Turner v. Miller

• Decision Date: 01 January 1874
• Citation: 42 Tex. 418
• Parties: GEORGE S. TURNER AND OTHERS v. C. MILLER.
• Court: Texas Supreme Court

42 Tex. 418

GEORGE S. TURNER AND OTHERS

v.C. MILLER.

Supreme Court of Texas.

1874.

ERROR from Colorado. Tried below before the Hon. Livingston Lindsay.

Suit by Miller against the heirs of Turner, on a broken covenant of warranty, in which he recovered from the heirs the sum of money paid, with interest, and the fees paid by Miller to his attorney, to defend the suit brought against him for the land. The only point in controversy was as to the liability of the warrantor for attorney's fees paid by the vendee to defend the title.(No briefs have reached reporter for plaintiffs in error.)

Foord, Thompson & McCormick, for defendant in error.

ROBERTS, C. J.

This case is brought up as an “agreed case” under the statute, presenting one question, which is, what is the measure of damages in a suit upon a general warranty of title to land, after an eviction of the vendee, by superior title, maintained in a suit against the vendee. (Paschal's Digest, Article 1516.)

The judgment was rendered upon, and in accordance with the following verdict: “We, the jury, find for the plaintiff the sum of five hundred and fifty-four dollars and twenty-four cents in gold, amount of purchase-money and cost due, and the further sum of one hundred and six dollars, gold, attorney's fees paid by him.”

In the agreement it is stated that “the precise point now presented to the Hon. Supreme Court is as to the liability of defendants in this action for attorney's fees expended by plaintiff, in the said suit of Key and wife above-named;” it being the suit in which the plaintiff, as vendee, was evicted. The vendee upon being sued in the last-mentioned suit, did not give notice of it to his vendor. This, however, has not been held to make any difference as to the measure of damages, but only as to the conclusive effect of the judgment of eviction, as matter of evidence. (Rawle on Cov. for Title, p.123. Note 2 Harrison, N. Y. Rep., 309.)

From the authority cited it would appear that attorney's fees taxed as costs of the suit are allowed in England, and also in America in those States generally where attorney's fees are taxed as costs.

As to the allowance of counsel's fees, not taxed, there is a difference of decision in different States. In New York, and other States following its precedents, they are allowed as damages. In Massachusetts, and other States following its precedents, they are not allowed.

(Rickert v. Snyder, 9 Wendell's R., 422. Contra; Leffingwell et al. v. Elliott, 10 Pick., 204; Sedg. on Damg. Marg., p. 174; Rawle on Cov. of Title, 121-125.)

The rule has been laid down in covenants for title in this State, that upon failure of title the measure of damages is the purchase-money, with interest.

(Garrett v. Gaines, 6 Texas, 443;Hall v. York, 22 Texas, 643.)

In a case decided by this court, where there was a general warranty, and an eviction by suit, the vendee claimed and recovered counsel fees upon a special promise that the vendor would bear the expense of litigation, if the vendee would defend the suit, which he did, and failed by reason of a superior title. (Rowe v. Heath, 23 Texas, 620.)

In sustaining that case, Justice Wheeler in delivering the opinion, incidentally remarked: “And it seems from the authorities that he was so entitled (to recover the attorney's fees) without proving any contract or express promise to that effect, the more especially as he made defense at the instance of the grantor. (Rawle on Covenants, 121-125.)” The case, however, was not decided on that intimation, but...