STEVENS, V. C.
(Syllabus by the Court.)
Bill by Marie Kuhnen against Lida E. Parker and another to foreclose a mortgage. Motion to strike out part of the answer. Denied.
Craig A. Marsh, for complainant.
W. S. Angleman, for defendants.
STEVENS, V. C. The complainant filed his bill to foreclose a mortgage. The defendants answered, averring that they gave it to complainant to secure part of the price of farm land conveyed to them by deed containing covenants of warranty and against incumbrances; that such land was, at the time of the making of the deed, incumbered by rights of way created by recorded instruments which gave the grantee named therein the right to construct a line of iron pipe for the transportation of petroleum, with telegraph and other facilities, over and across the land; and that this pipe line had actually been laid, and that the grantee of the easement was in the full enjoyment thereof, at the time of the conveyance to defendants. It is further averred that the complainant knew of this use of the land at the time of the conveyance, and concealed it from thehad been no eviction by title paramount, and no action brought by the widow, and that, consequently, there was no breach of the covenant of warranty. It is well known that the covenant against incumbrances, unlike the covenant of warranty, is broken as soon as made. If the existence of an inchoate right of dower, which was all the right the wife had when the conveyance was executed, was a breach of the covenant against incumbrances (and if a breach, it would only have given rise to a claim for nominal damages,—Rawle, Cov. pp. 109, 114), she was not, when the foreclosure suit was instituted, alleged to be claiming that right, but the more complete right which vested in her at her husband's death. This right she had not sought to enforce by action. The decision was, therefore, strictly in accordance with the previous cases. Hamill v. Manufacturing Co. (N. J. Ch.) 37 Atl. 773, stands upon substantially the same ground as Baudendistel v. Zabriskie's Ex'rs, 50 N. J. Eq. 455, 26 Atl. 455. In both of these cases there was a covenant of warranty, but no eviction or action pending. There was no covenant against incumbrances. In the latter case the claim that the deed, in substance, contained such a covenant was denied by the court of appeals. The chief justice, in stating the rule on this subject, there says: "When a grantor has stipulated that there are no incumbrances upon the premises conveyed, such covenant, if infringed at all, is violated by the act of conveyance; and it is the established practice of our courts to compel the mortgagee who seeks to foreclose for the purchase money to submit, in some form, to an ascertainment of the damage that must necessarily arise from the existing breach of his covenant, and to reduce to that extent the claim pressed by him." I think, therefore, that the defendants have set up a defense, and that this defense is the proper subject of answer, and not of cross bill (White v. Stretch, 22 N. J. Eq. 81). unless they intend to rely upon fraud. If they do, a cross bill or answer by way of cross bill is necessary. O'Brien v. Hulfish, Id. 475. The application is denied, with costs.