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ages, a copy of which is attached to the statement, shows that it covered other premises never owned by defendant, which were liable to contribute to the payment of the mortgage, and that the duty rested on plaintiff to exhaust first the additional land, so as to relieve the defendant, pro tanto.

An open unsatisfied mortgage is an incumbrance against land, even though the bond or debt secured thereby has been actually or presumptively paid.

When, in a deed given by wife and husband, the wife being the real owner, there is a joint covenant against incumbrances and a general warranty, a suit for breach thereof must be brought against both jointly; or, if the husband is deceased, that fact should be alleged.

Plaintiff's statement, if signed by attorney, need not be signed by

plaintiff.

A plaintiff's statement of cause of action, sworn to before a commissioner of deeds of New Jersey, without any certificate that such commissioner had power to administer oaths, is insufficient.

Leave granted to amend.

In the Court of Common Pleas of Lehigh County. No. 55 January Term, 1922. Harry Wilkinson v. Ida M. Geist. Assumpsit. Affidavit raising Questions of Law. Sustained in part. Leave to Amend Statement.

Butz & Rupp, for Plaintiff.

Richard W. Iobst and Calvin E. Arner, for Defendant.

Reno, J., July 18, 1922. This case comes before us upon defendant's demand for judgment upon the questions of law raised for the decision of the court by her affidavit of defense.

The plaintiff alleges that on January 22, 1914, defendant conveyed by deed, wherein her husband joined, land situate in New Jersey; that the deed contained the covenants hereinafter set forth; that at the time of the conveyance there was a valid subsisting lien (additional to the mortgages mentioned in the deed and referred to in the warranties hereinafter set forth) consisting of a mortgage given and executed on January 23, 1911, by Steve Ignatz, the immediate predecessor in title of the defendant, for three thousand dollars with interest at the rate of five per cent. per annum that plaintiff had no knowledge of the existence of this mortgage at the time of the conveyance; that neither Ignatz nor defendant paid the principal or interest of the mortgage and that plaintiff paid the principal and interest in order to avoid threatened foreclosure proceedings; whereby there is due

to plaintiff the sum of three thousand dollars with interest from January 23, 1911.

The covenants referred to in plaintiff's statement of claim are as follows:

"And the said party of the first part do for themselves, their heirs, executors and administrators covenant and agree to and with the said party of the second part, his heirs and assigns, that they the said Ida M. Geist and Frank M. Geist that the said

land and premises, or any part thereof, at the time of the sealing and delivery of these presents are not encumbered by any mortgage, judgment or limitation, or by any encumbrance whatsoever, by which the title of the party of the second part, hereby made or intended to be made, for the above described land and premises, can or may be changed, charged, altered or defeated in any way whatsoever; except as above set forth."

"And also that they, the said party of the first part will warrant, secure, and forever, defend the said land and premises unto the said Harry Wilkinson, his heirs and assigns, forever, against the lawful claims and demands of all and every person or persons, freely and clearly freed and discharged of and from all manner of encumbrance whatsoever except from the two certain mortgages, one for fifty-five hundred dollars and the other for four thousand dollars as above set forth and described."

The land is situate in New Jersey and the deed was executed and delivered there. Hence, it would be wise to determine, at the outstart, whether the controversy is to be decided according to the laws of New Jersey or those of Pennsylvania. But we are restrained from pursuing that inquiry because plaintiff has not alleged the law of New Jersey, although his brief urges us to follow New Jersey statutes and cases as the basis of our decision. We are not permitted to have judicial knowledge of the law of other states and in the absence of averments in the pleadings we are obliged to assume that the laws of the two states are similar: Adams v. Cassard, 206 Pa. 179; Musser v. Stauffer, 178 Pa. 99.

Recurring to the above clauses, it is obvious that the first is a covenant against incumbrances and that the second is a general warranty for quiet enjoyment. A

covenant against incumbrances, if incumbrances exist, is broken the instant the instrument containing the covenant is delivered, while a general warranty is broken only by an actual or constructive eviction: Knepper v. Kurtz, 58 Pa. 480 Williams v. O'Donnell, 225 Pa. 321: which eviction must be laid and proved and must show at least an involuntary loss of the possession: Wilson v. Cochran, 46 Pa. 229. There being no averment of an actual or constructive eviction or of the involuntary loss of possession, the recovery in this case, if any, must be founded upon the rights created by the covenant against incumbrances quoted above. In this connection we may note the plaintiff argues that, in addition to the express covenant quoted above, there is contained in the deed an implied covenant against incumbrances which also entitles him to recover. That implied covenant consists of the words grant, bargain and sell" as used in the deed. But, obviously, this covenant is not available to plaintiff: Because, first, he has not recited nor referred to it in that paragraph of his statement of claim wherein he mentions those covenants upon which his action is based; second, the covenant by the express terms of the Act of May 28, 1715 (1 Smith Laws, 94; section 6) applies only to deeds recorded in Pennsylvania; and third, notwithstanding the unguarded expression contained in Funk v. Voneida, 11 S. & R. 117, and other cases cited by both parties here, the covenant applies only to incumbrances "done or suffered by the grantor:" Knepper v. Kurtz, supra.

The covenant against incumbrances having been broken at the very moment it was entered into, a right of action accrued to plaintiff on January 22, 1914: Cathacart v. Bowman, 5 Pa. 317: and the amount recoverable depends entirely upon what plaintiff has suffered. The mere existence of the incumbrance entitles plaintiff to nominal damages, but if he has been compelled to extinguish the incumbrance he is entitled to recover the price paid for it: Myers v. Brodbeck, 110 Pa. 198. It being clear, therefore, that plaintiff is in any event entitled to recover something, the amount being dependent upon what he shows with respect to the damage suffered by him, he is not to be turned out of court upon demurrer merely because he has perchance claimed more damages than he will be ultimately entitled to recover: Seran

ton Axle and Spring Company v. Scranton Board of Trade, 271 Pa. 6.

This statement of the principles of law applicable to the plaintiff's statement plainly shows that he has set forth a good cause of action and, by the same token, disposes of most of the questions of law raised by the defendant. If the existence of the incumbrance at the moment of the conveyance is the cause of action, it follows that plaintiff's right depends only upon that factor and that he is not obliged to anticipate possible defenses and to plead accordingly: Hastings v. Speer, 34 Pa. Super. Ct., 478. It is conceivable that a grantee who finds his property subject to incumbrances owes certain legal duties to his grantor. If he does owe such duties and if he fails to perform them or if he performs them improperly, his failure to perform or his improper performance is undoubtedly a circumstance whereby the defendant may defeat recovery or reduce the damages recoverable; but in order that an issue may be created whereby the exact points in controversy may be adjudicated the defendant must plead the facts upon which he relies. Thus, in the instant case, defendant contends that since the copies of the deeds forming part of plaintiff's statement show that the Ignatz mortgage covered lands other than those conveyed by defendant to plaintiff, it was the duty of the plaintiff to allege that plaintiff compelled the mortgagee to exhaust his remedy against such other lands before attempting to subject the lands conveyed by defendant to plaintiff to the payment of the mortgage. It is quite apparent that we cannot determine this question at this time and for the following reasons: First, the facts upon which this argument is based are drawn from the deeds attached to the statement of claim, which deeds may or may not become a part of the evidence in the case, their admissibility depending upon the state of the pleadings as they may be at the time of the trial and, therefore, this content on being based upon something not strictly a part of the pleading, but evidence which the Practice Act permits incorporation in the pleadings, is in effect a speaking demurrer and although contained in an affidavit of defense. so called, is bad: Wright v. Weber, 17 Pa. Superior Ct., 451; second, if the plaintiff owed to the defendant the duty of securing contribution from the other

mortgaged lands, that duty arose subsequent to the date when the right of action accrued to the plaintiff and, therefore, if it avails defendant at all, it is available only as a defense to be set up and proved by the defendant either in bar of the action or in mitigation of the damages; third, the argument supposes the existence of the right of contribution without alleging any facts from which the right can be inferred or upon which it is predicated, it being entirely possibly that the equity of contribution may have been lost or extinguished by the fact, inter alia, that the lands subject to the blanket mortgage were sold in such order and in such manner as to make the lands conveyed to defendant primarily liable for the payment of the balance of the mortgage, and if defendant contends that the equity of contribution should have been enforced by plaintiff, defendant must affirmatively show such a state of the record as made enforcement of the equity possible; fourth, it does not appear that there was opportunity for the exercise of this right of contribution, since plaintiff paid the mortgage upon a threat of foreclosure proceedings, and we do not understand that the right of contribution can be called into operation before execution has been issued upon the blanket mortgage. We will not be understood as holding that it was plaintiff's duty to assert defendant's right to contribution in relief of defendant's liability to plaintiff. All that we now decide is, assuming that such duty rested upon plaintiff, it is a defense which defendant must set up by averring the facts which called that duty into existence and that plaintiff is not obliged to anticipate the defense by pleading the facts which exonerate him from asserting it. This disposes of the first, second, third, fourth and fifth reasons set out in defendant's affidavit of defense, all of which relate to the equity of contribution or to some phase of it.

The sixth reason is that plaintiff has failed to aver when he paid the mortgage. This is immaterial in view of the fact that the right of action accrued on January 23, 1914, which date is laid in the statement, and a statement of the time of payment can have no other effect than to fix the date from which interest at the rate of six per cent. is to run. It is clear that plaintiff is entitled to recover the amount paid by him plus interest at the rate of

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