Sievert v. Underwood

• Decision Date: 07 January 1910
• Citation: 124 S.W. 721
• Parties: SIEVERT et al. v. UNDERWOOD.
• Court: Texas Court of Appeals

124 S.W. 721

SIEVERT et al. v. UNDERWOOD.

Court of Civil Appeals of Texas.

January 7, 1910.

Rehearing Denied February 3, 1910.

Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge.

Suit by J. W. Underwood against Frank Sievert and others. A part of the defendants were dismissed from the suit, and from a judgment for plaintiffs, Sievert and another, the remaining defendants, appeal. Affirmed.

Eugene A. Wilson and M. S. Duffie, for appellants. A. D. Lipscomb, for appellee.

REESE, J.

J. W. Underwood brings this suit in the district court against Frank Sievert and B. R. Norvell, administrator, and also the heirs of William Day, to recover upon covenants of warranty of title in the sale and conveyance of certain land by said Sievert and Day to S. M. Scott, and by said Scott to said Underwood. The amount sued for is $834, with interest at 6 per cent. per annum from March 9, 1899. The heirs of Day were dismissed from the suit. Sievert and Norvell, administrator, by their amended answer excepted to the petition, on the ground that it appeared from the allegations thereof that plaintiff's claim was barred by the statute of limitation. Defendants further pleaded the general issue and the statute of limitation of four years in bar of the action. The exceptions were overruled, and upon trial without a jury there was a judgment for plaintiff for $959, from which this appeal is prosecuted.

The evidence was sufficient to establish the liability of defendants for the amount of the judgment. Upon the issue of the statute of limitation, which is practically the only ground relied upon on this appeal, the evidence, which was undisputed, established that on March 9, 1899, H. L. Humphrey employed J. N. Votaw and J. D. Martin to bring suit to recover a tract of 900 acres of land, part of the D. Choate survey, entering into a written contract to convey to them one-fourth of whatever land might be recovered in such litigation. The said 900 acres of land included 139 acres of the land which had been sold by Sievert and Day to Scott, and by Scott to appellee, the covenants of warranty in which sale was the basis of the suit. On March 7, 1899, H. L. Humphrey, by his said attorneys, instituted suit against J. W. Underwood, Frank Sievert, and W. M. Day and other defendants for said 900 acres of land. On May 1, 1901, J. N. Votaw and J. D. Martin executed a certain contract in writing as set out their said contract with Humphrey, and the filing of the suit, and whereby, in consideration of the payment to them of $1,350 by J. W. Underwood, they covenanted and agreed with him that if said suit was successful in behalf of plaintiff Humphrey, they would "see that the decree taken sets aside to said Underwood, as part of our undivided interest therein, an amount of said land equal in acreage to the amount of said 900 acres, which is included in the N. ½ of subdivision No. 12 of the said D. Choate league, being about 135 acres more or less," which was the land sold to Underwood, included in said tract sued for. This suit of Humphrey against Underwood, Sievert, and Day, upon trial in the district court, was decided in favor of defendants, but upon appeal to this court this judgment was reversed and judgment rendered in favor of plaintiff Humphrey. However, upon receipt of the mandate by the district court it appears that, by reason of the agreement between Votaw and Martin and Underwood, a decree was rendered protecting Underwood's title to his 139 acres. The judgment of the Court of Civil Appeals was rendered January 4, 1906, and the judgment of the district court above referred to on April 21, 1906. The original petition in the present suit was filed May 4, 1907, and with reference to the matter referred to, contained the following allegations: "That on or about the 7th day of March, 1899, said H. L. Humphrey, through his said attorneys, filed suit against this said plaintiff and others for the said 900 acres of land, and this plaintiff, then believing or fearing the title of the said H. L. Humphrey to be...