Kirby v. Estill

• Decision Date: 17 December 1889
• Parties: KIRBY <I>et al.</I> <I>v.</I> ESTILL <I>et al.</I>
• Court: Texas Supreme Court

12 S.W. 807

KIRBY et al.

v. ESTILL et al.

Supreme Court of Texas.

December 17, 1889.

Commissioners' decision. Appeal from district court, Tarrant county.

T. M. Harwood and Hunter, Stewart & Dunklin, for appellants. R. M. Wynne and N. A. Stedman, for appellees.

ACKER, P. J.

Appellants, R. H. Kirby and E. S. Chambers, brought this suit against J. P. Smith, C. F. Estill, and J. W. Burgess to recover an undivided half interest in 8,524,765 square varas of land located and surveyed by virtue of headright certificate No. 375, for a league and labor, issued to James Riley on the 1st day of March, 1838, and patented to the original grantee in 1877. It was alleged that plaintiffs owned the land sued for in equal parts, and that defendants claimed to be the owners of the other one-half. The suit was also brought for partition. Defendants Estill and Burgess answered separately by plea of not guilty, the statute of 3, 5, and 10 years limitation, and specially described by metes and bounds the portions of the land claimed by them, respectively, pleaded improvements in good faith, impleaded their vendor and warrantor, J. P. Smith, upon his covenants of warranty, and asked that, in the event of their eviction, they have judgment against him for the purchase money paid by them, respectively, with interest. Defendant J. P. Smith, by separate answer, pleaded the general issue, not guilty, and the 3, 5, and 10 years statutes of limitations. By supplemental petition, plaintiffs set up the coverture of their vendors, who were the heirs of W. K. Revere, who, at his death, in May, 1859, owned a half interest in the certificate by virtue of which the land in controversy was located. Plaintiffs moved to strike out that part of the answers of defendants Estill and Burgess in which they sought to recover judgment against their vendor on his covenants of warranty, in the event of judgment against them for the land. This motion was overruled, and plaintiffs excepted. There was a verdict and judgment for defendants, and all of the plaintiffs appealed.

Under the first assignment of error it is urged that the court erred in overruling plaintiffs' motion to strike out part of the answers of defendants Estill and Burgess, "because the issues raised by said answers are not germane or pertinent to the object of this suit, and are issues in which the plaintiffs have and can have no possible interest, and are improper issues, and an improper joinder of causes of action, and that to permit the defendants in this suit to litigate and controvert questions between themselves, in which plaintiffs are wholly disinterested, would be detrimental to plaintiffs' interests, and ought not to be allowed." Article 4788 of the Revised Statutes authorizes the defendant, in actions of trespass to try title, to make his warrantor a party, and the practice of doing so seems to have been recognized by this court as proper. Crain v. Wright, 60 Tex. 515; Brown v. Hearon, 66 Tex. 63. Rev. St. art. 1209, provides: "Before a case is called for trial, additional parties may, when they are necessary or proper parties to the suit, be brought in by proper process, either by the plaintiff or the defendant, upon such terms as the court may prescribe; but such parties shall not be brought in at such a time, or in such a manner, as unreasonably to delay the trial of the case." Article 4788 expressly makes the warrantor a proper party, and he was already before the court by his answer to the plaintiffs' petition. It was not, therefore, necessary to delay the trial to bring him in by process. Being a party to the suit already before the court, he was bound to take notice of all pleadings filed and steps taken in the case. Bryan v. Lund, 25 Tex. 98. The vendee's right, when sued for the land, to make his warrantor a party, seems quite clear, but it is equally clear that it must be done in such manner as not to unreasonably delay the trial of the plaintiff's case. It is not contended that any delay was occasioned by the answers against which the motion was directed. Nor does it appear that appellants sustained any injury by the ruling of the court to which the first assignment of error relates. We think the court did not err in overruling the motion. Cases, however, may arise in which the court might be authorized to disallow litigation between defendants to the prejudice of plaintiff.

The second assignment of error is: "The court erred in the second paragraph of its charge to the jury, which is...