Waggoner v. Dodson

• Decision Date: 23 October 1902
• Citation: 69 S.W. 993
• Parties: WAGGONER v. DODSON et al.
• Court: Texas Supreme Court

69 S.W. 993

WAGGONER v. DODSON et al.

Supreme Court of Texas.

October 23, 1902.

Certificate of dissent from court of civil appeals of Second supreme judicial district.

Action by W. T. Waggoner against M. Dodson and others. On certificate of dissent from court of civil appeals.

For prior opinion, see 68 S. W. 813.

W. W. Flood, for appellant. J. T. Montgomery and J. H. Barwise, Jr., for appellees.

GAINES, C. J.

This case comes to us from the court of civil appeals of the Second supreme judicial district upon a certificate of dissent. The opinion of the majority of the court makes the following statement of the case and of the point upon which the judges failed to agree: "This suit was brought by W. T. Waggoner against Ashby S. James, N. Henderson, J. A. Kemp, and M. and A. F. Dodson to recover a survey of 320 acres of land in Wichita county. The legal title to the land was in Waggoner, but because the jury, in response to special issues submitted to them, found, in effect, not only that he had estopped himself from asserting his title, but also that the defendants, in the order named, had successively purchased the land in good faith without notice of the unrecorded deed through which Waggoner deraigned title, judgment went against him. James, however, filed no answer, and the court consequently gave Waggoner judgment against him. The Dodsons, who were the defendants in possession, besides pleading in defense of the action the general issue, sought a recovery over both on the warranty in the deed from Kemp to them and on the warranty in the deed from Henderson to Kemp, alleging the consideration for the Kemp warranty to be $1,600, besides interest, and the consideration for the Henderson warranty to be $1,400, besides interest. Kemp adopted the answer of the Dodsons, and in addition asked a recovery against Henderson on his warranty in the event of a recovery by the Dodsons against himself. Henderson, besides plea of not guilty in answer to the petition of Waggoner and plea over on the warranty of James, replied to the cross-action of Kemp with a general denial and the following special answer, which, however, as counsel for plaintiff in error insists, was not verified: `For further and special answer herein this defendant says that although he did, as alleged, execute to the said J. A. Kemp the said deed, but that the real transaction between the said Kemp and this defendant was that said Henderson was to purchase the said land for the said J. A. Kemp, and that this defendant had no other or further interest in said land other than to acquire the title thereto for the said Kemp, and to receive a portion of the net profits of said transaction as compensation for his services, and this defendant never in fact received any consideration for the execution of said conveyances, and of this he is ready to verify.' These were all the pleadings. In impaneling the jury, as shown by bill of exceptions, the defendants insisted that they were `entitled to twelve peremptory challenges, saying that there was contest between' them. This was denied by counsel for plaintiff, who protested against allowing them the number of challenges claimed. Over this protest the twelve peremptory challenges were thus allowed, as explained by the judge in approving the bill of exceptions: `I allowed Kemp and Dodson six peremptory challenges, and defendant N. Henderson six.' To this action the first error is assigned, and the assignment, we think, must be sustained." The dissenting opinion sets out the bill of exceptions, which is as follows: "Be it remembered that during the impaneling of the jury in the above entitled cause the defendants herein insisted that they would be entitled to twelve peremptory challenges, saying that there was contest between the defendants in this cause. Whereupon the attorney for the plaintiff in this behalf stated that there could be no...