Alvord v. Waggoner

• Decision Date: 14 November 1895
• Parties: ALVORD et al. v. WAGGONER et al.
• Court: Texas Supreme Court

32 S.W. 872

ALVORD et al. v. WAGGONER et al.

Supreme Court of Texas.

November 14, 1895.

Error to court of civil appeals of Second supreme judicial district.

Trespass to try title by W. T. Waggoner against Jules Alvord and others. A judgment in favor of defendant E. E. Fosdick against his warrantor, W. G. Eustis, was affirmed by the court of civil appeals (29 S. W. 797), and Eustis brings error. Modified.

W. G. Eustis, in pro. per. J. F. Cooper and Britt & Easton, for defendants in error Fosdick and Alvord. W. W. Flood and Hunter & Stewart, for defendant in error Waggoner.

BROWN, J.

On the 15th day of August, 1882, W. G. Eustis, the plaintiff in error, conveyed, by deed with clauses of general warranty, to E. E. Fosdick, the defendant in error, two surveys of 1,280 acres each, which surveys were not then patented, but were subsequently patented to W. G. Eustis, assignee, in 1883. On December 5, 1883, Fosdick conveyed to Jules Alvord, by deed with clauses of general warranty, the south half of one of the 1,280-acre surveys conveyed to him by Eustis. For the two surveys Fosdick paid to Eustis $1,920, and for the one-half of one of the surveys Alvord paid Fosdick $960. On June 3, 1886, W. T. Waggoner brought suit in the district court to recover from E. E. Fosdick and Jules Alvord four sections of land in Wilbarger county, embracing the same land as that conveyed by Eustis to Alvord. On November 17, 1886, Fosdick impleaded his warrantor, W. G. Eustis, and prayed judgment against him for the sum of $1,920. Alvord also prayed judgment against Fosdick upon his warranty for $960. Upon the trial of the cause Waggoner recovered the lands from Fosdick and Alvord, and Alvord recovered against Fosdick a judgment for $960, the price paid by him for the land he purchased of Fosdick. At the same time Fosdick recovered judgment against Eustis upon his warranty for the sum of $1,920, the full amount paid by him as the purchase price of the two 1,280-acre tracts of land. The judgment did not make the issuing of execution in favor of Fosdick against Eustis, for any part of the amount thereof, depend upon his having satisfied the judgment in favor of Alvord against him. This judgment was affirmed by the court of civil appeals, and W. G. Eustis sued out this writ of error, making E. E. Fosdick alone a party defendant thereto. The grounds of the application for writ of error are as follows: (1) That it was error for the court to award execution in favor of E. E. Fosdick against W. G. Eustis for that portion represented by the amount recovered by Alvord against Fosdick on his warranty, until Fosdick had discharged the judgment so rendered against him upon said warranty; (2) that Fosdick's cause of action upon his warranty against Eustis was barred by limitation of four years.

The right of action in favor of Fosdick against the plaintiff in error was not barred by limitation. This question was properly disposed of by the court of civil appeals, and needs no further discussion.

When Fosdick conveyed to Alvord a portion of the land which had been conveyed to him by the plaintiff in error, the warranty of Eustis to Fosdick passed to Alvord, in the proportion that the land he bought bore to the whole amount conveyed by the deed. Flaniken v. Neal, 67 Tex. 633, 4 S. W. 212. Alvord had the right to sue Fosdick or Eustis upon the warranties contained in these deeds, or he might have sued each of them, but he could have but one satisfaction of his damages. Wilson v. Taylor, 9 Ohio St. 595; King v. Kerr, 5 Ohio, 154. It was undoubtedly proper practice for Fosdick to vouch Eustis in as his warrantor in this suit, and it was proper to render a judgment in favor of Alvord against Fosdick, and in favor of Fosdick over against Eustis, under proper...