Drury v. Holden

Citations

• 121 Ill. 130
• 13 N.E. 547

Syllabus

<p>1. Purchase subject to incumbrances, or under an agreement to discharge incumbrances—merger. Where a party purchases land which is incumbered to secure the payment of indebtedness, and assumes the payment-of the same as a part of the purchase price, the premises purchased will, in-his hands, become primarily liable for such indebtedness, and it will be his-duty to pay it.</p> <p>2. And the rule will be the same although there be no formal assumption-, of the indebtedness, if the purchase be made expressly subject to the incumbrance, and the amount of the indebtedness thereby secured is included in and forms a part -of the consideration of the conveyance.</p> <p>3. Where a person in exchange of other property takes a warranty deed of lots, subject to a deed of trust thereon, giving in other property the value fixed upon the lots, less the amount of the incumbrance, it will be his duty to discharge such incumbrance, and if he purchases the same in the name of another, a court of equity will treat his purchase as a payment, and apply the doctrine of merger. Such purchase will operate as an extinguishment of the debt secured by the trust deed.</p> <p>4. Covenants fob title—how far restricted to the estate actually conveyed—as, in the case of a purchase subject to incumbrances. Where a deed conveys lots subject to an incumbrance thereon, the covenants of warranty of title and against incumbrances will extend only to the estate actually conveyed, which is the equity of redemption.</p> <p>5. A deed for lots, after the description, contained this clause, “subject to the following incumbrances on said described premises,” describing them, after which followed full covenants of warranty of title, and that the premises conveyed were free and clear from all incumbrances, containing no exceptions: Held,,that the covenants applied only to the estate conveyed, which was not the lots absolutely, but subject to the incumbrances, and that the real covenant was, that, otherwise tha