Belleville Land & Lumber Company v. Griffith

• Decision Date: 07 May 1928
• Docket Number: 434
• Citation: 6 S.W.2d 36,177 Ark. 170
• Parties: BELLEVILLE LAND & LUMBER COMPANY v. GRIFFITH
• Court: Arkansas Supreme Court

6 S.W.2d 36

177 Ark. 170

BELLEVILLE LAND & LUMBER COMPANY v. GRIFFITH

No. 434

Supreme Court of Arkansas

May 7, 1928

Appeal from White Chancery Court; Frank H. Dodge, Chancellor affirmed.

Decree affirmed.

John T. Hicks, for appellant.

Brundidge & Neelly, for appellee.

OPINION

MEHAFFY, J.

On the 21st day of February, 1898, the Des Arc & Northern Railway Company purchased from the St. Louis, Iron Mountain & Southern Railway Company a large tract of land, including the 2,014.12 acres involved in this action, paying $ 2.50 per acre. The deed from the St. Louis, Iron Mountain & Southern Railway Company contained the following reservation in the granting clause:

"Reserving however, the right-of-way of the said railroad company 100 feet wide, where the said track of said railroad or its branches has been or may be laid over said land; also reserving all coal and mineral deposits in and upon said lands, with the right to said party of the first part, its successors and assigns, at any and all times to enter upon said lands and to mine and remove any and all coal and mineral deposits found thereon without any claim for damages on behalf of said second party, its successors or assigns."

The appellee, George C. Griffith, became the owner of said lands and held same until 1910, and in 1910 conveyed the same to the Belleville Land & Lumber Company, appellant, by warranty deed, warranting the title to said lands against all claims whatever except taxes for the year 1909. The consideration was $ 45,000, $ 10,000 cash and $ 5,000 annually until the purchase price was paid. It was afterwards discovered that some portion of the lands did not contain the amount of timber the parties thought, and a reduction in price was made by canceling one of the $ 5,000 notes, and at that time a new mortgage and note was made for the sum of $ 22,500, balance due of the purchase money at that time.

Appellee brought a suit to enjoin a party who had a contract with the lumber company to cut and remove certain timber remaining on the land, and also to foreclose the mortgage which was executed October 1, 1919, for $ 22,500.

The defendant filed an answer and cross-complaint denying the indebtedness, setting up the covenant of warranty and alleging various payments of principal and interest up to and including October 1, 1919.

The appellee, who brought the suit to foreclose, had an absolute title except right-of-way for the railroad company and coal and mineral rights, which rights were reserved in the deed. And appellant says the issue to be determined from all the facts is whether Griffith is entitled to recover money as compensation for a base and spurious title warranted by him to be perfect, but which he never held and could not convey, and whether also he shall repay with interest money received by him upon a false claim of right which he never possessed.

Appellant's first contention is that a covenant of warranty in a deed for land to which the warrantor had no title is broken at the time the deed is executed, and the warrantee is entitled to relief without alleging or proving eviction.

A lengthy discussion of this proposition would be useless, for this court has held that there is no cause of action until eviction. As was said by this court in the case of Abbott v. Rowan, 33 Ark. 593: "Where anything passes to the vendee, there must be eviction or its equivalent before an action can arise on the covenant of warranty," and this rule has been consistently followed by this court since.

Again this court has said: "Covenants of warranty of title are universally held to run with the land, and ordinarily a right of action does not arise in favor of the grantee or subsequent holder of the title until there has been an eviction under paramount title; but an exception to this rule is that where the title is in the government the covenant of warranty is deemed to be broken as soon as it is made, and the right of action is complete at that time, and the statute of limitations begins to run. * * * Judge RIDDICK, speaking for the court in Dillahunty v. Railway Company, supra, said that one of the reasons for the exception was 'that the United States should be considered as always asserting title to their lands.'" Quinn. v. Lee Wilson & Co., 137 Ark. 69, 207 S.W. 211. See also Smith v. Boynton Land & Lbr. Co., 131 Ark. 22, 198 S.W. 107.

It will therefore be seen that this court is committed to the rule that, when the vendee sues for breach of warranty, where there has been an eviction, the statute of limitations applies; that no right of action accrues until there has been an eviction under paramount title. And the only distinction between this case and the cases formerly decided by this court is that the vendee did not bring a suit against the vendor for breach of warranty, but the vendor brought suit to foreclose the mortgage and the vendee interposed the defense of breach of warranty.

While the appellant could not maintain a suit for breach of warranty before eviction, it had the right, when suit was brought against it to foreclose the lien, to set up and prove that the vendor did not have an absolute title, and that it had been damaged by reason of failure of title, and it had a right to show the amount of its...