90 Ark. 59 | Ark. | 1909
(after stating the facts.) I. Appellant contends that the land mentioned in the mandate of the Supreme Court is not the same land mentioned in the decree in the case in the chancery court which was .appealed to this court and reversed, and not the same land mentioned in the complaint in this suit. There is no merit in the contention. The clerical misprision in describing the lands in the mandate of the Supreme Court is immaterial. The pleadings in the chancery court show what lands were adjudicated finally in that suit to belong to Robinson. These are the same lands mentioned in the complaint in this suit; but the question was not raised in the court below, and therefore can not be raised here. Had the attention of the court and appellee been called to the ■ misprision, it could have been corrected so as to make the description in the mandate conform to the description of the land in the pleadings in the chancery suit. Moreover, the filing of the mandate of this court in the lower court in the chancery suit was not a condition precedent to the maintaining of the present suit. Appellant’s covenant of warranty had failed when this court adjudged the right to the title and possession of the lands in the suit in the chancery court to be in Robinson. Robinson v. Nordman, 75 Ark. 595. Appellee was not required to await the filing of the mandate before he could maintain the present suit. In law he had been evicted. 2 Warvelle on Vendors, § 977, and authorities to this point cited in appellee’s brief.
II. The instructions of the court given at the instance of the appellee correctly submitted the questions raised by the pleadings and evidence. The prayers for instructions by appellant were not correct. Under a covenant to warrant and defend title, the costs and necessary expenses incurred by a covenantee in a bona fide defense or assertion'of his title are recoverable in an action by him against the covenantor for the breach of his warranty. Necessary expenses would include reasonable attorney’s fees and other actual expenses paid by the covevantee in a bona fide but ineffectual effort to uphold the title which he has acquired from his covenantor. There is some conflict among the authorities, but as Mr. Warvelle says: “The larger and apparently better considered class of cases, however,' all incline to the doctrine that the purchaser is entitled to reimbursement for his necessary costs and expenses incurred in defending the title, and that such costs and expenses include a reasonable attorney’s fee. 2 Warvelle on Vendors, § 980; 11 Cyc. 1176, and cases cited in notes.
In the cases of Logan v. Moulder, 1 Ark. 313; Carvill v. Jacks, 43 Ark. 439; Barnett v. Hughey, 54 Ark. 195; Alexander v. Bridgford, 59 Ark. 195, the question that is here presented was not involved. 'We have never announced a rule on the measure of damages for a breach of covenant to warrant and defend title contrary to the above, which is generally held to be the sound doctrine. In 8 Am. & Eng. Enc. Law, 2d Ed. p. 190, the reason for the rule, and the rule itself, are given as follows: “A grantee in possession of land under a deed containing the usual covenants would, in surrendering possession to what he supposed tO' be a paramount title, act at his peril; and it is therefore generally held that where he defends the action by the owner of the paramount title to recover possession of the land 'he may recover from his covenantor the expenses necessarily incurred, including a reasonable fee paid to his attorney.” See other cases cited in notes on pp. 190 and 191.
The instructions given at the instance of appellee were in conformity to the above doctrine. The prayers for instructions by the appellant, and which were refused by the court, were predicated upon the idea that appellant would not be liable unless there was an agreement, aside from the covenant, to pay the expenses incurred by appellee, and were therefore erroneous according to the rule above announced.
There was a substantial basis in the evidence upon which to rest the verdict. The judgment is therefore correct, and is affirmed.
