Page:Federal Reporter, 1st Series, Volume 10.djvu/703

 OBEENE V. ELIKOEB. 691 �may be true, and yet not affect the question, as we have seen in "Bar- ney v. Latham that if the proper controversy exists, and the proper steps are taken, the entire suit may be removed. �The case as it stands now only differs in condition from the way it was presented to Judge Duval, whose decision I have referred to, in so far as Hamilton's position as a grantor and warrantor differs from what it would be as landlord to the other defendants. Counsel for mover concurs fully in the correctness of the decision rendered by Judge Duval. �An examination of section 4789, Eev. Code of Texas, shows that exactly the same rights are given the landlord in suits for lands as in the same kind of suits are given to owners and warrantors by section 4788 of the same Code hereinbefore cited, and I am unable to see any substantial distinction that can be drawn between the cases. Where the tenant is sued and the landlord is brought in, the whole burden f ails on the landlord; and if the plaintiff recovers, while the tenant is evicted, the landlord is bound for bis damages. Where the grantee is sued and the warrantor is brought in, the whole burden falls on the warrantor ; and if the plaintiff recovers while the grantee is evicted, the warrantor is bound for his damages. In the one case the tenant may recover for his improvements precisely as the grantee may in the other. �The other questions raised on the motion to rem and are finally settled by the decision of Judge Duval, supra. Bee Cole Silver Mining Co. V. Virginia Co. 1 Sawy. 685. �It is proper to state that counsel have brought and reargued this motion to remand on the suggestion of Judge Woods, and that, therefore, while the motion is denied, the costs made will follow the judgment in the case as finally determined. �Let judgment be entered denying the motion, without costs. ��� �