45 S.W. 562 | Tex. | 1898
The facts alleged were sufficient to sustain an action for breach of warranty of title, and the trial seems to have been had in the court below upon the theory that the suit was to recover upon the warranty; the Court of Civil Appeals so treated the case, and we think it unnecessary to review any of the assignments of error based upon the rulings upon exceptions directed against allegations which presented a different phase of the case. The application for a writ of error contains only such grounds as relate to the right to recover upon the alleged breach of warranty and to have the injunction perpetuated.
Considering it as an action for damages accruing from a breach of warranty of title, the following are the material facts found by the Court of Civil Appeals: On March 2, 1891, John F. Hynes conveyed to John Q. Packard an undivided one-fourth interest in about twenty-eight tracts of land, aggregating 35,000 acres — inherited from his father — for a consideration of $27,782.92. The deed described each tract in which an interest was conveyed, including the two tracts in which it is alleged there has been a partial failure of title, — the one being a league of land granted by the government of Coahuila and Texas to Peter Hynes, and the other a quarter of a league granted by the same government to John Hynes. The deed of conveyance from plaintiff in error to defendant in error contained a covenant of general warranty of title to the undivided one-fourth interest in all of the different surveys. All of the purchase money was paid except one note for $6573.96. At the time the deed was made to him Packard executed a deed of trust to John Little, authorizing him in case of default in the payment of the notes described in the deed of trust to sell the land and discharge the notes, and also authorizing and empowering John F. Hynes under certain circumstances to appoint a substitute trustee, and the contingency named having happened, F.C. Proctor was made substitute, who, in accordance with the terms of the deed of trust, advertised the land for sale, Packard having failed to pay the note mentioned above at its maturity.
The two Hynes surveys extended across Hynes Bay, and included in their boundaries as given in the deed of conveyance 1209 26-100 acres of the navigable water area of the bay. Hynes Bay connects with the Espiritu Santo Bay and the latter connects with the Gulf of Mexico, so that the water area embraced as above stated lies beyond the coast line, and the title did not pass by the grant made to Peter Hynes and John Hynes under whom plaintiff in error claimed, and the title to so much of the land conveyed by John F. Hynes to Packard has failed.
After the notices of sale had been posted by the trustee, Packard tendered to Hynes and the trustee a sufficient amount of money to discharge *49 charge the debt, after allowing him a credit for one-fourth of the value of 1209 26-100 acres at $4 per acre, and, the tender being refused, Packard sued out an injunction restraining Proctor, the trustee, from selling the land under the deed of trust, tendering into court the money which had been tendered to John F. Hynes, setting up all the facts necessary to entitle him if found true to a deduction of the value of the land. The petition prayed that the plaintiff in error be compelled to accept the amount tendered in satisfaction of the unpaid note, that it be canceled, and that the trustee Proctor be perpetually enjoined from selling the land under the deed of trust. The petition alleged that the portion to which title had failed "is of little or no value," but alleged that the purchase was made at the rate of $4 per acre, and claimed a reduction of the purchase money at that rate.
Upon the trial of the case the judge of the District Court instructed the jury to return a verdict for the plaintiff for a sum sufficient to satisfy the remainder of the note described in the petition, which was done; the judgment recites, that, it appearing to the court that John F. Hynes had accepted as a partial payment the money tendered by Packard, it was adjudged that the note be canceled and that the trustee Proctor be perpetually enjoined from selling the land under the deed of trust.
In Roseborough v. Picton, 34 Southwestern Reporter, 791, the title to the same land was involved, and the Court of Civil Appeals in a very clear opinion by Judge Williams decided that the land was not the subject of grant by the officer who executed the Hynes titles, and that no right passed by such grants. We think the decision is correct. Hynes having no title conveyed none, and was liable upon his covenant of warranty.
If the title had failed to all the land conveyed by Hynes to Packard, the measure of damages would be the purchase money with interest from the date of payment. The failure, however, being partial and of a definite part of two of the many surveys that were conveyed, the rule by which to ascertain the grantor's liability under the warranty is aptly stated thus: "The damages will bear the same proportion to the whole purchase money as the value of the part to which the title fails bears to the whole premises estimated at the prices paid." Phillips v. Reichert,
In the case of Rains v. Calloway, above cited, it was sought to recover damages for failure of title to a part of the land embraced in the warranty, and this court said: "The jury found that there was a failure of title to the 681 acres, and they valued these 681 acres at the average value of the whole amount of land conveyed, whereas the true measure of damages, if there was in fact a failure of title to any portion of the *50 land, would be the actual value of the particular lots or parcels to which there was a failure of title, to be ascertained by the relative value compared with the balance of the land, assuming the price agreed on by the parties as the value of the whole." The evidence showed that the land conveyed was not of uniform value.
The plaintiff alleged in this case that the part of the land to which there was no title and for which he sought recovery was "of little or no value," from which it was manifest that it was not of equal value with the other land conveyed. No presumption could be indulged that there was equality in value; and there was no evidence of its value as compared with the balance of the land embraced in the same conveyance, hence it was error for the district judge to instruct the jury to find a verdict for the plaintiff and to render judgment thereon canceling the note of the plaintiff in error, declaring the note satisfied. The court could not from the evidence determine what amount of deduction plaintiff below was entitled to on account of the failure of the title. If the land lost was of no value plaintiff was entitled to nothing, and if of "littlevalue" the amount should have been proved.
The defendant in error claims that he made a prima facie case which entitled him to recover for the number of acres embraced in the water area, at the rate of $4 per acre, and that it devolved upon the defendant below to establish that it was worth less than the average per acre of the price for which it was sold. If the petition had alleged that the land lost was worth $4 per acre or more, it might be that proof that the sale was made for an amount which was equal to the average of $4 per acre would be prima facie evidence and sufficient to cast the burden upon the defendant to show that the part to which the title failed was in fact worth less, but under the pleading and the evidence in this case that question is not before us and is not decided. The burden was upon the plaintiff to establish his right and to show the amount he was entitled to recover, which he failed to do.
Counsel for defendant in error also suggests that the plaintiff in error alleged in his answer in the District Court that the land was worth $5 per acre, and claims that this would be sufficient to sustain the judgment of the court below. That answer of the plaintiff in error was stricken out upon exceptions and was not before the court as a pleading upon the trial; besides, the defendant in the court below pleaded a general denial to all the allegations of the plaintiff's petition, and it is a well established rule in this State that when a general denial is interposed by the defendant no statements in the answer can be used as evidence to establish the allegations of the plaintiff's petition. Silliman v. Gano,
We find it unnecessary to notice any other assignment made by the plaintiff in error, because we believe that the court ruled correctly upon all those presented in the application for a rehearing, and that all others which were presented to the Court of Civil Appeals and not presented *51 here relate to a phase of the case which will not again be before the court.
For the error indicated above, the judgments of the District Court and Court of Civil Appeals are reversed and the cause is remanded to the District Court.
Reversed and remanded.