Weed v. Covill , 14 Barb. 242 ( 1852 )

By the Court, Hand, J.

Considering the mortgage as before the court, there is no agreement to pay the sum of §110, or any part of it. There is no recital or declaration in the instrument that the defendant was personally indebted to the plaintiff. And even the complaint does not so state. There is, therefore, no implied covenant to pay any thing. It is merely a mortgage, without any personal liability. And the case of Culver v. Sisson, (3 Comst. 264,) seems to be conclusive against the plaintiff.

[Fulton General Term, September 6, 1852.

Willard, Hand, Cady and C. L. Allen, Justices.]

The plaintiff insists that the covenant to warrant and defend against himself and others is broken, because he “ has used up and disposed of” the property. I do not think this a correct construction of the covenant. It is merely a covenant of title, not that he will forever keep the property or protect it.

The only difficulty I have had with the case, was, whether this may not be considered an action for a conversion of the property; and then, as no statute of limitations has been pleaded, the plaintiff would be entitled to judgment. But the allegation is not that the defendant has used up and disposed of the property for his own use, or, in any way by his fault, or wrongfully; nor, in fact, in any way wrongfully converted it to his own use. And the complaint does not demand damages for “ using up and disposing of it,” nor for its value, but for the sum of $110, and interest from the date of the mortgage.

Judgment for defendant, with leave to amend, <fcc.

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