Ross v. Sechrist

• Decision Date: 10 December 1924
• Docket Number: (No. 6821.)
• Citation: 275 S.W. 287
• Parties: ROSS v. SECHRIST et al.
• Court: Texas Court of Appeals

275 S.W. 287

ROSS v. SECHRIST et al.

(No. 6821.)

Court of Civil Appeals of Texas. Austin.

December 10, 1924.

Error from District Court, Erath County: J. B. Keith, Judge.

Actions by W. F. Anderson in trespass to try title against J. L. Sechrist and wife, and by J. F. Sechrist for breach of warranty of title against A. R. Ross, consolidated. From that part of the judgment in favor of plaintiff last named, defendant last named brings error. Reversed and remanded for new trial.

Chandler & Pannill, of Stephenville, for plaintiff in error.

R. L. Thompson, of Stephenville, for defendant in error Anderson.

BLAIR, J.

On the ___ day of November, 1922, W. F. Anderson filed suit against J. L. Sechrist and his wife, Mattie Sechrist, in trespass to try title for about 12½ acres of land out of the J. Tarbox survey in Erath county, Tex. By a second count he sued to set aside a certain deed executed by A. R. Ross to J. L. Sechrist, conveying said 12½ acres of land, alleging that he purchased the land at a sheriff's sale under a foreclosure proceeding of certain vendor's lien notes against the land, and that the purported conveyance from Ross to Sechrist passed no interest in the land, and the deed constituted a cloud upon his (Anderson's) title to the land. Ross was not made a party to this suit by citation.

After the institution of the above suit by Anderson against Sechrist and his wife, Sechrist filed a separate suit in the same court against A. R. Ross, alleging that Ross conveyed him 18½ acres of land out of the J. Tarbox survey, being the same land in controversy in the Anderson suit against him, and for which he paid Ross, in exchange of property, $2,000, Ross warranting the title thereto; that Ross breached his warranty, in that there were outstanding at the time against the land so conveyed certain notes aggregating $1,000, and secured by certain deeds of trust; that the land was sold by a sheriff's deed to W. H. Anderson, in a suit to foreclose the deeds of trust; and that the prayer was for damages in the sum of $2,000.

On February 8, 1923, these two causes were consolidated by order of the court, and on the same day the following judgment was entered in the case as consolidated:

"W. F. Anderson v. J. L. Sechrist. No. 5351. In District Court, Erath County, Tex. December Term, 1922. In re W. F. Anderson v. J. L. Sechrist. J. L. Sechrist v. A. R. Ross. Consolidated Judgment. Be it remembered that on the 8th day of February, 1923, the above entitled and numbered causes of W. F. Anderson v. J. L. Sechrist, No. 5351, and the cause of J. L. Sechrist v. A. R. Ross, No. 5351, on the docket of this court, was on motion of W. F. Anderson, plaintiff in the first cause named, and J. L. Sechrist, plaintiff in the second cause above named, duly consolidated by this court, and it is so ordered.

"Thereafter on the same day the plaintiff W. F. Anderson, and J. L. Sechrist and wife, Mattie Sechrist, came into court and announced ready for trial, and it appearing to the court that the defendant A. R. Ross has been duly and legally cited to appear and answer herein, came not but wholly made default.

"The court after hearing the pleadings read, the evidence and argument of counsel, and said causes being submitted to the court for decision without the aid of a jury, is of the opinion that the following should be, and is here made the judgment of this court.

"(1) It is hereby ordered, adjudged, and decreed that the plaintiff W. F. Anderson do have and recover of and from the defendants J. L. Sechrist and wife, Mattie Sechrist, all right, title, and interest in and to that certain tract and parcel of land described in plaintiff's petition, and which is here designated as follows: 12½ acres of land situated in Erath county, Tex., part of the J. Tarbox survey of 640 acres out of the northeast corner thereof described as beginning at the northeast corner of said Tarbox survey; thence with the north line of said survey to the east side of the Stephenville and Gordon public road; thence in a southeast direction with the east side of said road to the east line of said survey for corner; thence north with said east line to the place of beginning and being the same land and premises and improvements thereon conveyed to J. F. Crawford, by J. A. Conger et ux., in deed recorded in volume 135, page 186, Erath County Deed Records, and being the same premises sold at sheriff's sale by John Wright, sheriff of Erath county, Tex., on the 3d day of October, 1922, and purchased by W. F. Anderson, to each of which instruments reference is hereby made, said tract of land being sometimes described and designated as containing 18½ acres of land. It is adjudged that all the apparent right, claim, and interest owned or claimed in said premises by the defendant J. L. Sechrist, and his wife, Mattie Sechrist, is hereby divested out of them and is hereby vested in this plaintiff without damages as prayed for, except as is specially granted in this judgment. Said plaintiff, W. F. Anderson, is hereby awarded his writ of possession as in such cases is granted by law.

"(2) It is further ordered, adjudged, and decreed that the plaintiff J. L. Sechrist, in his action against the defendant A. R. Ross, recover of and from the said defendant A. R. Ross the sum of $1,250, with interest at 6 per cent. from date of this judgment, as his damages occasioned by reason of the failure of this plaintiff's title in and to the 18½ acres described in his petition, and being the same tract and parcel of land as is described in the first paragraph above in this judgment, and that the said A. R. Ross, because of said failure of title and covenant of warranty, be and he is hereby ordered to respond in damages unto the said J. L. Sechrist for said sum of $1,250, as is adjudged in this paragraph of this judgment, and it is so ordered.

"It is further ordered and decreed that the plaintiff W. F. Anderson recover his costs against the defendants J. L. Sechrist and wife, Mattie Sechrist, and is further ordered and decreed that the said J. L. Sechrist recover his costs in each of said actions against the defendant A. R. Ross, and it is so ordered."

From the judgment rendered against him for damages, A. R. Ross has applied to this court for a writ of error. Defendants in error Sechrist and Anderson move the court to dismiss the writ of error because plaintiff in error did not, in the petition for writ of error, nor in the writ of error bond filed herein, make Mattie Sechrist a defendant in error, and did not in any way attempt to revise, review, or reverse the judgment rendered in favor of Anderson against J. L. Sechrist and his wife Mattie Sechrist, and in favor of J. L. Sechrist against A. R. Ross, plaintiff in error.

Plaintiff in error's petition for the writ of error set forth, in hæc verba, the judgment rendered by the court. It then alleges:

"(1) That said judgment so rendered against the said A. R. Ross, for the sum of $1,250 and costs of court was rendered by default."

"(3) That on account of the many errors herein, as is apparent from the record, your petitioner desires to remove the said judgment to the Court of Civil Appeals for the Second Supreme Judicial District of Texas, at Fort Worth, for revision and correction of the many errors therein."

The prayer is for citation to issue to J. L. Sechrist and W. F. Anderson, but no mention is made of Mattie Sechrist.

The bond for writ of error described the above judgment, and was in due form, and met the requirements of the statutes in every particular. It made defendants in error Anderson and Sechrist obligees. It did not make Mrs. Mattie Sechrist, one of the defendants in Anderson's trespass to try title suit, an obligee. It is in this particular that defendants in error complain in their motion to dismiss the appeal. We do not sustain the motion. The cause of action asserted by Anderson against Sechrist and his wife was in trespass to try title for 12½ acres of land. The cause of action asserted by Sechrist against Ross was for damages for a breach of warranty of title of the same 12½ acres of land sued for by Anderson. Under the statutes and the adjudicated cases, the trial court correctly consolidated these cases.

Article 2182, Revised Statutes, provides:

"Whenever several suits may be pending in the same court, by the same plaintiff, against the same defendant, for causes of action which may be joined, or where several suits are pending in the same court, by the same plaintiff, against several defendants, which may be joined, the court in which the same are pending may, in its discretion, order such suits to be consolidated."

Article 7735, Revised Statutes, reads:

"When a party is sued for lands, the real owner or warrantor may make himself, or may be made, a party defendant in the suit, and shall be entitled to make such defense as if he had been the original defendant in the action."

In this connection the Supreme Court held in the case of Johns v. Hardin, 81 Tex. 40, 16 S. W. 624, that:

"The question raised by the assignment has been decided in this state adversely to appellants in the case of Kirby v. Estill, 75 Tex. 485 , 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...