William Farrell Lumber Co. v. Deshon

• Decision Date: 05 March 1898
• Citation: 44 S.W. 1036
• Parties: WILLIAM FARRELL LUMBER CO. v. DESHON.
• Court: Arkansas Supreme Court

44 S.W. 1036

WILLIAM FARRELL LUMBER CO. v. DESHON.

Supreme Court of Arkansas.

March 5, 1898.

Appeal from circuit court, Pulaski county; Joseph W. Martin, Judge.

Action by J. W. Deshon against the William Farrell Lumber Company on a note. Judgment for plaintiff. Defendant appeals. Reversed.

Appellee brought suit in the Pulaski circuit court upon the following instrument of writing: "Little Rock, Ark., September 20, 1893. Received of J. W. Deshon, trustee, three hundred and fifty dollars ($350), for land in Grant county, to be paid on or before two years. Wm. Farrell Lumber Co." This case was tried by the court, sitting as a jury. The facts as found by the court are as follows: The note sued on ($350), of date September, 1893, was given for certain lands, in all 160 acres, described in deed which warranted the title to the defendant company and against incumbrances. At the time of the conveyance the land was incumbered by a lien for $40, for attorney's fees, and also to the extent of $4.67, on one 40-acre tract, for taxes, which amount the defendant paid out to redeem; also, 120 acres of land were incumbered to the extent of $14.01, as estimated by the court, for taxes, which was not redeemed by defendant, and for which defendant afterwards paid the state $151, but which, by the use of proper diligence on the part of defendant, it could have redeemed from tax forfeiture for the amount above stated, of $14.01. There is due on the note the amount stated on its face, $350, less incumbrances above set forth, amounting in all to $58.68, leaving balance due of $291.32, with interest at 6 per cent. from date of note, September 20, 1893. The court declared the law as follows: "The defendant is entitled to a deduction, at the time of the execution of the note, only of such amount as it was then incumbered for, and is not entitled to an allowance for the additional expense it was put to by reason of its own negligence in failing to make the redemption of the 120 acres." The court rendered judgment for appellee in the sum of $291.32.

J. A. Watkins, for appellant. Sam S. Wassell, for appellee.

WOOD, J. (after stating the facts).

A covenant, in a deed, against incumbrances, is one in præsenti. If incumbrances exist, the covenant is broken as soon as made. The breach of such a covenant is "single, entire, and perfect in the first instance," and the right of action accrues at once. Rawle, Cov. Tit. §§ 189, 205; 4 Kent, Comm. 471; Smith v. Jefts, 44 N. H. 482. The covenantee, however, is not compelled to sue at once; and, if he sue before he has been disturbed or suffered injury by reason of the incumbrance (not having paid anything to remove or extinguish it), he can only recover nominal damages. The rule as respects the measure of damages is to treat the covenant against incumbrances as a...