{ "id": 1316036, "name": "Gibbons v. Moore", "name_abbreviation": "Gibbons v. Moore", "decision_date": "1911-04-10", "docket_number": "", "first_page": "501", "last_page": "505", "citations": [ { "type": "official", "cite": "98 Ark. 501" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "82 Ark. 209", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1529047 ], "opinion_index": -1, "case_paths": [ "/ark/82/0209-01" ] }, { "cite": "13 So. 882", "category": "reporters:state_regional", "reporter": "So.", "opinion_index": -1 }, { "cite": "71 Miss. 61", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 1760748 ], "opinion_index": -1, "case_paths": [ "/miss/71/0061-01" ] }, { "cite": "4 Mass. 627", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2004016, 2004061 ], "opinion_index": -1, "case_paths": [ "/mass/4/0550-01", "/mass/4/0549-01" ] }, { "cite": "15 N. Y. 492", "category": "reporters:state", "reporter": "N.Y.", "opinion_index": -1 }, { "cite": "24 Ohio 466", "category": "reporters:state", "reporter": "Ohio", "opinion_index": -1 }, { "cite": "66 Tex. 387", "category": "reporters:state", "reporter": "Tex.", "opinion_index": -1 }, { "cite": "74 Ark. 348", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721017 ], "opinion_index": -1, "case_paths": [ "/ark/74/0348-01" ] }, { "cite": "3 Penn. 322", "category": "reporters:state", "reporter": "Penn.", "opinion_index": -1 }, { "cite": "11 Serg. & R. 109", "category": "reporters:state", "reporter": "Serg. & Rawle", "case_ids": [ 1812778 ], "opinion_index": -1, "case_paths": [ "/serg-rawl/11/0109-01" ] }, { "cite": "2 Binn. (Pa.) 95", "category": "reporters:state", "reporter": "Binn.", "case_ids": [ 1788993 ], "opinion_index": -1, "case_paths": [ "/binn/2/0095-01" ] }, { "cite": "22 Ark. 72", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725628 ], "opinion_index": -1, "case_paths": [ "/ark/22/0072-01" ] }, { "cite": "24 Ark. 442", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "1 Ark. 313", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728683 ], "opinion_index": 0, "case_paths": [ "/ark/1/0313-01" ] }, { "cite": "74 Ark. 350", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "22 Ark. 75", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "15 Ark. 289", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 } ], "analysis": { "cardinality": 413, "char_count": 7922, "ocr_confidence": 0.662, "pagerank": { "raw": 1.4174981658855545e-07, "percentile": 0.6483146314707923 }, "sha256": "53cec2cae3672298c0e4b96b53468a2abe4f8397e7752de745fc38b0dd1bceb0", "simhash": "1:a571ec1c7e1bd7dc", "word_count": 1385 }, "last_updated": "2023-07-14T20:48:44.239381+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Gibbons v. Moore." ], "opinions": [ { "text": "Kirby, J.,\n(after stating the facts). It is contended that the grantor, having conveyed the lands by the use of the words \u201cgrant, bargain and sell,\u201d thereby created an express covenant of general warranty as effectually, because of the 'statute (section 731, Kirby\u2019s Digest), as though a general warranty clause had been inserted in the deed. The statute reads:\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, \u00a1his 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 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 Kirby\u2019s Digest, \u00a7 731.\nIn Davis v. Tarwater, 15 Ark. 289, the court, discussing the covenants generally inserted in conveyances and substituted for the general warrant}' of title contained in ancient deeds which had been long disused, said: \u201cThese covenants are (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; (4) that the premises are free from incumbrances, and (5) that the grantor will make further assurance of title,\u201d etc. And further: \u201cUnder our statute the words \u2018grant, bargain and sell\u2019 import the first four covenants named, unless limited by express words.\u201d\nIn Winston v. Vaughan, 22 Ark. 75, the court only held that the covenant against incumbrances created by the use of said words was expressly limited by the statute to those done or suffered from the grantor,\u201d etc., saying: \u201cIf this question were not settled by the high authorities to which we have referred, we should find no difficulty in holding, from what would seem to be the obvious reading of the statute, that the grantor is not responsible on the statutory covenant for incumbrances other than those done or suffered by himself.\u201d\n\u201cIncumbrances have been lucidly and briefly defined as any rights to interests in land which may subsist in third persons, to the diminution of the value of the land, and not inconsistent with the passing of the fee of same by deed.\u201d 1 Warvelle on Vendors, \u00a7 312. See also Rawle on Covenants, \u00a7 75; 16 Am. & Eng. Ency. of Raw, p. 158; Seldon v. Dudley E. Jones Co., 74 Ark. 350.\nThe covenant for quiet enjoyment, like the covenant of warranty, is one that runs with the land. Logan v. Moulder, 1 Ark. 313. This statute says that the use of said words \u201cgrant, bargain and sell\u201d \u201cshall be an\u2019 express covenant to the grantee, his heirs and assigns, that the grantor is seized of an indefeasible estate in fee simple, * * * 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\nThere were no words in this conveyance limiting this covenant, and it was for quiet enjoyment \u201cagainst the grantor, his heirs and assigns, and from the claim or demand of all other persons whatsoever,\u201d and in effect a covenant of general warranty, which is the same as one for quiet enjoyment.\u201d Rawle on Covenants for Title, \u00a7 114; 3 Washburn on Real Property, \u00a7 \u00a7 2388-89; 2 Words & Phrases, 1697.\nThe grantee, his heirs or assigns, may assign breaches of this covenant in any action as if it were expressly inserted in the conveyance. Kirby\u2019s Digest, \u00a7 732.\nAppellee having been brought into a suit against \u2019appellants on their motion as voucher, in which a title paramount to theirs received from said appellee was held valid and they were evicted by judgment therein from said lands, the breach of the covenant of quiet enjoyment and warranty created by the statute was established. It follows that the court erred in rendering the judgment it did, and that judgment should have been rendered for appellants in the sum of $960, the amount of damages found by the court to have been suffered because of the breach of' the covenant and eviction from the premises.\nThe judgment is reversed for said error, and a judgment for said sum will be entered here.", "type": "majority", "author": "Kirby, J.," } ], "attorneys": [ "T. K. Riddick, R. W. Nicholls and Percy & Hughes, for appellants.", "P. R. Andrews and /. M. Jackson, for appellee." ], "corrections": "", "head_matter": "Gibbons v. Moore.\nOpinion delivered April 10, 1911.\n1. Covenants for title \u2014 statutory covenant. \u2014 Under Kirby\u2019s Digest, \u00a7 731, the use of the words \u201cgrant, bargain and sell\u201d 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 grantor. (Page 503.)\n2. Definition \u2014 incumbrances.\u2014Incumbrances are any rights to interests in land which may subsist in third persons, to the diminution of the value of the land, and not inconsistent with the passing of the fee of same by deed. (Page 504.)\n3. Covenants \u2014 when run with land. \u2014 A covenant for quiet enjoyment of land is a covenant which runs with the land, for breaches whereof the grantee, his heirs or assigns, may sue as if it were expressly inserted in the conveyance. (Page 504.)\n4. Same \u2014 when broken. \u2014 A covenant for quiet enjoyment, implied by virtue of Kirby\u2019s Digest, \u00a7 731, was broken where a.title paramount to that of the grantee\u2019s was held valid in a suit against them to which their grantor was a party. (Page 504.)\nAppeal from Phillips Circuit Court; Hance N. Hutton, Judge;\nreversed.\nSTATEMENT BY THE COURT.\nThis was a suit for breach of warranty against John P. Moore, who on September 24, 1895, conveyed certain lands to J. W. Gibbons for a certain consideration by deed, the granting clause of which reads:\n\u201cThe said first party hereto does by these presents grant, bargain, sell and deliver unto said second party the lands [describing them]. To have and to hold the aforesaid granted tract of land to said second party hereto * * * and unto his heirs and assigns in fee simple forever.\u201d\nIn 1866 the lands were conveyed to Mrs. Boush and her bodily heirs, and, she having died in 1907 without bodily heirs, her grantor sued and recovered the land. In the meantime she had mortgaged the lands, the mortgage had been foreclosed, and appellee purchased them at the foreclosure sale, thereafter conveying them to J. W. Gibbons by the aforesaid deed. There was no express warranty in the deed.\nThe court found that the lands were conveyed by a deed containing the words already set out, and that appellee was not at the time of the conveyance thereof to Gibbons seized of an indefeasible estate in fee simple, but only of a life estate therein, and that plaintiffs had been evicted by a judgment of court in the suit in which appellee was made a party adjudging a paramount title in another claimant, that there was no breach of the covenant of warranty contained in the deed from Moore to Gibbons, and that the damages occasioned by the eviction was the sum of $960; and rendered judgment, from which this appeal is brought.\nT. K. Riddick, R. W. Nicholls and Percy & Hughes, for appellants.\n1. The words \u201cgrant, bargain and sell\u201d import a covenant of warranty, and there was a breach thereof whereby appellee became liable. Kirby\u2019s Dig. \u00a7 731; 24 Ark. 442; 74 Id. 348; 22 Id. 72; 1 Id. 323; 26 iMiss. 599; 71 Id. 61.\n2. The issues here were not raised in the former suit, and the plea of res judicata is frivolous.\nP. R. Andrews and /. M. Jackson, for appellee.\nThe words \u201cgrant, bargain and sell\u201d do not import a general covenant of warranty under sec. 731, Kirby\u2019s Digest. 22 Ark. 72; 2 Binn. (Pa.) 95; 11 Serg. & R. 109; 3 Penn. 322; 74 Ark. 348; 66 Tex. 387; 24 Ohio 466; 15 N. Y. 492; 4 Mass. 627; 71 Miss. 61; 13 So. 882; 82 Ark. 209." }, "file_name": "0501-01", "first_page_order": 521, "last_page_order": 525 }