23 Tex. 614 | Tex. | 1859
The questions for decision upon this appeal, are, whether the covenant on which the suit is brought, is a covenant of general warranty; and, if so, whether the plaintiff was entitled to recover, in this action, his necessary expenses, incurred in defending his grantor’s title.
The first covenant in the deed, is in these words: “ For him, the said Rigden Heath, his heirs and assigns, to have and to hold forever, as his own right, title and property, free from the claim
But, it is insisted, that their operation is limited by the succeeding clause, as follows“And further, I do bind myself, my heirs, executors and administrators, severally and jointly, unto the said Rigden Heath, his heirs, executors and administrators, to warrant and forever defend, the right and title to said land, against all legal claim or claims to said land and premises, in virtue of said Copeland patent and deed to me.”
To give the latter covenant the effect contended for, would be contrary to the rule observed in the constuction of covenants in deeds, that, “ where the first covenant is general, a subsequent limited covenant will not restrain the generality of the preceding covenant, unless an express intention to do so appear, or the covenants be inconsistent.” (Rawle on Covenants for Title, 487,508, etseq., and cases cited.) The covenants are inartificially drawn; but considered together, it seems that a covenant of general warranty must have been intended. Otherwise the first was unnecessary and unmeaning. The construction contended for, would strike it out of the deed altogether. And the second would be very inaptly expressed, to convey the meaning contended for; that is, that the grantor intended to warrant only against persons claiming under the Copeland patent. Ho person could assert a lawful claim to the land, “ in virtue of the Copeland patent and deed'to me,” as it is expressed, but some one .claiming under the grantor himself. And if it had been the intention of the grantor, to warrant only against his own acts, it is reasonable to suppose he would have employed language usual and appropriate, to convey that meaning. The words, “and further,” with which the second covenant begins, do not imply an intention to limit the preceding clause, but rather the contrary. It is not improbable the intention was, as claimed by counsel for the appellee, to express the right, “in virtue” of which, he undertook to convey and warrant the title. We do not think an intention is manifest to restrain the generality of the
It only remains to inquire whether the plaintiff was entitled • to recover the attorney’s fees, and other necessary expenses of defending the title of the defendant. And it seems, from the authorities, that he was so entitled, without proving any contract, or express promise to that effect; the more .especially as he made defence at the instance of the grantor. (Rawle on Covenants, 121-126.)
But the plaintiff relied on the express promise and undertaking of the defendant to pay the expenses of the suit; and we are of opinion that the evidence was sufficient to warrant the jury in finding, that there was such an undertaking on the part of the defendant. It appears, that the plaintiff remained in possession, and defended the suit at the special request of the defendant; and although, at one time, the latter disputed with the former, his undertaking to pay the attorney’s fee, it is in proof, that previously, at the time when the suit was commenced, he spoke of having an attorney, and said he would pay the expenses of the suit. These admissions, in connexion with the fact, that he had specially requested the plaintiff not to abandon the land, and had spoken of the expenses to be incurred by himself in the defence, were sufficient to warrant the jury in their finding. We are of opinion that there is no error in the judgment, and it is affirmed.
Judgment affirmed.
Roberts, J., did not sit in this case.
