INCUMBRANCE. Any right to, or in terest in, land which may subsist in third persons, to the diminution of the value of the estate of the tenant, but consistently with the passing of the fee. 2 Greenleaf, Ev. 242.
2. A public highway, 2 Mass. 97 ; 3 N. H. 335 ; 10 Conn. 431 ; 12 La. Ann. 541 ; : Vt. 739 ; a private right of way, 15 Pig k. Mass. 68 ; 7 Gray, Mass. 83 ; 5 Conn. 497 ; a claim of dower, 4 Mass. 630 ; 23 Ala. N. s. 616, though inchoate only, 2 Me. 22 ; 22 Pick. Mass. 447 ; 3 N. J. 260 ; an outstanding mortgage, 5 Me. 94 ; 30 id. 392, other than one which the covenantee is bound to pay, 2 N. H. 458 ; 12 Mass. 304 ; 8 Pick. Mass. 547 ; 11 Serg. & R. Penn. 109; 4 Heist. N. J.139 ; a liability under the tax laws, 30 Vt. 655 ; 5 Ohio St. 271 ; 5 Wisc. 407, have been held incumbranees within the meaning of the co venant against incumbrances, contained in conveyances. The term does not include a condition on which an estate is held. 3 Gray, Mass. 515 ; 6 id. 572.
The vendor of real estate is bound to dis close incumbrances, and to deliver to the purchaser the instruments by which they were created or on which the defects arise ; and the neglect of this is to be considered fraud.
Sugden, Vend. 6 ; 1 Vas. Sen. Ch. 96. See 6 Yes. 193 ; 10 id. 470 ; 1 Schoales & L. Ch. Ir. 227 ; 7 Serg. & R. Penn. 73.
3. The interest on incumbrances is to be kept down by the tenant for life, 1 Washburn, Real Prop, 95-97, 257, 573 ; 3 Edw. Ch. N. Y, 312; 5 Johns. Ch. N. Y. 482; 5 Ohio, 28, to the extent of rents accruing, 31 Eng. L. & Eq. 345 ; Tudor, Lead. Cas. 60 ; and for any sum paid beyond that he becomes a creditor of the estate. 2 Atk. Ch. 463 ; 1 Bail. Eq. So. C. 397.
When the whole incumbrance is removed by a single payment, the share of the tenant for life is the present worth of an annuity for the life of the tenant equal to the annual amount of the interest which he would be obliged to pay. 1 Washburn, Real Prop. 96, 573. The rule applies to estates held in dower, 10 Mass. 315, n.; 5 Pick. Mass. 146 ; 10 Paige, Ch. N. Y. 71, 158 ; 3 Md. Ch. Dec. 324 ; 7 Harr. & J. Md. 367 ; in curtesy, 1 Washburn, Real. Prop. 142 ; in tail only in special •cases. 1 Washburn, Real Prop. 80 ; Tudor, Lead. Cas. 613 ; 2 Law Mag. 265, 270 ; 3 P. Will. 229.