26 Tex. 381 | Tex. | 1862
The deed from Pratt to the plaintiffs, the heirs of Kelso, of the 29th of January, 1855, was made in pursuance of the title bond of Pratt to Kelso, of the 5th of November, 1850. The covenant of warranty in the deed had reference to the state of the title at the date of the bond. It cannot be construed as an undertaking on the part of Pratt to be accountable for the acts or omissions of Kelso, after that date, by which he may have parted with the title. It was not the fault of Pratt that the land was sold to satisfy the judgment against Kelso for the purchase money for the land, which the latter had failed to pay. It was the fault of Kelso—the consequence of his failure to pay the purchase money.' Pratt can no more be held responsible to the heirs of Kelso for the sale of the land by the sheriff to satisfy the judgment against Kelso, than he could be for a sale of the land by Kelso himself. 1
It is not in proof that Pratt pointed out the land to the sheriff. But if he did, it was no evidence of an intention to take advantage of the failure of Kelso to perform the contract in order to disavow it and reclaim the land, but the contrary. It was in order to cause the land, as the property of Kelso, to be sold to satisfy a judgment in which Kelso was the principal debtor and he the surety. As surety of Kelso in the judgment, he had a right thus to protect himself by causing the property of the principal debtor to be taken in satisfaction of the debt.
We think it clear, that upon the case as presented, the plaintiffs have no right of action; and it is therefore unnecessary to inquire whether the judgment in the ejectment suit was rightly rendered against these plaintifls, or whether the rulings of the court exhibited by the record in this case were correct. The result could not legally have been different.
The judgment is affirmed.
Judgment affirmed.
