White v. Van Horn

The defendant excepted to the petition upon the ground that it set out no cause of action, and then filed a general denial. He next pleaded limitations, under the law of Texas, of 1, 3, and 5 years. He averred his purchase and possession of the property in good faith, and alleged that he had put improvements thereon worth $1,125, for the value of which improvements he prayed judgment in the event of his eviction. In addition, he averred that he and George G. White, on the 20th a y of May, 1882, purchased the property in controversy under a warranty deed from W. R. Baker for $1,230 cash, and their note, due on the 1st day of December, 1882, for $2,460, bearing 10 per cent. interest from date until paid; that they paid this note before maturity, with interest amounting to the sum of $2,570; that one-half of the total sum of the purchase money, or $1,900, was paid by him, and that Baker, as his warrantor, was liable, in the event of his eviction, to refund the same, with 8 per cent. interest from the date of the respective payments. He further alleged that on the 6th day of October, 1883, he bought from George G. White, for $3,789, the undivided half which had been acquired by the latter as above stated, and that George G. White also warranted the title, and would therefore be obliged to repay him, if the plaintiffs recovered, the amount of the purchase price, with interest. The prayer was that Baker and White be called in warranty to defend the suit, and that, if it was decided that the plaintiffs were the rightful owners of the property, there might be a judgment over against Baker for the amount of the price paid him, with interest at the rate of 8 per cent. from the dates of the payments, and a like judgment against White, with interest from the 6th of October, 1883.

Baker, in response to the call in warranty, filed a plea to the jurisdiction of the court, on the ground that he was not, at the time of the service of the petition, an inhabitant of the Northern district of Texas. Subsequently, the death of Baker being suggested, his executors were made parties defendant to the call in warranty, and the same judgment was prayed against them which had been asked against him. The executors reiterated the plea to the jurisdiction filed by Baker, and, in addition, demurred on the grounds (1) of no cause of action; (2) because the defendant could not sue them on the warranty until actually evicted; and (3) because a call in warranty could not be ingrafted on an action of ejectment, the sole purpose of which was the settlement of the controversy between the parties plaintiff and defendant in regard to their title to the property. The executors also insisted that, even if they should be held liable, under the call in warranty, they owed no interest from the date of the sale, because White had been in the enjoyment of the property from the time of his purchase. George G. White submitted his rights to the court with consent that, if the case should be decided in favor of the plaintiffs, judgment should be entered against him for such amount as the court might deem proper. On the 25th of April, 1890, the plaintiffs filed their replication to the defendant's plea of limitations, in which they set out that they, the plaintiffs, claimed the property in controversy as the heirs at law of J. H. Chism, and that at the time of the taking of possession of the land in controversy by the defendant, and those under whom he claimed, two of the plaintiffs, Mrs. Boling and Mrs. Evans, were married women, and consequently the statute of limitations did not run against them. The replication contained the further averment: 'Said plaintiffs further show that the defendant, on their claim of title to the land in controversy, deraign their title through a forged pretended deed of conveyance, to wit, a pretended deed which defendant claims is a transfer of the head-right certificate by virtue of which the land in controversy was patented by the state of Texas to J. H. Chism, and therefore in law said pleas of three and five years' limitations cannot prevail.' The demurrer to the jurisdiction of the court to entertain the call in warranty was overruled, and the case was tried by a jury, resulting in a verdict for the plaintiffs for the whole amount of the land claimed and $350 rent. There was also a verdict in favor of the defendant for $750, as an allowance for improvements, and against the estate of Baker, under the calls in warranty, for $3,690, with interest at 8 per cent. from October 2, 1887, and against George W.W hite for the sum of $3,789, with interest from October 6, 1883, at 8 per cent. After an ineffectual effort to obtain a new trial, the defendant, Joseph L. White, brought the case by error here, making, as parties defendants in error, the original plaintiffs, the executors of Baker, and George G. White.

The undisputed facts are as follows: The plaintiffs are the sole legal heirs of James Harvey Chism, who served in the army of Texas during her war with Mexico. In reward for his services there were two land certificates issued to him in the name of 'J. H. Chism.' The first, known as 'a bounty certificate,' numbered 4,298, was certified on the 15th day of September, 1838, and covered 1,280 acres of land. The other was 'a head-right certificate,' issued by the board of land commissioners of Harrisburg county, in the following form:

'The Republic of Texas, County of Harrisburg. No. 990. Class 2. This is to certify that J. H. Chism has appeared before us, the board of land commissioners for the county aforesaid, and proved according to law that he arrived in this republic subsequent to the declaration of independence, and previous to August, 1836, and that he is a single man, and produced an honorable discharge, is entitled to one-third of a league of land, to be surveyed after the 1st day of August, 1838. Given under our hands, at Houston, this 1st day of November, 1838, J. G. Hutchinson, President. John Woodruff, Associate Commissioner.