59 Tex. 41 | Tex. | 1883
This is a suit upon the covenants contained in a deed of conveyance.
In the original petition the covenant of warranty alone is relied on. It is alleged that Paul, the vendor, in his- deed, did covenant, for himself, his heirs and assigns, to warrant the title to Jones and his heirs and assigns.
The breach assigned is that at that time Paul was not lawfully-seized of the land, but that “ one Hanrick was the lawful owner thereof;” that neither the vendor nor his heirs, though often requested, have warranted or defended the title, but that it is still in Hanrick, who is holding adversely to plaintiffs.
It is further alleged that neither the vendor nor the vendee, nor any one else, has ever been in the actual possession of the land. There is no averment that Hanrick had ever asserted any title adversely to that which was held by plaintiffs. The sole cause of action was that Paul had conveyed to Jones with warranty, and that there was, at the time, a superior title outstanding in Hanrick.
Upon these allegations we do not think that plaintiffs could maintain their suit upon the warranty. In former times a vendee could not sue upon his warranty unless he had been actually evicted by one claiming under a paramount title. How, however, the law in this respect is not so strict. If a paramount title is positively asserted against the vendee, he is not required to make an unavailing and useless resistance against a claim of title which is manifestly superior and must prevail.
Under such circumstances he may give up the land to. the claimant, and resort to his warranty. But this ouster in pais (as it is called) does not amount to an eviction unless the superior title has been hostilely asserted. Rawle, Cov., 4th ed., p. 148.
The possession of the vendee under the title which he acquired with the warranty is not disturbed by the mere existence of-the superior title; and he has no right to presume that it will be disturbed until he actually feels its pressure upon him. Moore v. Vail, 17 Ill., 190; Rawle, pp. 149-50, note.
This rule presupposes that the vendee has taken possession of the land and has suffered an eviction, either actual or constructive. When, however, the vendee has not taken possession, the same author lays down the following rule as best supported by reason and authority : “ When, at the time of the conveyance, the grantee finds the premises in possession of one claiming under a paramount title, the covenant for quiet enjoyment or of warranty will be held to be broken without any other act on the part of either the grantee or
It is true that in this country the real owner of land is said to be seized of the land, and constructively in possession, so that he may treat an unauthorized entry by another person as a trespass. Whitehead v. Foley, 28 Tex., 268. But inasmuch as the mere existence of a superior title in the real owner does not work an eviction of a covenantee who has entered upon the land, we hardly see how it can evict one wrho has received a conveyance with warranty, but has made no actual entry. Our opinion, therefore, is that the statute of limitations did not commence to run against the plaintiffs until there was actual possession of the land under the superior title. And we think this would be so, notwithstanding the fact that the deed from Paul to Jones contained a covenant of seizin as well as of warranty, and that the former covenant was broken as soon as made. Westrope v. Chambers, 51 Tex., 187. But the amendment which was tiled November 13,1877, does allege an actual possession under the superior title, and notwithstanding the vagueness of its allegations, we think that it sets forth a substantial cause of action. There was a special demurrer to this amendment because it did not show when the adverse possession commenced. This demurrer should have-been sustained. As the case is. now presented in the record, the. suit appears to have been prematurely brought, and perhaps the plaintiffs might be taxed with the costs of the suit up to the filing of the last amendment. Kirkland v. Little, 41 Tex., 456. But we think that the court erred in sustaining the general demurrer, "which set up as a defense the statute of limitations. Our opinion is that the judgment should be reversed and the cause remanded.
Reversed and remanded.
[Opinion approved February 26, 1883.]
