77 Tenn. 455 | Tenn. | 1882
delivered the opinion of the court.
This is an attachment bill, in which the principal ground for recovery is an alleged breach of a cove
The chancellor held that there had been a breach of the covenant to the extent of fifty acres of the land recovered by a paramount title, and that complainants were entitled to recover the purchase money paid, but refused to allow a recovery for the costs and expenses of defending the title, or counsel fees, and referred the cause to the master for an account upon the principles settled. Under see. 3157 of the Code, the chancellor allowed an appeal to both parties before taking the account, upon their executing bonds. The complainants only complied .with this condition, and the cause is here upon their appeal. We have denied the application of the defendants for a writ of error, upon the ground that the decree was not final.
The complainants appealed specially from that part of the decree denying their right to “recover costs, counsel fees, and expenses incident to the suit in which ■the land was recovered from them, and it is now argued that only these questions can be considered by this court. While for the defendant it is argued that the court may examine the entire case, and counsel propose to show that there is no foundation for any decree against the defendant. This raises the question whether an appeal of this character should be allowed only from special matters complained of, without giving this court jurisdiction to examine the entire case. It was said in Woods v. Cooper, 2 Heis., 455, that it was competent for a party to appeal from that part of the decree only with which he is dissatisfied, but a
It is apparent, however, that to confine our consideration to the matters specially appealed from, might lead to inconvenient, not to say incongruous results, in a case like the present. Should we affirm this decree, or modify it in the respects complained of, without enquiring into other questions, and remand the cause for the account, we might, upon another appeal or writ of error by the defendant, be compelled to reverse the decree (which we now affirm) and dismiss the bill, or if not, change the entire principles of the recovery at the end of a tedious and expensive litigation. „■
It is apparent, therefore, that an appeal from a decree settling principles and ordering an account, ought to bring the entire case to this court, so that the principles settled by this court should not again be enquired into by either party; and we should, therefore, dismiss this special appeal as improperly granted, or treat it as bringing up the' entire case. The latter we regard as at least the most convenient course for the parties, and will, therefore, examine the entire case. By this, however, we do not mean that in all cases we will look beyond the matters specially appealed from.
It is first maintained for the defendant that the complainants are not entitled to the benefit of the cov
It is argued, that as they acquired their present title at the judicial sale referred to, they are- not entitled to the benefit of the covenant of warranty in defendant’s deed, but the rule eaveat. emptor applies to them.
It is settled, however, that the covenant of warranty runs with the land, and whoever is the owner of the land at the time of the breach, can take advantage of it, whether he acquired title by voluntary or involuntary sale, as, for instance, a sheriff’s or other judicial sale: See Kenney v. Norton, 10 Heis., 384; Hopkins v. Lane, 9 Yer., 78; Rawle on Cov., 335; 4 Sneed, 54.
This is not. inconsistent with the rule that eaveat emptor applies to purchasers at judicial sales. This means that such purchasers have no warranty of title from the officer of the court making the sale, or the parties at whose instance it is made, but does not mean that they shall not have the benefit of such covenants running with the land as were made with the person whose title they purchase. This point, therefore, is not well taken.
The ground of defense, however, still more earnestly pressed .is, that the land recovered from complainants by paramount title, is not embraced within the calls of defendant’s deed, and she, therefore, did not warrant the title to it.
This raises the question in the first place, whether the defendant is bound, and if so, how far, by the judgment in the action by which the land was recovered from compiainants. The action was brought by one Kitcliie against one of the complainants. It is claimed that the defendant was duly and promptly notified and requested to take charge of the defense, or assist therein, but that she failed and refused to do so, and that the defense was properly and in good faith made by the complainants themselves.
We. have held, upon full consideration, that upon proper and sufficient notice being given to the cove-nantor . to appear and defend the latter’ in an action against him upon his covenant will be bound by the judgment establishing the paramount title, and no other proof of the paramount title will be. required: Greenlaw v. Williams, 2 Lea, 533. The question of fact is then presented, whether the proper notice was given
The record in the ejectment suit, therefore,' is conclusive as to the paramount title. In fact, however, this is not the controversy. The defendant insists that there was no conflict between the titles, and that the land recovered by Ritchie was outside of defendant’s deed. The court, however, in determining the ejectment suit, found that there was a conflict between the titles to the extent of fifty acres, and that Ritchie’s title was superior, and therefore gave the recovery.
The complainants, in their defense of the action of ejectment, in accordance with our statute, defined of record the extent of their possession and claim of title, and disclaimed title to the remainder of the land sued for. In defining their possession they set out the boundaries of the land embraced in the defendant’s deed. The court found that the plaintiffs had superior title to part of the land sued for, that is, the land covered by two grants, known as the Kelly and McVey grants, and further found that the defendant in the action was setting up title to fifty acres of this land under the deed executed by the present de
Is the defendant in the present case also bound by this part of the adjudication? We see no ground of distinction as to the effect of the judgment. The cov-enantor had notice that the defendant was relying alone upon the title conveyed by him, and he was expected to maintain the title and show the correct boundaries of his deed. The theory upon which the judgment is held conclusive upon him is, that he is in effect a party to the suit. By failing to do what his covenant requires him to do — that is, to defend the title— he becomes bound by the conduce of the case by his covenantee, if the defense be properly made, and in good faith.
If, however, we were to go into the question of fact, the result would be the same. The defendant’s deed embraced several tracts, among others, one known as the Geo. W. Williams grant, No. 17525. The question was, whether there was a conflict between the
Another ground of defense urged in argument is, that part of the fifty acres recovered by Ritchie was in his actual adverse possession at the time defendant’s deed was executed, and that, therefore, the deed to this extent was, under our champerty laws, void for all purposes, and no action can be maintained upon the covenant of warranty.
It is, perhaps, a sufficient answer to this argument to say, that the question is not made in the pleadings. The answer sets up no such defense, and that the defendant cannot prove a defense not set up in his answer. If the question were properly presented, it would seem to be in some doubt under our authorities.
The case of Williams v. Hogan, Meigs, 149, was an action upon a covenant of warranty; the declaration showing that the land was adversely held when the deed was executed. It was held that a demurrer upon this ground should be sustained; that the deed was void for all purposes, and no action could be maintained upon the covenant. In the subsequent case of Muffin v. Johnson, 5 Heis., 604, it appeared that the complainant had secured his creditors by a deed of trust upon certain lands. The bill was filed to enjoin a sale by the trustee, upon the ground that as the lands were adversely held, the deed was void for cham-
However the rule may be at law, the true rule in equity should be, that if the land adversely held was really sold and taken into the account in estimating the price, the vendor ought not to be allowed to retain that part of the purchase price. If he be not liable upon the covenant of his deed, he should be compelled to restore the purchase money pro tanto, upon the ground 'that the sale was to that extent void. If, on the other hand, the purchaser knew at the time that the land was adversely held, and that too by a paramount title, and this part of the land was not really intended to be sold or estimated in fixing the price, then the vendor ought not in equity to be liable upon his covenant or otherwise. But, as indicated, there is no issue upon these questions in the pleadings, and we can make no adjudication in' regard to them.
This brings us to the errors assigned by complainants. First, that they were not allowed to recover the taxed costs in the ejectment suit as part of the damages. We are not aware that this question has been passed upon in this State. The authorities seem to sustain the claim. See them collated in Kawle on
Upon the question of counsel fees, the authorities, according to Messrs. Sedgewick and Rawle, in their respective works upon the subject where they are cited, are shown to be in conflict, and we have no reported decision upon the question in this State.
If the employment of counsel be necessary, upon principle it is not easy to see why the expense is not as much a legitimate part of the damage sustained as the costs of the cause. The common law doctrine,
that the services of a counsellor are honorary and gratuitous, does not prevail in this Stale: Newman v. Washington, M. & Yer., 79. Yet if such expense is put upon the same ground as the costs, the plaintiff
The chancellor properly refused relief as to the further payment claimed to have been made upon the original purchase money, as this was precluded by the decree, which was submitted to.
The decree will be modified as indicated, and the cause remanded. The costs of this court will be paid-, two-thirds by defendant and one-third by complainants.