Simpson v. Belvin , 37 Tex. 674 ( 1873 )

Ogden, J.

In 1864, Asa Mitchell instituted this suit against the appellant as the guardian of the minor heirs of G. P. Post, deceased, upon a covenant of warranty in the sale of a certain lot of land in the city of San Antonio. Mitchell having died in 1865, the appellees, as his executors, were made parties. The pleadings are somewhat voluminous, covering almost every possible question in favor of, and against the cause of action, and the mariner and form in which the claim was prosecuted until December, 1871, when a judgment was rendered for the plaintiffs, and the defendant has appealed. We do not think it necessary to notice in this opinion all the questions discussed in the very able briefs of counsel for both appellant and appellees, but only such as are directly raised in the assignments of error, and which may be deemed necessary to the proper disposition of the case.

It appears from the statement of facts, that Mitchell purchased of G. P. Post a lot of land in the city of San Antonio, who executed a deed with covenants of warranty for the same; that Mitchell was subsequently evicted from one-half of the lot, by a judgment of the District Court, which was affirmed by this court. It also appears, that Mitchell recovered from the city of San Antonio a certain sum of money for a portion of the lot, taken by the city to widen a street, and' appellant claims a credit or offset against the appellees’ demand on account of, this sum paid by the city to Mitchell; and this demand embraces the first assignment of errors, for this claim was, by the court below, on motion by plaintiffs, stricken from defendant’s answer. Mitchell purchased, and paid for the whole lot, and was evicted from one-half, while he retained one-half as his, and he claims no damage by reason of failure of title in that portion of the lot. He might, therefore,- sell to the city or other party any portion of this half at pleasure, without being compelled to account to any one, and especially appellant, for the proceeds or any part thereof; and it is in proof that Mitchell had been evicted from the other half, because neither he nor his vendor had any title to the same. If, therefore, neither appellant nor the ancestor of his wards ever had any title to the one-half of the lot, we are at a loss to understand by what rule of. law or equity he should now be entitled to any part of the proceeds of the sale of that one-half, or any part thereof. It is wholly immaterial, so far as his rights are concerned, whether Mitchell received one-half or the full amount paid by the city. We think the court did not err in sustaining the motion to strike out that part of the original and amended answer which claimed an offset.

The plaintiffs below alleged in an amended petition, that the defendant, as guardian, had received from the estate of Post, deceased, property and effects valued at twenty thousand dollars, and the object of this suit was to subject that property to the payment of the damages sustained by reason of the breach of the covenant of warranty ; and it is wholly immaterial of what that property consists, provided it came from the estate of Gr. P. Post, deceased, and was subject to all the demands against that estate. If that property is not liable to pay this demand, then it is in the power of the guardian to protect it whenever a demand is made by the sheriff for property to satisfy any judgment which may be rendered in this case.

There is no error in the fourth and fifth charges of the court to the jury. They very properly withdrew from the jury questions of law, and present the material questions of fact in a very concise and lucid manner. The fifth charge is as follows: “ If, then, you believe from the evidence that Mitchell was “ evicted from one-half of the lot sold to him by Post in his “ lifetime, then you will find for the plaintiffs, and your verdict “ shall be for one-half of the consideration you believe to have “ been paid by Mitchell to Post, together with interest on said “ amount from the date of the deed to the present date, at the “ rate of eight per cent, per annum, and all the legal costs of “ the said suit against Mitchell evicting him from said lot.” There has been much controversy among jurists in regard to the true rule for the measure of damages in cases like the one at bar, the history of which would be more interesting to the student than useful in an opinion at this day; but it is believed, that nearly all the later authorities sanction the doctrine announced in the charge of the court. (See Rawle on Covenants for Title, page 319 et seq., and the authorities there cited; Paschal’s Digest, Note 425; and Sedgwick on the Measure of Damages, page 167.) It is contended for appellant, that interest should not have been computed, only from eviction. But it should be remembered that appellant never had any right or title to the one-half of the lot, and yet he has had the use of the purchase-money for years, while appellees have lost the use of that money, and now lose the land, and are liable to the evictor for the value of the mesne profits. Certainly the rule as claimed for appellant is not in this case equity, and we are not inclined to regard it as law.

A party who goes into possession of land under a warranty in his title, and is evicted in a suit on the covenant of warranty, has only to prove the eviction by a court of competent jurisdiction (Rawle on Covenants for Title, 324); and therefore the court did not err in refusing the instructions asked by the defendant below.

This suit was brought against I. P. Simpson as guardian of minor heirs, in which capacity he is charged with receiving twenty thousand dollars from the estate of G. P. Post. He accepted service and waived process. This gave the court full jurisdiction, over the minors and the estate they inherited, which would not be ousted by the simple fact that one or more of the minor heirs have reached their majority, unless such heir should come in and claim the right to defend the suit ■ in his own name; or unless the guardian should allege, and prove to the satisfaction of the court, that he was no longer guardian, and that the estate of his former wards had passed out of his hands. It is true, that as a general rule, the office of guardian ceases whenever the ward reaches his majority; but this rule has its exceptions, and one is where the guardian has not settled up the estate, and turned it over to the proper owner; and until lie has done that, he may be treated as guardian still, and his securities as such may be held responsible for the faithful discharge of his duties, notwithstanding his Ward has become of age. So far as the court below were informed, the appellant still holds the entire estate of G. P. Post in his hands, and if his guardianship had ceased, yet he might be held to answer this demand as trustee, at least so far as assets were found in his hands. The judgment is against I. P. Simpson, as guardian, etc., to be satisfied out of said wards’ estate, for the payment of which an order may be issued to the guardian, I. P. Simpson. The decree affects no interest excepting the estate of G. P. Post, in the hands of the guardian, Simpson, and we are unable to appreciate his complaint in that respect. The judgment is affirmed.

Affirmed.