EDGERTON, ADMR., v. BLACKWOOD. actual damages arising from the lien do not accrue until the estate shall have passed into a third person's hands, who, upon the well settled doctrine upon the subject, cannot sue upon this covenant. Wilde, J., as stated in the note in Sprague v. Baker, was inclined to hold that this covenant did run with the land, so far as to allow the purchaser to recover for such new damages as should arise to him as the owner, while he was such. But this doctrine was afterwards overruled; and the law in this country, as to existing encumbrances, may be considered as settled."7 5. Covenant with land. As a result of this doctrine, S. C. Bolling can have no valid claim against England arising out of the breach of his covenant against encumbrances, made to Cornish and W. J. Bolling. The deed, which is exhibited as a part of the supplemental bill, however, contains also a covenant of warrantythe broadest and most effective of the covenants of warranty-Runs to be found in American deeds. "It is future in its terms and operation, and runs with the estate, in respect to which it is made, into the hands of whoever becomes the owner of such estate. But, if once broken by an eviction, the covenant of warranty stands upon the same ground as the covenants which are broken as soon as made. It is not only a means of obtaining recompense for the loss of the land so held, but it often operates to create a title to land by way of estoppel, even against the grantee of the warrantor, by preventing a party from setting up an otherwise good title to the same; as where one, having no title to land, conveys it, with a covenant of warranty, and afterwards acquires a title to the same, he is estopped to claim the land; and this extends to his second grantee in favor of the covenantee. And, in some cases, an heir is thereby rebutted from claiming, by another and better title, the land which his ancestor had conveyed with warranty, if such heir receive assets from his ancestor, the covenantor, sufficient to make good such warranty." (7.) 3 Washb., R. Prop., 5th Ed., * 659, Ch. 5, § 5, 14α. Same-Action assignee of origi EDGERTON, ADMR., v. BLACKWOOD. It follows that if England's covenant of warranty is broken, the assignee of his covenantee, whether thereon allowed to immediate or two or more steps removed, in nal covenantee. whose ownership and possession the property is at the time it was broken, has a cause of action against him.9 But to constitute a breach of this covenant, there must be an eviction, or, in equity, that which is its equivalent. There is no allegation in the pleading demurred to that an actual eviction has obtained; but it is shown that a decree has been recovered by which the land is condemned to sale upon the foreclosure of a mortgage whose lien antedates. 6. Same-Breach England's covenant. "A judgment against a covenantee in possession upon foreclosure of a lien created prior to the covenant, rendered after notice to the warrantor to appear and defend, is conclusive of the existence of an outstanding paramount encumbrance. It is constructive eriction, and he is entitled to his action upon the covenant."10 of eviction. The defendant may truthfully say, that the supplemental bill nowhere charges that he has made, or is about to make, any effort to enforce his assigned decree against, or to disturb Same- Partial plaintiff's possession of, the premises involved; evidence sufficient. and that the mortgage affects only an undivided half interest in the property. It is not necessary that an eviction shall affect the entire premises granted. It is sufficient to constitute a breach of the covenant of warranty if the covenantee or his assignee be divested of a part of them.11 To the suggestion that the bill fails to charge that defendant is attempting to enforce his decree, or to disturb the plaintiff's possession, it may be further answered that it is true; but it is shown that he may do so, and the complaint seeks no satisfaction of the decree but only a release of the property from its lien. It is, as to this phase of the case, in the nature (9.) Ford v. Wolsworth, 19 Wend., 334: Dickinson v. Hoomes, 8 Gratt., 353; Kane . Sanger, 14 Johns., 89. (10.) Collier v. Cowger, 52 Ark., 322, 325. (11.) 3 Washb., R. Prop., 5th Ed., 506. 7. Preventive EDGERTON, ADMR., v. BLACKWOOD. of a bill quia timet. Equity favors the prevention of wrong, rather than compensating for it after it is accomplished. This covenant running with the land, England undertook with Blackwood, in their joint covenant, that their covenantees and their assigns should not be disturbed in jurisdiction of the enjoyment of the premises granted, to the equity Exercise of to prevent pos- extent of an actual or constructive eviction; and it is his duty, when measured by the standard of good faith, to see that the spirit of his covenant is observed. This were but a conscientious observance of his contract; and a court of equity is vested with power to decree that which is equivalent to its specific performance. sible wrong. Section 699 of Sandels & Hill's Digest of the Statutes of Arkansas, to which counsel in their arguments have referred me, is only a legislative enunciation of the broad principles of equity to be found in adjudications and the treatises of text-writers upon this subject. 8. After acquir -How affected Statute. The language of the statute is: "If any person shall convey any real estate by deed, purporting to convey the same in fee simple absolute, or any less estate, and ed title of grantor shall not at the time of such conveyance have the legal estate in such lands, but shall afterwards acquire the same, the legal or equitable estate afterwards acquired shall immediately pass to the grantee, and such conveyance shall be as valid as if such legal or equitable estate had been in the grantor at the time of the conveyance." By the strict letter of the statute the title would “immediately pass to the grantee (s),"-in this instance Cornish and W. J. Bolling. But the same statute causes, through a series of deeds, the title to immediately pass to the plaintiff. In equity the assignment of the decree would have done that without the assisting force of such a statute. If the mortgage to Edgerton's testator had been assigned to England he could not have procured a decree of foreclosure EDGERTON, ADMR., v. BLACKWOOD. upon it, as against the lot in controversy, because it would have been a violation of his covenant. A mortgagee may bring ejectment to recover possession of the mortgaged premises, after default made by the mortgagor. Can it be doubted that had England, as assignee of the mortgage, instituted such action, his covenant of warranty, properly pleaded, would have barred his recovery? The right of foreclosure is no more sacred in the eyes of the law, and is no more favored by courts, than the remedy by ejectment to obtain possession of the property. In fact, the latter remedy is less serious in its consequences to the mortgagor than the former, for it still leaves him his equity of redemption; whereas, the foreclosure of the mortgage with its attendant sale bars all of his rights in the mortgaged premises. The mortgagee's rights under the mortgage are merged in the decree, and he has the same estate in the land under it that he held under the mortgage itself, with one exception. His estate in the property is not diminished or enlarged, save to the extent of the provision in the decree for barring the mortgagor's equity of redemption in the land. Some of the older adjudications declare the mortgagee's estate to be the legal title to the property; but the approved doctrine now is, that it is simply the title held in trust by the mortgagee as a security for his debt. It matters not, however, what its nature or extent may be, for whatever it is, the subsequent acquisition of it by one who has previously conveyed the premises by a deed containing a covenant of general warranty, immediately vests the same in the covenantee and his assigns, by well established principles of equity as well as by the provisions of our statute. The demurrer will be overruled. GILL v. GILL. ALICE GILL as Admx. v. ANNA GILL et al. CHANCERY JURISDICTION - TRANSFERS OF CAUSES - IN FANTS-GUARDIANS ad litem-HOMESTEADS CONSTRUCTIVE OCCUPANCY. 1. Jurisdiction of Chancery Courts— The jurisdiction of chancery courts, in this State, established by act of the General Assembly by virtue of its authority conferred by section 1, article 7, Constitution of Arkansas, is limited by section 15 of said article to such matters as they can take cognizance of under one of the recognized heads of equity jurisprudence, as that science is administered by courts of chancery. (Page 42.) 2. Same-When Acquired by Transfer-When Party is Entitled to Transfer The mere transfer of a case from a law court to a court of chancery does not vest the latter with jurisdiction to try it. Nor does the interposition of equitable defenses along with those of a legal nature, or of defenses within the concurrent jurisdiction of law and equity courts. But where, in the latter case, the transfer is not objected to by the plaintiff, the chancery court has the discretion to either try or remand the cause. However, where the defendant, by cross bill or otherwise, seeks affirmative relief of a nature cognizable exclusively in equity, he has a right to demand a transfer to equity. (Pages 42, 43, and 44.) 3. Same-Disposition by, of all Issues Involved A court of equity having acquired jurisdiction of a cause for one purpose will dispose of all issues involved therein. (Page 45.) 4. Guardian ad litem-Party to Action Cannot be By our statute neither party to a suit can be appointed as guardian ad litem therein. (Page 45.) 5. Infants-How to Defend Suits The defense of an infant to a suit must be made by his regular guardian or a guardian ad litem. (Page 45.) 6. Same Character of Defense to be Made by Guardian The defense for an infant by his guardian must be real and earnest, and not merely formal and perfunctory. (Page 46.) |