Monks v. McGrady , 71 Tex. 134 ( 1888 )

Walker, Associate Justice.

Whatever right McGrady had to call Monks into the suit by McRae was based upon the allegation that Monks was his warrantor for the land in controversy. McGrady alleged that his deed from Monks had been tampered with so as not to contain the contract between them as to the warranty, asserting that the restricting words had been added without his knowledge. Monks denied this, insisting that the deed, when executed, had the restricting clause to the warranty and that its terms were understood by the parties. Whether this proceeding on the part of McGrady was to avail himself of his right to make his alleged warrantor a party (Rev. Stats., 4788), or was an effort to have the instrument reformed so as to express the actual contract between him arid his vendor, it is clear that the matter in issue was the inquiry whether the qualifying words formed part of the deed when, it was executed. The judgment of the court that McGrady take nothing and that Monks recover his costs was an adjudication of this matter between the parties.

This suit, brought by McGrady against Monks, in its results, depends upon whether the limited warranty was in fact in the deed. The court submitted it as a controlling fact to the jury, but refused to submit the plea of former judgment upon the issue, although pleaded and there was evidence supporting it.

Whether the deed had in it a general warranty or not was distinctly in issue in both suits; the same testimony for and against was used, and would be necessary to sustain or defeat the action or defense; the cause of action, the liability of Monks for the defective title was the same; the former trial was upon its merits. These facte meet all the ordinary tests requisite to judgment estoppels. (Freeman on Judgments, 256. 259; 63 Texas, 607; 48 Texas, 508; 20 Texas, 791; 4 Texas, 101.)

It was error to refuse the instruction asked by defendant as to the effect of the former judgment. The trial amendment was sufficiently specific to show a cause of action. What means of knowledge McGrady had and whether he was deceived was a matter of defense. If the deed, when executed, had in it the general warranty the right to recover would result upon the failure of title. The judgment in the former suit bound all parties to the suit. If the deed was only a special warranty no liability followed the judgment against McGrady for the land.

Where it is sought to rectify a deed for mistake or fraud the evidence must be clear and satisfactory. (Adams’s Equity, 168 and cases; 52 Texas, 139; 47 Texas, 28; 27 Texas, 234, and cases cited, and 57 Texas, 238.) It is questionable whether the testimony in the record to the alleged alteration is satisfactory. McGrady and Monks contradict each other while the only other witness present can give no help, remembering nothing on the matter in dispute.

For the error above noted the judgment is reversed and cause remanded.

Reversed and remanded.

Opinion delivered May 22, 1888.