Thompson v. Brazile

• Decision Date: 01 October 1898
• Citation: 47 S.W. 299,65 Ark. 495
• Parties: THOMPSON v. BRAZILE
• Court: Arkansas Supreme Court

47 S.W. 299

65 Ark. 495

THOMPSON v. BRAZILE

Supreme Court of Arkansas

October 1, 1898

Appeal from Jackson Circuit Court, in Chancery, RICHARD H. POWELL Judge.

STATEMENT BY THE COURT.

The facts in this case are as follows: The appellee, Ida Brazile purchased from R. W. Martin and W. J. Thompson a certain eighty-acre tract of land lying in Jackson county, and took possession of the same under a deed from them. Afterwards one Joseph Walker brought an action of ejectment against appellee, Mrs. Brazile, to recover possession of said land claiming title under a tax deed made in pursuance of a sale for non-payment of taxes. For defense to said action appellee set up, among other things, the fact that she had purchased the land from Martin and Thompson, and that Martin had since died; and asked that Thompson be made a party defendant. Thompson was made a defendant, and afterwards Mrs. Brazile filed a cross-complaint against him, alleging the execution of the deed from R. W. Martin and W. J. Thompson to her, and that the said grantors covenanted in said deed that they "would forever warrant and defend the title to said land against all lawful claims whatever, except against the heirs of W. W. Brazile, deceased." She further alleged that, if there had been any forfeiture of the land for nonpayment of taxes, the forfeiture occurred long prior to the execution of the deed aforesaid. Wherefore she prayed that Thompson be required to answer and defend the original suit, and that, if plaintiff prevailed in said suit, she have judgment against Thompson for $ 400, the amount paid for said land and for other relief. The appellant, Thompson, appeared, and moved to set aside the order making him a party defendant. He also demurred to the cross-complaint filed against him by Mrs. Brazile. The motion and demurrer were both overruled. Thompson afterwards filed an answer and cross-complaint, alleging that the covenant of warranty in the deed was the result of a mistake in the execution of the deed, and praying that the cause be transferred to the equity docket, and that the deed be reformed.

The issues arising in the original action between Walker and the defendants, Brazile and Thompson, were tried by the circuit court, and judgment rendered in favor of Walker for the possession of the land. Afterwards the cause as to the remaining issues between Brazile and Thompson was transferred to the equity docket.

Upon the hearing the court refused to reform the deed, found that there was a breach of the covenant of warranty in the deed, and gave judgment against Thompson for the sum of $ 400 for breach of said warranty and for costs, from which judgment Thompson appealed.

Judgment against Thompson, reversed.

Sam W. Williams and De E. Bradshaw, for appellant.

Damages for breach of a covenant cannot be recovered against a co-defendant in law. 31 Ark. 345. No action lies on a covenant of warranty until eviction. 36 Ak. 456. There is no averment of breach of warranty, and the grantees, or those claiming under them, are liable for the taxes. 30 Ark. 95, and cases cited. The cross-complaint of appellant alleges that appellee derives title from the heirs of W. W. Brazile, and, as it is not denied, it stands confessed. 30 Ark. 362; 31 Ark. 345; 41 Ark. 17. Appellant had a right to defend by showing that appellee's grantor was the one liable for the taxes. 59 Ark. 16; 44 S.W. 1026. Even if the legal effect of the words in the deed was a covenant against taxes, which grantee was really liable for, it was a mistake, and the deed should have been reformed. 1 Story, Eq. § 162; 1 Dan. Neg. Inst. 156; 25 Ark. 370; 48 Ark. 498; 51 Ark. 390; Jones, Mortgages, 97; 46 Ark. 174; 30 S.W. 34; 149 N.Y. 51; Boone, Real Prop. § 323. Since appellant was one of two tenants in common, his warranty could make him liable for no more than one-half of whatever damage grew out of a breach of said warranty. 2 Pingrey, Real Prop. §§ 1443-5; Rayle, Cov. for Tit. pp. 453, 454, and notes; 81 Mich. 318.

Phillips & Campbell and M. M. Stuckey, for appellee.

Appellant withdrew his demurrer to the motion and cross-complaint of appellee, and filed an answer thereto, thereby waiving all objection to being made a party to the suit. The words "grant, bargain and sell" imply a warranty and a covenant of seisin. Sand. & H. Dig., § 696. The covenant of seisin was broken. 33 Ark. 640. Equity cannot correct mistakes of law. Fetter, Eq. 118, 126; 41 Ark. 495. The warranty was a joint and several obligation. Sand. & H. Dig., § 4186.

OPINION

RIDDICK, J., (after stating the facts.)

This litigation was commenced by an action of ejectment brought by one Walker against the appellee, Ida Brazile, to recover from her a tract of land of...