Boon v. Knox

• Decision Date: 01 May 1891
• Citation: 16 S.W. 448
• Parties: BOON v. KNOX <I>et al.</I>
• Court: Texas Supreme Court

16 S.W. 448

BOON v. KNOX et al.

Supreme Court of Texas.

May 1, 1891.

Error from district court, Jack county.

H. C. Ferguson, for plaintiff in error. Stark & Stark, for defendants in error.

GAINES, J.

This was an action of trespass to try title to a tract of land patented to the heirs of G. D. Spottswood. The plaintiffs claimed title as the heirs of the original patentees. There were several defendants, all of whom either disclaimed or declined to answer except J. W. Knox. He pleaded not guilty and the statute of limitations. He also answered specifically that he bought the land in controversy from A. Harrell and W. Harrell, who conveyed it to him by deed with covenants of general warranty, and that they derived their title through a like deed from E. Boon. He prayed that the Harrells and Boon be vouched in to defend the title, and that, in the event the plaintiff recovered, he have a recovery over against them on their respective warranties. The court found that the plaintiffs were the heirs of the original grantee of the certificate by virtue of which the land was pattented; but that all of them were barred by limitations, except three, of whom two were each entitled to an undivided one-twentieth interest in the land sued for, and the third to one-seventieth. It was also found that there were five other persons who were together entitled to one-seventieth of the land. The defendant Knox was found to have title against the other heirs by limitation. It was adjudged that the plaintiffs who were not barred should recover in their own right their respective interests, as hereinbefore stated; and that they should also recover for their co-tenants who were not barred by limitation, and were not parties, the one-seventieth undivided interest of which they had been found to be the owners. The several interests recovered amounted to nine-seventieths of the land. The defendant Knox recovered of the Harrells and of Boon, on their respective covenants of warranty, a like proportion of the purchase money paid for the land.

The defendant Boon alone brings this writ of error, and complains that the court erred in adjudging a recovery in favor of the plaintiffs for the benefit of co-tenants who were not parties to the suit. The action of the court in the particular complained of is clearly erroneous. It is undoubtedly true that in this state one tenant in common may recover the whole land as against a stranger, and that the recovery will inure to the benefit of his co-tenants. The rule prevails in most of our states, but is not universal. In Massachusetts, Missouri, and Pennsylvania, it seems to be held that a tenant in common can recover only to the extent of his own interest, even as against a wrongdoer. Dewey v. Brown, 2 Pick. 387; Gray v. Givens, 26 Mo....