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thereof to be occupied by them, and in relation to the manner of such use." Then follows a clause that nothing in this ordinance shall affect or impair existing ordinances on nuisances, and the use of streets and sidewalks.

Section 2 prohibits breaking up or interfering with funeral processions.

Sections 3 and 4 relate to circulating advertising devices.

Section 5 is as follows: "All persons who shall violate any of the provisions of this ordinance, on conviction thereof, shall be punished by a fine of not exceeding $500, and costs of prosecution; and in default of the payment thereof, shall be imprisoned in the common jail in the county of Kent, or in any peniteutiary, jail, or work-house of said city, at hard labor, until the payment of such fine and costs, but for a period not exceeding ninety days."

The nature of this imprisonment seems to correspond with criminal, rather than with civil imprisonment; but as this question was not fully argued, it will not be especially noticed on the present hearing, as the other questions raised are decisive.

reference to the streets beyond such as contemplates that they shall be under municipal oversight in the usual ways, some of which are mentioned. Counsel for the city referred to various powers which they claim cover the ordinance in question. These were the powers "to prevent vice and immorality; to preserve public peace and good order; to prevent and quell riots, disturbances, and disorderly assemblages;" "to prevent the cumbering of streets, sidewalks, etc., in any manner whatever;" to control, prescribe, and regulate the manner in which the highways, streets, avenues, lanes, alleys, public grounds, and spaces within said city shall be used;" "to prohibit practices, amusements, and doings in said streets, having a tendency to frighten teams and horses, or dangerous to life and property;" "to prohibit and prevent any riot, rout, disorderly noise, disturbance, or assemblage in the streets or elsewhere in said city; to provide for maintaining the peace and good government of said city."

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If the Legislature of the State had the power to subject the people of cities to the uncontrolled and arbitrary will of a common council, and having such power, had clearly signified their purpose to do so, then it might perhaps be claimed, whith some show of reason, that the city of Grand Rapids could do what it pleased under these grants of power. But the rules of legal construction allow no such absurdity. It is not in the power of the Legislature to deprive any of the

The petition for the writ of habeas corpus sets out that petitioner and his associates are members of an organization known as the "Salvation Army," which had paraded in Grand Rapids during two years and more, and on repeated prosecutions for public nuisance, had been acquitted, and that the ordinance in question had followed quite soon after the last acquit-people of the enjoyment of equal privileges under the tal. Various considerations are set up concerning the rights of such bodies which do not become very material, as the case stands on the record.

On the 29th day of September, 1886, petitioner and several others were arrested for having violated the ordinance on the previous evening. The charge made was that they "did then and there parade, in, upon, and through the public streets of the city of Grand Rapids, to-wit, Canal street and Pearl street, with musical instruments, banners, and flags, while singing and shouting, without having first obtained the consent of the mayor or common council of the city of Grand Rapids," contrary to the ordinance before named. Under the warrant petitioner was arrested, and has since been kept in custody, the trial having been postponed to enable this application to be made.

The validity of sections 1 and 5 of the ordinance is disputed on various grounds, the former, as an unreasonable and unlawful interference with the streets; and the latter, as unauthorized and oppressive, beyond the power of the city to enforce.

Section 1, as has been seen, while imposing no limits on military or funeral processions, except that it authorizes the mayor or chief of police to confine them to particular streets, gives to those officers unlimited discretion in fixing their route. Other processions cannot move at all, with music and banners, unless authorized by the mayor or council; and when so authorized, are under the same arbitrary direction, as to route, of the mayor or chief. Funeral processions, and no others, are protected from disturbance.

As the common council only sits at intervals, the power of determining whether processions shall be allowed is left practically within the unlimited discretion of the mayor. Some of the questions argued before us concerning the fifth section had some bearing on the constitutionality of portions of the charter as well as by-laws. So far as section 1 is concerned, it is claimed to be outside of any inference or grant of authority in the charter. That point may be first noticed.

There is no express reference in the charter to the use of streets for processions, and no power is given to license or regulate them, in terms. It contains no

law, or to give cities any tyrannical powers. All charters, and all laws and regulations, to be valid for any purpose, must be capable of construction, and must be construed in conformity to constitutional principles, and in harmony with the general laws of the land; and any by-law which violates any of the recognized principles of legal and equal rights is necessarily void so far as it does so, and void entirely if it cannot be reasonably applied according to its terms. We must therefore construe this charter, and the powers it assumes to grant, so far as it is not plainly unconstitutional, as only conferring such power over the subjects referred to as will enable the city to keep order, and suppress mischief, in accordance with the limitations and conditions required by the rights of the people themselves, as secured by the principles of law, which cannot be less careful of private rights under a Constitution than under the common law.

It is quite possible that some things have a greater tendency to produce danger and disorder in the cities than in smaller towns or in rural places. This may justify reasonable precautionary measures, but nothing further; and no inference can extend beyond the fair scope of powers granted for such a purpose, and no grant of absolute discretion to suppress lawful action altogether can be granted at all. That which is an actual nuisance can be suppressed just so far as it is noxious, and its noxious character is the test of its wrongfulness. There may be substances, like some explosives, which are dangerous in cities under all circumstances and made dangerous by city conditions; but most dangerous things are not so different in cities as to require more than increased or qualified safeguards, and to suppress things not absolutely dangerous, as an easy way of getting rid of the trouble of regulating them, is not a process tolerated under free institutions. Regulation, and not prohibition, unless under clear authority of the charter, and in cases where it is not oppressive, is the extent of city power.

It has been customary, from time immemorial, in all free countries, and in most civilized countries, for people who are assembled for common purposes to parade together, by day or reasonable hours at night, with banners and other paraphernalia, and with music

of various kinds. These processions for political, religious, and social demonstrations are resorted to for the express purpose of keeping unity of feeling and enthusiasm, and frequently to produce some effect on the public mind by the spectacle of union and numbers. They are a natural product and exponent of common aims, and valuable factors in furthering them. They are only found to any appreciable extent in places having collected inhabitants, for spectators are generally as important as members. They are among the incidental conditions of city life, and are as much to be expected, on suitable occasions, as any other public meetings, and not necessarily any more dangerous. They are however capable of perversion to bad uses, and when so perverted, may be dangerous. When people assemble in riotous mobs, and move for purposes opposed to private or public security, they become unlawful, and their members and abettors become punishable. These dangers are as well known as the customs themselves are, and are sometimes very great dangers. There may be times and occasions when such assemblies may for a while be dangerous in themselves, because of inflammable conditions among the population. All of these things are as ancient as the law, and are generally within reach of the law, unless the law itself is, for the time, suspended by military necessity. During all this period of public history, cities have existed, and had powers of local administration. But it has never been supposed that they needed, or ought to possess, any repressive power over these movements which was not subservient and subsidiary to the general legal scheme of govern

ment.

It is only when political, religious, social, or other demonstrations create public disturbances, or operate as nuisances, or create or manifestly threaten some tangible public or private mischief, that the law interferes. And when it interferes, it does so because of the evil done, or apparently menaced, and not because of the sentiments or purposes of the movement, if not otherwise unlawful; and things absolutely unlawful are not made so by local authority, but by general law. All may be capable of legal mischief by perversion, or by circumstances. It is lawful to provide for dealing with the mischief, but it is not lawful to go beyond reasonable measures and precautions in anticipating it. Private liberty and public tranquillity and security must both be kept in view.

We cannot accede to the suggestion that religious liberty includes the right to introduce and carry out every scheme or purpose which persons see fit to claim as part of their religious system. There is no legal authority to constrain belief, but no one can lawfully stretch his own liberty of action so as to interfere with that of his neighbors, or violate peace and good order. The whole criminal law might be practically superseded, if under pretext of liberty of conscience, the commission of crime is made a religious dogma. It is a fundamental condition of all liberty, and necessary to civil society, that all men must exercise their rights in harmony, and must yield to such restrictions as are necessary to produce that result. It is not competent to make any exceptions either for or against the body of which petitioner is a member, because of its theories concerning practical work. In law it has the same right, and is subject to the same restrictions, in its public demonstrations, as any secular body or society which uses similar means for drawing attention or creating interest.

Whatever regulation is made must operate uniformly, under the same conditions. It is competent to hold all persons liable for any actual wrong done which creates dangerous or noxious consequences. That is already provided for under the law of nuisances. These processions might, no doubt, become

nuisances, as any others might do so, but it cannot be assumed that they will; and it appears in the record before us that they have been judicially adjudged otherwise, when prosecuted. Any doctrine that would hold them legally objectionable in themselves would cover every military or political or society procession that ever assumed respectable proportions. All bylaws made to regulate them must fix the conditions expressly and intelligibly, and not leave them to the caprice of any one. This doctrine, as applied to public officers, was recognized in Horn v. People, 26 Mich. 221. It is quite as applicable to the common council, acting by resolution on particular cases. The law must be impartial and general, or it is no law. Waite v. Garston Local Board of Garston, L. R., 3 Q. B. 5. It is only where power is given to license that permissive action can be left to particular cases. If this were allowed in the case of processions, it would enable a mayor or council to shut off processions of those whose notions did not suit their views or tastes, in politics or religion, or any other matter on which men differ. When men in authority have arbitrary power, there can be no liberty.

It has never been found wise, and it is not legally reasonable, to do more than fix such general conditions as are necessary to the good order of the community. All persons who resort to cities must accept the inconveniences with the benefits which attend such communities. Those things which must be expected must be endured, if they are within bounds of propriety. Gilbert v. Showerman, 23 Mich. 448. It is not unusual to coufine noisy doings to such hours of the day and night as will not grossly disturb the quiet rest of sleep. It has been held, with reason, that a moving crowd may be less obnoxious than a stationary one; and this was said, in substance, when a defendant, who drew crowds to his windows by libellous pictures, and thereby blocked up a highway, undertook to justify himself by the processions of the judges and lord mayor. The remarks of Mr. Justice Park on the subject of crowds which may or may not be nuisances, in Rex v. Carlile, 6 Car. & P. 636, are quite instructive on this head. Instances might also be suggested of the propriety of suspending noisy demonstrations at particular times or places, or where they would disturb public assemblies, or invalids, or where, for special and peculiar reasons, regulation is needed. It would not be wise to attempt any definition in advance of those things. The legal rule that by-laws must be reasonable is perhaps as definite as it can be made with safety.

This by-law is unreasonable, because it suppresses what is in general perfectly lawful, and because it leaves the power of permitting or restraining processions, and their courses, to an unregulated official discretion, when the whole matter, if regulated at all, must be by permanent, legal provisions, operating generally and impartially.

It is also objected to the fifth section of the by-law that it gives to the judge who tries the case a discretion in fixing the penalty up to the highest limit allowed for any purpose by the charter, instead of exercising the duty of fixing it absolutely, or within certain bounds by provisions of by-law. The charter (tit. 3, § 14), both as amended in 1885 and as standing previously, declares, that where authority exists to pass ordinances, the common council may prescribe a fine, penalty, or forfeiture not exceeding $500. This is simply putting in words what was implied in all corporate power to pass by-laws at common law. It never can be mentioned, as a proper construction, that the council can, without exercising any discretion themselves, turn over this extravagant power to the courts. It has been the general understanding, under the common law, that municipal penalties must be fixed,

and not fluctuating. See cases cited in Ang. & A. Corp., § 360.

In Piper v. Chappell, 14 Mees. & W. 624, the legality of a penalty of five pounds, which might be made smaller, but not less than forty shillings, by the corporation officers, was maintained as being really a fixed penalty of five pounds, with power of mitigation by the corporation itself, thus reconciling it with the old authorities. How far a sliding scale of penalties is allowable we need not now consider. These are civil, and not criminal, forfeitures, which in the absence of other remedies must be sued for in debt. It has never been customary in our State legislation to leave any discretion in courts upon penalties under highway acts and others, involving no more than violations of legal provisions of a civic nature. It is enough to say that no penalty can be sustained that exceeds in amount what is reasonable, and that the by-law cannot properly impose any sum, sliding or fixed, which exceeds that. See Grand Rapids v. Hughes, 15 Mich. 54. No one, in his senses, could regard a penalty of $500 for such trivial offenses as most of those covered by this by-law as within any bound of reason. The penalties must be fixed with regard to the offenses. They cannot all be thrown in together, large and small, under the same measure of punishment. If different classes of acts are considered as of different demerit, the by-law should so classify and punish them. It is probable that no actual abuse has often been committed by the local court in fixing penalties, but when the law permits, such things are always possible, and in cases exciting prejudice, are not unlikely to happen. The history of this by-law indicates that the petitioner and his associate have rightly or wrongly become obnoxious to hostile feeling.

As the petitioner was discharged on the hearing, no further order need be entered. The other justices concurred.

COVENANT WARRANTY-COVENANT AGAINST

INCUMBRANCES-EFFECT OF EXCEPTION.

WISCONSIN SUPREME COURT, NOVEMBER 3, 1886.

BENNETT V. KEEHN.

Under a deed with full covenants of warranty, the covenant against incumbrances containing an exception of an existing mortgage, the grantee is not barred of any defense to the mortgage that the mortgagor might have interposed.

APPEAL from Circuit Court, Milwaukee county.

in the office of the register of deeds for Milwaukee county.

The answer of the defendant, Jenny M. Keehn, sets up as a defense to the action, facts showing that the mortgage, and the note to secure the payment of which the mortgage was given, were obtained from the said Emma A. Hewitt by fraud and deceit; and charges that, by reason of the fraud and deceit so perpetrated upon the said Emma A. Hewitt, the said note and mortgage are void in law; and she also charges that the present owner and holder of the note and mortgage took the same with full knowledge of the fraud perpetrated in its inception upon the said Emma A. Hewitt.

To the answer of the appellant the plaintiff demurred, and the County Court sustained the demurrer. From the order sustaining the demurrer she appealed to this court, and such order was reversed. See 57 Wis. 582; 15 N. W. Rep. 776. The cause was remitted to the County Court, and was removed from that court to the Circuit Court of Milwaukee county, where the same was tried upon the issue made by the answer of the appellant, and the court rendered judgment against the appellant, and in favor of the re. spondent.

Upon such trial the learned Circuit judge made no findings upon the question of the alleged fraud practiced upon the said Emma A. Hewitt, in order to induce her to execute said mortgage, but found as facts the following: "(8) That Emma A. Hewitt, and Charles L. Hewitt, her husband, duly made, executed, and delivered, to George and Belle Farr, a warranty deed of the several lots and parcels of land described in the complaint herein, on December 7, 1881, and covenanted therein that the same were free and clear from all incumbrances, except a mortgage thereon for $1,400, which I find to have been the mortgage aforesaid, as admitted by the parties on the trial herein. (9) That said George and Belle Farr accepted said deed with full knowledge of said mortgage, and the amount due thereon, and subject to the payment thereof. (10) That on January 13, 1882, said George and Belle Farr duly conveyed their title in and to said lots and lands described aforesaid in their said deed, and in the complaint herein, to the defendant, Jenny M. Keehn. (11) That said Jenny M. Keehn took and accepted said deed with full knowledge of said mortgage, and the amount due thereon, and subject to the same."

Upon the trial, after giving some evidence in support of her answer, the appellant offered in evidence the warranty deed from Emma A. Hewitt and her husband to George Farr and his wife, dated the 7th of December, 1881, and recorded January 17, 1882; and a warranty deed from Farr and wife to the appellant for the consideration of $5,000, bearing date January After these

D. G. Rogers, E. P. Smith and B. K. Miller, Jr., for 13, 1882, and recorded January 17, 1882. respondent.

J. C. McKenney, for appellant

TAYLOR, J. This is an action to foreclose a mortgage given by one Emma A. Hewitt to one Callie McDonald, April 1, 1881, upon lands situate in the city of Milwaukee, to secure the payment of $1,400, and the interest thereon. The plaintiff became the owner of the mortgage, and the debt secured thereby, by as. signment from said mortgagee, on the 4th day of May, 1881. The appellant became the owner of the mortgaged premises, or the greater part thereof,by the following conveyances: December 7, 1881, Emma A. Hewitt and Charles L. Hewitt, her husband, by warranty deed, conveyed said mortgaged lands to George and Belle Farr; and George and Belle Farr conveyed said lands to the appellant, by warranty deed, January 13, 1882. Said deeds were duly recorded

deeds were offered in evidence, the learned Circuit judge refused to hear further evidence on the part of the appellant, offered by her for the purpose of establishing the fraud charged in her answer.

The learned Circuit judge held, that by virtue of the deeds from Mrs. Hewitt to Farr and wife, and from Farr and wife to the defendant, she must be conclusively held to have taken the title to said mortgaged property subject to said mortgage, and the payment thereof, and that she could not therefore be permitted to show that the mortgage was in fact void for fraud. The decision of the learned Circuit judge is based solely on the language of the deed from Mrs. Hewitt and her husband to Farr and wife. The consideration mentioned in the deed is $5,000. The deed is in the usual form of a warranty deed down to and including the habendum clause. It then proceeds as follows: "And the said Charles L. Hewitt, and

Emma, his wife, for themselves, their heirs, executors and administrators, do covenant, grant, bargain, and agree to and with the said party of the second part, their heirs and assigns, that at the time of the ensealing and delivery of these presents they are well seized of the premises above described, as of a good, sure, perfect, absolute, and indefeasible estate of inheritance in the law, in fee simple; and that the same are free and clear from all incumbrances whatever, except a mortgage of $1,400, and that the above bargained premises, in the quiet and peaceable possession of the said party of the second part, their heirs and assigns, against all and every person or persons lawfully claiming the whole, or any part thereof, they will forever warrant and defend. In witness, etc. The deed from Farr and wife to the appellant was a like warranty deed, but not containing the words, "except a mortgage of $1,400."

The learned Circuit judge held, that because the deed from Mrs. Hewitt and her husband contained the exception in the covenant against incumbrances in the language above stated, it conclusively proved two facts: First, that the grantees at the time of the acceptance of such deed accepted the same with full knowledge of the existence of the mortgage sought to be foreclosed in this action; and second, that they took the estate granted subject to such mortgage, aud consequently that they cannot make any lawful defense to its foreclosure. The effect the learned Circuit judge gives to the deed is, that as to this mortgage, the deed to them is a mere conveyance of the equity of redemption, and that such grantees could convey no greater estate or rights to the appellant in this action than they had themselves; such rights being apparent upon the record when they conveyed to the appellant. If the learned Circuit judge is right in his construction of the deed from Mrs. Hewitt and her husband to Farr and wife, then we think his refusal to hear the evidence of the appellant, upon the fraudulent character of such mortgage, was also correct. If the appellant only obtained the equity of redemption in the lands by his deed, then she can have no legal standing to contest the validity of the mortgage subject to which the estate was conveyed to her. This was, we think, determined by this court on the former appeal in this case. See also the following cases: Tuite v. Stevens, 98 Mass. 305; Johnson v. Thompson, 129 id. 398. It was also determined on that appeal that if the appellant did not take the estate subject to the mortgage, and there was no agreement on her part, or on the part of her immediate grantors, to pay the mortgage, or the amount of the mortgage was not deducted from the purchase-money, then she could defend against such mortgage. These questions were fully discussed on the former appeal in this case, and were determined as above stated, and they are not only res adjudicata in this case, but we are satisfied with that decision, and believe it is sustained upon principle and authority.

The allegations in the answer of the appellant as to her title is set out in the report of the case in 57 Wis. 585; 15 N. W. Rep. 776. After stating, generally, that she owned all the lots in controversy, except one, by warranty deeds from Mrs. Hewitt and her husband to Farr and wife, and by like deed from Farr and wife to her, in the usual form of such deeds, she further alleges "that she never promised, covenanted, or agreed, in any manner or form whatsoever, to assume the payment of said mortgage debt, nor did she receive said conveyance to her of said real estate subject to said mortgage; and as she is informed and believes, her grantors, the said Farr and wife, in no manner bound themselves to pay said mortgage debt," etc. On page 595, Justice Lyon, in speaking for the court, says: "If the conveyance of the mortgaged

premises is not expressed to be subject to the mortgage, but by its terms purports to convey the whole title, if the grantor does not assume the payment of the mortgage debt, and the amount thereof is not deducted from the purchase-money, the grantee does not take her title subject to the mortgage in that sense which 'prevents him from defending against it for fraud or want of consideration; and this is especially true if the conveyance contains full covenants of warranty."

It will be seen, by the examination of the bill of exceptions on the present appeal, that when the learned Circuit judge refused to hear any further proof on the part of the appellant in regard to the fraudulent nature of the mortgage, the only evidence then before him which can be claimed as in any way tending to show a different state of facts than those set up in her answer, and which were passed upon by this court in overruling the demurrer thereto was what appeared upon the face of the deed from Mrs. Hewitt and husband to Farr and wife. Does the fact that it appears on the face of such deed, that in the covenant against incumbrances, this mortgage is excepted in the language above stated, prove conclusively that the grantees therein named took the title subject to said mortgage, or that they in any way agreed to pay or assumed the payment of the same, or that the amount of such mortgage was deducted from the purchasemoney? The learned Circuit judge has not found that either the grantees in the Hewitt deed, or the appellant, ever agreed to pay said mortgage, or assumed the payment thereof. The only question therefore is whether by reason of said exception the grantees took the estate subject to the mortgage, and the payment thereof out of the lands granted.

If the appellant took her title subject to said mortgage, then if she were ousted from the possession of the granted premises by one claiming under and through such mortgage, she would have no right of action against the grantors in the Hewitt deed, as she could have no greater rights as against them than the grantees named therein. If the construction given to the deed by the learned Circuit judge is correct, then no action could be maintained against said grantors for such eviction. If an action for such eviction could be maintained by the appellant against said grantors, notwithstanding the exception in the covenant against incumbrances, then it is clear the construction given to the deed by the learned Circuit judge is not the true construction. The authorities upon this point are clearly against the construction put upon the deed by the learned Circuit Court. In the first place it may be safely stated that a mere knowledge of an existing incumbrance upon or defect in the title to the estate granted, will not relieve the grantor from liability upon the covenants against incumbrances, or of seizin, or covenauts for quiet enjoyment. The only exception to this rule, if there be any, is the one in favor of known existing highways upon the granted premises. The exception in the deed in question, in the covenant against incumbrances, is undoubtedly notice to the grantee of the existence of such mortgage. It also prevents the grantee from maintaining an action upon the covenant against incumbrances, basing such action upon the mortgage so excepted from the covenant, and it seems to us that is all the benefit the grantors can claim on account of such exception in the covenant. The following cases sustain the rule as above stated: Estabrook v. Smith, 6 Gray, 572-577; Calkins v. Copley, 29 Minn. 471; S. C., 13 N. W. Rep.. 904; Sumner v. Williams, 8 Mass. 162, 202, 214; Donahoe v. Emery, 9 Metc. 63; Howell v. Richards, 11 East,' 633; Smith v. Compton, 3 Barn. & Adol. 189; Norman v. Foster, 1 Mod. 101; Peters v. Grubb, 21 Penn. St. 460; Duvall v. Craig, 2 Wheat. 45, 58; Dickinson v.

Hoome, 1 Grat. 302; S. C., 8 id. 358; Barton v. Fitzgerald, 15 East, 546; Cornell v. Jackson, 3 Cush. 506; Rawle Cov. (4th ed.) 498 et seq.; Stannard v. Forbes, 6 Adol. & E. 572; Kean v. Strong, 9 Ir. Law, 74, 81, 82. The case in 6 Gray was an action upon the covenauts in a deed. The covenant in the deed upon which the action was brought was in all respects like the covenant in the deed of Mrs. Hewitt and husband. In the covenant against incumbrances there was the following exception: Except a mortgage to Spencer Field for $368.85." This covenant was followed by a covenant that the grautors had good right to sell aud convey the property, and also general covenant to warrant and defend the premises to the grantee, his heirs and assigns forever, against all the lawful claims and demands of all persons. On the trial the evidence showed an eviction of the grantee by the mortgagee, and it was held that the plaintiff was entitled to recover. In the opinion the court say: "The defendant insists that the exception of the mortgage in the covenant against incumbrances extends to the covenant of warranty, so that the plaintiff's claim is exempted from the latter covenant against the lawful claims of all persons, just as it would have been if to that covenant, as it stands in the deed, had been added the words, except against those claiming under the mortgage above named." Further on the court say: "We need do no more than state the ground of the opinion which we have formed, that the defendant's covenant of warranty is not restricted nor limited by his restricted covenant against incumbrances. That ground is that the two covenants are not connected covenants of the same import, and directed to one and the same object." After referring to the case in 8 Mass, and the English cases above cited, and quoting at considerable length from the opinion of Lord Ellenborough in the case of Howell v. Richards, supra, the opinion continues: "So in the case at bar, the defendant might well covenant to warrant against the eviction of plaintiff by the holder of the mortgage, though he could not covenant against all incumbrances without rendering himself forthwith liable to an action for nominal damages, at least for a breach of such covenant; and by the terms of his deed he has covenanted against the eviction to which the plaintiff has been subjected. If, as the defendant offered to prove at the trial, the plaintiff agreed to take the premises subject to said mortgage, then the agreement should have appeared in some way in the deed, or in some other written instrument. It was as easy to except the claim in the outstanding mortgage from the covenant of warranty as from the covenant against incumbrances, if such was the understanding | of the parties." This case states the argument against the construction given to the deed in the case at bar by the learned Circuit judge, in a brief, clear, and to us very satisfactory manner, and it is sustained by the reasoning in the other cases above cited.

The case in Minnesota had the same exception in a mortgage in a covenant against incumbrances. The mortgage was afterward foreclosed, and the purchaser at the mortgage sale brought ejectment against the grantee in the deed in which the mortgage was excepted in the covenant against incumbrances. I judge from the case that the plaintiff in his complaint set out his title specifically, and showed that the mortgage excepted had been given by an agent of the owner under a power of attorney which only authorized the agent to sell the premises. The defendant demurred to the complaint, and the court sustained the demurrer. It was in fact the same case in principle as the one in 6 Gray. The question was simply in both cases, whether the grantee in the deed took the premises subject to the mortgage, and in both cases it was held he did not.

In the case of Duvall v. Craig, in the Supreme Court of the United States, which was an action upon a covenant in a deed, the grantor in the deed had first covenauted against incumbrances done, or suffered to be done, on the premises by the grantors. This covenant was followed by another covenant of warranty against all persons whatsoever, with a condition in this warranty that the grantors would "defend with this warranty and no other, to-wit, that if the said land, or any part thereof, shall at any time be taken by a prior legal claim or claims, that then, and in such case, they (the grantors) and their heirs, shall make good to the said grantees, and his heirs, such part or parts so lost, by supplying to his, the said William Duvall's use, other lands in fee, of equal quantity and quality, to be adjudged of two or more honest men," etc. In this deed two of the grantors were trustees of the other two, and the action was brought against one of the grantors who signed the deed in his own right, and against two who executed as trustees, for a breach of the first covenant in the deed; setting out facts showing that the grantee bad lost some of the estate by a previous act of one of the grantors, and demanded a personal judgment for the value, in money, of the estate lost. One of the questions argued in the Supreme Court was, whether by reason of the condition attached to the general covenant of warranty, the plaintiff was not restricted in his right, and could only be indemnified for his loss in other lands of equal value, as stipulated in the condition following the last covenant; and it was strongly urged that this restricted covenant should especially apply to the defendants who executed the deed as trustees. Justice Story, who delivered the opinion of the court, after having declared that the trustees must be held liable on the personal covenant, though executing the deed as trustees, says: "It is contended that the two covenants in the deed are so knit together that they are to be construed in connection, so that the clause as to an indemnity with other lands, in case of an eviction by a prior legal claim, is to be applied as a restriction to both covenants; and if so then the action cannot be sustained, for the declaration does not allege any eviction, or any demand or refusal to indemnify with other lands. It is not unreasonable to suppose, that when the parties had provided a special indemnity for a prior claim, they might mean to apply the same indemnity to all other cases enumerated in the first covenant. But something more than the mere reasonableness of such a supposition must exist to authorize a court to adopt such a construction. The covenants stand distinct in the deeds, and there is no incongruity or repugnance in considering them as independent of each other. The first covenant being only against the acts and incumbrances under the parties to the deed, which they could not but know, they might be willing to become responsible to secure its performance by a pecuniary indemnity; the second including a warranty against the prior claims of strangers also, of which the parties might be ignorant, they might well stipulate for an indemnity only in lands of an equitable value. The case ought to be a very strong one which would authorize a court to create, by implication, a restriction which the order of the language does not necessarily import or justify. It ought to be one in which no judicial doubt could exist of the real intention of the parties to create such a restriction." It cannot be pronounced that such is the present case, and this objection to the declaration cannot be sustained."

I have quoted thus fully from the learned justice because it presents, in a clear and forcible manner, the argument of all the courts upon the question as to what effect should be given to a limitation or restriction, in an independent covenant in a deed, upon

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