Lead Opinion
delivered the opinion of the Court.
This suit is by рetitioner Schneider against respondent Lipscomb County National Farm Loan Association, his grantor, to recover damages for breach of a covenant of general warranty. The trial court’s judgment that petitioner take nothing was affirmed by the Court of Civil Appeals on its holding that the suit is barred by the four year statute of limitations pleaded by respondent.
A part of the land that had been conveyed by respondent to petitioner was awarded by the Commissioner of the General Land Office as unsurveyed public school land to one Sansing on December 8, 1938, more than four years before the filing of this suit. The judgment of the Court of Civil Appeals was rendered on its conclusion that the award “constituted an act on the part of the State of Texas which amounted to an assertion of its superior title and constituted an eviction of the appellant.” This was held notwithstanding the fact that petitionеr did not yield to what the Court of Civil Appeals regarded as the asser
Respondent, the Farm Loan Association, on August 21, 1925, sold and conveyed to petitioner Schneider, with covenant of general warranty, all of survey 4 and a part of survey 3, Block D, W. P. Wiser surveys in Lipscomb County, containing 1200 acres, the land being described by metes and bounds so that its north boundary line coincided with the north boundary line of the State. Petitioner went into possession of the land and continued to use,- possess and occupy it. In the year 1987 one Sansing, believing that there was a strip of unsurveyed land belonging to the public school fund lying between the north boundary line of the State and the north line of Block D above referred to, filеd an application for a survey of the land in order to buy it under the provisions of Section 6 of the 1931 Sales Act, Chapter 271, Acts Regular Session, 42nd Legislature, pp. 452, 453-454. He caused a survey of the land to be made in thirty-four separate tracts and filed notes to be returned to the Land Office. After approval by the Commissioner of the General Land Office of the field notes for sixteen of the tracts, containing in all 2343.03 acres, and valuation of the land, Sansing, on December 8, 1938, filed applications to buy the sixteen tracts, and on the same day the Commissioner of the Gen'eral Land Office issued to him an award of them.
The award was followed by the institution of eleven suits against Sansing by those who held and possessed, as parts of surveys in Block D, tracts that had been awarded to Sansing as unsurveyed land, one of these being filed by petitioner Schneider, in which he asserted his ownership, as a part of the land that had been conveyed to him by respondent, the Farm Loan Association, of 401.6 acres, being one of the tracts that had been awarded by the Commissioner to Sansing. The eleven suits were consolidated for trial. All of the plaintiffs except Schneider had claimed and sought to exercise the preference right of purchase given by Section 6 of the 1931 Sales Act to persons holding and occupying in good faith land sought to be bought by another as unsurveyed public school land. Sansing contested the rights of those who had sought to exercise the preference right, but judgment was rendered in their favor. The court found that the land which Sansing had applied to purchase was unsurveyed public school land and rendered judg
The rule is well established that a cause of action for breach of a covenant of general warranty does not arise until there has been an eviction. Formerly, actual eviction was required before suit could be brought, but now suit may be brought after constructive eviction or ouster in pais, as when the paramount title has been positively asserted against the covenantee and he has yie’ded to it by surrendering possession or by purchasing- the title. The covenantee thus constructively evicted has the burden of proving, before he can recover on the covenant, that the paramount title has been positively asserted against him and that it in fact is paramount. Westrope v. Chambers,
The Court of Civil Appeals, in its decision that petitioner Schneider was evicted by the issuance of the notice of the award to Sansing, gave to the mere issuance or making of the award the effect of a constructive ouster. It held that the award by the Commissioner was the assertion by the State of its superior or paramount title. But if the award was a formal and authentic assertion by the State of paramount title (and as will be shown hereinafter, it should not be so regarded) there was no submission to the assertion, and consequently there was no constructive eviction or ouster in pais. Constructive eviction that will serve as the basis of a suit for breach of the covenant of general warranty has two elements, (1) a positive assertion of a paramount title and (2) a yielding to that assertion of title. The opinion in Rancho Bonito Land, etc. Co. v. North,
“The warranty in former times could only be broken by an actual eviction from the possession, but in modern times the rule has been so far relaxed that an eviction in legal contemplation occurs when the facts are such that it would be useless for
The court, discussing constructive eviction, or ouster in pais, in Jones’ Heirs v. Paul’s Heirs,
“If a paramount title is positively asserted against the ven-dee, 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.”
In Clark v. Munform,
“And notwithstanding a covenant of warranty is not broken until eviction by paramount title, still eviction by judgment at law is not essential to establish the peace; the covenanteе may yield to the paramount title and give possession, or else buy his peace and claim for breach of the covenant.”
For other authorities showing that yielding to the paramount title asserted is an essential part of constructive eviction, see: Thompson on Real Property, (Perm. Ed.) Vol. 7, pp. 223-226, Sec. 3752; Tiffany’s Real Property (3d Ed.) Vol. 4, pp. 156-157, Sec. 1013,
The decision of the Court of Civil Appeals that the mere making of the award by the Commissioner of the General Land Office “constituted eviction” is in conflict with the foreg-oing authorities which define and explain constructive eviction. Schneider did not yield to the award, but remained in possession and, as was his right, contested.it. The decision contradicts the very term itself. There is no eviction, either actual or constructive, of one who remains in possession and asserts and defines his title against the title or claim pressed upon him.
There are deсisions by courts of other states holding that when the state has the paramount title and makes a sale of the land, a covenantee in possession under another title may thereafter abandon possession and sue his covenantor. The rule of those cases is thus expressed in the text of American Jurisprudence cited by respondent:
It is to be noted that the rule as stated is not a positive rule that a grant or sale by the State is such a hostile assertion of title as amounts to eviction. The statement is that it is such an assertion of title as will justify those in possession in treating it as an eviction, abandoning possession and suing their covenantors. The implication is that the person in possession is not required to treat-the sale as an eviction, but may remain in possession and defend his title, and that if he does this the sale is not an eviction. Three cases are cited in support of the text above quoted. In each of those cases the person in possession yielded to the asserted claim and then resorted to the warranty.
The reason given for the rule quoted from American Jurisprudence is that ordinarily sale is the only way in which the State can assert its title. The same reason is given for this rule in Green v. Irving,
In our State the Attorney General, since State v. Deles-denier,
Because of the peculiar laws of this State with respect to sales of public school land, the making of an award by the Commissioner of the General Land Office should not be given, and in our opinion does not have, the dignity of an authentic and hostile assertion by the State of its title, and should not be held by mere construction to work an ouster. This is especially true as to awards of land applied for as unsurveyed land. The award is not a sale. The Commissioner does not make the sale. It is accomplished by the offer made by the State in the statute which prescribes the terms and conditions of the sale, and by the acceptance of the offer by the intending purchaser in his taking the several steps for purchase as set out in the statute. As is concisely and clearly stated by Judge Williams in Pohle v. Robertson,
After an award has been made by the Commissioner, the conflicting claims to the land are determined, as is illustrated
Practically considered, neither the Commissioner’s award nor the making of a sale by the applicant’s compliance with the provisions of the statute should be given the effect of an ouster, and this is especially true when the application is for the purchase of unsurveyed land. Sеction 6 of the 1931 Sales Act prescribes as follows the steps to be taken by one desiring to purchase what he believes to be unsurveyed or vacant land belonging to the State: The applicant files with the county surveyor his application describing the land that he desires to acquire. The surveyor makes a survey of the land and prepares field notes, after notifying by registered mail claimants of the land and such adjoining owners as the tax rolls may disclose. The field notes are filed in the Land Office. If the area is found by the Commissioner to be unsurveyed and subject to sale, he values the land and gives notice to the applicant, who files his application to purchase and his obligation for the deferred payments in the General Land Office and makes the required cash payment. The sale is effective from the date on which the appli
The Commissioner, in the course of the proceedings, determines, before he values the land, whether the area is unsur-veyed land and subject to sale. This he does from the field notes, the records in his office, and from such other information as he has or may be able to obtain. It is a matter of common knowledge that the question whether an area is unsurveyed land is usually a difficult question of law. This arises from the haphazard manner in which certificates were located and surveys made many years ago, and from carelessness in the making and marking of early surveys when the land was of little value. The Commissioner of the General Land Office, often neither a trained lawyer nor an experienced surveyor, is not able, and is not expected to be able, to decide with any great degree of certainty or finality the difficult question of law thаt is usually presented. His determination that the land is unsurveyed or vacant land belonging to the State and his award following that determination are ordinarily regarded as tentative and, when the land is of substantial value, are almost invariably followed by a suit to develop the facts fully and to obtain an authorative and final decision of the question.
In the instant case Schneider, the petitioner, held and possessed the land under a deed which conveyed it to him as part of two valid existing surveys, the field notes of which described them as extending to and bounded on the north by the bounary line between Texas and Oklahoma. The land finally lost by Schneider after final judgment in the suit between him and Sansing was awarded to Sansing by the Commissioner on the theory that it was unsurveyed land outside and north of the two existing surveys. As is apparent from the thorough opinion in that case (Sansing v. Bricka,
The statute prescribing the method of purchasing unsur-veyed land is not an assertion of ownership by the State. It offers no certain land for sale, but merely holds out to prospective purchasers a method of acquiring unsurveyed land if they can find it. The purchasers’ acts in taking the steps prescribed for buying' the land are not assertions by the State of its ownership. And, as has been said, the Commissioner’s award is not a sale; it is the tentative act of a ministerial officer, not
But even if the award could be considered a formal authoritative assertion of title by the State, there was no constructive eviction, because Schneider did not yield to it. There was no actual eviction until the judgment in the suit between Schneider and Sansing became final. That occurred, and indeed that suit was filed, within four years before the filing of this suit. Consequently this suit is not barred by limitation.
There are cases in which the opinion is expressed that when the paramount title is in the United States that of itself amounts to a constructive eviction. Cover v. McAden,
The opinion in Shannon v. Childers,
Petitioner asks for rendition of judgment in his favor against respondent, the Farm Loan Association. But a question of fact is raised by the testimony of petitioner and a witness offered by respondent as to the amount of damages, that is, as to the relative values оf the land to which the title failed and of the whole premises conveyed. See Hynes v. Packard, 92 .Texas 44, 49,
Respondent, the Farm Loan Association, by cross action made several prior warrantors in the chain of title partiés and sought judgment against them for such sum as might be awarded petitioner against it; and some of those parties filed like cross actions. The trial court, after rendering judgment that petitioner Schneider take nothing against respondent, the Farm Loan Association, further ordered and adjudged that, since the right of the various cross plaintiffs to recover against their cross defendants was dependent and contingent upon recovery by Schneider against the Farm Loan Association and he had been denied recovery against it, the several cross plaintiffs should take nothing against the cross defendants. Schneider’s appeal bond is payable to the Farm Loan Association and to all of the cross defendants. Several of the parties against whom the cross action was filed by the Association make the contention by motion and brief that, because the Association did not except to the trial court’s judgment and give notice of appeal, it lost whatever right it might have had on its cross action. The contention cannot be sustained. Judgment was rendered in favor of the Farm Loan Association, and there was no occasion for it to except to the judgment or to give notice of appeal. The trial court’s judgment, according to its express terms, denied recovery
The same parties and others in their pleadings and briefs take the position that petitioner Schneider and the Association are estopped to claim damages for the breach of warranty or warranties because neither Schneider nor the Association took advantage of the preference right given Schneider by Section 6 of the 1931 Sales Act to buy the land possessed by him which was awarded to Sansing. They contend further that if there is no estoppel they are entitled to a mitigation of damages because the рreference right was not exercised. These contentions are not well founded. We find no authority to support either of them. The covenantor bound himself to warrant and defend the title to the land conveyed by him. No obligation rested on Schneider to buy the title asserted against him. “There is no duty imposed on the vendee to diminish the damages accruing from a breach of a covenant of title by purchasing or extinguishing the outstanding title. The rule that one injured by a breach of contract is bound to lessen the damages as far as .practicable by the use of ordinary care and diligence is not applicable to the rights and duties of a warrantee or grantee in a deed containing covenants of warranty, where an adverse outstanding title is asserted against him. In such case he is under no obligation to compromise the claim, and it is no defense to his action for damages, either in bar of the action or in mitigation of the damages, that he might have comprised the action for a less sum than the damages he is seeking to recover.” 14 Am. Jur., pp. 591-592, Sec. 166. See also Note 61 A. L. R. pp. 10, 104-105; Tiffany’s Real Property (3rd Ed.) Vol. 4, pp. 157-158, Sec. 1013.
The judgment of the district court and the Court of Civil Appeals are reversed and the cause is remanded.
Opinion delivered May 14, 1947.
Rehearing overruled June 25, 1947.
Dissenting Opinion
dissenting.
The majority opinion announces the general rule that constructive eviction which will serve as the basis of a suit for breach of a covenant of general warranty has two elements,
So far as my investigation extends, in applying that rule to dealings in public lands possessed by the State for sale only, the cases generally are agreed on some such statement as that found in 21 C. J. S. Covenants, Sec. 112, b (4), p. 980, as follows:
“Where the title to land attempted to be conveyed is in the public, there is such a hostile possession as amounts to an eviction the instant the deed is made. * * * An eviction or the equivalent thereof may consist of: The final decision of the land department upon questions of title; a sale of land by the goverenment; the action of the state, through its duly constituted authorities, in forfeiting a survey; * * *”
In effect, that same statement is found in 14 Am. Jur., Covenants, Conditions, and Restrictions, Sec. 74, p. 536, and Thompsоn on Real Property, Vol. 4, Sec. 3542. It is also announced in these cases, among others, from other jurisdictions: Staub v. Tripp,
There is also cited in Corpus Juris Secundum, in support of the text, Shannon v. Childers, (El Paso)
In some of the cited cases it was held that an eviction occurred the instant the deed was made. Such holdings resulted from the аpplication of a principle long ago announced by this court and still adhered to without exception. In Jones’ Heirs v. Paul’s Heirs, supra, one of the principal cases relied upon by the majority, it was held that, “* * * 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 the claimant. * * *” That rule was reaffirmed by the Waco court in Freeman v. Anderson,
In other cases it is held that some other act is necessary in order to work an eviction. They rest upon the same reasoning as that outlined above. When, in a case like the instant one, the warrantee takes physical possession of public land but which is thought to be privately owned and which is not shown by field notes or maps in the land office to be public land, it would be inequitable to hold that he is evicted on the day the deed is executed to him, because, at that time there has been no knowledge on his part and no assertion by the State of its paramount title. But when it has been determinеd by statutory methods that same is public school land and it is awarded or sold to another, there is then a positive assertion of its paramount title by the State equivalent to an eviction.
“The defendants further assert that plaintiff had not been evicted before this suit was brought, and therefore he is not entitled to relief. The rule of law that a grantee cannot maintain a suit for breach of title to land prior to his eviction cannot be invoked in this case because the title to the fee is held by the state, and as against the state the plaintiff cannot acquire title by adverse possession.” I think that is sound.
To make plain my views respecting this question of eviction, suppose A conveys by warranty deeds one tract to B and another tract to C and it is later determined from surveys that a portion of each tract is public school land, and suppose that B and C each sues A for breach of warranty. B has abandoned his possession and yielded to the paramount title but C has not. In order to recover, each must prove that paramount title rests in the State. Each makes that proof. Would relief be granted B on the ground that he had yielded to that paramount title and denied C because he had not? Surely not. Whether or not C had yielded would be of no importance whatever, since his continued possession could not ripen into title.
I cannot escape the conclusion that the authorities from other jurisdictions give full recognition of the general rule relied on by the majority and make proper application thereof. In my view they are sound and we should not set ourselves apart in opposition to them.
But the majority hold, as 1 understand their opinion, that the decisions from other jurisdictions do not apply in Texas, because, (1) the laws of this State are peculiar with respect to the sale of public school land; (2) the making of an award by the Commissioner is not a sale; (3) it does not even have the
As I view the statutes and authorities, the Land Commissioner is clothed with broad disсretion in determining whether land is unsurveyed public school and and whether same is within five miles of a producing well. Of course, his act in issuing an award after it has been decided that an applicant is entitled thereto is ministerial, but that is beside the point. It is the award based upon the decision which is the assertion of title and the Commissioner exercises discretion in determining whether or not the award should issue. The principal cases cited by the majority in support of their conclusion that his acts are ministerial are: Short v. W. T. Carter & Bro.,
“It is thus seen that upon an application being filed to buy or lease school land the Land Commissioner is given authority to determine whether the land conveyed by the application is vacant and belongs to the State. To control the discretionary action of the Land Commissioner through the processes of the courts in this regard is to control the State itself. This cannot be done absent legislative authority. It is therefore believed that this action is in reality one against the State, since its primary purpose is to preclude the Land Commissioner of the State of Texas, in his official capacity, from performing his discretionary duties enjoined upon him by law; that is, to determine the ownereship of the land covered by the application.”
“It is well known that the Land Commissioner is frequently-called upon to exercise his judgment and discretion in performing the duties placed upon him by law, and the courts are slow to disturb him or his action in the exercise of his judgment and discretion. DePoyster v. Baker,
The Camp case decides that the Commissioner has discretion in determining whether a vacancy exists, but. that he has no discretion in the matter of whether or not he must respect a final, valid judgment of a district court. The holding is reflected by this language:
“That our interpretation of the act is a correct one is apparent when we consider the fact that in the first instance the land commissioner is allowed to exercise his discretion in determining whether a vacancy evists, and it would be unreasonable to hold that it contemplated he should still possess such discretion after a court of competent jurisdiction had adjudged otherwise.”
Do the majority now have views different from these?
I cannot subscribe to the theory that an award by the commissioner is a tentative act of but little- consequence until the lapse of onе year. On the contrary, it is my view that an awardee acquires a title to the land similar in many respects to that acquired by a vendee in a warranty deed with vendor’s lien retained. The superior title remains in the State until the awardee discharges his obligations just as it remains in a vendor until the purchase money notes are paid, but the awardee acquires a title upon which an action of trespass to try title may be based and which may be lost by limitation. My understanding of the law is reflected by this language taken from the opinion in Whitaker v. McCarty (Comm. Apps.)
“It has been definitely established by our Supreme Court that a purchaser from the state, before the issuance of a patent, has title sufficient, through the sale and award, to maintain an
This court in Callahan v. Giles,
The same question was presented in State v. Bradford,
The majority say that the award by the commissioner does not even have the dignity of an assertion by the State of its title. That is the vital question. The land commissioner is a constitutional officer clothed with authority to dispose of public lands
But the majority say that, since Article 5420 of the Revised Statutes makes it the duty of the attorney general to institute suits for the recovery of public lands claimed adversely to the State, the institution of suit by him is the most authentic and effective assertion of the State’s title. If that is correct, then there has been no assertion of the State’s title, and therefore no eviction in this case until now, for no suit has yet been filed by the attorney general under that Article. It is the duty of the commissioner and not the attorney general to sell public lands and it is not perceived why his act in doing so is a less authentic assertion of title than the filing of a suit by the attorney general. But the question is not one of degrees of authenticity, it is simply whether or not the commissioner has any authority to assert title and surely, from my viewpoint, he has. I thought this question was finally set at rest in the Short-Carter case, supra, where it was held that that Article had no relаtion to the commissioner’s authority, and that he could sell the land even while a suit brought by the attorney general under' that. Article was pending. ' .
The pendency of the suit between petitioner and Sansing-did not toll the statute as against respondent. City of Beaumont v. Moore,
“The accrual of a cause of action means the right to institute and maintain a suit, and whenever one person may sue another a cause of action has accrued. Port Arthur Rice Milling Co. v. Beaumont Rice Mills et al,
To hold that limitation began to run against petitioner on his cause of action against respondent for breach of warranty-on the day the land was awarded to Sansing would not have the effect of forcing a covenantee who chooses to contest the title of an awardee to run the risk of losing his right to recover from the warrantor in the event he is unsuccessful in his suit, for he may preserve all his rights against the warrantor from the bar of the statutes by impleading him in his suit against the awardee, Norton v. Collins, 1 Texas Civ. App. 272,
There is yet another all sufficient reason, as I view this case, why the judgments of the lower courts should be affirmed, and that reason is that an application of the rule of stare decisis requires it. As pointed out earlier in this opinion, Corpus Juris Secundum cites in support of the general rule upon which this dissent is based; the case of Shannon v. Childers,
I am in agreement with the final holding of the majority, but not with the ground upon which it is based. That holding is that petitioner owed no duty to respondent to take advantage of the preference right given him by Section 6 of the 1931 Sales Act to buy the land which had been awarded to Sansing. But I do not agree with the implied holding that, if he had exercised that right, the respondent would have beеn entitled on that account to have the damages mitigated. The majority seem to view this question, just as they do the other questions presented, as though the land were privately owned. In my view, that is not the proper approach to the case. It is my understanding of the law that if Schneider had exercised his preference right to purchase the land, he could still have recovered the full consideration paid by him to respondent therefor, had he timely filed his suit. Wheeler v. Styles,
Reference is made in the majority opinion to an amendment to the 1931 Sales Act passed in 1939. Vernon’s Statutes, Art. 5421c. I do not understand that it is thought that such amendment has any relevancy to the issues of this case. What is written by both the majority and the minority has reference only to the law as it existed prior to that amendment. We are not called upon here to determine what effect, if any, that amendment has on the questions in this case.
I respectfully enter my dissent.
Judge Slatton is concurring therein.
Opinion delivered May 14, 1947.