#### Tarwater vs. Davis, Ex’rx.

D., by deed, “bargained and sold, conveyed and confirmed to T., his heira and assigns forever” a tract of land, and “covenanted to execute to him, when required, a good and sufficient deed in fee simple with warranty of title.”. In covenant against the executrix of D. the declaration sets out the obligation, and assigns for a breach thereof, that at the time T. executed it he had no title to the land, and did not pro. cure any during his life, nor execute a deed in fee to plaintiff therefor, nor- had his executrix procured title to the land lince his death, or executed the deed, &c. De. *154 matter to the declaration, because no demand of title, or eviction was alleged — Held that the covenant contained in the deed not only means that the party will execute a deed in fee simple containing a warranty of title, but that he had the power to give such a deed as would convey with it an indefeasible title to the land ; and the pleadings showing that at the time the obligor executed the covenant he was unable to execute such a deed, having no title to the land, there was an instantaneous breach of his covenant, and no allegation of demand or eviction was necessary.

Writ of Error to the. Circuit Court of Hempstead County.

Covenant, determined in the Hempstead circuit court, at the May term 1845, before the Hon. Geo. Conway, judge.

The declaration follows:

“ George T. Tarwater complains of Julia Davis as executrix of Aquilla Davis dec’d, of a plea of covenant broken: For that the said Aquilla Davis on the 19th day of January 1839, at, &c. executed and delivered to said plaintiff his writing obligatory, in the words and figures following, to-wit: Know all men by these presents that I, Aquilla Davis, of the county of Hempstead and State of Arkansas for and in consideration of the sum of $1050 have bargained and sold, conveyed and confirmed to Geo. T. Tarwater, his heirs and assigns four lots or parcels of land, together with the appurtenances thereto affixed, adjoining the Town of Spring Hill, known and designated as follows, to-wit: commencing at Pryor’s line and running north on Spring Hill street 120 feet, east 240 feet, to have and to hold the said lots or parcels of land and appurtenances, his heirs and assigns forever: and the said Aquilla Davis does hereby covenant, promise and agree to and with the said George T. Tarwater to make and deliver, or cause to be made and delivered, when required, a good and sufficient deed in fee simple with warranty of title. In testimony whereof I have hereunto affixed my hand and seal, this 19th January 1839.

Test: AQUILLA DAVIS, [seal.j

James Hubbard,

Abner Gooch.

Which said writing obligatory is now here to the court shown, of the date aforesaid. l\Tow the said plaintiff in fact says that at the time oí the execution and delivery of the said writing obligato*155ry, the said Aquilla Davis was not the owner of, and did not have and hold the fee simple title to the above described tract or parcel of land, nor did he acquire the same during his life-time, and did not make and deliver, or cause to be made and delivered to the said plaintiff a good and sufficient deed in fee simple; nor hath said Julia Davis as executrix of the will of said Aquilla Davis, since the death of the said Aquilla, had, owned or possessed the above described tract or parcel of land, by a fee simple title, nor does she now own, hold or possess the same, by a fee simple title, and cannot now make and deliver, or cause to be made and delivered, to said plaintiff a good and sufficient deed in fee simple to the above described tract or parcel of land. And so the said Aquilla Davis, in his lifetime, his covenants aforesaid did not keep and perform, nor has the said Julia Davis as executrix of the will of said Aquilla kept or performed the covenants aforesaid since the death of the said Aquilla— to the damage of said plaintiff $2000, therefore he sues.”

Defendant craved oyer of the deed, and demurred to the declaration, assigning for causes: “1st, said declaration does not allege a demand for a good and sufficient deed in fee simple, nor does it aver that a deed was tendered by the said defendant to said Aquilla in his life-time, or to defendant since his death, or that either of them refused to execute it: 2d, no eviction from the lots in question is alleged: 3d, the breaches assigned in the declaration are broader than the covenants in said writing obligatory specified; and 5th, no breach of covenant is shown,” &c.

The court sustained the demurrer, and plaintiff brought error.

Pike & Baldwin, for plaintiff.

The only question is upon the sufficiency of the declaration which alleges that Davis bound himself to make a perfect title ; and that at the time of making the covenant he had no title whatever and never subsequently acquired any. Davis was certainly bound by his deed. The declaration is not drawn with technical accuracy, but it is believed to be substantially good. Davis bound himself to do a thing which he could not do; that is, he covenanted to make a perfect title when he had no title at all. The case falls plainly within the rule of Logan vs. *156 Moulder, 1 Ark. 313, where this court said the cause of action arose upon the allegation that at the time of executing the covenant the defendant had no title; no eviction was averred and it was held unnecessary.

The defendant took upon himself the burden of proving that he had title, and this was in fact the only point in the case. The declaration showed his obligation and his inability to make title. He bound himself to convey a perfect estate and his right to convey rested upon his title ; he had no title, and therefore could not sell, and his covenant was broken instanter. id. Again, if there is no authority in the party executing the covenant it is broken as soon as made : may be sued on at any time, and a recovery had without alleging an eviction or interruption of title, id. Bradshaw’s Case, 9 Coke 60. And in Muscot vs. Ballet, Cro. Jac. 369, it was held that because the covenant is general, so the breach may be assigned generally.

The allegation that Davis had no title was a sufficient breach. Logan vs. Moulder, ub. sup. In Gaster vs. Ashley, 1 Ark. 325, this court said, the inquiry always is, what was the intention of the parties? The intent is to be collected from the instrument, which is to be construed according to its obvious meaning; but if there be any obscurity, they will construe more strongly against the covenantor.

The case at bar comes also within the rule of Gaster vs. Ashley where this court said that the covenantor had no title at the time of making his covenant — that this was a good breach, and one good breach is sufficient. ' The cases of Byers Minikin vs. Aiken, and JDrennen vs. Boyer Sf Clark, 5 Ark. seem only to favor the judgment below. But they were actions of debt for the purchase money, and so, totally different from the present. There they tried to defeat the action for the purchase money because the plaintiff had not conveyed. Here the purchase money has been paid as appears, and we sue for damages because the deed has not been made, alleging that the defendant is totally unable to make title.

Royston & Cocke, contra.

*157Oidham, J.

We do not deem it essential to the merits of this case to determine whether the instrument set forth in the plaintiff’s declaration, is a bond for title, or deed conveying the lands therein described. Were it necessary, we do not conceive that it would be difficult to show that it is a deed of conveyance, with a covenant to execute upon request a good and sufficient deed in fee simple with warranty of title. The breach avers that Davis was not the owner of the land and did not hold the fee simple title to said land, nor did he acquire the same during his life-time, nor did he execute to the plaintiff a deed in fee simple, nor has the said defendant as executrix, since the death of said Davis, owned or possessed said land, nor does she now own, hold or possess the same, nor can she execute a sufficient deed in fee simple. The question presented is whether the covenants contained in the deed, necessarily imply that the obligor was possessed of the land in question and able to execute an operative conveyance vesting in the purchaser an indefeasible estate. This, we conceive, is a question of authority.

In Jones vs. Gardner, 10 J. R. 276, the agreement was to execute “a good and sufficient deed in law to vest the grantee with the title of the said form of land with the appurtenances.” The court held that the title meant the legal estate in fee, free and clear of all valid claims, liens and incumbrances whatsoever. It is the ownership of the land, dominium directum et absolutum, without any rightful participation by any other person in any part of it.

In Judson vs. Wass, 11 J. R. the terms of the agreement were that “ Judson and wife should execute and aclmownledge a deed with warranty of title to the purchaser &c.” It appeared that the lands in question were encumbered by a mortgage prior to the sale for 9,000 dollars. The court held that by the terms of the sale, the plaintiff stipulated to execute a deed with covenant of warranty, subject to quit rents on such lots as should be designated at the time of the sale. This means, not merely that he will execute a deed containing such a covenant, but that he has the power to give a deed which would carry with it an indefeasible title to the lots, subject to no other incumbrance or charge than that specified in the conditions. Such a deed the plaintiff -was not able to give.

*158In Clute vs. Robinson, 2 J. R. 612, the court held that “a covenant to execute and deliver a good and sufficient deed to a piece of land does not merely mean a conveyance good in point of form. That would be a covenant without substance. But it means an operative conveyance ; one that carries with it a good and sufficient title to the lands to be conveyed. This latter case, however, is at variance with the case of Gazley vs. Price, 16 J. R. 267, in which it was held that a covenant to execute a good and sufficient deed for the premises related merely to the validity and sufficiency of the conveyance in point of law to pass whatever right the 'plaintiff had in the lands to the defendant. It is not necessary, however, for ns to attempt to reconcile these two last mentioned cases, or to determine which contains the correct construction of the words employed in the agreement, as in the case before us, the party not only covenants to execute and deliver a good and sufficient deed in fee simple but that it shall contain a warranty of title. This covenant not only means that the party will execute such a deed containing a warranty of title, but that he had the power to give such a deed as would carry with it an indefeasible title to the land mentioned. The pleadings show that at the time of the execution of the covenant, the party was unable to execute such a conveyance, as he had no title to the land, and that he acquired no title subsequently ; and therefore according to the case of Logan vs. Moulder, 1 Ark. 313, the covenant was broken the very moment it was made, and no subsequent request was necessary to fix his liability. Traver vs. Halstead, 23 Wend. 66. The circuit court having entertained a different view of the question, the judgment must be reversed, and the cause remanded for further proceedings.