25 S.W. 438 | Tex. App. | 1894
1. On May 15, 1874, James E. Harrison executed a deed in trust on 800 acres of land to secure John W. Harris in the payment of a note for $2334.59, to become due January 1, 1875.
2. On December 18, 1874, said Harrison conveyed to W.J. Hutchins said tract of land by a general warranty deed. The deed also recites that said deed in trust existed, and Harrison therein binds himself expressly to release and cancel it.
3. On January 15, 1877, said Hutchins conveyed to S.K. McIlhenny said tract of land, by general warranty deed, at the same time telling him that the heirs of said Harrison would pay off the Harris deed in trust.
4. On January 16, 1878, said Harrison having died, leaving an independent will, said Harris sued his executor, John H. Harrison, on said note and to foreclose said lien, and on December 20, 1878, recovered a judgment on the same for $1643.48 and 10 per cent interest, and foreclosing said lien and ordering the land sold.
5. On January 12, 1879, said Hutchins bought this judgment, paying $1000 cash for it, and agreeing to pay besides Harris' costs and attorney fees in procuring the judgment, and took a transfer of the judgment from Harris to himself, reciting that Harris had promised said executor, when the judgment was taken, that the sale of the said land under it should satisfy the judgment and pay it off.
6. On August 5, 1879, Hutchins had the said land sold in satisfaction of the judgment, in pursuance of the promise made by Harris to said executor, and had the sheriff's deed made to his own vendee, McIlhenny, and thus made the title good.
7. Hutchins, in accordance with his said agreement with Harris, paid in all to relieve said land of said lien and judgment said $1000 cash to Harris, $150 fee to Harris' attorneys, and $52 costs of the suit, or in all $1202, which has never been refunded to him, though he has demanded it of Harrison's heirs. Hutchins thus acted in satisfying said judgment on the demand of McIlhenny's vendees that he clear up the Harris lien to perfect their title, and he did so to make his warranty to McIlhenny good.
8. On July 24, 1882, Hutchins brought this suit on said general warranty and special promise to pay off said Harris lien contained in said *664 deed of said James E. Harrison to him, to recover said $1202 so paid by him.
9. The defendants pleaded the statutes of limitation, besides other pleas denying and seeking to avoid their liability, not necesssary to set out here.
10. The plaintiff introduced evidence tending to show that he was entitled to a judgment against the defendants if his claim was not barred.
11. The defendants introduced evidence tending to sustain their other defenses if plaintiff's claim was not barred.
12. The court instructed the jury, that the evidence showed that the plaintiff's claim was barred by the four years statute of limitations, and directed them to find a general verdict for the defendants, and submitted to them no other issue. And verdict and judgment went accordingly.
With slight changes, the foregoing statement is taken from appellant's brief.
Opinion. — The only question in the case is, was plaintiff's cause of action against the heirs and legatees of James E. Harrison barred by the statute of limitations?
We think not. It seems to us that a complete answer to the question is, that the Harris debt and lien upon the land were kept alive by his judgment against the estate of Harrison. The debt and mortgage merged into the judgment, which was not barred at the institution of this suit. The judgment would have the same effect as a renewal by Harrison of the original claim, against which he and his heirs could not plead limitation. So long as that debt was kept alive as a lien upon the land, so long would the obligation of Harrison to have it cancelled continue in force. The judgment prolonged the period of limitation against Harrison as to the debt ten years after its rendition, and so continued the time in which to sue on the covenant to the same extent.
We, however, do not say that when the mortgage debt or the judgment would be barred, the suit on the covenant would be barred. The statute would, in our opinion, commence to run against an action on the covenant to release the encumbrance when the loss occurred.
The measure of damages for the breach of the covenant would ordinarily be the amount paid by the covenantee to extinguish the encumbrance. This could not be known until it was extinguished. A suit for nominal damages would lie upon maturity of the encumbrance, but not for the actual damages for loss until the loss occurred, from which time the statute would run against the covenant. The covenantee could not recover for actual loss if he extinguished the mortgage after it was barred; but in this case the judgment kept the mortgage alive, and it was subsisting by judgment at the time Hutchins bought it. Delavergne v. Norris, 7 Johns., 358; Hall v. Dean, 13 Johns., 105; Brooks v. Moody, 20 Pick., 474; Foote *665
v. Burnet, 10 Ohio, 330; Mayo v. Babcock,
We are forced to hold that plaintiff's cause of action was not barred by limitation, and that the court erred in the charge.
There are other issues in the case not decided in the court below, and therefore the judgment will be reversed and the cause remanded.
Reversed and remanded.
