Hanks vs. Harris. conduct, but if that be even true, and we give him the fullest credit for sincerity, we cannot excuse him for a misconstruction of his covenant, nor can we visit upon Mrs. Harris an ultimate loss, which the proof shows that no diligence could have prevented, and which Hanks does not pretend to claim. could have been prevented. He tries to explain what he understood the covenant to mean - which was, that he sold Mrs. Harris chances of collecting $3,900, for her property. The covenant is not doubtful, and explains itself, and we are bound by its terms in our construction of it, as Hanks is in his duty to his creditor. Our construction of it is given on its face alone, and no parol evidence can be heard to explain or modify it. As a further proof of Adams' power over the old partnership business, Hanks says in his deposition: "I have never regarded the partnership as existing since the war, and turned all the books and papers over to Adams." This turning over would have been very useless if it had not involved the power to act in reference to the matters "turned.” We have construed Hanks' covenant as warranting the existence and legal validity of the decree, in which he assigns, equitably, a part interest, and was a covenanting guaranty. The compromise decree in the Craig Will Case is not before us. Pike, whose testimony in that regard was admitted without objection, testifies that it was rendered in April, 1860, in a cause in which said Sandford C. Faulkner and wife and others were complainants, and the executors of the will of Junius W. Craig and his heirs and the city of Helena and others, legatees, were defendants. That after the compromise decree, Joshua M. Craig, who had become liable to the city of Helena, and to Edward J. Wright, for a large amount, and given his and John A. Craig's notes for the same, had cause to think that the decree was a nullity and in such shape that if he paid the money which he had assumed, he would obtain Hanks vs. Harris. no title to the property. Pike gave him his opinion to that effect, and he employed Pike to file a bill to "recall and cancel the decree." The bill was filed for that purpose to the April term, 1861, making Helena a defendant, also Charles W. Adams, who was the attorney of Helena in the original suit and drew the decree, and had received for his fee one or more of the notes given under the decree by Joshua M. Craig and John A. Craig, to the city of Helena. This suit slumbered on the records until the close of the war, when John A. Craig having died, Pike filed a supplemental bill in behalf of Joshua M. This suit resulting in a decree annulling the former compromise decree of April, 1860, for the benefit and behalf of Joshua M. Craig and the estate of John A. Craig. The decree is in the record in this cause and is far reaching and full, the defendants being the heirs and legatees of Junius W. Craig, Emma J. Wright as executrix and William P. Halliday as executor of his will, the city of Helena, Charles W. Adams and others. Hanks was not a party. The decree pronounces the notes given to the city of Helena, upon which Adams and Hanks' decree was founded, without consideration, null and void, and annulled the compromise decree with all its dependents and incidents, and the verdicts and judg ments at law based thereon, etc., and that the same be taken "and held as though never made," and the city of Helena and all other defendants and persons claiming under them were perpetually "enjoined from in any manner availing themselves thereof, in any suit, proceeding or controversy or matter whatsoever." Hanks claims that he is not bound by this decree, because he is not a party. Conceding this, which we do not, still Adams was bound. No process could have been issued without throwing him in contempt of the court, and although Hanks' counsel contends here that Mrs. Harris might have issued an ex Hanks vs. Harris. ecution on the decree for her $3,900, we do not suppose they were serious in this, for even if an execution could have been issued as they claim for a part, it still must have been in the name of Adams and Hanks. So the decree was practically dead. In a review of authorities in the case of Harrison v. Trader and wife, ante, p. 85, we showed that on bills to cancel decrees like this, the matter was regarded as lis pendens, from the beginning of the original suit, and all intermediate purchasers with notice were fully affected and bound by the decree, which was finally annulled. If this were not the rule, all that it would be necessary to avoid would be an adverse shifting of title. The following authorities fully sustain us in holding Hanks bound by the decree, if not as a privy in fact, under the city of Helena, at least as a purchaser pendente lite. Earl v. Couch, 3 Metc., 450; Clay v. Marshall's Heirs, 4 Dana (Ky.), 95; Debrell v. Foxworthy, 9 B. Mon., 228; 2 Dana (Ky.), 406; Story's Eq. Pl., sec. 156. It would be difficult for us to say that Hanks, who was one of the attorneys in the original suit, and whose firm, the proof shows, drew the answer of the city, is not affected with notice of the source of his title when in the case of Earle v. Couch, above cited, the supreme court of Kentucky held that a relative of such attorney, who bought from him, was affected. We therefore hold, that the annulling decree destroyed the original decree with all its incidents and related back, in its effects, if not to the beginning, at least, to the commencement of the suit and review in April, 1861. Therefore Hanks' covenant was legally false when made in November 1861, reciting a decree in October 1861, and was broken at once and there was a right of action. Logan v. Moulder, 1 Ark., 322. Hanks' covenant was that he had a valid decree. His decree was an incident of, and dependent upon the original compro mise decree. Hanks vs. Harris. The effect of the decree in favor of Adams and Hanks was to subrogate them pro tanto to the rights of the city of Helena, against the Craigs in the compromise decree. That decree being annulled, of course, swept Hanks' incidental decretal offshoot with it, and left him standing simply a debtor to Mrs. Harris, upon a sealed covenant and guaranty. But if we are mistaken in this, still it is evident, that the decree is not of continued effect, and could not result in ultimate payment, which is a sufficient breach of the covenant to sustain the verdict and judgment, if Hanks failed to pay when such facts transpired. In the crompromise made at Memphis, in February 1866 between Adams and Joshua M. Craig, which Hanks claims as a novation of the contract which released him, it appears that Adams, after the war, and the legal solvency of Craig became doubtful, and his inability to pay the whole decree became manifest, had gotten Craig to agree to pay $8,800 — of this he paid $800 in cash, one-third of which was paid to Mrs Harris, and for the balance, had taken notes, due at different periods, to himself for his own use, amounting with his two-thirds of the last payment to $5,000; and had taken one of the notes payable to himself, for the use of Mrs. Harris, for a sum which with her one-third of the last payment equalled $3,800-, which latter sum Adams, not having the covenant before him, thought was the real amount due Mrs. Harris. Craig afterwards made some payments to Adams, one-third of which was placed to Hanks' credit on his covenant with Mrs Harris. Although Hanks says his conversation with Mangum must have referred to another matter, we are strongly impressed, that it was of this compromise, that Mangum testifies that Hanks said: "We were more fortunate than Hanly in getting our fee in the Craig Will Case; we secured a part of our fee by compromise." It is of this Adams testifies, when he says Hanks, in VOL. XXIX.-22 Hanks vs. Harris. his interview with him shortly afterwards and while Craig was at Memphis, and the compromise could have been undone and recalled, unequivocally approved it. It was of this Adams wrote to Hanks, which the latter gives as his reason for not presenting the claim to the administrator of John A. Craig. Ο It is proven by Adams, also, that Mrs Harris never saw the note he took for her use in the compromise, and when he paid her the $267, the third of the $800 cash, she received it, but said she did not want to do any thing which would release Hanks. The proof tends to show that the compromise was entered into by Craig, through Pike's influence over him; that after the bankruptcy, some of the compromise notes, amounting to the greater part of the debt, remained unpaid. Through Pike's influence and Adams' exertions, a new promise was gotten, on which Adams sued in the Chicot circuit court and got judgment, after Craig's bankruptcy, but realized nothing out of it. The testimony tends to prove, that Joshua M. Craig's bankrupt estate was worthless, and would not have paid the expenses of establishing the compromise notes against it. Adams owns that he acted for the firm in the original compromise as he did in other matters; that he had collected and paid his part of other fees to Hanks. Finally, realizing nothing on his judgment against Craig, he accepted from him, in full discharge, a deed for a piece of land in Chicot county of uncertain value. This land was incumbered with taxes and a lien due Carlton. Adams has never received anything on it. Adams offered to share this land with Hanks, and asked him to divide the expenses and to help pay the claims off. Hanks refused and testifies himself, that Adams asked him if he renounced it; he replied "Yes." "Yes." Adams then told him to remember this. As this occurred after the breach of Hanks' covenant, when Mrs. Harris had a complete right of action against him, and while this suit was pending, it is difficult to |