Summary
In G.C. Coggin, the Chicago, Mobile Development Company ("Development Company") owned a parcel of land in Mobile County.
Summary of this case from Callon v. Dauphin Island Prop. OwnersOpinion
1 Div. 452.
June 18, 1953.
Appeal from the Circuit Court, Mobile County, Claude A. Grayson, J.
Caffey, Gallalee Caffey, Mobile, for appellant.
Appellant has executed no deed to complainant covenanting against encumbrances, but has executed such a deed to the Snows, and said covenant if broken at all gave rise to a cause of action in the Snows and not in complainant. Colson v. Harden, 224 Ala. 665, 141 So. 639; Alger-Sullivan v. Union Trust Co., 207 Ala. 138, 92 So. 254; DeJarnette v. Dreyfus, 166 Ala. 138, 51 So. 932; Copeland v. McAdory, 100 Ala. 553, 13 So. 545; Prestwood v. McGowin, 128 Ala. 267, 29 So. 386; Lost Creek Coal Mineral Land Co. v. Hendon, 215 Ala. 212, 110 So. 308; Gulf Coal Coke Co. v. Musgrove, 195 Ala. 219, 70 So. 179. A suit for breach of covenant against encumbrances is not a suit for breach of the covenant of seisin, or of the general covenant of warranty. Youngerman-Reynolds Hardwood Co. v. Hicks, 236 Ala. 138, 181 So. 111. To state a cause of action as for breach of the general covenant of warranty a pleading must show an eviction with definiteness and particularity. Alger-Sullivan Lbr. Co. v. Union Trust Co., supra; Prestwood v. McGowin, 128 Ala. 267, 29 So. 386; Chestnut v. Tyson, 105 Ala. 149, 16 So. 723. The complaint in this case only shows the existence of an oil and gas lease and the mere existence of such a lease is not an eviction. Musgrove v. Cordova L. I. Coal Co., 191 Ala. 419, 67 So. 582; 14 Am.Jur. 532, 546, §§ 69, 98. Before an eviction is shown it must be made to appear that there is some change of possession by disturbance of an actual or constructive possession, which has been displaced by a paramount title. Matteson v. Vaughn, 38 Mich. 373; Musgrove v. Cordova Coal L. I. Co., supra; 14 Am.Jur. 532, § 69. And there is never such interference under an oil and gas lease until the lessee exercises its option to enter and drill. Johnson v. Kroeker, 130 Kan. 620, 287 P. 241. The only covenant in appellant's deed to the Snows which ran with the land and could be sued on by appellant was the general covenant of warranty and no cause of action was stated in the complaint for breach of that covenant. The Court accordingly erred in allowing a recovery as for breach of said covenant with out any pleading to support such judgment. Swendick v. Swendick, 221 Ala. 337, 128 So. 593; Nelson v. Boe, 226 Ala. 582, 148 So. 311; Manchuira S. S. Co. v. Harry G. G. Donald Co., 200 Ala. 638, 77 So. 12. Nor can the Court's judgment awarding damages in the amount decreed be justified on the theory that complainant as purchaser of the reversion became entitled to pro rata part of the prepaid delay rentals, because regardless of reservation by appellant, complainant was entitled to no part of rentals paid at the time it acquired its deed. Cutler v. Weibel, 339 Ill. 62, 170 N.E. 705; Nelson v. Joshel, 305 Ill. 420, 137 N.E. 389; Handlan v. Bennett, 4 Cir., 51 F.2d 21; Hearne v. Lewis, 78 Tex. 276, 14 S.W. 572; Johnson v. Siedel, 178 Iowa 244, 159 N.W. 677; 66 C.J. 1040, § 792. The mere existence of an oil and gas lease under which the lessee may or may never enter is not an eviction and so is not a breach of the general covenant of warranty.
The evidence at the very utmost shows a technical breach of a covenant against encumbrances for which no more than nominal damages can, in any event, be recovered. 61 A.L.R. p. 76d. Where more than a mere technical breach is shown the measure of damages for the existence of an encumbrance such as the lease in question is the difference in the value of the property with and without encumbrance. Blakenship v. Lanier, 212 Ala. 60, 101 So. 763. And the burden is on the party claiming such damages to prove that the market value of the property is in fact diminished by the encumbrance and the amount of such diminution, and failing therein he can recover only nominal damages. Mixon v. Burleson, 203 Ala. 84, 82 So. 98; McShan v. Kilpatrick, 215 Ala. 185, 110 So. 281. The court erred in holding that a verbal reservation of delay rentals as part of the consideration for the conveyance from appellant to the Snows, was invalid. The right to rents is a chose in action and is assignable by parol. Code 1940; Tit. 31, § 19; Wells v. Cody, 112 Ala. 278, 20 So. 381; Bennett v. McKee, 144 Ala. 601, 38 So. 129; Bank of Florala v. Williams, 230 Ala. 676, 163 So. 321; Farmers Merchants State Bank v. Tullos, Tex.Civ.App., 211 S.W. 847. A reservation or assignment of rents severs the rents from the reversion and in such case the rents will not pass to a subsequent grantee of the reversion. Young v. Garber, 149 Ala. 196, 42 So. 867; Faircloth v. Flewellen, Tex.Civ.App., 130 S.W.2d 1098. There is no statute in this State authorizing the recovery of attorney's fees under the facts in this case, and in the absence of statute, such fees are not allowable unless provided for by contract. Moss v. Winston, 223 Ala. 515, 137 So. 303; Pollard v. Amer. Freehold Mtg. Co., 103 Ala. 289, 168 So. 801; Taylor v. White, 237 Ala. 630, 188 So. 232. Cross-complainants did not defend the suit filed by complainants but on the contrary filed an answer admitting the allegations thereof, and under the general covenant to warrant and defend, they cannot recover attorney's fees unless they actually defend. Mercantile Trust Co. v. South Park Res. Co., 94 Ky. 271, 22 S.W. 314. Though cross-complainants were nominal parties respondent, no relief was asked against them or their covenants and none could be granted against them. Thomason v. Smithson, 7 Port. 144. Before a covenantor can be held liable for attorney's fees as special damages for breach of a general covenant to warrant and defend, such fees must have been incurred reasonably and in good faith, not where unjustified and useless. Brooks v. Mohl, 104 Minn. 404, 116 N.W. 931; DeJarnette v. Dreyfus, 166 Ala. 138, 51 So. 932; Anderson v. Merrill, 77 N.H. 275, 90 A. 789; Brown v. Taylor, 115 Tenn. 1, 88 S.W. 933; 15 C.J. 1334. The original complaint was not an attack on cross-complainant's title at all, and certainly was not a direct attack on such title. It was a purely collateral proceeding to ascertain the balance due on a vendor's lien and for redemption therefrom, and cross-complainants are entitled to recover no attorney's fees incurred in such collateral proceedings. Arkansas Trust Co. v. Bates, 187 Ark. 331, 59 S.W.2d 1025; Hilliker v. Rueger, 228 N.Y. 11, 126 N.E. 266; Anderson v. Merrill, 77 N.H. 275, 90 A. 789; Smith v. Nussbaum, Mo. App., 71 S.W.2d 82; 13 C.J. 1344; 14 Am.Jur. 588, § 159. Cross-complainants made no defense to the original bill, but have undertaken to file a cross-bill for damages for breach of covenants of title in appellant's deed to them, and in such direct suits they cannot recover attorney's fees as part of their damages. Anderson v. Merrill, 77 N.H. 275, 90 A. 789; McConnell v. Goucher, 188 Okl. 293, 108 P.2d 174; 21 C.J. 1030, 150 b. To state a cause of action for recovery of attorney's fees it was necessary that the cross-bill show a proper request or demand on appellant, as coventor, to defend a suit which it was obligated to defend on proper notice. Chestnut v. Tyson, 105 Ala. 149, 16 So. 723, Smith v. Boynton L. Lumber Co., 131 Ark. 22, 198 S.W. 107; Rowle on Covs. of Title, 5th Ed. Sec. 200.
Bart B. Chamberlain, Jr., Mobile, for appellee Coggin Co.
Johnston, McCall Johnston, Mobile, for appellees Snow.
A bill of complaint to remove a cloud from title, and for an interpretation and construction of a vendor's lien deed, and for an accounting and redemption under said vendor's lien deed, clearly contains equity; although it also asks for an abatement of purchase price under a deed due to failure of title to part of the land conveyed, and further though it may seek damages for breaches of general covenants of warranty, growing out of the same transaction. First Nat. Bank v. Boles, 231 Ala. 473, 165 So. 586; Ellis v. Womack, 247 Ala. 254, 23 So.2d 859; King Lumber Co. v. Spragner, 176 Ala. 564, 58 So. 920; Tenn. Valley Bank v. Clopton, 219 Ala. 181, 121 So. 548; Craig v. Craig, 219 Ala. 77, 121 So. 86. The equity of a bill is not tested by its prayer for relief; and under a general prayer, such relief may be had as the allegations of the bill and the evidence may justify. Rosenau v. Powell, 173 Ala. 123, 55 So. 789; Magnolia Land Co. v. Malone Investment Co., 202 Ala. 157, 79 So. 641; Dixie Grain Co. v. Quinn, 181 Ala. 208, 61 So. 886. Covenants of freedom from encumbrances, of good and lawful right to convey, and of warranty, extend to all lawful outstanding adverse claims upon the premises conveyed; they run with the land, may be sued upon by a remote vendee who stands in privity with the covenantor; and any encumbrance or lien materially affecting the value of the premises or interfering with the use and possession of same or a part thereof is a breach of same. While an eviction actual or constructive of the whole or a part of the premises is an essential constituent of the breach, it need not be an actual ouster nor an eviction by legal process, any disturbance of the owner's rights being sufficient. Copeland v. McAdory, 100 Ala. 553, 13 So. 545; Keel v. Ikard, 222 Ala. 617, 133 So. 906; Blaum v. May, 245 Ala. 156, 16 So.2d 329; Id., 31 Ala. App. 305, 16 So.2d 327; Anniston L. Mfg. Co. v. Griffis, 198 Ala. 122, 73 So. 418; Bailey v. Levy, 213 Ala. 80, 104 So. 415; Alger-Sullivan Lumber Co. v. Union Trust Co., 218 Ala. 448, 118 So. 760; Colson v. Harden, 224 Ala. 665, 141 So. 639; 14 Am.Jur. 521; 15 C.J. 1237. The covenant of general warranty contained in the deed from appellant to the snows, is in legal effect a covenant for quiet enjoyment, an assurance against the consequences of a defective title, or of any disturbance in the enjoyment of the land conveyed, which means the full title and estate the deed purports to grant, and, of consequence, is a covenant against disturbance by any encumbrancer, it runs with the land, is breached only when quiet enjoyment is disturbed, and the cause of action is in the owner at that time. Keel v. Ikard, supra, Blaum v. May, supra, Caldwell v. Kirkpatrick, 6 Ala. 60, 41 Am. Dec. 36; Musgrove v. Cordova, etc., Co., 191 Ala. 419, 67 So. 582; Prestwood v. McGowin, 128 Ala. 267, 29 So. 386, 86 Am.St.Rep. 136; Copeland v. McAdory, 100 Ala. 553, 13 So. 545; Oliver v. Bush, 125 Ala. 534, 27 So. 923. When both the covenantor and the convenantee are joined in an action to try title to lands conveyed and judgment be recovered against them, the covenantee is entitled to a judgment in the same action against the covenantor 21 C.J.S., Covenants, § 138, p. 1007; 15 C.J. 1337. Where grantee purchases property encumbered by a lease for a definite term, the measure of his damages for breach of covenants against encumbrances is the difference in the market value of the property as affected by the existing lease. Clark v. Zeigler, 79 Ala. 346; Phillips v. Malone, 223 Ala. 381, 136 So. 793; Copeland v. McAdory, supra, Blankenship v. Lanier, supra. The appellant by its covenants of warranty covenanted it would forever defend the title to said property unto the Snows, their heirs and assigns against the lawful claims of all persons. By refusing to defend the title in this case, it breached said covenant, and is liable for the reasonable expense the Snows were put to in employing other lawyers to defend them. Chestnut v. Tyson, 105 Ala. 149, 16 So. 723; DeJarnette v. Dreyfus, 166 Ala. 138, 51 So. 932.
This is an appeal from a final decree in equity in two aspects. In fact it is in the form of two separate appeals by the same party from one final decree which has two aspects. That means that the final decree was favorable to the complainant against appellant as one of the respondents, and favorable to cross-complainant (who was also a respondent) against appellant as a cross-respondent. There are two separate supersedeas appeal bonds, and appellant has assigned error separately on each such appeal. There is no question raised as to the sufficiency of the bill of complaint on a test by demurrer.
We will first refer to the aspect of the decree granting relief to the complainant.
The bill of complaint alleged the following facts. On July 15, 1944 the appellant owned 2620 acres of land in Mobile County. On that date appellant executed an oil lease to the Sun Oil Company for the purpose of exploring and drilling or mining for oil, gas and other minerals. On December 7, 1948 appellant executed a deed to Rufus H. Snow and H. W. Snow conveying 1100 acres of land specifically described. The purchase price named in the deed was $16,000, of which $4,750 was paid in cash. The balance due was evidenced by a promissory note, secured by a lien reserved in the deed, payable $3,750 in one, two and three years after date with interest at the rate of six per cent per annum on the unpaid balance, and with the privilege of paying any annual installment on or before maturity. The deed contained the usual covenants of warranty. The oil lease permitted the lessee upon payment of a stipulated sum per annum on or before the anniversary of said lease, which was the 15th day of July, to extend the same for the next succeeding year.
At the time of the execution of the deed by appellant to the Snows on December 7, 1948 the rentals under said oil lease had been paid to appellant for the year ending July 15, 1949: that payment having been made in advance as of July 15, 1948 on or about the anniversary 1948. The rent for the next succeeding year was paid by the lessee to appellant, which extended the lease until July 15, 1950. The oil company did not and has not entered upon the land under said lease.
On October 13, 1949, after the lessee had paid the rental to appellant on July 15, 1949 for the year ending July 15, 1950, the Snows executed a warranty deed to the complainant G. C. Coggin Company, Inc., conveying to it all of the land which had been conveyed to them by the deed from appellant dated December 7, 1948, except 20 acres which had been included by mistake, and as to which the parties had agreed that the purchase money should be abated in the sum of $300. In said deed it was stipulated that Coggin Company would assume the indebtedness to appellant, for which a lien was reserved in the deed from appellant to the Snows. Coggin Company took possession of the lands and began cutting timber and pulpwood and making payments on the purchase price to appellant.
On February 27, 1950, before another deferred rental became due, Coggin Company filed the instant bill in equity against appellant and the Snows seeking an ascertainment of the balance due appellant secured by said lien and for a redemption. The bill alleged the payments and credits, leaving a balance to be due under said lien of $3,674, and tendered and paid that amount into court. Complainant in said bill claimed that it was entitled to credit as against such unpaid balance for a prorata share of the rents earned after October 13, 1949 under said lease: complainant's deed being dated October 13, 1949.
The bill prayed that the court would ascertain the balance remaining unpaid to appellant after giving complainant credit for said prorata rentals and such damages as it may be entitled to on account of the existence of said oil lease, contrary to the warranty expressed in the deed from appellant to the Snows and in their deed to complainant.
The bill alleged that appellant claimed there was an oral agreement between the Snows and appellant whereby appellant was to receive, in addition to the sum stipulated in the deed, the deferred rentals provided for in the oil lease, and that said agreement was void and without force and effect or, in the alternative, that appellant should be estopped to claim or set up the existence of said oral agreement on account of certain matters alleged in the bill.
The equity of the bill is to redeem land from a lien, reserved in the deed executed by appellant to the Snows on December 7, 1948. The distinction between such a lien and a vendor's lien (so-called) is not here material. See Sims v. City of Birmingham, 256 Ala. 540, 55 So.2d 833.
It is clear that the bill has equity to redeem, section 3, Title 33, Code; Baker v. Farish, 244 Ala. 178, 12 So.2d 547, and to obtain the incidental relief prayed for as stated above. Neal v. Williams, 168 Ala. 310, 53 So. 94; Alger-Sullivan Lumber Co. v. Union Trust Co., 207 Ala. 138, 92 So. 254.
Since complainant acquired the reversion on October 13, 1949, appellant was held by the decree of the court to be due to pay complainant the proportionate part of the annual rent from October 13, 1949 to July 15, 1950, treated as the difference between the value of the land with and without the oil lease, using the proportionate part of the rentals as a factor in finding the result. This was found to be $409.42, which with interest at six per cent amounted to $442.29. For that amount a personal judgment was rendered in favor of complainant and against appellant. The court also ascertained and decreed that the balance of the purchase money which complainant assumed in its deed of October 13, 1949 was $4,342.27 with interest at six per cent from December 29, 1949.
The assignments of error (1 and 2) in respect to that aspect of the decree are as to the rendition of a judgment in favor of complainant against appellant in the sum of $442.29 and all costs in this behalf expended, but they do not question the amount of the balance of the purchase money assumed by complainant. Also error (assignment 3) in decreeing that the claim of appellant to the rentals accruing and to accrue after October 13, 1950 under the oil lease be cancelled, and (4) that appellant has no claim to rentals which have accrued or may arise in the future under the oil lease after October 13, 1944 (1949?).
Considering the last above assignments of error (3 and 4), we are told that the ruling of the court was based on the theory that appellant did not and could not by parol agreement effectually sever from the reversion the right to rents subsequently maturing on a sale of the land by deed with no such reservation in it nor in some other writing. The theory on which the court acted is stated in Alabama Gold Life Ins. Co. v. Oliver, 78 Ala. 158, to be that "the legal effect and import of the conveyance from Mrs. Smith to the defendant, C. D. Oliver, are to vest in him all the estate in the lands conveyed, which she held and owned at the time of its execution; and cannot, as between the parties, be substantially added to, or diminished, or varied, by evidence of parol agreements, prior or contemporaneous." McCall v. Morgan, 244 Ala. 472, 14 So.2d 374.
The effect of that principle is not to cancel such claim of appellant, the grantor, in such a conveyance but to recognize it as passing to the grantee. In this case it passed from appellant to the Snows by the deed of December 7, 1948. McCall v. Morgan, supra. The authorities are digested in 19 Alabama Digest, Vendor and Purchaser, 196, including pocket part. When the Snows sold to complainant their deed of October 13, 1949 passed to complainant all rents which matured thereafter. The decree was therefore inaccurate in cancelling the claim. It should be modified by eliminating that feature of it. However, as drafted, it was not prejudicial to appellant. The effect is that all rents which matured under the lease after December 7, 1948, when appellant sold to the Snows, were assigned to the Snows; and that all the rents which matured after October 13, 1949, when the Snows sold to complainant, passed to complainant. That left ownership in the Snows of all rents which matured after December 7, 1948 and before October 13, 1949, which are not claimed on this appeal.
On that principle the amount of the rents is not subject to proration between the grantor of the reversion and the grantee. The grantee is not entitled to any portion of the rent which was due under the lease prior to the deed to him, and was entitled to the whole of the rent which matured under the lease after the deed. Walsh v. Bank of Moundville, 222 Ala. 164, 166, 132 So. 52; English v. Key, 39 Ala. 113.
The rent for the year from July 15, 1948 to July 15, 1949 and for the year from July 15, 1949 to July 15, 1950 were due and paid to appellant before complainant received a deed to the reversion on October 13, 1949. The rent was next to become due July 15, 1950, which was after this suit was begun in February 1950.
That brings us directly to the first assignment of error complaining of a personal judgment rendered in favor of complainant against appellant for a breach of the covenants in the deed to the Snows. There was no prayer for a personal judgment, but there was a prayer for general relief which would justify a personal judgment if found to be proper. But if appellant is found to be due complainant anything on account of a breach of the covenants referred to, the appropriate relief would be to allow it as a credit on the debt to appellant assumed by complainant, as prayed for.
The question at this point is whether by reason of the oil lease there was a breach of those covenants which is available to complainant.
There has been no dispossession of the land nor any part of it by reason of the lease. The mere existence of a lease is an encumberance to the extent that it is unexpired. As a general rule a lease carries the right to possession and is followed by possession of the lessee. So that, in the absence of special circumstances the measure of damages for the breach of a covenant against encumbrances by reason of a lease is the value of the use of the premises leased, and any rent that may be received by the covenantee should be deducted from that value. 21 C.J.S., Covenants, § 145(c), pp. 1021-1022. But if special circumstances exist a different principle has effect. Those circumstances exist when, as here, the lessee has not asserted his right to the use and possession under his lease and has not disturbed the possession of the reversioner.
Since the lease is an encumbrance, a covenant against encumbrances is broken immediately upon making the covenant if a lease is then outstanding, although there has been no ouster by the lessee nor interference with the possession and use of the land by the owner. And the covenant being then broken and the right to sue then matured, it is a personal right which the covenantee owns and does not pass merely by a conveyance of the land. It is not an appurtenant to the land. Copeland v. McAdory, 100 Ala. 553, 13 So. 545; Anniston L. and Mfg. Co. v. Griffis, 198 Ala. 122, 73 So. 418; Colson v. Harden, 224 Ala. 665, 141 So. 639; Wolff v. Woodruff, 61 So.2d 69(9) and (10). Complainant cannot recover for its breach. The Snows are not making that claim on this appeal. We should therefore cast aside any question as for a breach of the covenant against encumbrances.
. 258 Ala.Sup. 1.
But there are covenants of general warranty and for quiet enjoyment. Those covenants are not broken until there is an eviction, actual or constructive, as defined in Musgrove v. Cordova Coal, Land and Improvement Co., 191 Ala. 419, 67 So. 582; Oliver v. Bush, 125 Ala. 534, 27 So. 923; Dallas Compress Co. v. Liepold, 205 Ala. 562, 88 So. 681. The covenant runs as an appurtenant and a right of action for its breach comes into being in favor of him who by conveyance would at the time of the ouster be deprived of his right by reason thereof. Such a covenant before its breach, therefore, passed from the Snows to complainant. Blaum v. May, 245 Ala. 156, 16 So.2d 329; Wolff v. Woodruff, supra; Alger-Sullivan Lumber Co. v. Union Trust Co., supra.
Although the covenant of general warranty and for quiet enjoyment is only breached when the possession is disturbed, the disturbance may be by an encumbrancer. Keel v. Ikard, 222 Ala. 617, 133 So. 906; Blaum v. May, supra; Wolff v. Woodruff, supra. But the breach is then of the covenant of warranty and quiet enjoyment, not that against encumbrances.
Since complainant has suffered no eviction or disturbance in its possession of the land, it has no right of action for the breach of the covenant for quiet enjoyment or of general warranty, or other covenant expressed in the deed of appellant to the Snows.
The result is that on the appeal from the decree in favor of complainant against appellant, it should be modified so as to vacate and set aside that part of it whereby a personal judgment was rendered in favor of complainant against appellant for the sum of $442.29. There is no assignment of error going to that feature of the decree which fixes $4,342.27 as the amount of the purchase money debt to appellant which was assumed by complainant. There is no modification in that respect. It is also modified as to that feature of it which cancels the claim of appellant to rents which accrued after October 13, 1949 on account of the oil lease, by eliminating the same from the decree. Since all such claims were assigned by the conveyance of the land without severing the rents they are not subject to cancellation. The assignment of error with respect to the costs will be considered later.
On appeal from that part of the decree which rendered a personal judgment against appellant in favor of the Snows on their cross-bill.
The Snows were made parties respondent to the original bill. There was no relief sought against them. Apparently the purpose of making them parties was to foreclose any claim by them to the rights asserted by complainant against appellant. They were probably proper parties in respect to that claim, though not necessary parties. But the right to make them parties is not questioned on this appeal.
The Snows appeared and answered the bill of complaint and with their answer filed a cross-bill making appellant cross-respondent, and also adding as a party Jere Austill, an attorney who was the principal stockholder and manager of appellant, but no relief was sought against him. The answer admitted substantially all the material allegations of the bill. The relief sought by the cross-bill was against this appellant for a breach of the covenants in its deed to them, claiming that they are entitled to the rents from the lessee, Sun Oil Company, which have accrued and will accrue after June 1948 (?) (their deed was dated December 7, 1948); that they are entitled to reasonable attorneys' fees and to such amounts as they have suffered and may suffer as damages, costs and expenses for the failure of cross-respondent (appellant) to defend the title to the lands described in said deed to them; that appellant has waived any right, title or claim it may have in or to said oil and mineral lease; that it is estopped to assert any right, claim or title thereto, and that it is liable to them for all damages, costs, and expenses which they have suffered or may suffer as a result of the breach of warranty contained in their deed to complainant; and that appellant be decreed to have breached its title to them as to a certain described 20 acres; and that Jere Austill is liable to them for his negligence as their attorney for the failure to except the oil lease from the covenants of warranty in their deed to complainant and in not informing them of the existence of it.
A demurrer to the cross-bill was overruled. It was answered and relief was granted on the final hearing to the cross-complainants against this appellant as cross-respondent. No relief was decreed against Jere Austill, but he was dismissed as a party on motion of cross-complainants.
The court recited in the final decree that the cross-complainants (the Snows) requested and demanded of appellant to defend in their behalf (in this suit?) the title to the land included in their warranty in the deed of December 7, 1948. That appellant refused to do so upon the stated ground that the covenants of warranty in said deed and in the deed from them to complainant had not been breached, and at the same time insisted that the rents accruing and to accrue under said lease belonged to appellant, thereby forcing the Snows to employ solicitors to defend the bill of complaint against them at an expense of $600 which the court found to be reasonable. Further, that since the covenant of warranty of title and to defend the same ran with the land, it became and was the primary obligation of appellant to defend the suit herein filed against its grantees (the Snows), and for a failure to do so appellant became liable under the cross-bill for the reasonable cost of said defense. Wherefore, the court decreed that the Snows have and recover of appellant the sum of $600 as for attorneys' fees and all court costs in this behalf expended.
The claim for attorneys' fees exists as an element of damages recoverable by a covenantee for a breach of a covenant to warrant and defend the title against the lawful claims of all persons, and when the circumstances support the claim for the attorneys' fees. So that, the first question is whether the Snows have a cause of action for the breach of such a warranty in the deed. If so, do the circumstances support the claim for attorneys' fees. The Snows claim that the covenant was breached in the failure of appellant, the covenantor, to defend them in the instant suit after notice was given it to do so.
The covenant in the deed to warrant and defend the title of the grantee and his successors against the lawful claims of all persons is in substance a covenant for possession and quiet enjoyment, and it is not broken so long as the grantee's enjoyment and possession are not interfered with. Oliver v. Bush, 125 Ala. 534, 27 So. 923. "It operates in futuro, unless the true owner is in actual possession at the time the covenant is entered into, in which case there is a breach eo instanti; it runs with the land, that is, it is intended for the benefit of the ultimate grantee in whose time it is broken, and there can be no breach except by an actual or constructive eviction." A constructive eviction is there defined, not here occurring. Musgrove v. Cordova Coal, Land Improvement Co., 191 Ala. 419, 67 So. 582, 583. Since there was no eviction by the encumbrancer while the land was owned by the Snows, they have no claim for a breach of such warranty.
Special damages for expenses incurred in defending a suit wherein the covenantee was evicted, may sometimes be recovered against the covenantor where there has been a breach of the general warranty and of quiet enjoyment by that eviction. The theory is that it is the duty of the covenantor to defend the covenantee's title in such a suit and upon his refusal or neglect to do so, after proper notice, the latter would have the right to employ counsel for that purpose and recover in an action on the covenant such reasonable fees as he had been compelled to pay or incur. Chestnut v. Tyson, 105 Ala. 149, 162, 163, 16 So. 723.
It was said in DeJarnette v. Dreyfus, 166 Ala. 138, 51 So. 932, that this principle does not allow a recovery of attorneys' fees in prosecuting a suit in equity to enjoin an exercise of the right of a public easement over the lot in question. The eviction by the city had occurred and was by a superior and paramount right of the city for a public thoroughfare or street. It was said that the filing of the suit was manifestly an unnecessary and useless expense. It was not allowed.
The instant suit is not to test the title of one alleged to be superior to that conveyed by appellant to the Snows. The oil lessee is not here asserting his claim in a suit against the Snows or complainant which the covenantor, appellant, should defend and which the Snows as covenantees defended and incurred attorneys fees.
The duty to warrant and defend the title conveyed to the Snows against the lawful claims of all persons does not justify a charge for attorneys' fees whenever that title is brought into question in a court proceeding. As we have shown, it is no more than a warranty for quiet enjoyment. There is no authority which holds, so far as we can find, that under that warranty a duty arises to pay the expenses of litigation whenever that title is involved, but only in a suit with the claimant of an outstanding superior right, usually seeking to obtain possession in order to profit by that right. But even on the theory insisted on by the Snows, this suit did not seek to call into question their warranty to complainant. Complainant neither sought nor obtained a decree against the Snows nor a decision as to any right against them on their warranty. But if it had done so, the warranty of appellant to defend them did not cover such a situation so far as we are able to discover in the law. No such authority has come to our attention. On the other hand, there is authority opposed to that theory. 21 C.J.S., Covenants, § 150, p. 1030, note 84. The cases noted are directly in point. Smith v. Nussbaum, Mo. App., 71 S.W.2d 82, 87; Myers v. Munson, 65 Iowa 423, 21 N.W. 759; see, 61 A.L.R. 167 et seq.
The decree declared (4) that complainant is entitled to redeem by paying to the respondent (this appellant) the sum of $4,342.27 with interest at six per cent per annum from December 29, 1949, and further (6) that since the amount so ascertained is in excess of the sum of $3,674, which was tendered by complainant and paid into court, the register was ordered to refund said sum and pay it to said complainant.
The decree does not specify the time in which complainant must pay said sum to effect a redemption. This implies that it must be done immediately. The decree does not order further proceedings or the effect of a failure by complainant to perfect redemption as authorized. The decree should fix a time in which complainant must pay the amount ascertained to be necessary to redeem, and also provide that upon a failure to do so the register be ordered to proceed to sell the land for the purpose of paying the debt, Mooney v. Walter, 69 Ala. 75; Alston v. Morris and Co., 113 Ala. 506, 20 So. 950; Cobbs v. Norville, 227 Ala. 621, 151 So. 576, or declare that upon default the bill will stand dismissed. Simpson v. James R. Crowe, Post 27, American Legion, 230 Ala. 487, 161 So. 705; Wesson v. Taylor, 240 Ala. 284, 198 So. 848.
It is the better practice to decree that upon default there should be a foreclosure by sale. The decree should be modified so as to allow complainant thirty days in which to pay the amount ascertained to be necessary to redeem after crediting the same with the sum of $3,674 paid into court by complainant, and that the register pay over said sum to appellant. And that upon default in the payment of the balance due by complainant in that period the register shall proceed to sell the land described in the pleadings in this cause at public out-cry to the highest and best bidder for cash between the hours of eleven A. M. and four P. M. at the courthouse door of Mobile County, section 723, Title 7, Code, after notice of the time, place and terms of sale is published for three successive weeks, section 714, Title 7, Code, in a newspaper of general circulation in said county. Hall v. Noble, 215 Ala. 444, 111 So. 14. Report of such sale shall be made by the register to the circuit court in equity, to which this cause is remanded for further proceedings. Those Code sections are not here controlling but suggestive. Parker v. Clayton, 248 Ala. 632, 29 So.2d 139.
The general rule is that costs should be taxed against one suing to enforce an equity of redemption where the act of the redemptionee did not necessitate resort to equity, and he did not contest the relief sought. Macke v. Scaccia, 222 Ala. 359, 132 So. 880.
Complainant offered and paid into court an amount of $3,674 claimed to be all that was due to redeem. That claim was decided against complainant and the sum of $4,342.27 was fixed as the principal amount. There was a difference of $668.27. There was also a controversy as to whether complainant was entitled to credit on account of a breach of warranty. That was decided against complainant on this appeal. Also as to whether complainant was entitled to recover in this suit for the deferred rentals under the oil lease which matured before the bill of complaint was filed. That was here decided against complainant. Also as to whether complainant was entitled to a personal judgment against appellant. That was decided against complainant. Appellant lost on its contention that all the deferred rentals were reserved and did not pass by its deed.
On the appeal in respect to the personal judgment rendered by the court in favor of the Snows against appellant, the Snows lost the contention on this appeal.
So that, the costs of this cause which have accrued to the time of this decision and decree, in the circuit court in equity and on appeal in that court and in this Court, should be divided so that appellant, complainant and the Snows each be taxed, respectively, with one-third thereof. Perdue v. Brooks Brothers, 85 Ala. 459, 5 So. 126. Any costs which may be caused by further proceedings in the execution of this decree should be taxed by the circuit court in equity in the exercise of its discretion.
The decree of the circuit court in equity should be modified in part and affirmed in part, and reversed and render in part and remanded to the circuit court in equity where further proceedings may be had if necessary in accordance with the decree here rendered.
The foregoing opinion was prepared by FOSTER, Supernumerary Judge of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, § 32, Code, and was adopted by the Court as its opinion.
The decree of the circuit court, in equity, is modified and affirmed in part, and reversed and rendered in part and remanded.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur.