White v. Williams

• Decision Date: 01 January 1855
• Citation: White v. Williams, 13 Tex. 258 (Tex. 1855)
• Parties: SAMUEL A. AND SUSAN A. WHITE v. THOMAS R. WILLIAMS AND ANOTHER.
• Court: Texas Supreme Court

13 Tex. 258

SAMUEL A. AND SUSAN A. WHITE

v.THOMAS R. WILLIAMS AND ANOTHER.

Supreme Court of Texas.

1855.

Appeal from Victoria.Action of trespass to try title by Thomas R. Williams and Benjamin Irby against Leonard C. Cushman.The plaintiffs alleged that the defendant was in possession of the land, claiming it by title paramount to the title of Samuel A. White and Susan A. White, from whom plaintiffs purchased by deed of general warranty, and they therefore prayed that said Samuel A. and Susan A. might be cited to appear and defend the title, or in case of failure to sustain said title, that plaintiffs have judgment against them on the warranty, &c.Samuel A. and Susan A. White appeared, confessed the warranty, and alleged that they were informed and believed that from the ill-advised and unskillful manner in which the said plaintiffs had prosecuted their remedy, “and more especially that they have admitted the possession of an adversary under a paramount title, that they, the said plaintiffs, will fail in their suit and thereby involve the said defendants in a greater liability and more costs and trouble than the amount of the demand of the said plaintiffs in warranty, wherefore the said defendants confess that they cannot defend,” &c.; offer to confess judgment for the amount of the purchase money ($2,400) and interest, and pray a reconveyance of the land, “and that the cause entitled Williams and Irby v. Cushman be dismissed at plaintiffs' costs.”And for further answer in this behalf, the said plaintiffs plead in reconvention and say that the said Williams and Irby are confederating and colluding with the said L. C. Cushman to defraud and injure the said defendants by a malicious combination to make a pretended breach of the said covenant of warranty, for they say that the said Williams and Irby have acknowledged falsely an adverse possession in the said Cushman under a paramount title, and have brought this pretended action to recover a possession which they lost by their own election, and to overcome a pretended title in the said Cushman which had no existence, which combinations and collusions, false pretenses and admissions are contrary to equity and good conscience, and to the damage of the said defendants in the sum of four thousand dollars; for the defendants further allege that the said Williams and Irby were in fact in the possession of the said land at the time of making said admissions by virtue of patents from and under the State of Texas, derived from and through the said defendants in warranty, and that the said plaintiffs, Williams and Irby, intending to endanger and defraud the said defendants, acknowledged the occasional trespasses of the said Cushman, without any title whatsoever to himself, to be an actual possession under paramount title; prayer for judgment for the $4,000 damages, and that it set off against the amount confessed on the warranty, and for general relief.Same term, entry of “come the plaintiffs by the attorneys and dismiss their suit;” judgment in favor of Cushman against Williams and Irby for costs.Same term Samuel A. and Susan A. White moved to reinstate the case as to them, which motion was overruled, and said Whites appealed.

S. A. White, for appellants.The appellants have appealed more for the purpose of knowing how they are to be affected by the proceedings of the plaintiffs than for what they are injured by them.This, however, depends on the effect to be given to these proceedings, both with relation to plaintiffs and defendants.

This dismissal has all the features of a retraxit, which was a positive voluntary act of the plaintiff, and had the effect of a judgment on the merits, which might be pleaded in bar to another action.It is true it had not the technical language of a retraxit; but the reasons which prompted it, and the circumstances under which it was done, would have required that rule, and would have given the defendants the advantage of it, as a bar to another action.This might have been relied on, but that it was uncertain how far our courts would...