Johns v. Hardin

• Decision Date: 12 May 1891
• Citation: 16 S.W. 623
• Parties: JOHNS v. HARDIN <I>et al.</I>
• Court: Texas Supreme Court

16 S.W. 623

JOHNS v. HARDIN et al.

Supreme Court of Texas.

May 12, 1891.

Commissioners' decision. Error from district court, Wichita county; P. M. STINE, Judge.

Geo. Clark, for plaintiff in error. W. W. Flood and R. E. Huff, for defendants in error.

COLLARD, J.

On February 18, 1887, Joshua W. Du Bose and B. S. Du Bose instituted a suit of trespass to try title in the district court of Wichita county against J. G. Hardin, for the recovery of 6,117,672 square varas of land. The defendant J. G. Hardin filed his answer on February 25, 1887, in which he demurred to plaintiff's petition, pleaded "not guilty," and further specially that he, defendant, on November 30, 1883, had purchased 361 acres of the land sued for from C. R. Johns, of Travis county, Tex., for which the defendant had paid Johns $3 per acre, or $1,083 for the whole, with general warranty from Johns. That Johns was dead; had died possessed of large property, and by will duly probated in Travis county the whole estate of C. R. Johns was devised to his widow, Amanda F. Johns, plaintiff in error. That she, the widow, had qualified as executrix, and as executrix and devisee had taken possession of said estate, which estate was solvent, and worth some $30,000 over and above all debts. That by reason thereof, and because an adverse claim to the land had been set up, he, the defendant Hardin, was entitled to have Mrs. Johns, as executrix and devisee, come in and defend the cause, and to make good the covenants in said warranty; and, in case plaintiff recovered, defendant Hardin prayed for judgment against Mrs. Johns for the purchase money, with interest. Citation issued to Mrs. A. F. Johns on February 26, 1887, and was served on her February 28, 1887, by the sheriff of Travis county. She made default, and on November 2, 1888, judgment was rendered for the plaintiffs Du Bose and against the defendant J. G. Hardin for an undivided one-half of the land sued for, and against Mrs. Johns, in favor of Hardin, for failure of title to one-half of 361 acres, the damages being assessed $754.40. Judgment went also against John D. Pope, a co-defendant of Mrs. Johns. Mrs. Johns appealed, and her first assignment of error is: "The judgment of the court is erroneous in so far as the recovery over by defendant J. G. Hardin against plaintiff in error is concerned, because Hardin, as the vendee of C. R. Johns, deceased, could have no cause of action upon Johns' warranty until eviction, either actual or by judgment of a competent court, or by purchase of his peace. The cross-action of defendant Hardin against plaintiff in error as executrix of C. R. Johns, deceased, was therefore premature, and Hardin had no cause of action until after judgment against him, because he had pleaded not guilty, which was an admission of possession, and was contesting the Du Bose title up to judgment." The question raised by this assignment has been decided in this state adversely to appellants in the case of Kirby v. Estill, 75 Tex. 485, 12 S. W. Rep. 807, and the doctrine established that the warrantor cannot only be required to defend the title of his warrantee in a suit for the land, but, after being so brought in, the defendant can plead over against him, and recover on the warranty in the same suit if the title fail. The practice seems to have been recognized before. Crain v. Wright, 60 Tex. 515. We can see no good reason why all the issues between the parties cannot be settled in one suit. There is no breach, it is true, by the suit until judgment against the title of defendant, but this is the case in all suits where a third party is liable over on an obligation of indemnity. We think the principle established in Kirby v. Estill, supra, is correct, especially under our system of practice, which discourages a multiplicity of suits. But see authorities contra: Andrews v. Denison, 16 N. H. 469; Ferriss v. Harshea, 17 Amer. Dec. 782; Emerson v. Proprietors, 2 Amer. Dec. 34. An actual eviction by process of law in favor of the paramount title is not necessary to the right to sue on the covenant of title. Clark v. Mumford, 62 Tex. 531; Peck v. Hensley, 20 Tex. 673; 2 Wait, Act. & Def. 388, 389. Nor is a judgment of ouster required. The vendee may surrender the possession to the owner of the paramount title, or he may buy it in; but in such case, to recover, he is bound to show that he yielded to the paramount title. It is not necessary that there should be a suit at all, though where there is a suit and judgment against the warrantee, of which the warrantor had due notice, the judgment is evidence of eviction, and, if he is cited...