when Hazle made the deed above-mentioned, he had only a life-interest in the undivided half conveyed by him, the remainder in fee being in his three children. In order to indemnify the grantee against loss by reason of his purchase, Hazle executed to Hendrix a mortgage of indemnity on a tract of land in Kent County.

By several mesne conveyeyances Burris Subers, the appellant, became and is now the owner of the land in Queen Anne’s County, which was in part conveyed by Hazle to Hendrix, and Samuel Hurlock, the appellee, likewise became the owner of the land mortgaged in the manner above mentioned. For the purpose of this case it has been agreed that the appellant has been actually evicted by the children of said Hazle, who, he being dead, are the real owners in fee of the undivided interest conveyed by their father. By reason of this eviction, the appellant claims indemnity and remuneration of said Hurlock by virtue of said mortgage. This claim is resisted by the appellee generally, and because the statutory plea of limitation is a bar thereto.

It is also contended that this claim is stale and without merit by reason of appellant’s laches, which will prevent any recovery by him against the appellee. The only question we need consider is, conceding no proceedings were taken on the mortgage until more than twenty years after the youngest of said children came of age, whether the Statute of Limitations constitutes a bar to the claim now made. The answer to this question depends upon another, namely, when did the cause of action accrue and the statute begin to run? In order to answer this question we must examine the mortgage, or rather that part ⁴⁶ of it in which the parties themselves declare what is the true intent and meaning thereof.

The language used is as follows: “ Provided always, and it is the true intent and meaning of these presents, and of the said parties hereunto, that if the said Joseph Benjamin Hazle, Jámes Hazle and Alice Ann Hazle, do or shall when and so soon as they shall have severally attained the age of twenty-one years, at the cost and charges of the said James Hazle, convey and assign unto the said Charles W. Hendrix, his heirs and assigns, by such deeds and conveyances as the said Charles W. Hendrix, his heirs and assigns, or his or their counsel learned in the law shall approve of, all their rights, title, interest and estate, in and to the said lands and real estate contained in the said deed from James Hazle to the said Charles W. Hendrix, and hereinbefore referred to and recorded among the land records of Queen Anne’s County, without any consideration to be paid to the said Joseph Benjamin Hazle, James Hazle and Alice Ann Hazle for so doing; and also, if, and in case the said James Hazle, his heirs, executors or administrators, do and shall in the meantime, and until the said Joseph Benjamin Hazle, James Hazle and Alice Ann Hazle, shall have executed such conveyance as aforesaid and delivered the same, save harmless, defend, keep harmless and indemnify the said Charles W. Hendrix, his heirs and assigns, executors and administrators, and his and their goods and chattels, lands and tenements, and the said tract or parcel of land and premises (an undivided half part, as aforesaid) so to be conveyed by the said Joseph Benjamin Hazle, James Hazle and Alice Ann Hazle to the said Charles W. Hendrix as aforesaid, and the rents, issues and profits thereof, from all claims and demands to be made thereto by or on the part and ■ behalf of the said Joseph Benjamin Hazle, James Hazle and Alice Ann Hazle, then and from thenceforth these presents, and every matter and thing therein contained, shall cease and be utterly null and void, anything herein contained to the contrary thereof in anywise notwithstanding.” ⁴⁷ It seems to us too clear for controversy, that as and when the children reached the age of twenty-one, and failed to execute the deeds provided for, the condition of the mortgage was broken, a right of action accrued to the mortgagee and the statute commenced to run against him and in favor of the mortgagor. This conclusion, however, as we understand the argument of counsel for the appellant, is not controverted, that is, that the failure of the children to have executed deeds as they came of age created a default, and gave the mortgagee, upon such failure, a right of action, and that such right of action having accrued more than twenty years before the institution of these proceedings, it would be a bar to them or to any action on the mortgage for indemnity for loss caused by such failure to execute such deeds. But it is further contended that the covenant or condition of the mortgage by which it was agreed that the deeds should be .executed, was not the only covenant therein, and that the appellant was not bound to sue on breach' of that covenant or within twenty years thereafter, but that he could waive that right and wait until he was actually evicted, or at least until twenty years after the mortgagor’s death, for until such death his children could make no legal claim against the mortgagee’s land. This contention is based upon the theory that in addition to the covenant respecting the execution of the deeds by the chil dren