Saunders v. Flanniken

• Decision Date: 17 June 1890
• Citation: Saunders v. Flanniken, 14 S.W. 236 (Tex. 1890)
• Parties: SAUNDERS <I>et al.</I> v. FLANNIKEN <I>et al.</I>
• Court: Texas Supreme Court

14 S.W. 236

SAUNDERS et al. v.FLANNIKEN et al.

Supreme Court of Texas.

June 17, 1890.

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

X. B. Saunders, for appellants.Geo. W. Tyler, for appellees.

ACKER, J.

X. B. Saunders and J. S. Allen conveyed by warranty deed to Berry and Booth 212 acres of land for the consideration of $637.50, one-half cash, and the balance to be paid at one year, for which they executed their promissory note.Saunders and Allen transferred the note to H. C. Denny, who brought suit on it, foreclosed the vendor's lien, and bought the land at sheriff's sale for $150.Denny sold and conveyed the land by quitclaim deed to D. Flanniken and J. W. Moffett, for the consideration of $500.W. J. Neal et al. brought this suit against Flanniken and Moffett, who had taken possession of the land under their deed from Denny, and they impleaded Saunders and Allen as warrantors to Berry and Booth.The trial by jury resulted in judgment against Flanniken and Moffett for five-sixths of the land, and in their favor, against Saunders and Allen, for five-sixths of the purchase money paid by them to Denny, from which Saunders and Allen appealed.On a former trial in the court below the court charged the jury to find in favor of Saunders and Allen, on their covenant of warranty to Berry and Booth, upon the theory that the covenant of warranty did not pass by the sheriff's deed to Denny, or Denny's quitclaim deed to Flanniken and Moffett.The verdict was returned accordingly, upon which judgment was rendered, and Flanniken and Moffett appealed.In disposing of that appeal the supreme court held that the covenant of warranty passed by both the sheriff's deed and the quitclaim deed, and reversed and remanded the case.67 Tex. 633, 4 S. W. Rep. 212.On the trial which resulted in the judgment from which this appeal is prosecuted, Saunders and Allen pleaded that Flanniken and Moffett expressly waived a warranty when they purchased the land, and bought only the chance of title.The court instructed the jury to find for Flanniken and Moffett one-sixth of the land, and in their favor, against Saunders and Allen, for such amount as the evidence showed that they had paid Denny for the land, with interest at 8 per cent. from the time of payment.It is contended that the court erred in this charge, because the evidence showed that in any event Flanniken and Moffett were entitled to recover one-sixth of the land, and to that extent were not...