{
  "id": 8727505,
  "name": "Bird v. Smith",
  "name_abbreviation": "Bird v. Smith",
  "decision_date": "1848-01",
  "docket_number": "",
  "first_page": "368",
  "last_page": "372",
  "citations": [
    {
      "type": "official",
      "cite": "8 Ark. 368"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "4 Cranch, 430",
      "category": "reporters:scotus_early",
      "reporter": "Cranch,",
      "opinion_index": 0
    },
    {
      "cite": "4 Conn. 495",
      "category": "reporters:state",
      "reporter": "Conn.",
      "case_ids": [
        12133918
      ],
      "opinion_index": 0,
      "case_paths": [
        "/conn/4/0495-01"
      ]
    }
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  "analysis": {
    "cardinality": 495,
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    "simhash": "1:23715c2db8f899fe",
    "word_count": 1661
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  "last_updated": "2023-07-14T16:04:23.841352+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Bird v. Smith."
    ],
    "opinions": [
      {
        "text": "Oldham, J.\nThe first plea filed by the defendant below,, avers that the plaintiff\u2019s cause of action did not accrue within five years next before the commencement of this suit. It is insisted, for the plaintiff below, who is defendant in error, that, at the time of the institution of this suit, five years was not the statutory bar to his action. The statute of limitations contained in the Rev. St. ch. 96, after prescribing the limitation in which various actions were to be commenced, enacts, sec. 11, \u201cAll actions not included in the foregoing provisions, shall be commenced within five years after the cause of action shall have accrued.\u201d Covenant is not included in die previous pro7 visions of the act, and is, therefore, necessarily limited to five years, by the Tlth section; unless a different time is prescribed by some subsequent provision of the act. The defendant contends, that the 31st section fixes the time to ten years. This section enacts, that \u201cafter the expiration of ten years from the time the right of action shall accrue, upon any instrument for the payment of money or the delivery of property, such right shall be presumed to have been extinguished by payment, &c\u201e\u201d The deed sued upon in this case is not \u201can in-strament for the payment of money or the delivery of property,\u201d and consequently does not come within the provisions of this section. The breach complained of is, that the party had no title to the land for which he executed the deed, and of which, by the deed, he covenanted he was seized. Assumpsit and debt upon unsealed instruments are included under this section, yet they are specially limited to three years. The present action is as clearly embraced within the provi-1 sions of the 11th section, as it is possible for a general expression to ' include it.\nWe see nothing in the argument that leads us to doubt the correct-, ness of the decisions in Dickerson v. Morrison, 1 Eng. R. 264. Davis v. Sullivan, 2 Eng. R. 462. We, therefore, are of opinion that the Circuit Court erred in sustaining the demurrer to the plea.\nThe second plea avers, that the deed was executed and delivered to the plaintiff, to indemnify him \u201cas the security in bank for the defendant, for some three hundred dollars, and interest thereon.\u201d This plea is bad, because it does not show that the agreement was in writing. Steph. Plead. 376. If the agreement was merely by parol, there is no principle more universally adopted, by courts of law, than that parol evidence is inadmissible to add to, enlarge or vary the terms of a written contract. If the agreement of the parties as to the conditions, or intentions, upon which the deed was executed, was in writing, it should be shown by the plea; otherwise the deed is conclusive upon that subject. The third plea avers, that the \u201cplaintiff has never been evicted or turned out of possession of said lands and premises.\u201d The words, \u201cgrant, bargain, and sell,\u201d which are used in the deed declared upon, are, by the Rev. Stat. ch. 31, sec. 1-2, made \u201can express covenant to the grantee, his heirs and assigns, that the grantor is seized of an indefeasible estate in fee simple, free from incumbrance done or suffered from the grantor, except rents, or services that may be expressly reserved by such deed, as also for quiet enjoyment thereof against the grantor, his heirs and assigns, and from the claim or demand of all other persons whatever, unless limited by express words in such deed, and that the grantee, his heirs or assigns may, in any action, assign breadles as if such covenants were expressly inserted. The breach alleged in the declaration is, that the defendant had no title to the land, which is a breach of the covenant of seizin. To constitute a breach of the covenant of seizin, an eviction is not necessary. Mitchell v. Hayen, 4 Conn. 495. Pollard v. Dwight, 4 Cranch, 430. Logan v. Moulder, 1 Ark. R. 313. Tarwater v. Davis ex'r. 2 Eng. 153. A covenant of warranty is different, and is not broken without eviction by title paramount to the grantor\u2019s, which must be set forth in the declaration. The plaintiff below, however, does not allege a breach of the covenant of warranty, but of the covenant of seizin.\nThe fourth plea is radically and substantially defective in every particular. It is certainly no response to the breach contained in the declaration. If it was intended as a plea of general performance, such a plea is not admissible as an answer to the declaration. The defendant should show the manner in which he had performed his covenant, by averring his title to the land conveyed. The first plea being a good answer to the declaration, the court erred in sustaining the demurrer to it, and for that reason the judgment must be reversed.",
        "type": "majority",
        "author": "Oldham, J."
      }
    ],
    "attorneys": [
      "JokdaN, for plaintiff.",
      "Watkins & Curran, for defendant."
    ],
    "corrections": "",
    "head_matter": "Bird v. Smith.\nFive years is the [limitation to actions of covenant [upon the warranty of title in (tie grantor in a deed of bargain and'sale \u2014 the 11th sec. of ch. 91, Rev. Stat., and not the 31st. sec. of same act, being applicable to such actions.\nA plea, averring the consideration upon which a deed was executed, to be other than that contained in the deed, without averring it to be in writing, is bad.\nA covenant of warranty is not broken without eviction by title paramount. An eviction, however, is not necessary to sustain an action for the breach of the covenat of seizin in a deed of bargain and sale, created by the words \u201cgrant, bargain, and sell,\u201d under 1st and 2d secs. ch. 31, Rev. Stat.; want of title being a sufficient breach of the covenant.\nA plea of general performance is no answer to an action for the breach of a covenant of seizin: the plea must show a performance of the covenant, by setting out a good title.\nWrit of Error to the Circuit Court of White county.\nThis was an action of covenant, brought by Washington Smith, against James Bird, and determined in the Circuit Court of White county, on the 13th day of October, 1846, before the Hon. William H. Feild, Judge.\nThe declaration sets out an indenture entered into on the 9th Sept. 1839, whereby, in consideration of four hundred dollars, paid by the plaintiff to the defendant, the said defendant bargained, sold, and granted, unto the plaintiff, his heirs, &c., a certain tract of land, described as, <fcc., and did covenant and agree to and with the plaintiff, that he, the said defendant, would and did warrant and defend forever, the title of said land, &c., to said plaintiff] breach that, at the time of the execution of the indenture, containing the covenant of warranty of title, the defendant had no title whatever to the Said tract of land. The defendant filed four pleas: 1st. That the cause of action had not occurred within five years; 2d. That the consideration of the indenture was to save the plaintiff harmless, as security of the defendant; 3d. That plaintiff had .never been evicted by title paramount; 4th. That there is no covenant of warranty, &c. and that defendant has well and truly performed, fulfilled, and kept according to the trae intent, &c. The plaintiff demurred to the pleas, and the court sustained the demurrer. The cause was submitted to the court, by consent of parties, for the assessment of damages.\nThe defendant sued out a writ of error, and has brought the case into this court for revision.\nJokdaN, for plaintiff.\nWatkins & Curran, for defendant.\nThe only question in this case, as we conceive, arises on the 1st plea, which sets up the limitation of five years; and, as the cause of action commenced at the date of the deed, if the plea be good in law, the plaintiff below was in fact barred, and the judgment will have to be reversed. In the construction of our statutes, there are but few questions involving to a greater extent than this, the rights of property. We had no statute limiting actions on writings obligatory, previous to the act of Dec. 14th, 1844, which fixed the limitation at ten years, except the common law presumption, arising from lapse of time, which, by statute, is reduced to ten years. As this provision (sec. 31) is in effect a limitation, applying to a particular class of cases, we think, upon a fair construction of the whole statute, it ought not to be controlled by the antecedent sec. 11, which provides, in general terms, \u2018\u2018that all ac-- \u201c tions, not included in the foregoing provisions, shall be commenc\u201ced within five years after the cause of action shall have accrued.\u201d In Dickerson v. Momson, 1 Eng. 266, the first case deciding this point, the court appear to have assumed the whole question, i. e. that the limitation was five years on a writing obligatory; and so the court seem to have taken it for granted in the next case of Davis v. Sullivan, 2 Eng. 452. The 11th section obviously applies to forms of action, and not to causes of action. In this particular case we admit that covenant as a form of action comes within the 11th section, and would be barred in five years, were it not for other provisions in the act. As ten years is the limitation in ejectment, it could not, we think, have been the intention of the Legislature to limit the grantee to five years, when he is liable, for ten years, to an outstanding dormant tide. We regard the act of Dec. 14th, 1844, as a legislative interpretation of the statute, since it does nothing more than substitute a limitation of ten years, in lieu of the presumption of ten years, contained in the 31st section, which it repealed."
  },
  "file_name": "0368-01",
  "first_page_order": 368,
  "last_page_order": 372
}