Johns v. Hardin , 81 Tex. 37 ( 1891 )

Mrs. Johns appealed, and her first assignment of error is:

"The judgment of the court is erroneous in so far as the recovery over by defendant J.G. Hardin against plaintiff in error is concerned, because Hardin, as the vendee of C.R. Johns, deceased, could have no cause of action upon Johns' warranty until eviction, either actual or by judgment of a competent court, or by purchase of his peace. The cross-action of defendant Hardin against plaintiff in error as executrix of C.R. Johns, deceased, was therefore premature, and Hardin had no cause of action until after judgment against him, because he had pleaded not guilty, which was an admission of possession, and was contesting the Du Bose title up to judgment."

The question raised by the assignment has been decided in this State adversely to appellants in the case of Kirby v. Estill, 75 Tex. 485, and the doctrine established that the warrantor can not only be required to defend the title of his warrantee in a suit for the land, but after being so brought in the defendant can plead over against him and recover on the warranty in the same suit if the title fail. The practice seems to have been recognized before. Crain v. Wright, 60 Tex. 515. We can see no good reason why all the issues between the parties can not be settled in one suit. There is no breach, it is true, by the suit until judgment against the title of defendant, but this is the case in all suits where a third party is liable over on an obligation of indemnity. We think the principle established in Kirby v. Estill, supra, is correct, especially under our system of practice, which discourages a multiplicity of suits. But see authorities contra: Andrews v. Denison, 16 N.H. 469; Ferris v. Harshea, 17 Am. Dec., 782; Emerson v. Proprietors, 2 Id., 34.

An actual eviction by process of law in favor of the paramount title is not necessary to the right to sue on the covenant of title (Clark v. Mumford, 62 Tex. 531; Beck v. Hensley, 20 Tex. 673; 2 Wait's Act. and Def., 388, 389), nor is a judgment of ouster required. The vendee may surrender the possession to the owner of the paramount title, or he may buy it in, but in such case to recover he is bound to show that he yielded to the paramount title. It is not necessary that there should be a suit at all, though where there is a suit and judgment against the warrantee, of which the warrantor had due notice, the judgment is evidence of eviction, and if he is cited to defend the suit the judgment is conclusive that the adverse title is paramount. Brown v. Hearon, 66 Tex. 63. This being the case there is no indispensable necessity to wait until judgment in a suit brought to disseize the vendee, but he may in this State make his warrantor a party to defend the title, and plead over against him on the covenant of warranty.

The court below allowed interest from the time of the sale to Hardin by Johns up to the time of judgment, and appellant assigns this as error, because Hardin was by his plea of not guilty confessedly in possession of the land. The measure of damages, where the premises are occupied and no mesne profits are demanded or recoverable by the owner, is the amount paid for the land, but interest is allowed where mesne profits are recovered or may be recovered, and when the land has not been in possession by the vendee, in which case the principal paid for the land and legal interest from the time of payment to the time of judgment on the warranty is the measure of damages. Brown v. Hearon, 66 Tex. 63; Hall v. York,22 Tex. 642; Sutton v. Page, 4 Tex. 141 [4 Tex. 141]; 2 Wait's Act. and Def., 142.

We do not think the plea of not guilty was a confession that defendant was in possession of the land except for the purposes of the suit of trespass to try title. The plea only relieved the plaintiff of proof of actual possession; it did not affect the rights of Mrs. Johns in any way. Rev. Stats., art. 4794; Echols v. McKie, 60 Tex. 41; 66 Tex. 68.

Plaintiff in error complains that the interest was computed at 10 per cent per annum. We find the contrary. The amount of the judgment shows that interest was computed at 8 per cent per annum from the time of payment to the time of judgment.

It is also assigned as error that the cross-action of Hardin could not be commingled with the action of trespass to try title. This is practically the same as the first assignment and need not be again considered.

The fourth assignment is that Hardin's claim was not presented to the executrix for allowance, the estate being still in regular course of administration, and there is error in the judgment because it awards execution generally against plaintiff in error without specifying that it should run solely against the estate of C.R. Johns in her hands as required in an independent executorship and in suits against heirs.

We are not advised by the pleadings as to whether Mrs. Johns was an independent executrix or not. It is therefore a mere abstract question as to whether the claim should be presented for allowance or not in case she was required to administer the estate under the orders of the court. We think it best not to discuss this question in advance of such an issue; the issue may not be made at all. If she was acting as an independent executrix an execution could be ordered to run against any of C.R. Johns' estate in her hands not at the time of his death exempt from execution. If she were in possession as devisee under the will the execution would not run against the specific property received by her, but against her personally for the value of the property so received, not including property exempt from execution at his death. Mayes v. Jones, 62 Tex. 365 [62 Tex. 365].

But it is useless for us to speculate about what might be the condition of things. It is not alleged how she held the property. It is alleged that she was in possession as executrix and devisee. Judgment is against her in both capacities. She could not so hold the estate and ought not to be charged with such possession. Doubtless the facts exist which will render the rights of the parties certain so that a certain judgment can be rendered. The judgment in its double aspect is inconsistent, and as it is can not be affirmed, nor are there sufficient facts before us to enable us to reform it.

Our conclusion is that the judgment should be reversed and the cause remanded.

Reversed and remanded.

Adopted May 12, 1891.