Brown v. Hearon

Citations

• 66 Tex. 63
• 17 S.W. 395
• 1886 Tex. LEXIS 442

Syllabus

<p>1. General warranty—Adverse claimants—A vendor of land, who gives a general warranty of title, when made a party defendant in a suit against his vendee, must defend that title. Defenses, of limitation available to the vendee, or of the sufficiency of any part of the title which he warrants, must be urged by him.</p> <p>2. Same—Fact case—In a suit for land by A. against H., B., his vendor, who had given a general warranty of title, was made a party defendant. By an agreement between A. and H., a judgment was rendered whereby the land was divided between them. In a subsequent suit by H. to recover of A. upon his warranty, Held The judgment rendered upon agreement between A. and H. was conclusive of their respective rights to the divided land, and of a breach of the general warranty of B.</p> <p>3. Practice—Former judgment—So long as a judgment is not set aside, by direct proceeding for that purpose, it is not error to refuse instructions to the jury which would authorize them to again pass upon questions already conclusively settled by that júdgment.</p> <p>4. Eviction—Warranty of title—Measure of damage—In case of breach of general warranty, the warrantee is entitled to recover of the warrantor the purchase money; and interest upon the purchase money will be-allowed as part of his damages in order to counterbalance the claim for mesne profits which the owner of the paramount title may recover of the warrantee.</p> <p>5. Same—Interest—When the premises were occupied by the warrantee, and he has not accounted, nor is accountable, for rents and profits, he is entitled to recover interest upon the purchase money only for the time succeeding eviction. But if, under the statutes of limitation, the holder of the paramount title recovers mesne profits for a certain period, the warrantee will be entitled to recover of the warrantor interest for the same period ; and, also, for the time succeeding actual eviction.</p>