Seldon v. Dudley E. Jones Co.

• Decision Date: 25 February 1905
• Citation: 85 S.W. 778,74 Ark. 348
• Parties: SELDON v. DUDLEY E. JONES COMPANY
• Court: Arkansas Supreme Court

85 S.W. 778

74 Ark. 348

SELDON v. DUDLEY E. JONES COMPANY

Supreme Court of Arkansas

February 25, 1905

Appeal from Pulaski Circuit Court, EDWARD W. WINFIELD, Judge.

Reversed.

Judgment reversed.

George Sibly, for appellant.

The complaint stated a cause of action. 5 Ballard, Real Prop 100; 59 Ark. 629; 65 Ark. 103.

Ratcliffe & Fletcher, for appellee.

Possession follows title, in the absence of any possession adverse to it. 23 Ark. 735; 43 Ark. 409; 63 Ark. 1; 69 Ark. 424. The tax sale was void. 55 Ark. 549; 70 Ark. 257; 65 Ark. 595. If dower in land has not been set apart to the widow, she can have no right of possession. 11 Ark. 212; 40 Ark. 69. The appellant being in possession, the covenant is not broken until after eviction. 1 Ark. 313; 5 Ark. 395; 33 Ark. 393; 65 Ark. 495.

OPINION

HILL, C. J.

The only question in the case is the sufficiency of the complaint. A general demurrer to it was sustained. It alleges in substance that on the 12th of July, 1898, the defendant conveyed to plaintiff (appellant here) certain real estate in Lonoke County. That said lands were wild and unimproved, and no one in possession thereof by occupancy. That the defendant warranted the title by the statutory warranty conveyed in the terms "grant, bargain and sell," and specially covenanted, in addition thereto: "and the Dudley E. Jones Company hereby covenants with the said George E. Eeldon that it will forever warrant and defend the title to said lands against all claims whatever." That at the time of said conveyance the defendant did not have title in fee free from all incumbrances, in that there were two outstanding paramount titles to interests therein which were unknown to the plaintiff, which interests were as follows:

First. Unassigned vested dower interest of the widow of the Jones Company's grantor, which interest the widow "now sets up."

Second. An undivided one-sixth interest belonged to the State of Arkansas, "by reason of the said one-sixth undivided part thereof having been on the 11th day of June, 1884 returned delinquent for nonpayment of the taxes due thereon to the State and county, and school district for the years 1881 and 1882, and was sold to the State of Arkansas for the taxes, penalty and costs legally due thereon, and, not having been redeemed from sale by the defendants or their vendors the title thereto became and was vested in the State of Arkansas."

1. The statutory warranty carried in the words, "grant, bargain and sell," is that the grantor "is seized of an indefeasible estate in fee simple, free from incumbrances done or suffered from the grantor." So far as the covenant against incumbrances is concerned, it is limited to those done or suffered by the grantor. Kirby's Dig. § 731; Winston v. Vaughan, 22 Ark. 72. The deed, however, contained an express warranty against all claims. This warranty and the warranty of an "indefeasible estate in fee simple" are the covenants to which the appellant must look. The covenant of seisin is broken as soon as made, if the grantor has not the possession, the right of possession and the complete legal title. Pingrey, Real Estate, § 1426; Pate. v. Mitchell, 23 Ark. 590; Benton County v. Rutherford, 33 Ark. 640.

In regard to the covenant against incumbrances, the rule is thus stated: "The covenant against incumbrances embraces every right to, and interest in, the lands conveyed, diminishing the value of the estate, but not inconsistent with a transfer of the fee. It is not a mere covenant to indemnify, though often described as such, but an engagement that the grantor's title is not incumbered, and is broken, if at all, at the instance of its creation." 2 Warvelle on Vendors, §§ 971, 975. See Brooks v. Moody, 25 Ark. 452. An outstanding dower interest is an incumbrance, within the meaning of this covenant. 2 Warvelle on Vendors, § 972; Bigelow v. Hubbard, 97 Mass. 195; Runnells v. Webber, 59 Me. 488.

The general rule is that to charge a person on a warranty eviction must be alleged. Hynson v. Dunn, 5 Ark. 395; Bird v. Smith, 8 Ark. 368; Walker v. Johnson, 13 Ark. 522; Higgins v. Johnson, 14 Ark. 309; Dillahunty v. Ry. Co., 59 Ark. 629, 27 S.W. 1002. But where the land is wild and unimproved, as in this case, actual eviction is not necessary. The possession follows the legal title, and a paramount title carries possession with it, amounting to a constructive eviction. Rawle on Covenants of Title, §§ 140, 143, and cases in notes; Dillahunty v. Ry. Co., 59 Ark. 629, 27 S.W. 1002.

Applying these principles to the issue as to the outstanding dower interest, it is an incumbrance, but does not carry the right to possession. The possession (excepting the mansion house and homestead) in unassigned dower lands is in the heirs at law, not in the widow; and their possession and their grantees' is not adverse until hostilely asserted. Grober v. Clements, 71 Ark. 565, 76 S.W. 555; Webb v. Smith, 40 Ark. 17; Livingston v. Cochran, 33 Ark. 294.

Therefore it follows that the assertion of claim for dower is not tantamount to eviction, for the asserted right does not carry with it a right to possession, and it is a mere incumbrance against the land for which the covenantor will be liable when his grantee's possession, in whole or in part, is taken from him by it. 2 Warvelle, Vendors, § 975.

2. The title to an undivided one-sixth interest in the State is in different attitude. Generally, there must be an assertion of the paramount title to amount to a constructive eviction; but where that paramount title is in the United States or in the State, the assertion thereof is not necessary. Dillahunty v. Ry. Co. 59 Ark. 629, 27 S.W 1002; William Farrell Lumber Co. v. Deshon, 65 Ark. 103, 44 S.W. 1036; Abbott v. Rowan, 33 Ark. 593: Rawle, Covenants of...