Hollingsworth v. Mexia

• Decision Date: 08 October 1896
• Citation: 37 S.W. 455
• Parties: HOLLINGSWORTH v. MEXIA et al.
• Court: Texas Court of Appeals

37 S.W. 455

HOLLINGSWORTH v. MEXIA et al.

Court of Civil Appeals of Texas.

October 8, 1896.

Error from district court, Anderson county; A. B. Watkins, Judge.

Action by S. R. Mexia and E. A. Mexia against J. C. Brunet to recover real estate, in which T. W. Hollingsworth was impleaded by defendant. There was a judgment in favor of plaintiffs against all the defendants, and a judgment for damages over in favor of Brunet against Hollingsworth for breach of warranty, and Hollingsworth brings error. Affirmed.

McMeans & Gill, for plaintiff in error. Thos. B. Greenwood & Son and Gregg & Gardner, for defendants in error.

WILLIAMS, J.

S. R. and E. A. Mexia, asserting title to 11 leagues of land situated in Anderson and Freestone counties, granted to J. A. Aguilera, brought suit against J. C. Brunet to recover a portion of same claimed by him, lying in the former county. Brunet disclaimed as to all of the land sued for except two tracts, described by metes and bounds, containing, respectively, 500 and 536 acres, and as to these he pleaded limitation of three years. He also specially described in his answer two parcels, of 175 acres each, out of the above-mentioned tracts, and, as to these, he pleaded also limitation of five and ten years. He also impleaded plaintiff in error, Hollingsworth, alleging that on the 10th day of March, 1879, Hollingsworth conveyed to George G. Carroll, with general warranty of title, 2,257 acres of land, including that herein claimed by defendant, for which Carroll paid Hollingsworth $5,200; that on the 13th day of April, 1887, Carroll conveyed to him (the defendant), with general warranty of title, 1,652 acres of the same land, for which defendant paid to Carroll $1,000; and he prayed that, in case of recovery by plaintiffs, he have judgment over against Hollingsworth on his warranty for his damages. Hollingsworth answered by general denial, plea of not guilty, and adopted Brunet's pleas so far as he might be required to defend against plaintiffs. He also pleaded specially that Brunet had himself sold the two tracts of 175 acres each with covenants of warranty, and hence could not recover against him as to them. The case was tried by the court without a jury, and a judgment was rendered in favor of plaintiffs against both Brunet and Hollingsworth for all of the land except the two tracts of 175 acres each, which were adjudged to Brunet on his plea of limitation; and in favor of Brunet against Hollingsworth on his warranty for $1,209 principal and $1,088 interest, and for costs of suit. This judgment was, at the same term, corrected so as to disallow the interest which had been adjudged. From this judgment Hollingsworth prosecutes this writ of error.

There is no statement of facts, and the assignments of error are based entirely upon the pleadings and judgment, the contention being that, in the particulars pointed out, the latter is not in conformity with the former. The first assignment of error, in substance, is that the pleadings of plaintiffs do not warrant a judgment in their favor against the warrantor, brought in by the answer of defendant alone. Under article 4788, Sayles' Civ. St.,¹ we think the warrantor, when brought in, and answering as this one did, is to be treated as a defendant, and that, as he may make all defenses as if he were one of the original defendants, it is not improper to render judgment determining the issue between him and the plaintiff. At any rate, it can work no injury to him, as he would, under such circumstances, be concluded by a judgment against the defendant. The pleading of the defendant showed on its face that he had paid for the land, to his immediate vendor, Carroll, a less sum than the latter had paid to plaintiff in error; and it is contended that under these facts the defendant could not recover of the plaintiff in error more than he had paid to Carroll. The question thus presented arises upon the pleadings, and, as the judgment appears to be for a larger amount than that for which plaintiff in error would, if this position is sound, be liable to defendant, a decision of the point becomes necessary. Upon the question of law thus presented, as to the right of a plaintiff, who has been evicted from land, to recover of a remote warrantor of the title the sum received by such warrantor from his immediate grantee as the price of the land, though the plaintiff himself paid to his immediate grantor a less sum, there is an irreconcilable conflict among the decisions in other states. The following decisions hold that the recovery can be had of the full amount received by the original warrantor, regardless of what plaintiff himself had paid for the land: Brooks v. Black (Miss.) 8 South. 332; Lowrance v. Robertson, 10 S. C. 8; Mischke v. Baughn, 52 Iowa, 528, 3 N. W. 543; Dougherty v. Duvall, 9 B. Mon. 57. See, also, Hunt v. Orwig, 17 B. Mon. 73, and Cook v. Curtis (Mich.) 36 N. W. 692. Other cases, cited below, hold to the contrary view, that the recovery is restricted to the amount paid by the plaintiff for the land which he has lost on the ground that this is his damage. Williams v. Beeman, 2 Dev. 483; Mette v. Dow, 9 Lea, 93; Whitzman v. Hirsh, 87 Tenn. 513, 11 S. W. 421; Moore v. Frankenfield, 25 Minn. 540; Crisfield v. Storr, 36 Md. 129; Taylor v. Wallace (Colo. Sup.) 37 Pac. 963. In Dickson v. Desire's Adm'r, 23 Mo. 151, the supreme court expresses an inclination to adopt the latter view, but makes no authoritative decision. The opinion in Wilson v. Taylor's Ex'rs, 9 Ohio St. 595, seems to assume that this is the correct rule, though this is not made clear. We find in our reports a number of cases in which suits have been brought on covenants of warranty by remote vendees who had suffered eviction, in which the amount paid by the plaintiff to his vendor was all that was claimed and recovered; but in these cases the question before us was neither raised nor discussed. Eustis v. Fosdick, 88 Tex. 615, 32 S. W. 872; Flaniken v. Neal, 67 Tex. 629, 4 S. W. 212; Saunders v. Flaniken, 77 Tex. 662, 14 S. W. 236; Rogers v. Golson (Tex. Civ. App.) 31 S. W. 200. Others of the same character can be found, but we have not been able to discover in our reports any expression of the supreme court upon the question, unless it is in the case of Hall v. York, reported in 16 Tex. 18, and again in 22 Tex. 642. In that case York sold land to Cox, and executed his bond in the sum of $5,000, obligating himself to make title. Cox sold the land, and assigned the bond to Hall, who sued York to recover the penalty of the bond, alleging that York could not make title. On the first appeal it was held that the penalty of the bond could not be recovered, but that the measure of damages was the purchase money paid, with interest. After this, Hall amended his petition, alleging the amount paid by himself to Cox, but not stating the amount paid by the latter to York. Exceptions were sustained to his petition, and from this his second appeal was prosecuted, and the judgment was affirmed, because of the omission to allege the consideration received by York; Justice Bell saying: "It is well settled by the case of Sutton v. Page, 4 Tex. 142, that in a case like the present, where the vendor of land is not able to make title, the vendee's measure of damages is the purchase money and interest, and nothing more. In this case John York's responsibility on his bond was fixed by the instrument itself, and could not be affected by subsequent transactions between his vendee and other persons. * * * In this case the petition did not allege what consideration passed to John York for the sale of the land to Cox. * * * The consideration that passed from Hall to Cox could not furnish the basis for computing the damages against York's estate." By reference to the case of Sutton v. Page, which was held to furnish the measure of damages, it will be seen that the rule applicable to suits for breach of covenants in deeds of conveyance was held to be also applicable to suits of the class to which that case, as well as Hall v. York, belonged. It cannot, therefore, be well said that the plaintiff in Hall v. York was placed upon the footing, merely, of an assignee of a chose in action entitled to recover whatever his assignor could have recovered. In both cases the plaintiffs were purchasers of the land, and, if the purchase money had been paid, held the equitable title. Hence it was, probably, that the court regarded them as being governed by the same rule as governs a case of a covenantee suing for breach of warranty, and that no distinction was intended to be made between the case before the court as an action for breach of contract to convey title and one for breach of warranty. 2 Suth. Dam. p. 209 et seq. It can, perhaps, be said that, in either view of the question before us, it would have been necessary for the plaintiff in Hall v. York to allege what Cox had paid to York, because, assuming that he could not recover more than he had paid to Cox, he could not recover so much if he had paid more to Cox than Cox had paid to York; and that, therefore, the opinion in that case is consistent with either view. While the language used by the court seems to us to indicate the opinion that the remote vendee had the right to recover against the...