minor conveys the property by warranty deed, and the title subsequently fails by reason of a disaffirmance by the minor, the Covenants in the second deed were not broken until the disaffirmance of the first, and hence the statute of limitations did not begin to run against an action on such covenants until the disaffirmance. Pritchett v. Redick, 62 Neb. 296 (86 N. W. 1091). Parties.

51. (1881.) The action for breach of the covenant should be brought by him who is the owner of the land; and as such the assignee of the covenant at the time it is broken. Davidson v. Cox, 11 Neb. 250 (9 N. W. 95).

52. (1887.) An action for the breach of covenants may be maintained by the direct covenantee irrespective of the question whether the covenant upon which it is brought would run with the land. Kern v. Kloke, 21 Neb. 529 (32 N. W. 574).

Pleading.

- In general.

53. (1875.) A petition alleging that a guardian, from whom plaintiff's grantor derived title, "procured the sale of the premises by order of the proper court, as it is said, but as it now appears there is no record of any of the proceedings of such guardian sale, as required by law, and so far as the proper records show nothing appears properly and according to law," is insufficient as an allegation showing a breach of covenant against incumbrances. Twiss, 4 Neb. 133.

Scott v.

allege substantially an eviction by title paramount. Mills v. Rice, 3 Neb. 76.

57. (1892.) In an action for the breach of a covenant of warranty by the covenantee after eviction under a paramount title, it is not necessary to set out the facts attending the eviction or particularly describe the adverse title. It is sufficient to allege in general terms an eviction under a title paramount to that of the covenantor. Cheney v. Straube, 35 Neb. 521 (53 N. W. 479).

58. (1898.) In an action to recover damages for breach of covenants of warranty of title it is essential to allege in the petition that plaintiff has been evicted by title paramount. Hampton v. Webster, 56 Neb. 628 (77 N. W. 50).

58a. (1902.) In an action on a warranty deed for a breach of covenants of title and for quiet enjoyment, the plaintiff must allege and prove that he has been turned out of the possession of the granted premises, or some part thereof, or compelled to yield the possession thereof to one having a paramount title. Merrill v. Suing. 66 Neb. 404 (92 N. W. 618).

60. (1884.) If the grantee of a conveyance of land, without the knowledge or consent of his grantor, surrender possession to one claiming under an adverse title, he cannot maintain an action upon the covenant of warranty in the deed, without alleging a title paramount to his own. Snyder v. Jennings, 15 Neb. 372 (19 N. W. 501).

Allegation of mistake.

61. (1898.) In an action for damages for a breach of the covenant against incumbrances contained in a deed, an answer charging that the deed executed by the grantors does not contain a correct expression of the intention of the parties in regard to the transaction, sufficiently alleges the mutuality of the mistake. Hotaling v. Tecumseh Nat. Bank, 55 Neb. 5 (75 N. W. 242).

Plea of confession and avoidance. 62. (1901.) In an action to recover damages for breach of a covenant against

incumbrances, a statement in the answer, to the effect that the plaintiff had retained out of the money due to the defendant a certain sum in settlement and full payment of the incumbrance discharged by the plaintiff, is a plea of confession and avoidance. Such plea is an implied admission of the existence and validity of the incumbrance. Johnson v. Hesser, 61 Neb. 631 (85 N. W. 894).

Necessity of proof of eviction.

63. (1886.) In an action for the breach of covenant for quiet enjoyment, the plaintiff must allege and prove that he has been turned out of the granted premises or of some part thereof, or has yielded the possession thereof to a paramount title. Real v. Hollister, 20 Neb. 112 (29 N. W. 189).

64. (1886.) In an action on warranty deed for a breach of the covenant for quiet enjoyment the plaintiff must allege and prove that he has been turned out of the possession of the granted premises, or of some part thereof, or has yielded the possession thereof to the paramount title. Anderson v. Buchanan, 20 Neb. 272 (29 N. W. 935).

65. (1897.) To sustain an action on a covenant of warranty, or for quiet enjoyment in favor of a covenantee, it must appear that there has been an eviction or surrender by reason of a paramount title. Troxell v. Johnson, 52 Neb. 46 (71 N. W. 968).

66. (1899.) An action cannot be maintained on a covenant of warranty of title, where it appears that there has been no actual eviction or surrender of possession of the granted premises by reason of a paramount title. Troxell v. Stevens, 57 Neb. 329 (77 N. W. 781).

67. (1902.) In an action on a warranty deed for a breach of covenants of title and for quiet enjoyment, the plaintiff must allege and prove that he has been turned out of the possession of the granted premises, or some part thereof, or compelled to yield the possession thereof to one having a paramount title. Merrill v. Suing, 66 Neb. 404 (92 N. W. 618).

68. (1892.) A cause of action on a covenant of warranty, or for a quiet enjoyment, does not accrue in favor of the covenantee until eviction or surrender by reason of a paramount title. Cheney v. Straube, 35 Neb. 521 (53 N. W. 479).

Evidence.

Admissibility.

69. (1901.) On the trial of an action grounded on an alleged breach of a covenant against incumbrances a stipulation to the effect that the plaintiff had paid a certain sum to redeem the land from a tax lien, is an admission of the existence and validity of such lien. Johnson v. Hesser, 61 Neb. 631 (85 N. W. 894).

70. (1902.) In an action by a grantee of a deed against his grantor to recover for a breach of covenant against incumbrances, parol evidence is inadmissible to show that taxes were, by contemporaneous oral agreement, excepted from the terms of the deed. Stanisics v. McMurtry, 64 Neb. 761 (90 N. W. 884).

71. (1904.) In an action to recover damages for a breach of a covenant for quiet enjoyment in a deed conveying real estate, the defendant is not concluded by a recital of consideration in the instrument, but the real consideration may be proved by parol. Holmes v. Seaman, 72 Neb. 300 (100 N. W. 417).

Sufficiency.

72. (1885.) Where in an action against two defendants charging them with the making and the breach of a joint warranty in the sale and conveyance of real estate, the evidence is sufficient as to one, but insufficient as to the other defendant, the verdict and judgment being against oth, and the one against whom the evidence was insufficient made no motion for new trial as to himself alone, the judgment will not be disturbed. Real v. Hollister, 17 Neb. 661 (24 N. W. 333).

73. (1885.) Evidence that real estate conveyed was recently purchased from the owner in possession, and soon afterwards sold and conveyed to another, there being no adverse claimant, the title and possession being conceded to be in the grantors of the lost conveyance, is sufficient to warrant a finding that the grantors were in possession of the land at the time of the execution of the conveyance. Real v. Hollister, 17 Neb. 661 (24 N. W. 333).

74. (1898.) Evidence in an action for damages for breach of warranty held to sustain a finding that the deed, although absolute in form, was intended as an indemnity against contingent liabilities and was in fact a mortgage, and the covenants of

warranty were inserted by mistake. Hotaling v. Tecumseh Nat. Bank, 55 Neb. 5 (75 N. W. 242).

75.

Sufficiency of proof of eviction.

(1885.) Evidence that a court of equity has decreed a grantee trustee for another, and required a conveyance to such other person, and set aside such grantee's title, is sufficient proof of eviction to maintain an action for breach of covenant. Real v. Hollister, 17 Neb. 661 (24 N. W. 333.)

76. (1894.) Breach of covenant of warranty of title to land and for quiet enjoyment may be established prima facie by proof that the covenantee has been evicted or kept out of possession by one in actual possession claiming paramount title. Heyn v. Ohman, 42 Neb. 693 (60 N. W. 952).

Damages.

77. (1892.) The measure of damages for the breach of a covenant of warranty, or for quiet enjoyment, is the consideration paid for the land, with interest and the costs and expenses incurred in the suit by which the covenantee is evicted; and if the latter is obliged to purchase an outstanding title in order to protect his own, he may recover the amount paid for such paramount title, not exceeding the consideration paid by him. Cheney v. Straube, 35 Neb. 521 (53 N. W. 479).

77a. (1892.) A party who was the actual owner of a farm and in possession thereof, traded the same, subject to a mortgage of $800, but the grantee, in consequence of the omission of a deed in the grantor's chain of title on the record, was unable to effect a loan on the farm, in consequence of which the mortgage was foreclosed and the grants evicted. No fraud was charged against the grantor and he afterwards procured a second deed to supply the missing link in his chain of title. Held, That damages for the loss of the farm were too remote and could not be recovered against the grantor. Lamb v. Buker, 34 Neb. 485 (51 N. W. 285).

78. (1895.) A covenantee who paid taxes to discharge a lien existing when he received a deed containing a covenant against incumbrances may recover the amount of the lien from the covenantor in an action before a justice of the peace, as such an action does not relate to the title to the land. Campbell v. McClure, 45 Neb. 608 (63 N. W. 920).

79. (1897.) In an action for breaches of covenants of warranty in a deed for the conveyance of real property, while there may be a recovery for costs and attorneys' fees incurred but not paid in making a defense against an action hostile to the title purported to be conveyed by the warranty deed, this principle should not be extended to cover interest on such attorneys' fees and costs under the proofs made in this case. Walton v. Campbell, 51 Neb. 788 (71 N. W. 737).

80. (1903.) When the breach of covenant consists of the existence of an unexpired term or lease, the measure of damages, at least in absence of any special circumstances, will be the value of the use of the premises for the time during which the grantee has been deprived of such use. Brass v. Vandecar, 70 Neb. 35 (96 N. W. 1035).

81. (1903.) Where the grantor, who has covenanted against incumbrance, requests the grantee to take proceedings for the purpose of recovering possession, which fail, and agrees to pay the expenses thereof, such expenses, being actually incurred, may be recovered, in addition to the value of the use of the premises. Brass v. Vandecar, 70 Neb. 35 (96 N. W. 1035).

82. (1904.) It seems that in an action to recover damages for breach of a cove nant for quiet enjoyment, growing out of an exchange of lands, the measure of damages is the value of the property to which the plaintiff was entitled, but which he failed to receive, in the transaction. Holmes v. Seaman, 72 Neb. 300 (100 N. W. 417).

83. (1908.) The measure of damages for breach of a covenant of title is the dif ference between the value of the land at the time of the breach, and the price he contracted to receive. Webb v. Wheeler, 80 Neb. 438 (114 N. W. 636).

84. (1908.) When the plaintiff is in possession of the premises and can recover the value of his improvements under the "occupying claimant's act," he cannot recover the value thereof in an action for damages for breach of a covenant of title. Webb v. Wheeler, 80 Neb. 438 (114 N. W. 636).

COVERTURES.

See, Curtesy; Dower; Husband and Wife.

CROSS-REFERENCES.

See, also, Assignments for Benefit of Creditors; Fraudulent Conveyances.

Attachment on unliquidated demand, see Attachment, §§ 9, 10.

Enforcement of attachment, see Attachment, §§ 172-181.

Actions against corporations, see Corporations.

To annul conveyances, see Fraudulent Conveyances.

Enforcement of lien of garnishment by creditor's suit, see Garnishment, §§ 79, 80.

Effect of notice of lis pendens on right of creditor, see Lis Pendens, § 10a.

Compelling creditor to marshal claims, see Marshaling Assets and Securities.

Action for sequestration of property of debtor, see Sequestration.

Right to subject trust estate to debts of beneficiary, see Trusts, § 136.

Nature and scope of remedy.

1. (1901.) The courts will use their efforts to protect a creditor against the fraudulent acts of his debtor, but as against his poor judgment and unfortunate trades they can afford no relief. Selz, Schwab & Co. v. Hocknell, 62 Neb. 101 (86 N. W. 905).

2. (1903.) There are two classes of creditors' bills, one to reach the equitable assets or property of the debtor on which an execution at law cannot be levied; the other in aid of an execution at law, as to set aside an incumbrance or a transfer of property made to defraud creditors. In the first class of cases the creditor must allege and show that he has exhausted his remedy at law, while in the second it is sufficient to show that his claim has been reduced to judgment and docketed in the county where the land lies which he seeks to subject to the payment of his claim. The equity court in such case is merely lending its assistance to the legal tribunal to remove a fraudulent obstruction interposed to the execution of its writ. State Bank of Ceresco v. Belk, 68 Neb. 517 (94 N. W. 617).

3. (1907.) A creditor's suit is an action in rem and not against the debtor personally, and a discharge by a court of bankruptcy is no bar thereto. Flint Chaloupka, 78 Neb. 594 (111 N. W. 465).

v.

Adequate remedy at law.

4. (1898.) In absence of special circumstances rendering a levy of execution inadequate, a judgment creditor cannot invoke the aid of equity to subject the land of the debtor to the payment of the judg ment. Morrill v. Skinner, 57 Neb. 164 (77 N. W. 375).

5. (1903.) The thing offered at an execution sale of real estate being the title which the judgment debtor had at the time the judgment became a lien, a subsequent fraudulent transfer of the property furnishes no ground for a creditors' bill, the remedy by execution being ample. Newman Grove State Bank v. Linderholm, 68 Neb. 364 (94 N. W. 616,.

6. (1904.) Whenever, on the trial of a creditor's action, it appears that the plaintiff has a remedy at law, the equitable proceedings should be dismissed. Brumbaugh v. Jones, 70 Neb. 786 (98 N. W. 54).

Grounds of remedy.

7. (1894.) An action in the nature of a creditors' bill can be maintained in this state upon a judgment of the circuit court of the United States for the district of Nebraska. First Nat. Bank of Chicago . Sloman, 42 Neb. 350 (60 N. W. 589; 42 Am. St. Rep. 707).

8. (1895.) The foundation of every creditors' bill is an unimpeachable judg ment, and the plaintiff who exhibits such a bill as a condition precedent to his right to relief is required to plead and prove his ownership of a valid and unsatisfied judg ment. Johnson v. Parrotte, 46 Neb. 51 (64 N. W. 363).

9. A judgment creditor, after an execution has been issued and returned nulla bona, may maintain a suit in equity to make his judgment effective as a lien on the land by removing obstructions calculated to make an execution sale unproduc tive. (1900) First Nat. Bank v. Gibson, 60 Neb. 767 (84 N. W. 259); (1901) Coffield v. Parmenter, 2 Unof. 42 (96 N. W. 283): (1902) Howard v. Raymers, 64 Neb. 213 (89 N. W. 1004).

10. (1901.) By proceedings in garnishment, an attachment or judgment creditor may acquire a lien upon personal effects in the possession of a vendee who has acquired them by means of a sale or transfer fraudulent as against the creditors of the vendor, and in a case in which an action