65 Ark. 495 | Ark. | 1898
(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 which she held possession. Mrs. Brazile had purchased the land from appellant, W. J. Thompson, and one R. W. Martin, who had since died. She procured an order making Thompson a party defendant with her, and then filed a cross-complaint against him, praying that he be compelled to defend the action of ejectment, and that, in the event the plaintiff recovered judgment against her for the land, that she have a judgment against Thompson on the covenant of warranty contained in his deed.
It is not clear that she could properly have' her rights against Thompson, arising on covenants in his deed, adjudicated in the action of ejectment brought by Walker against her. The two matters were not sufficiently connected. Hughey v. Bratton, 48 Ark. 167; Trapnall v. Hill, 31 Ark. 345.
But Thompson did not stand on the demurrer filed by him to said counterclaim. After the same was overruled, he filed an’answer and a cross-complaint, and by so doing he waived his demurrer; but it was still necessary that the cross-complaint of Mrs. Brazile should state a cause of action, and that the facts in proof should warrant a judgment against Thompson. De Loach Mill Mfg. Co. v. Bonner, 64 Ark. 510; Fordyce v. Merrill, 49 ib. 277; Chapline v. Robertson, 44 ib. 202.
Now, the cross-com plaint alleged that the deed from Thompson to Mrs. Brazile contained a covenant of warranty, but it did not allege an eviction. On the' contrary, both the pleadings and the evidence showed that Mrs. Brazile, at the time this cross-complaint was filed, was still in possession of the land, and that there had been no eviction, and consequently no breach of the covenant of warranty. Neither the facts alleged nor those established by the evidence warranted a judgment against Thompson. Dillahunty v. Railway Company, 59 Ark. 629; 3 Washb. Real Prop. 506.
It is true that counsel for appellee say that the deed in question contained a covenant of seisin as well as one of warranty, and contend that this covenant was broken so soon as deed was executed, but no such question was presented in the circuit court. The cross-complaint against Thompson sets up only a covenant of warranty. The decree of the court recites that there was a covenant of warranty and a breach thereof, and is founded upon such supposed breach. As neither the pleadings nor the evidence support this finding, the judgment against Thompson on the cross-complaint of Mrs. Brazile is reversed, and the action against him is dismissed, but without prejudice to a future action.