Page:Federal Reporter, 1st Series, Volume 2.djvu/39

 83 FEDBEAi REPOBTEIB. �brances was not, according to the general current of American authority, one that run with the land. It was a personal covenant by Bruner, creating a pereonal liability on his pari to the plaintiff; and it ia difficult to understand, conceding that there was a lien, because of the existence of the taxes against the land at the time that the property was mortgaged to the plaintiff, when those taxes were paid, no matter by whom, how that lien was a still subsisting lien against the land. The taxes were paid. The tax lien had ceased to exist because there were no taxes due. �In order to sustain the claim of the plaintiff we must hold that he was subrogated to the right of the public, or that the lien which existed by virtue of the taxes became operative in his favoi-, because there was a liabihty by virtue of the warranty against Bruner; and that this claim operated as a lien upon the land, to whomsoever it might be transferred. I do not think that principle can be sustained. �I do not understand that any of the authorities cited by the plaintifif's counsel maintain that doctrine. Undoubtedly they hold that, where there is a warranty against encum- brances, the grantee can pay off a tax where a breach of war- ranty arises in consequence of a tax, and thus discharge the encumbrance, and charge the amount paid to the grantor. It is also true that if these taxes had not been paid by any one they would still operate as a subsisting lien upon the land, and that in whomsoever hands the title might be he would have to pay off the taxes before he could be said to have a title free and clear from ail encumbrances. �It would be the same, I appreliend, if, instead of being a lien for taxes, there had been an unsatisfied judgment against Bruner, which operated as a lien upon the land. If the plain- tiff had paid off the judgment, I do not understand how he couid make the lien of that judgment operate in his favor, because of the claim which he would have against his grantor for a breach of the warranty. The judgment having been paid, the lien against the land would cease to exist. And so I think that the defendant, having agreed to pay the mortgage debt which was due upon the land, but having made no agree- ����