Page:Federal Reporter, 1st Series, Volume 2.djvu/38

 rULLEB V. JILLETT. 81 �Bold the land to Jillett, the defendant, who assumed the de!)! due on the mortgages, with interest from December 9, 1872. The plaintiff, having heard that ihere were taxes due on the land which were unpaid, on the twelfth of December, 1872, paid 1537.03, stateand county and South Park taxes of 1871, which it is admitted were an encumbrance on the land at the time the mortgages were executed and delivered. �When the debt for which the mortgages were given matured, the defendant offered to pay the amount due, but refused to pay these taxes. By agreement the principal and interest of the debt was received, without affecting any right which the plaintiff might have as against Jillett for the reimbursement of the money paid for taxes; and the bill in this case has been filed to enf orce as against Jillett the claim for the payment of these taxes. And to that bill a demurrer has been inter- posed, which, of course, admits the f acts, and the question is whether the claim can be enforced under the ciroumstances against the defendant. �I am of the opinion that it cannot. Before prooeeding to the discussion of the other part of the case it is proper to state that the plaintiff does not claim that the defendant is liable under the covenant which Bruner made, that he would pay or cause to be paid ail taxes levied or assessed on the promises while the debt remained unpaid; because, as he admits, these taxes, the subject of controversy here, were not levied or assessed while the debt remained unpaid, but were levied and assessed and became due before the mortgages were executed. �There is no doubt, for we must so assume on the demurrer to the bill, that the taxes which were due were an encumbrance upon the land at the time that the mortgage was executed, and so when the deeds were delivered by Bruner to the plain- tiff there was a breach in the warranty which had been made in them, that the promises were free and clear from ail encum- brances, and Bruner was and is undoubtedly liable for that breach of the warranty ; but does that liability adhere to the land and foUow it in the hands of the defendant ? I think not. The covenant that the land was free from ail encum- ����