37 Tex. 674 | Tex. | 1873
In 1864, Asa Mitchell instituted this suit against the appellant as the guardian of the minor heirs of G. P. Post, deceased, upon a covenant of warranty in the sale of a certain lot of land in the city of San Antonio. Mitchell having died in 1865, the appellees, as his executors, were made parties. The pleadings are somewhat voluminous, covering almost every possible question in favor of, and against the cause of action, and the mariner and form in which the claim was prosecuted until December, 1871, when a judgment was rendered for the plaintiffs, and the defendant has appealed. We do not think it necessary to notice in this opinion all the questions discussed in the very able briefs of counsel for both appellant and appellees, but only such as are directly raised in the assignments of error, and which may be deemed necessary to the proper disposition of the case.
It appears from the statement of facts, that Mitchell purchased of G. P. Post a lot of land in the city of San Antonio, who executed a deed with covenants of warranty for the same; that Mitchell was subsequently evicted from one-half of the lot, by a judgment of the District Court, which was affirmed by this court. It also appears, that Mitchell recovered from the city of San Antonio a certain sum of money for a portion
The plaintiffs below alleged in an amended petition, that the defendant, as guardian, had received from the estate of Post, deceased, property and effects valued at twenty thousand dollars, and the object of this suit was to subject that property to the payment of the damages sustained by reason of the breach of the covenant of warranty ; and it is wholly immaterial of what that property consists, provided it came from the estate of Gr. P. Post, deceased, and was subject to all the demands against that estate. If that property is not liable to pay this demand, then it is in the power of the guardian to protect it whenever a demand is made by the sheriff for property to satisfy any judgment which may be rendered in this case.
There is no error in the fourth and fifth charges of the court
A party who goes into possession of land under a warranty in his title, and is evicted in a suit on the covenant of warranty, has only to prove the eviction by a court of competent jurisdiction (Rawle on Covenants for Title, 324); and therefore the court did not err in refusing the instructions asked by the defendant below.
This suit was brought against I. P. Simpson as guardian of minor heirs, in which capacity he is charged with receiving
Affirmed.