Brawley v. Copelin , 106 Ark. 256 ( 1913 )

Hart, J.,

(after stating the facts). The deed recites : ‘£ This land was bought by me for tax at a tax sale on the 10th day of June, 1901, and deeded to me by J. S. Ford, county clerk, 16th day of July, 1903.

“The 82 11/100 tract was recorded October 8, 1903, record book 51, page 226, the ,37 50/100 that same day, record book 51, page 224. These facts I warrant and defend against all claims.” And at the end of the printed warranty, appellant wrote in ink “as above set forth. ’ ’

It is the contention of appellant that he only intended to give a special warranty to the effect that he had purchased the tract of land at the tax sale on June 10, 1901, and that the land had been deeded to him under and by virtue of said sale by the county clerk. We can not agree with appellant in his contention. The words “as above set forth” in the connection in which they appear in the deed show that they had reference to the covenants of warranty. At most it can only be said that the meaning is ambiguous. In the case of Gaster v. Ashley, 1 Ark. 325, the court said, there is a legal presumption that if words be used in a covenant or deed which will admit of two interpretations or are in any manner doubtful, they shall be taken to operate most strongly against him who made the grant. The rule applies with especial force in a case like this where the grantor of a deed was a practicing lawyer and wrote the deed himself. Moreover, the grantor conveyed the lands by the words “grant, bargain and sell,” and we do not think that the deed contains any express words limiting their force. Therefore, under our statute, they were a covenant of appellant with appellee that the land was free from encumbrances done or suffered by him. Gibbons v. Moore, 98 Ark. 501; Crawford v. McDonald, 84 Ark. 415; Benton County v. Rutherford, 33 Ark. 640.

In the instant case appellee was evicted because of a paramount title in a third party and the effect of the judgment was to hold that appellant never had any title to the land.

This action was brought to recover damages on a breach of covenant of warranty on a sale of land by appellant to appellee, the title having failed. The undisputed evidence shows that there was a mistake in the description of the land in the first deed and that a quitclaim deed was subsequently executed to correct this mistake. In the case of Bagley v. Fletcher, 44 Ark. 153, the court said: “In fact, the covenants in a deed constitute no part of the conveyance but are separate contracts. The title passes independently of them. ’ ’ Therefore, the covenants of warranty are not affected by the erroneous description which was subsequently corrected by the execution of the quitclaim deed. The quitclaim deed refers to the warranty deed and by its terms shows that it was executed to correct the mistake of description made in the first deed. Therefore the two deeds constitute one contract, and are to be read together.

On the question of the measure of damages for a breach of warranty, in the case of Alexander v. Bridgford, 59 Ark. 195, the court said: “It is competent to show the real consideration to be more or less than that mentioned in the deed, although the recital that there was a consideration can not be contradicted. But, where the covenantee’s title is entirely defeated by the encumbrance being changed into a title adverse and indefeasible, the plaintiff is entitled to recover the money paid for the land with interest (cases cited). * * * ‘Yet the purchaser is not required to buy in the encumbrance, though it be offered to him on moderate terms. ’ Miller v. Halsey, 2 Green, 48 (N. J. L.). When the encumbrance is changed into a title adverse and indefeasible, the criterion of recovery, if less than the whole land is lost, is so much, of the consideration paid as is proportioned to the land lost. Hunt v. Orweg, 17 B. Monroe, 85.”

It will therefore be seen that the jury followed the correct rule in determining the damages sustained by appellee for the breach of covenant of warranty by taking the proportionate part of the land lost (one-third) to the real consideration or purchase price, two hundred and twenty-five dollars.

Under the rule in the above case appellee was not required to purchase the outstanding title even though it was offered on reasonable terms. It was the duty of appellant to protect the title which he had given to appellee. The judgment of the jury included twenty-five dollars for attorney’s fees, which the testimony shows was expended by appellee in defending the suit brought by Strangways, and which was shown to be a reasonable fee. This appellee was entitled to recover under the rule laid down in the case of Beach v. Nordman, 90 Ark. 63. In that case the court said:

“The appellant’s covenant of warranty had failed when this court adjudged the right of the title and possession of the lands in the chancery court to be in Robinson. Robinson v. Nordman, 75 Ark. 595. Appellee was not required to await the filing of the mandate before he could maintain the present suit. In law he had been evicted (2 Warvelle on Vendors, § 977, and authorities to this point in appellee’s brief). * # * Under a covenant to warrant and defend the title, the costs and necessary expenses incurred by the covenantee in a bona fide defense or assertion of his title are recoverable in an action by him against the covenantor for breach of his warranty. Necessary expenses would include reasonable attorney’s fees and other actual expenses paid by the covenantee in a bona fide but ineffectual effort to uphold the title which he has acquired from the covenantor.”

Therefore, the judgment will be affirmed.