| Ark. | Jun 2, 1894
(after stating the facts). The objections of the appellant to the admission in evidence by the circuit court of the various tax-deeds showing the sale of the lands for taxes, on the ground that no foundation was laid, showing forfeitures and the legality of tax sales, is not tenable, as the deeds themselves make a prima facie case of compliance with the law in all steps taken by the officers of the law, prior to and including the sales, unless the deeds were void on their faces, which is not contended.
There was no error in the court’s permitting satisfaction of the Guthrie mortgage, as the decree of foreclosure provided for the redemption of the lands sold thereunder, and it was doubtless understood between the parties that they could be redeemed.
■ There was no error in the court’s refusal to give instructions as asked by defendant below, as the decree was not in invitum, but by agreement and consent of the parties, in accordance with which the deed was executed, for breach of covenant against incumbrance in which this action was brought.
There was no prejudicial error in the instructions given by the court. The principles of law which they announce are correct.
There was evidence which showed a breach of the covenant against incumbrances, and that the legal title to the land, to which this controversy relates, was defeated, and this was equivalent to eviction, the lands being wild and unoccupied. It was ascertainable, from the evidence, what the proportion of the value of the land lost bore to the whole number of acres sold. The measure of damages for breach of covenant of warranty, in a deed to land, against incumbrances, where the covenantee discharges the incumbrance, is the reasonable amount required to discharge the incumbrance, with reasonable cost of procuring the discharge. But in no event can this amount exceed the amount of the consideration paid with interest. It is competent to show the real consideration to be more or less than that mentioned in the deed, though the recital that there was a consideration cannot be contradicted. But, where the covenantee’s title is entirely defeated by the incumbrance being changed into a title adverse and indefeasible, the plaintiff is entitled to recover the money he paid for the land with interest. Jenkins v. Hopkins, 8 Pick. 346; Chapel v. Bull, 17 Mass. 213" date_filed="1821-09-15" court="Mass." case_name="Chapel v. Bull">17 Mass. 213; Patterson v. Stewart, 6 W. & S. 527; Willets v. Burgess, 34 Ill. 500; Willson v. Willson, 5 Foster (N. H.), 235; 4 Kent, Com. 474. The purchaser need not wait till he is evicted, but may satisfy the incumbrance, and then bring this action to recover for breach of the coveiiant of warranty against incumbrances. Delavergne v. Norris, 7 Johns. 358" date_filed="1811-02-15" court="N.Y. Sup. Ct." case_name="Delavergne v. Norris">7 Johns. 358; Stanard v. Eldridge, 16 Johns. 254" date_filed="1819-05-15" court="N.Y. Sup. Ct." case_name="Stanard v. Eldridge">16 Johns. 254; Garrison v. Sandford, 7 Halstead, 261. In such a •case, the measure of damage is the reasonable amount required to discharge the incumbrance and the cost of the discharge. “Yet the purchaser is not bound to buy in the incumbrance, though it be offered to him on moderate terms.” Miller v. Halsey, 2 Green, 48. When the incumbrance 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. Orwig, 17 B. Monroe, 85.
There was evidence upon which the jury might have found the verdict they returned in the case.
Finding no error, the judgment is affirmed.