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W. S. McCain and J. E. London, for appel- for the insurance company, who is now one lants. Brizzolara & Fitzhugh, Jesse Turner of the attorneys for appellants in this case, and Sam R. Chew, for appellee.

that this bargain was made personally by

Mrs. Sharp and the agent, and that she McCULLOCH, J. (after stating the facts). made the payment of $1,000 by satisfaction 1. Appellants raise here, for the first time, of her part ($465) of said judgment, and the a question as to the power of the trustee to remainder ($535) in cash. John Sharp and maintain this suit; urging that he is empow. Mrs. Sharp testify that the $535 paid in cash ered to sue to set aside only such convey- was realized from the crops raised on the ances in fraud of creditors as were made homestead 80 and the Hilton 40 during the within four months next before the adjudi- year 1897, which belonged to Mrs. Sharp; and cation of bankruptcy. It is doubted that this this is uncontradicted, save as to some conquestion, though it goes to the power of tradictory evidence as to the amount of the trustee to maintain the suit, can be raised crops raised by the tenants on the place. here in the case, when no such objection was Notwithstanding this contradiction, we think made below, either by demurrer or answer. it satisfactorily appears by the proof that It seems clear, however, that under sub- the payment was made with funds realized division "," $ 70, of the bankruptcy act from crops raised on that place, which beof 1898 (Act July 1, 1898, c. 541, 30 Stat, 565, longed to Mrs. Sharp, as rents and profits of 566 [U. S. Comp. St. 1901, p. 3452]), the the homestead which had been conveyed to trustee is clothed with plenary power to her. The creditors could not complain of sue to avoid any transfer made by the bank- the conveyance to her of the homestead, even rupt of bis property which any creditor may if bought by the husband with his own funds, have avoided, whether made within four Wilkes V. Vaughan (Ark.) 83 S. W. 913, months prior to the adjudication of bank- and cases cited. And it follows that, if ruptcy or not. Collier on Bankruptcy (4th the legal title to the homestead was rightEd.) p. 523; Brandenburg on Bankruptcy fully in her, she was entitled to the rents (3d Ed.) p. 438; In re Gray, 3 Am. Bankr. R. and profits thereof. To deny her the rents 647, 47 App. Div. 554, 62 N. Y. Supp. 618. and profits of the homestead would be to

2. It appears from the evidence in this deny her the use of the property itself. case that in the beginning of the year 1897 The contract for the sale of the Wright appellants, John Sharp and his wife, Mrs. farm to Mrs. Sharp by the insurance comElla Sharp, were practically without any pany is not in the record, but it is shown to property, except the homestead 80 acres, have been in writing, and that by its terms which the Union Central Life Insurance the company agreed to convey the lands to Company had the preceding year bargained Mrs. Sharp upon payment of the balance of to Mrs. Sharp, and which that company con- the purchase price. It is further shown that veyed to her the next year, They were then John Sharp also signed the contract, or inoccupying this tract as a homestead, and on dorsed his name on the back of it. John January 29, 1897, bought the Hilton 40-acre Sharp rented from the insurance company tract, adjoining the homestead. The large for the year 1898 and subsequent years, up farm formerly owned by John Sharp had to the time of the trial of this case below, been taken under a mortgage held by the for an annual rental of $1,200, the farm insurance company. The G. H. Wright farm known as the “Sharp Place,” which he had which is in controversy, it appears, was for- formerly owned. This place contained from merly the property of Mrs. Sharp's father, 100 to 200 acres more cleared land than the and was then owned by the Union Central | Wright place. Both places were operated Life Insurance Company. During that year from year to year by John Sharp, and it is Mrs. Sharp obtained a judgment against not shown with accuracy the amount of said company for the recovery of about crops raised on each place, though Sharp $1,000 upon some liability, the character of undertakes to state the number of bales of which is not disclosed in this record, but cotton raised on the Wright place each year. which is conceded to be disconnected from We think that it appears with reasonable certhe subject-matter of this controversy. She tainty that a sufficient amount was realized realized out of this judgment only the sum from year to year from rents and profits of $465, the remainder going to the attorney of the Wright place and the homestead, inwho conducted that litigation for her as con. cluding the Hilton tract, to meet the annual tingent fee. In December of that year interest payment of $660 and taxes and re(1897) the insurance company bargained the pairs. The only contribution, therefore, Wright farm to Mrs. Sharp for the sum of which has been made by John Sharp toward $12,000, of which $1,000 was paid cash, and the purchase of the Wright place, was his the remaining sum of $11,000 was agreed judgment and experience as a farmer, and to be paid in 10 years from date, with inter- his time devoted to the management. It is est at the rate of 6 per cent, per annum, shown that he managed the place, rented it, payable annually. The interest has been and collected rents, directed the making of paid regularly. The principal is not due, repairs, etc., and the operation generally of and remains unpaid. It is shown by the the farm, the same as he did the Sharp place, testimony of Mrs. Sharp and of the agent which he had rented. He says that his attention to the Wright place occupied about from operation of the Wright farm bought one-fourth of his time. Mrs. Sharp is a wo- by Mrs. Sharp, or the Sharp and other farms man of no business ability or experience, and rented and operated by John Sharp from gave no time or attention to the operation year to year. His farming operations durof the farms. This court, in Morris v. ing those years, aside from his management Fletcher, 67 Ark. 105, 56 S. W. 1072, 77 Am. of the Wright farm, seem to hare been quite St. Rep. 87, held that the creditors of the extensive, though he is unable to show any husband could follow and subject to the pay- substantial profits arising therefrom. His ment of their debts money and the value of own statement as to the amount of crops material furnished by him in improving his raised on the various farms under his control wife's property, but said that “under no cir- is not clear, and there is some conflicting tescumstances can the husband's creditors timony on the point. His testimony as to the make the wife's separate estate liable for quantity of cotton raised on the Wright place mere labor performed by him.” The Su- is 135 bales for the year 1898, of which his preme court of Alabama, in the case of wife received 31 as rent, 115 bales for the Nance v. Nance, 84 Ala. 375, 4 South. 699, 5 year 1899, of which she received 28, and 205 Am. St. Rep. 378, which was cited with ap bales for the year 1900, of which sbe reproval by this court in Morris v. Fletcher, su- ceived 51. The Sharp place was much larpra, said: “The evidence shows that the hus. ger, and, according to some of the witnesses, band expended his skill and labor in making more productive, yet he does not show any valuable erections and improvements on the profits during the same years from that lots after marriage, and it is insisted that place. We think that this proof establishes complainants have a right to condemn to the receipt of sufficient profits from the their demands the value of the labor. The be- Wright farm to cover the annual payments stowment of the labor in improving the sep- of interest, taxes, and repairs on that place, arate estate of the wife did not constitute but not that all the funds invested in other her a debtor to the husband, nor can her property came from that source. Under the separate estate be charged therewith in favor circumstances, the burden is upon Mrs. of the husband's creditors." The court, how- Sharp to show distinctly that the funds she ever, in that case held that creditors could used in these purchases and investments reach money or materials belonging to the were not furnished by her husband, nor that husband, and used by him in improving his they accrued from his earnings. Especially wife's property, provided the amount did not is the rule applicable where it is shown that exceed the limit of his personal exemptions. in addition to her farm he had the manageWe are not prepared to say that there are ment and control in his own right of other no limitations upon the right of the husband farms of at least equal productiveness and to expend his time, labor, skill and experi- mingled the products of all at will. She is ence in managing or improving the separate held to a strict showing of the amount of property of his wife, and deny his creditors profits received from her own farm and how the fruits of the same in the enhancement it was expended. Hershey v. Latham, 46 of the value of the land, and the increased Ark. 542; Driggs v. Norwood, 50 Ark. 42, 6 rents and profits by reason of such contribu- S. W. 323, 7 Am. St. Rep. 78; Leonhard v. tion; but we have no hesitancy in announc- Flood, 68 Arş. 162, 56 S. W. 781; Reeves v. ing the rule that the wife's property is not Slade, 71 Ark. 611, 77 S. W. 54; Wilkes v. liable to the creditors of the husband for Vaughan, 73 Ark. 83 S. W. 913; Davis augmentation of the rents and profits or en- v. Yonge, 73 Ark. 85 S. W. 90. Concedhancement of value on account of any rea- ing that the proof shows that the profits sonable contribution of his time, labor, or from the Wright farm exceeded the aggreskill in the management of the property. gate amount paid on interest, taxes, and reWe think the proof is sufficient, by a clear pairs on that place, and that some of the subpreponderance, to show that the first pay. sequent investments came from that source. ment of $1,000 on the purchase of the Wright we cannot say, with any degree of certainty, place was made by Mrs. Sharp out of her from the proof what amount thereof was so own funds, and that the annual interest pay- invested, and in which of the investments ments since that time have been paid out her funds were used. Unless we can find of the net proceeds of the rents and profits from the proof, which we do not, that all of issuing from that place and from her home- the subsequent purchases and investments stead. The chancellor therefore erred in were made with her funds, how can we sindecreeing the purchase in her name to be gle out any particular purchase or investfraudulent and void.

ment, and say that this or that was made 3. The other property in controversy, viz., with her funds? We can do this with the the lots in the town of Alma, the sawmill Wright farm, for the reason that 'we find stock, Montague notes, and investment with that the first payment was made with her Wright & Co., were all acquisitions during funds, the contract for purchase was made the year 1901. As stated before, neither by her, the profits from that place were suffiSharp nor his wife had any money or prop- cient to cover the payments subsequently erty of substantial value in 1897; and it is made, and we can assume that these profits manifest that the above acquisitions resulted were primarily applied in the payment on

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that place. The chancellor found that the the sale of land. Both sides appealed and proof did not sustain the claim of Mrs. Sharp | have assigned errors. that these purchases and investments were The cause was heard by the circuit judge, made with her own funds, and not with without the aid of a jury, upon evidence those of her husband, and we think his find- which is practically undisputed. The record ings in that respect are .not against the pre- reveals that on the 29th of February, 1904, ponderance of the testimony.

Ford N. Taylor and wife conveyed to Harris As to the lands described as the Wright L. Brown, by deed duly executed and refarm, the decree is reversed and remanded, corded, a tract of land in the suburbs of with directions to enter a decree dismissing Memphis, for which Brown agreed to pay the complaint for want of equity. In all oth- the sum of $5,600 whereof $1,400 was paid in er respects the decree is affirmed.

cash, and notes executed for the balance of the purchase money, due in one, two, and three years, with interest from date. The

deed contained the usual covenants and warBROWN V. TAYLOR.

ranties that the premises were free from in

cumbrances and that the grantors would for(Supreme Court of Tennessee. May 22, 1905.)

ever defend the same against all lawful 1. COVENANTS ACTIONS DEFENSES- claims whatever. KNOWLEDGE OF BREACH.

It is disclosed by the record that the propWhere a covenant against incumbrances is inserted in a deed of conveyance, the cove

erty was purchased by Brown for the purpantee may sue at law for a breach thereof, pose of making a subdivision, and it was consisting of an unexpired lease upon the prem- agreed that, upon certain cash payments beises, although he had actual knowledge of such lease.

ing made, any portion of the property desired (Ed. Note. For cases in point, see vol. 14,

would be released from the operation of the Cent. Dig. Covenants, $ 40.)

trust deed executed to secure the deferred 2. SAME-BREACH-DAMAGES-COUNSEL FEES.

payments. A covenantee, in a covenant against incum- It further appears that at the date of the brances which is breached by the existence of

deed there was an incumbrance on the land, an unexpired lease on the premises, cannot recover as damages counsel fees incurred in a

consisting of an outstanding lease, with 10 misdirected action to evict the lessee prior to months to run before its expiration. It was the expiration of his term.

contended on behalf of Taylor that Brown [Ed. Note. For cases in point, see vol. 14, had actual knowledge of the incumbrance, Cent. Dig. Covenants, 8 261.)

and that the lessee thereby became his own 3. SAME-SPECIAL DAMAGES.

tenant. It is shown that Taylor, the vendor, The fact that a purchaser of land disclosed to his vendor that his purpose in buying the

before executing the conveyance, stated to same was to subdivide it does not entitle him to the agent who was negotiating the contract special damages for a breach of the vendor's of sale that there was a gardener on the land covenant against incumbrances, whereby the

who had a lease until such time as he could purchaser was prevented for a time from obtaining possession of a portion of the land get his crop gathered for that year, probably which was subject to an unexpired lease, where some time in September or October, and that the streets upon which the subdivision was to he desired this gardener to be protected. It front had not been, and could not be, formally opened to the public until after the expiration

is further shown that this agent, before the of the lease, and consequently the breach of the

deed was executed or title examined, comcovenant was not the essential cause of pre- municated to Brown the fact that there was venting the opening of the land for subdi

a gardener on the place and Taylor wanted vision. 4. SAME-ORDINARY DAMAGES.

him protected, and that this gardener was at In the absence of circumstances authoriz- the time paying as rental the sum of $7.50 ing the recovery of special damages, the cove- per month. Brown replied that he did not nantee's damages for a breach, consisting of know about the $7.50 per month, but supan unexpired lease, of a covenant against incumbrances, is the rental value of the prem

posed the matter could be arranged in some ises during the currency of the lease.

way. Plaintiff below now seeks to recover [Ed. Note. For cases in point, see vol. 14, damages for breach of the covenant against Cent. Dig. Covenants, $8 238-242.)

incumbrances, upon the facts stated in reAppeal from Circuit Court, Shelby County;

gard to the existence of an outstanding lease J. S. Galloway, Judge.

on the premises. It is denied on behalf of Action by Harris L. Brown against Ford

Taylor that Brown is entitled to any recovN. Taylor. From the judgment rendered,

ery, for the reason that he accepted a deed both parties appeal. Modified.

with full knowledge of this incumbrance, and

that he must look to the tenant for his proR. G. Brown, for plaintiff. Flippin & Neu- tection. Counsel for defendant cites in suphardt, for defendant.

port of his contention Ballard's Law of Real

Property, vol. 6, § 142, in which the rule is MCALISTER, J. The plaintiff below, Har- thus stated: “Where the grantee in a conris L. Brown, recovered judgment against the veyance of lands in fee simple which contains defendant, Ford N. Taylor, for the sum of a covenant against incumbrances, and be$92.65, as damages for breach of covenant fore execution and delivery of the deed, has against incumbrances contained in a deed for actual knowledge of the existence of a lease made between grantor in said conveyance and fendants had sold a farm, which they and a tenant, the tenant being in actual posses- the purchaser knew they did not own, sion of the premises, the grantee cannot could that knowledge destroy or affect the maintain against his grantor an action for covenant of seisin? If not, by what rule can breach of covenant"-citing Demars v. Koeh- such knowledge impair a covenant of warler, 60 N. J. Law, 314, 38 Atl. 808. In the ranty against incumbrances? Such evidence last case the court said: "There can exist might probably be excluded on two grounds: no question in law that an outstanding terin One, because of its immateriality, and the of an unexpired lease on the premises con- other, under the rule that parol evidence is veyed is an incumbrance, within the covenant not admissible to control or contradict the against incumbrances contained in the deed effect of written instruments." Rawle on of conveyance. Fritz v. Pusey, 31 Minn. 368, Covenants, p. 157. Again, on page 152, Mr. 18 N. W. 94; Jarvis v. Buttrick, 1 Metc. Rawle says: “It has, moreover, been said (Mass.) 480; Batchelder v. Sturgis, 3 Cush. that the fact of the purchaser having notice 201; Carter v. Denmans' Ex., 23 N. J. Law, of the incumbrance is the very reason for his 261-272; Grice v. Scarborough, 2 Spears, 649, taking covenant within whose scope it is in. 42 Am. Dec. 391; Maupin on Real Estate, p. cluded, and that the vendor may be expected 293, 8 125."

to discharge it out of the purchase money. While this rule is undoubtedly supported For all these reasons, therefore, whenever by highly respectable authority, it is not in the contract is that the purchaser takes the our view the sound rule, and is not sanc- land cum onere, the incumbrances should be tioned by the weight of authority. The true expressly excepted in the deed from the oprule has thus been formulated in the Cyclo- eration of the covenant, in which case, of pedia of Law and Procedure, vol. 11, p. 1066, course, the covenantor will not be liable." as follows: "Knowledge on the part of the The general rule is that the right of acpurchaser of the existence of incumbrances tion on covenant against incumbrances arises on the land will not prevent him from recov- upon evidence of an incumbrance, irrespecering damages on account of it, where he tive of any knowledge on the part of grantee, protects himself by proper covenants in his or of any eviction of him, or of any actual deed”-that is to say, we may add, a cove- injury it has occasioned him. 2 Greenleaf nant against incumbrances. The author on Ev. § 242; 2 Washburn on Real Property, cites in support of the text cases from 23 8 717. So that it is clear upon authorities states of the Union, including the case of plaintiff below was entitled to maintain bis Perkins v. Williams, 5 Cold. (Tenn.) 512. In action at law for breach of covenant against the last case cited, decided by this court in incumbrances, notwithstanding his actual 1868, it was held that covenant of seisin em- knowledge of the unexpired lease upon the braces a defect of title, constituting want of premises. seisin to covenant, although such defect of The remaining question that arises is in title was known to covenantee at the time of respect of the proper rule for admeasurement the making of the covenant. “Knowledge by of damages. The trial judge adopted as a covenant or of such a defect will not bar his measure of the damages the rental value of action at law for breach of covenant”-citing said property for the unexpired term at $8 American notes to Wallam v. Hearn, 2 Lead- per month. He also allowed counsel fees, ing Equity Cases; also, Rawle on Cove amounting to $10, incurred by Brown in a nants, c. 13. It is true that the matter in- misdirected action before a justice of the volved in the last case was an alleged breach peace to evict the lessee from the premises. of covenant of seisin, and it was held that, It was admitted on all hands that the lessee while equity would not lend its aid to rescind was rightfully in possession of the premises, a covenant of seisin, although the covenantor and, of course, the purchaser, Brown, had no be insolvent, where it appears that the cove right to evict him until the expiration of his nantee knew of the defect of title at the time term. It may be remarked there was no auhe took the conveyance, in such a case the thority for the allowance of counsel fees in party will be left to such remedy as he can such a case; but, on the contrary, in Wilobtain at law for breach of the contract. liams v. Burg, 9 Lea, 455, it was expressly Rawle, in the second edition of his valuable decided by this court that counsel fees are work on Covenants of Title (page 149), states not taxed as costs, nor regulated as to the law to the same effect as follows: "In a amount by law in this state, and that sums case where there are known incumbrances | paid therefor by the covenantee for defense of any kind on property, subject to which in ejectment by adverse claimant are not repurchaser agrees to take, these should, for coverable from covenantor. This principle is the vendor's protection, be especially and ex- conclusive of any allowance for counsel fees pressly excepted from the covenant, as other- in this case. wise the fact of their being known to the Recurring to the question made touching purchaser will, according to the weight of the measure of damages, it is insisted on be authority, be no bar to his recovery upon it.” half of counsel for Brown that, when he pur. So, in a case in Connecticut, it was said: chased this land, he disclosed to his grantor “How can plaintiff's knowledge destroy the that his purpose in buying the land was to effect of defendants' covenant? Suppose de make division, and the proof of the record establishes this contention. It further ap- tor without expense or trouble to grantee, the pears that, by reason of the existence of this latter can recover only nominal damagesoutstanding lease, the purchaser was pre- citing volume 11, pp. 1164, 1165; Egan v. Yeavented from acquiring immediate possession man (Tenn. Ch. 1897) 46 S. W. 1012. of the premises; but it does not appear that We are constrained to hold, upon the facts this fact prevented a subdivision of the prem- disclosed in this record, that the plaintiff has ises. On the contrary, it distinctly appears sustained actual damages in being deprived that the streets upon which this subdivision of immediate possession of the premises; but, was to front, although dedicated to the pub- in view of all the facts, it is adjudged that lic, had not been formally opened, and could he is only entitled to recover rental value of not have been opened up to and including the property during the currency of the lease the time of the expiration of this lease. The as compensation for the breach of covenant contention on behalf of Brown is that, hav- against incumbrances. As modified herein, ing thus been deprived of immediate posses- the judgment is affirmed. sion of his premises, he should be entitled to recover at least the interest he was paying on the deferred payments, and should not be confined to the rental value of the premises.

WILSON V. ALEXANDER. Plaintiff invokes the familiar rule that, when a contract is made under special circumstan

(Supreme Court of Tennessee. June 3, 1905.) ces and those circumstances are communi- 1. APPEAL REVIEW OF Facts - CANON OF cated by one party to another, the damages

CONSTRUCTION.

The Supreme Court, in disposing of an asresulting from breach of contract, which

signment that there is no evidence to sustain they would reasonably contemplate, consti- the judgment, must adopt the theory of the tute the true measure for the assessment of facts most favorable to the successful party. damages, citing 13 Cyc. of Law and Pro- 2. SAME-ASSIGNMENTS OF ERROR-QUESTIONS

PRESENTED. cedure, p. 34. We are unable to concur in

An assignment of error that there is no this contention, for the obvious reason that evidence to sustain the judgment raises a quesit does not appear from this record that the tion of law as well as one of fact, viz., whether breach of covenant against incumbrances

the facts, considered most favorably to the par

ty successful below, justify in law the judgwas the essential cause of preventing the

ment rendered. opening of this land for subdivision; but, on 3. MASTER AND SERVANT — RELATION AS TO

STRANGERS-ESTABLISHMENT. Brown, had obtained immediate possession of

ating the machinery of a carrier is sufficient, if the premises, subdivision could not have been

there is nothing in the circumstances to negamade on account of unopened streets until tive the conclusion, to justify the inference that after the expiration of the term of this lease. such person is acting as a servant of the car

rier. Hence it does not appear that special damages, claimed by Brown to have been within

4. LANDLORD AND TENANT - HOLDING OVER

TENANT--CONDITIONS OF HOLDING. the contemplation of the parties, in fact re

A tenant who holds over after the expirasulted as a proximate consequence of the tion of his term continues to occupy the rebreach of covenant. Hence the facts herein

lation of tenant towards his former landlord stated do not present a case for the applica

on the same conditions as those of the preceding

term. tion of the rule invoked, but for the ordinary

[Ed. Note.-For cases in point, see vol. 32, rule which obtains in such cases, namely, the Cent. Dig. Landlord and Tenant, š 284.] rental value of the property during the period 5. SAME-TERMINATION OF RELATION - Evipurchaser was kept out of possession. As DENCE. stated in the Cyclopedia of Law and Pro- Where a tenant of a ferry continued to cedure, in speaking of a covenant against in

operate the same after the expiration of his

term, and on the occurrence of an accident to a cumbrances, that being a covenant of indem

stranger's property, the landlord, though an old nity, the general rule for the measure of man, and though it was winter, went to the damages in actions for its breach, by reason

ferry, a distance of 20 miles, and investigated

the matter, thus disclosing great concern and of an incumbrance existing upon the prop

interest, the court was justified in finding that erty at the time of sale, is the loss actually the tenant was then acting not as tenant, but sustained by the covenantee, with interest. as a servant of his former landlord. Damages, costs, and expenses, when given 6. FERRIES-LIABILITY OF FERRYMAN-INCEP

TION. as a penalty for breach of covenant, mean the

A ferryman becomes responsible for the necessary, natural, and proximate damages safety of a team which undertakes to use the resulting from such known performances, and ferry as soon as the operator of the ferry dinot some remote accidental or special injury

rects the driver of the team to drive upon the

ferryboat. to the party to whom the right of action ac

[Ed. Note.—For cases in crues. The author further says that, in an action for breach of covenant against in. 7. SAME-NEGLIGENCE OF FERRYMAN. cumbrances, if the incumbrance has inflicted

A ferryman on whose boat mules were beno actual injury to plaintiff, and he has paid ing driven, which, in backing, pushed the boat nothing towards removing or extinguishing

from under them, and they were drowned, was

negligent in not having his boat secured to the it, he can only recover nominal damages. bank, in permitting holes through which water Where incumbrance is removed by the gran- could be seen to be in the floor of the boat,

Cent. Dig. Ferries, si SS, 37. point, see vol. 23,

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