Heirs v. Heirs
59 Tex. 41
Tex.
1883
Check Treatment
Delany, J. Com. App.—

This is a suit upon the covenants contained in a deed of conveyance.

In the originаl 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 Hanriсk 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 аctual 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 uрon the warranty. In former times a vendee could not sue upon his warranty unless he had beеn 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 titlе 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 evictiоn 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 thе 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 pаramount 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 *46the claimant.” This rule is put upon the ground that the possession of the holder of the superior title is an assertion of that title, and the law will not compel the grantee ‍​‌​​‌​​‌​​​‌‌​​‌​‌​​​​​‌​‌​​​‌​​‌‌​‌‌‌​‌​​​​​​‌​‍to commit a trespass upon thе land in order to enable him to bring an action upon the warranty. Bawle, p. 154. The possession here spoken of is an actual possession. Moore v. Vail, supra.

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 thаt he may treat an unauthorized entry by another person as a trespass. Whitehead v. Foley, 28 Tex., 268. But inаsmuch 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 sеe how it can evict one wrho has received a conveyance with warranty, but hаs made no actual entry. Our opinion, therefore, is that the statute of limitations did not cоmmence 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 cоntained 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 perhаps 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.]