{ "id": 1568125, "name": "Doak v. Smith", "name_abbreviation": "Doak v. Smith", "decision_date": "1919-02-10", "docket_number": "", "first_page": "509", "last_page": "514", "citations": [ { "type": "official", "cite": "137 Ark. 509" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "33 Ark. 640", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725551 ], "opinion_index": -1, "case_paths": [ "/ark/33/0640-01" ] }, { "cite": "23 Am. Dec. 670", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": -1 }, { "cite": "153 S. W. 101", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "22 Ark. 72", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725628 ], "weight": 3, "pin_cites": [ { "page": "101" } ], "opinion_index": -1, "case_paths": [ "/ark/22/0072-01" ] }, { "cite": "121 Ark. 95", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1559414 ], "opinion_index": 0, "case_paths": [ "/ark/121/0095-01" ] }, { "cite": "78 Ark. 230", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1497309 ], "opinion_index": 0, "case_paths": [ "/ark/78/0230-01" ] }, { "cite": "72 Ill. 553", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2711764 ], "opinion_index": 0, "case_paths": [ "/ill/72/0553-01" ] }, { "cite": "93 Ark. 5", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546899 ], "opinion_index": 0, "case_paths": [ "/ark/93/0005-01" ] }, { "cite": "94 Ark. 615", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1545442 ], "opinion_index": 0, "case_paths": [ "/ark/94/0615-01" ] }, { "cite": "44 Ark. 153", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893382 ], "opinion_index": 0, "case_paths": [ "/ark/44/0153-01" ] }, { "cite": "15 Ark. 286", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728222 ], "opinion_index": 0, "case_paths": [ "/ark/15/0286-01" ] }, { "cite": "74 Ark. 348", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721017 ], "opinion_index": 0, "case_paths": [ "/ark/74/0348-01" ] }, { "cite": "84 Ark. 415", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1524464 ], "opinion_index": 0, "case_paths": [ "/ark/84/0415-01" ] }, { "cite": "98 Ark. 501", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1316036 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/98/0501-01" ] }, { "cite": "23 Am. Dec. 670", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 0 }, { "cite": "22 Ark. 72", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725628 ], "opinion_index": 0, "case_paths": [ "/ark/22/0072-01" ] } ], "analysis": { "cardinality": 495, "char_count": 10105, "ocr_confidence": 0.516, "pagerank": { "raw": 8.987290987377983e-08, "percentile": 0.502774872202974 }, "sha256": "6eaaf3cb3949fbd9f25feaaba9c6f7361b3910411c08c6fb9b62810e8afd88a9", "simhash": "1:8b33fb7c76298665", "word_count": 1768 }, "last_updated": "2023-07-14T15:41:36.610388+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Doak v. Smith." ], "opinions": [ { "text": "SMITH, J.\nThe relevant facts out of which this appeal arises may be stated as follows: S. H. Creel owned a quarter section of land in Carroll County, which was purchased by appellant Doak at a sale for taxes in 1914. Doak received a clerk\u2019s deed in 1916, and conveyed the land to one Hamilton, who conveyed 120 acres of it to one Harvison and 40 acres to one Lowery. Hamilton\u2019s grantees each conveyed to appellee Smith. Creel filed a bill to cancel all the foregoing deeds in which all parties named above were made defendants. Appellee Smith answered and filed a cross-complaint against appellant Doak and the other intervening grantors in the chain of title. He recited the sums he had paid Harvison and Lowery and the damage he would sustain if his title were canceled. '\nThe deed from Doak to Hamilton reads as follows: \u201cKnow all men by these presents, that we, George Doak and Olive Doak, his wife, for and in consideration of the sum of $500 to us paid by C. A. Hamilton, do hereby grant, bargain, sell and convey unto the said Hamilton and to his heirs and assigns, the following lands in Carroll County, Arkansas, to-wit: (Here follows descrip-\ntion.)\n\u2018 \u2018 To have and to hold the same to the said Hamilton and to his heirs and assigns forever with all appurtenances thereto belonging. And we hereby covenant with the said Hamilton that we will forever warrant and defend the title to said lands against all lawful claims whatever done or suffered by us or those under whom we claim.\n\u201cAnd I, Olive Doak, wife of the said George Doak, for the said consideration, do hereby release and relinquish to the said Hamilton all my rights of dower and of homestead in and to said lands.\u201d\nThe contention of appellee Smith \u2014 that appellant is liable \u2014 is based upon the fact that his deed to his immediate grantee contains, in its granting clause, the words \u201cgrant, bargain and sell,\u201d thereby creating a statutory warranty. This contention is based upon section 731 of Kirby\u2019s Digest, which reads as follows:\n\u201cAll lands, tenements and hereditaments may be aliened and possession thereof transferred by deed without livery of seizin, and the words, \u2018grant, bargain and sell,\u2019 shall be an express covenant to the grantee, his heirs and assigns, that the grantor is seized of an indefeasible estate in fee simple, free from incumbrances done or suffered from the grantor, except rents or services that may be expressly reserved by such deed, as also for the quiet enjoyment thereof against the grantor, his heirs and assigns, and from the claim or demand of all other persons whatsoever, unless limited by express words in such deed.\u201d\nAppellant, on the contrary, contends that the saving clause of that section is applicable to the deed in question and that notwithstanding such words they are limited by other express words in the deed. The leading cases construing this section of the statute are: Gibbons v. Moore, 98 Ark. 501; Crawford v. McDonald, 84 Ark. 415; Seldon v. Dudley E. Jones Co., 74 Ark. 348; Winston v. Vaughan, 22 Ark. 72; Davis v. Tarwater, 15 Ark. 286.\nIn the case of Gibbons v. Moore, supra, the court held (to quote syllabus No. 1):\n\u201cUnder Kirby\u2019s Digest, section 731, the use of the words \u2018grant, bargain and sell\u2019 in a conveyance of land, without words of limitation, is equivalent to covenanting (1) that the grantor is seized in fee; (2) that he has good right and full power to convey; (3) that the grantee shall quietly enjoy the premises; and (4) that the premises are free from incumbrances done or suffered by the grantee. \u2019 \u2019\nIt appears, therefore, that the use of the words, \u201cgrant, bargain and sell,\u201d as words of conveyance, op-, erate, not only to convey title, but to warrant the seizin, unless those words are limited by other express words of limitation in the deed.\nThe covenants in a deed are no part of the conveyance. They are separate contracts. And the title passes independently of them. Bagley v. Fletcher, 44 Ark. 153.\nThe words, \u201cgrant, bargain and sell,\u201d import a warranty only because they are made to do so by the statute ; but under the statute they do so only when they are not limited by express words contained in the deed. In the deed set out there appears in the habendum clause a separate paragraph containing the covenant of warranty, and this covenant can be given effect only by treating it as such a limitation of the words, \u201cgrant, bargain and sell,\u201d as the statute has provided may be made in the deed. The covenant here contained to forever warrant and defend the title against all lawful claims whatever \u201cdone or suffered by us or those under whom we claim\u201d would be meaningless if it did not supersede or limit the covenant to defend the title against all claims whatsoever implied from the use of the words, \u201cgrant, bargain and sell.\u201d\nThis is not the case of an attempt to limit, in a subsequent paragraph of a deed, the estate conveyed in the granting clause thereof, for the paragraph of warranty in the habendum clause contains no reference to the estate conveyed and deals only with the claims against which the title is warranted. In giving this paragraph effect it is necessary, therefore, to hold that it is such a limitation as the law provides may be made and that the words, \u201cgrant, bargain and sell,\u201d do not import the warranty, which would exist in the absence of this covenant of warranty.\nIn the case of McDill v. Meyer, 94 Ark. 615, the court construed section 733 of Kirby\u2019s Digest, which among other things, provides: \u201c * * * but all deeds shall be construed to convey a complete estate of inheritance in fee simple, unless expressly limited by appropriate words in such deed,\u201d and it was there insisted that by the granting clause of the deed the conveyance was in fee simple and that the reservations and limitations contained in the habendum were repugnant to the grant and, therefore, void. In discussing that contention it was there said:\n\u201cAt common law, a fee could not by deed be granted without words of inheritance; but, by force of our statute (Kirby\u2019s Digest, section 733), \u2018all deeds shall be construed to convey a complete estate of inheritance in fee simple, unless expressly limited by appropriate words in such deed.\u2019 This statute does not, however, apply where appropriate words are used in the deed expressly limiting the grant. The habendum is the appropriate place in the deed for such limitation, but it may appear anywhere in the deed. It is only where limitations or reservations in the habendum or subsequent parts of a deed are repugnant to the granting clause that they are held to be void. Fletcher v. Lyon, 93 Ark. 5; Riggin v. Love, 72 Ill. 553. The office of the habendum clause of a deed is to explain or define the extent of the grant, and is rejected only where there is a clear and irreconcilable repugnance between the estate granted and that limited in the habendum. 3 Washburn on Real Property (6 ed.), sections 1258, 1260. In the construction of deeds it is the duty of a court to harmonize the different clauses so as to give effect, if possible, to the language of each clause. Whetstone v. Hunt, 78 Ark. 230.\u201d\nSo here, the statute giving the words, \u201cgrant, bargain and sell,\u201d the effect of warranting the title, does not apply, because the habendum clause contains a statement of the claims against which the title is warranted, and in discharging our duty to harmonize the different clauses of the deed so as to give, effect to the language of each clause we are constrained to hold that the only warranty in the deed is to \u201cwarrant and defend the title to said lands against all lawful claims whatever done or suffered by us (Doak and wife) or those under whom we claim\u201d found in the habendum clause.\nDoak did not claim under Creel but in hostility to him, and the action of the court in establishing Creel\u2019s title was not the act of Doak nor any person against whose acts Doak\u2019s restricted covenant warranted. Comstock v. Smith, 23 Am. Dec. 670.\nViewed from its four corners the deed is, therefore, one of special warranty. Stokes v. State, 121 Ark. 95. Therefore, the court erred in holding it a deed of general warranty and the decree awarding damages against Doak must be reversed and the cause dismissed, and it is so ordered.\nUnder this view it becomes unnecessary to determine whether proper damages were awarded against Doak.", "type": "majority", "author": "SMITH, J." } ], "attorneys": [ "Festus O. Butt, for appellant.", "The appellee, pro se." ], "corrections": "", "head_matter": "Doak v. Smith.\nOpinion delivered February 10, 1919.\n1. Covenants \u2014 effect of habendum clause. \u2014 Kirby's Dig., \u00a7 731, making the wards \u201cgrant, bargain and sell\u201d a warranty of title, is inapplicable where the habendum clause contains a statement of claims against which title is warranted.\n2. Deeds \u2014 covenants\u2014effect.\u2014Covenants in a deed are not part of the conveyance, but separate contracts, and title passes independently of them.\n3. Covenants \u2014 liability.\u2014Where a grantor covenanted to defend title against all claims \u201cdone or suffered by us or those under whom we claim,\u201d no liability accrued by reason of a decree in favor of a third person holding in hostility to grantor\u2019s title.\nAppeal from Carroll Chancery Court, Eastern District; Ben F. McMahan, Chancellor;\nreversed.\nFestus O. Butt, for appellant.\n1. Doak was not liable because his deed contained the words, \u201cgrant, bargain and sell.\u201d These words come within the saving clause of section 731, Kirby\u2019s Digest, and are limited by other express words in the deed. 22 Ark. 72; 31 Id. 101; 74 Id. 348; 84 Id. 415; 98 Id. 501; 153 S. W. 101; 23 Am. Dec. 670.\n2. If liable, Doak was only liable for the amount paid by the direct vendee, and not the remote vendee. 7 R. C. L.1178; 11 Cyc. 1170; 15 C. J. 1320. Interest should only be allowed from the date of the decree without attorney\u2019s fees or costs. Supra.\nThe appellee, pro se.\nThe decree is sustained by the law and evidence. Appellant is liable upon his statutory warranty, created by the words, \u201cgrant, bargain and sell.\u201d Kirby\u2019s Digest, section 731; 22 Ark. 72. There is no limitation in the deed by other words. 22 Cyc. 72, and note. He is liable for the purchase money, interest, costs and attorney\u2019s fee. 33 Ark. 640; 11 Cyc. 1171." }, "file_name": "0509-01", "first_page_order": 533, "last_page_order": 538 }