{ "id": 6137776, "name": "Helen MURCHIE v. Lester HINTON, et al.", "name_abbreviation": "Murchie v. Hinton", "decision_date": "1993-03-03", "docket_number": "CA 92-671", "first_page": "84", "last_page": "89", "citations": [ { "type": "official", "cite": "41 Ark. App. 84" }, { "type": "parallel", "cite": "848 S.W.2d 436" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "120 S.W. 836", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1909, "pin_cites": [ { "page": "838" } ], "opinion_index": 0 }, { "cite": "91 Ark. 162", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1511819 ], "year": 1909, "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/ark/91/0162-01" ] }, { "cite": "216 S.W. 505", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1919, "pin_cites": [ { "page": "508" } ], "opinion_index": 0 }, { "cite": "140 Ark. 512", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1594382 ], "year": 1919, "pin_cites": [ { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/ark/140/0512-01" ] }, { "cite": "219 Ark. 948", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1609188 ], "weight": 2, "year": 1952, "pin_cites": [ { "page": "951" }, { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/ark/219/0948-01" ] }, { "cite": "230 Ark. 526", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1700185 ], "weight": 2, "year": 1959, "pin_cites": [ { "page": "528" }, { "page": "547" } ], "opinion_index": 0, "case_paths": [ "/ark/230/0526-01" ] }, { "cite": "244 Ark. 377", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720145 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "382" }, { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/ark/244/0377-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-22-308", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1991, "opinion_index": 0 }, { "cite": "277 S.W. 533", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1925, "opinion_index": 0 }, { "cite": "169 Ark. 1008", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1373912 ], "year": 1925, "opinion_index": 0, "case_paths": [ "/ark/169/1008-01" ] }, { "cite": "59 S.W.2d 1025", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1933, "pin_cites": [ { "page": "1027" } ], "opinion_index": 0 }, { "cite": "187 Ark. 331", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1432072 ], "year": 1933, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/ark/187/0331-01" ] }, { "cite": "292 Ark. 505", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871439 ], "weight": 5, "year": 1987, "pin_cites": [ { "page": "507" }, { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/ark/292/0505-01" ] }, { "cite": "Ark. Code Ann. \u00a7 18-12-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 447, "char_count": 7646, "ocr_confidence": 0.891, "pagerank": { "raw": 1.379881828052486e-07, "percentile": 0.6403041258389968 }, "sha256": "df10c89ec97c565fc7e9cdc847a0f5f43da09957064cc8d9004526f8bc463b12", "simhash": "1:8fc235056d7b676d", "word_count": 1227 }, "last_updated": "2023-07-14T20:56:01.419347+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mayfield and Rogers, JJ., agree." ], "parties": [ "Helen MURCHIE v. Lester HINTON, et al." ], "opinions": [ { "text": "John B. Robbins, Judge.\nThis action arose out of a property line dispute between appellant Helen Murchie and her neighbors, Edward and Juanita Foster. Appellant filed a third-party complaint against appellees Lester Hinton and Thelma Hinton seeking damages for their failure to defend appellant\u2019s title in the dispute. The chancellor found against the appellant on her third-party action and she appeals. We hold that appellant is entitled to recover the reasonable costs of defending her title, and reverse.\nAppellant purchased her property from appellees in September 1989. The following July the Fosters filed their petition against appellant seeking ejectment and a temporary restraining order. They alleged that appellant was encroaching onto a portion of their adjacent lot. The trial court entered a temporary restraining order prohibiting appellant from interfering with the Fosters\u2019 use and enjoyment of their property, including the disputed strip, and prohibiting appellant from interfering with any construction, grading, or landscaping, or other use of the land. This restraining order was later modified to prohibit either party from continuing any work on the disputed property.\nIn August 1990, appellant notified appellees by certified mail of the Fosters\u2019 ejectment suit and asked that they defend the action. The appellees had specifically covenanted in their warranty deed to appellant that they would \u201cforever warrant and defend the title to the said lands against all claims whatever.\u201d Appellees refused to take any action to defend the title, and appellant subsequently filed a third-party complaint against them for damages sustained in defending the ejectment action.\nAt the trial on the merits of the ejectment action, appellant prevailed. The court, however, denied appellant\u2019s request for fees and costs against the appellees. The court reasoned that the Hintons had fulfilled their obligation by appearing and putting on testimony at the trial. It is from the denial of fees and costs that appellant appeals.\nThe deed of conveyance from appellees to appellant contained the words \u201cgrant, bargain, sell, and convey\u201d in its granting clause. These words constitute:\nan express covenant to the grantee, his heirs, and assigns that the grantor is seized of an indefeasible estate in fee simple, free from encumbrance done or suffered from the grantor, except rents or services that may be expressly reserved by the deed, as also for the quiet enjoyment thereof against the grantor, his heirs, and assigns and from the claim and demand of all other persons whatever, unless limited by express words in the deed.\nArk. Code Ann. \u00a7 18-12-102(b) (1987).\nIn Bosnick v. Metzler, 292 Ark. 505, 731 S.W.2d 204 (1987), the supreme court held that a grantee-covenantee was entitled to recover his costs and expenses from his grantorcovenantor when the covenantee successfully defended or asserted his title against a third-party\u2019s claim of adverse possession. The court also recognized the general rule that in order to recover for breach of such a covenant there must be an actual or constructive eviction. Here, the appellant was actually evicted from a portion of her lot by the temporary restraining order entered by the trial court on July 27, 1990. This eviction continued until the conclusion of the final hearing on November 21, 1991. Consequently, under the statutory warranty and pursuant to the court\u2019s holding in Bosnick, appellant was entitled to recoup her litigation costs and expenses in successfully defending the Fosters\u2019 suit and recovering possession of the disputed portion of her lot.\nThe warranty deed involved in Bosnick also contained a special covenant that the grantors would \u201cdefend the title to the said lands against all claims whatever.\u201d Id. at 507, 731 S.W.2d at 205. The court did not discuss this covenant in its opinion, nor apparently rely on it in holding that the grantors were responsible for the grantees\u2019 costs and expenses. The supreme court has previously held, however, that \u201cthe law is settled that, under a covenant to warrant and defend title, the covenantee is entitled to recover the cost and necessary expenses incurred in the bona fide defense or assertion of the title, including a reasonable attorney\u2019s fee.\u201d Arkansas Trust Co. v. Bates, 187 Ark. 331, 336, 59 S.W.2d 1025, 1027 (1933). Appellees\u2019 specific covenant to warrant and defend provides an additional basis for their duty to reimburse appellant for her costs and attorney\u2019s fees incurred in defending the Fosters\u2019 action.\nThe trial court concluded that appellees fulfilled their obligation to defend appellant\u2019s title by appearing and participating at the trial. However, when appellant requested that they defend for her soon after she was sued by the Fosters, they failed to do so. They answered appellant\u2019s third-party action by denying that they were subject to a covenant to defend appellant\u2019s title. We hold that their eventual participation at the trial falls short of their duty to defend and the trial court erred in so ruling.\nAppellees suggest that appellant is seeking to recover attorney\u2019s fees and costs for collateral litigation which would not be recoverable, and that no fees may be awarded a covenantee in an action against the covenantor for breach of warranty. While appellant\u2019s third-party action against appellees would be considered collateral, the underlying ejectment action brought by the Fosters is clearly a direct attack on appellant\u2019s title and right to possession, and damages related to defending the title are recoverable. Bosnick v. Metzler, supra. As to appellant\u2019s entitlement to her attorney\u2019s fees and costs incurred in her third-party action against appellees, we acknowledge that the supreme court held in O\u2019Bar v. Hight, 169 Ark. 1008, 277 S.W. 533 (1925), that a covenantee could not recover attorney\u2019s fees from the covenan tor in an action for breach of warranty. Were it not for Act 800 of 1989, this would continue to be the rule. However, Act 800 amended Act 519 of 1987 to permit a trial court to allow a reasonable attorney\u2019s fee to the prevailing party in an action for breach of contract (codified, as amended, at Ark. Code Ann. \u00a7 16-22-308 (Supp. 1991)). A warranty deed should be considered a contract between a grantor and his grantee who has accepted it. For a review of cases where the supreme court has referred to deeds as being contracts see Schnitt v. McKellar, 244 Ark. 377, 382, 427 S.W.2d 202, 206 (1968); Black v. Been, 230 Ark. 526, 528, 323 S.W.2d 545, 547 (1959); Davis v. Collins, 219 Ark. 948, 951, 245 S.W.2d 571, 572 (1952); Jackson v. Lady, 140 Ark. 512, 523, 216 S.W. 505, 508 (1919). See also Parker v. Carter, 91 Ark. 162, 167, 120 S.W. 836, 838 (1909). Consequently, the trial court may allow appellant a reasonable attorney fee for that portion of appellant\u2019s attorney\u2019s fees attributable to prosecution of her third-party action against appellees. While we require an award of attorney\u2019s fees and costs to appellant for defending Fosters\u2019 claim after she notified appellees of their suit, an award for appellant\u2019s attorney fees for prosecuting the third-party action against appellees is discretionary with the trial court. Ark. Code Ann. \u00a7 16-22-308. The case must be remanded to the trial court for these determinations.\nReversed and remanded.\nMayfield and Rogers, JJ., agree.", "type": "majority", "author": "John B. Robbins, Judge." } ], "attorneys": [ "Jeff R. Conner, for appellant.", "Coffelt, Burrow & Sawyer, by: Stephen P. Sawyer, for appellee." ], "corrections": "", "head_matter": "Helen MURCHIE v. Lester HINTON, et al.\nCA 92-671\n848 S.W.2d 436\nCourt of Appeals of Arkansas Division I\nOpinion delivered March 3, 1993\n[Rehearing denied March 31, 1993.]\nJeff R. Conner, for appellant.\nCoffelt, Burrow & Sawyer, by: Stephen P. Sawyer, for appellee." }, "file_name": "0084-01", "first_page_order": 108, "last_page_order": 113 }