Mayer & Schmidt v. Wooten

• Decision Date: 08 May 1907
• Citation: Mayer & Schmidt v. Wooten, 102 S.W. 423, 46 Tex. Civ. App. 327 (Tex. App. 1907)
• Parties: MAYER & SCHMIDT v. WOOTEN et al.
• Court: Texas Court of Appeals

102 S.W. 423

MAYER & SCHMIDT v. WOOTEN et al.

Court of Civil Appeals of Texas.

May 8, 1907.

Appeal from District Court, Smith County; R. W. Simpson, Judge.

Trespass to try title by Sallie Malone, for herself and children, against W. F. Wooten. Mayer & Schmidt, as warrantors, were vouched in to defend the title, and from the judgment Mayer & Schmidt appeal. Affirmed.

McCord & Bulloch, for appellants. Fitzgerald & Butler, for appellees.

FLY, J.

Sallie Malone, for herself and children, instituted an action of trespass to try title against W. F. Wooten, to recover 13 acres of land, part of the John F. Crawford survey, in Smith county, claiming title to said land under the 10 years' statute of limitation; and alleged that W. F. Wooten, in December, 1901, had entered upon said land, tore down the fence that had been erected by plaintiffs, and took possession of said land. After the institution of the suit, W. F. Wooten died, and his heirs were made parties. They set up title to the land, and claimed that W. F. Wooten purchased the land from Mayer & Schmidt on the 14th day of April, 1899, under a warranty deed, and asked that they be vouched in to defend the title, and prayed that, if they lost the land, they have judgment over against Mayer & Schmidt for the value of same. The defendants Mayer & Schmidt answered that they sold the land to W. F. Wooten in bulk, and not by the acre, and simply warranted the title to the tract, and that they did not warrant the quantity, but simply the title; and also set up that the title of limitation, as pleaded by the plaintiff, Malone, was not complete at the time of the purchase by Wooten, and that, if Wooten lost the land, he lost it through his negligence.

At the September term, 1905, there was a trial, which resulted in the Malones recovering judgment against the Wootens for the land in controversy; and also a judgment against Mayer & Schmidt in favor of the Wootens on their warranty for the 13 acres of land. At the same term of court a new trial was granted Mayer & Schmidt, but refused the Wootens, and the case stood for trial between the Wootens and Mayer & Schmidt on their warranty. At the February term, 1906, Mrs. N. E. McCrary intervened in the suit, alleging that, after the filing of the suit, the north half of the land had been conveyed by Wooten to J. G. Towns and wife, who had sold it to J. D. Smyre, and that the last named and his wife had sold the land to the intervener. She asked that Towns and Smyre be made parties, and that she have a judgment against them on their warranty. Special issues were submitted, by the court, to the jury, and on the answers thereto the court rendered judgment that all the parties were indebted to Mrs. McCrary on the breach of their several "Warranties for the proportional part of the purchase price they sold the land for that the land to which the title failed bears to the whole tract conveyed by their said deeds, the amounts being found as follows: Mayer & Schmidt, $382.74; heirs of W. F. Wooten, $400; Towns, $413.76; Smyre, $496.44—with interest on all said amounts at 6 per cent. from October 14, 1905. The parties are made to recover against each other on the several warranties." It was provided that, when Mrs. McCrary "shall have collected from each of all said parties the sum of $496.44, with interest thereon at 6 per cent. from the 14th day of October, 1905, and her costs in this suit, then this judgment shall be fully satisfied as to her." It was further decreed: "That J. G. Towns do have and recover of and from Mayer & Schmidt, the said heirs of W. F. Wooten being insolvent, the sum of $382.74, with interest thereon at 6 per cent. from the 14th day of October, 1905, and all costs of suit, and that he have his execution. But in the event said Mayer & Schmidt shall pay to said N. E. McCrary the said $382.74, with interest at 6 per cent. from the 14th day of October, 1905, she recover against them, then such payment shall have the effect to satisfy the judgment of Towns against them, save and except as to the costs of this suit. It is further ordered, adjudged, and decreed that the said heirs of Wm. F. Wooten, hereinbefore named, do have and recover of and from said Mayer & Schmidt all costs in this behalf expended, including all costs from the first filing of this suit by Sallie Malone to the final termination of this suit."

Appellants were the original warrantors of the title to the land, and when it failed they were liable primarily for the purchase money, and we do not think the court abused its discretion in assessing all the costs against them. If their warranty had not failed, the suit would not have arisen, and they should be held liable for all the evil results arising from the failure of their warranty. The last warrantor had the right to recover purchase money and costs from his immediate warrantor, and so on back to the original warrantor, who would, of course, have to pay the costs of the suit incurred by the person to whom he had warranted, which would be all costs incurred in the suit. Appellate courts will not reverse the ruling of the trial court as to costs, a matter confided to its discretion, unless it plainly appears from the record that such discretion has been abused. Jones v. Ford, 60 Tex. 132; Cox v. Patten (Tex. Civ. App.) 66 S. W. 64: Railway v. Davis (Tex. Civ. App.) 66 S. W. 598. Let us illustrate as to the propriety of assessing costs as they were assessed. A. sells land to B., with his warranty. B. sells to C., with his warranty. The title fails. C. sues B. and A. on their warranties, or sues B., and he has A. made a party. C. recovers against B. for his purchase money and costs of court. Now, in order to make him whole, what should he recover of A.? Why, the amount of his purchase money, together with all costs he is compelled to pay C. Suppose B. and C. should unite in a suit against A. on his warranty, as they could do, would they not recover all costs incurred in the suit? He is the primary cause of all the costs, and he should answer for all of them.

Appellant cites two cases (Crain v. Wright, 60 Tex. 515, and Kirby v. Estill, 75 Tex. 485, 12 S. W. 807), to show that the costs should not have been assessed against him, but they do not touch on the question of costs in any manner, shape, or form. In the case of Crain v. Wright, the only questions raised are those of service and the liability of heirs on the warranty of their ancestors when they have received no property from the ancestor. In the case of Kirby v. Estill, it was decided that warrantors may be made defendants in an action of trespass to try title, if it does not unreasonably delay the trial; that it was error to charge that a part owner of a land certificate could locate his share therein for his own, and that a charge defective in form, but indicating a material issue, when requested, operates as a request to charge upon the issue. The question of costs is not remotely hinted at in either of the cases.

The court allowed interest on the amount recovered from the warrantors from October 14, 1905, the date on which the Malones recovered the land from the Wootens. The propriety of that action is fully demonstrated by the decisions in the cases of Brown v. Hearon, 66 Tex. 63, 17 S. W. 395, and Boone v. Knox, 80 Tex. 642, 16 S. W. 448, 26 Am. St. Rep. 767, which are cited by appellants to sustain their proposition that the court erred in allowing the interest. The Malones could have recovered rent for the land from the Wootens at least from the time of the judgment of eviction, and from that time interest would be recoverable from the warrantors, Mayer & Schmidt. As quoted from Sutherland on Damages, in Brown v. Hearon: "In case of eviction by the owner of the superior title, he is entitled to recover mesne profits for such period as is allowed by the statutes of limitation. For this period the grantee is treated as not enjoying the granted premises by virtue of the grant; and for the time he is so liable, as well as for the time succeeding actual eviction, or the fact which is treated as equivalent thereto, interest is recoverable on the principal of the damages allowed. Whenever the circumstances are such as to preclude any recovery for mesne profits, interest will not be allowed until eviction." The circumstances were not such as to preclude recovery of rents for the land for more time than the interest was allowed. Appellants have no cause to complain because the facts indicate that rents could have been recovered from the Wootens for a time before the judgment of eviction was rendered. If they were liable for the rent, appellants are liable for the interest.

Whether W. F. Wooten knew that a part of the land was in the inclosure of Malone when he purchased it, or whether Mayer & Schmidt told him of that fact or not, were immaterial issues; but the submission of them to the jury could not possibly have injured appellants. The title to the land had failed, and appellants were liable on their warranty, whether Wooten knew, or was told by appellants, that part of it was fenced by the Malones.

There was no testimony offered by appellants as to the consideration they received from Wooten for the land, and the only evidence on the subject was that of Mrs. Wooten that a house and lot and $300 was given for the land, the recitation in the deed of a consideration of $600 cash paid, and notes for $300. It was shown by the testimony of witness Meeks that he gave $650 to appellants for the house and lot, as soon as they got it, and...