Clark v. Mumford

• Decision Date: 02 December 1884
• Docket Number: Case No. 1352.
• Citation: 62 Tex. 531
• Parties: W. J. CLARK ET AL. v. R. H. MUMFORD.
• Court: Texas Supreme Court

62 Tex. 531

W. J. CLARK ET AL.

v.R. H. MUMFORD.

Case No. 1352.

Supreme Court of Texas.

Dec. 2, 1884.

APPEAL from Dallas. Tried below before the Hon. Z. Hunt.

Richard H. Mumford brought this suit against the defendants to recover of them, as heirs at law of one William Clark, damages for breach of covenant of title contained in a deed alleged to have been made by Clark to plaintiff on the 7th day of January, 1853, conveying the tract of land described in the petition and situated near the town of Covington, in the state of Tennessee, containing one hundred and forty-seven acres. It was alleged that William Clark purchased the land of the heirs of one James P. Taylor under and by virtue of a power of attorney from them to one Arthur Phillips. That at the time said power of attorney was made and the deed thereunder, it is alleged that Mrs. Evaline C. Aiken, then Mrs. Gillespie, was a married woman, and the deed under the power by reason of that fact was void; that she was one of the heirs of said Taylor, and as such was entitled to an undivided third interest in the tract of land, and had since the sale of Clark to plaintiff sued for and recovered of him an undivided one-third interest thereof; that plaintiff had paid her the sum of $500 in satisfaction of her judgment and claim, together with the sum of $100 costs, incident to the litigation between them.

The defendants below filed their answer, consisting of general and special exceptions and general denial. Other proceedings and pleadings were had in the cause, but are not deemed material to state.

The cause was tried by the court, a jury having been waived. Judgment was rendered for the plaintiff against the defendants for $921.48, and costs of suit.

Goldthwaite & Barksdale, for appellants.

Geo. R. Fearn, for appellee, cited: Simpson v. Belvin, 37 Tex., 675;McClelland v. Moore, 48 Tex., 363;Stipe v. Stipe, 2 Head (Tenn.), 169;Chamberlain v. Preble, 11 Allen (Mass.), 370;Sisk v. Woodruff, 15 Ill., 15; Rawle on Covenants, 158-161, 229, 231, note 1, and 232.

WATTS, J. COM. APP.

This was an action for the recovery of damages on account of a breach of warranty in the sale of lands. Upon the trial the court admitted, over the objections of appellants, a transcript from the supreme court of Tennessee, including the decree by virtue of which appellee's title to an undivided one-third interest in the lands was divested out of him, and vested in Mrs. Aiken. And it is claimed that this was error for which the judgment ought to be reversed. The objections urged against the admission of the transcript were that the appellants were not parties to that suit, and that it appeared upon its face to be a consent decree.

While the record of the adverse proceeding is not admissible as evidence to establish that the eviction was under paramount title, as against those who were neither parties nor privies to the proceeding, yet it is settled by the weight of authority that such record is admissible as evidence of eviction. Rawle on Covenants for Title, page 229, etc.

The same author, on page 232, in referring to the points settled by the weight of authority, with respect to notice given to the covenantor of the adverse proceedings, says: “The notice must be distinct and unequivocal, and expressly require the party bound by the covenant to appear and defend the adverse suit.” And again: “If no notice has been given, the record of such adverse suit is not even prima facie evidence that the title was a paramount one, though it may, under some circumstances, be evidence of eviction.”

It appears that notice of the pendency of the adverse suit was given to W. J. Clark, one of the appellants, but no request was made that he would appear and defend. But on the contrary he is at the same time informed by appellee that the real question involved had theretofore been decided adversely to him by the supreme court of Tennessee in another case. All he requested was W. J. Clark's views respecting a compromise. Then the question arises as to whether the notice was sufficient to conclude W. J. Clark by that judgment; and upon this point the authorities are not uniform. In Freeman on Judgments, § 181, the doctrine is thus stated in the language of the supreme court of California: “If a party to a suit has the right to resort to another upon his failure in the action, whether upon covenant of warranty or on the ground that he is indemnified by such third party, then it is clearly his duty to give full notice to his covenantor or indemnitor of the pendency of the suit, what it is he requires him to do in the suit, and the consequences which may follow if he neglects to defend; mere knowledge of the existence of such action is entirely insufficient to bind the party by the judgment. Unless he is notified to furnish testimony, or to defend the action or to aid in it, he may well suppose the party to be in need of no assistance, and he may well rely upon that supposition; for if the party denies his aid, it is his duty to give him a full notice, a reasonable time before the trial of the action, to enable him to prepare for it.”

In Abbott's Trial Evidence, page 519, it is said: “If the covenantor was not a party on the record in the evicting judgment, the judgment will still be conclusive on him if distinct and unequivocal notice was given him expressly requiring him to appear and defend the adverse suit, and giving...