Saunders v. Flaniken

ACKER, Presiding Judge. —X. B. Saundersand J. S. Allen conveyed by warranty deed to the Berrys and Boothe 212 acres of land for the consideration of $637.50, one-half cash and the balance to be paid at one year, for which they executed their promissory note. Saunders and Allen transferred the note to H. C. Denny, who brought suit on it, foreclosed the vendor’s lien, and bought the land at sheriff’s sale for $150. Denny sold and conveyed the land by quit-claim deed to D. Flaniken and J. W. Moffatt for the consideration of $500. W. J. Heal et al. brought this suit against Flaniken and Moffatt, who had taken possession of the land under their deed from Denny, and they impleaded Saunders and Allen as warrantors to Berrys and Boothe. The trial by jury resulted in judgment against Flaniken and Moffatt for five-sixths of the land, and in their favor against Saunders and Allen for five-sixths of the purchase money paid by them to Denny, from which Saunders and Allen appealed. On a former trial in the court below the court charged the jury to find in favor of Saunders and Allen on their covenant of warranty to Berrys and Boothe, upon the theory that the covenant of warranty did not pass by the sheriff’s deed to Denny or Denny’s quit-claim deed to Flaniken and Moffatt. The verdict was returned accordingly, upon which judgment was rendered, and Flaniken and Moffatt appealed. In disposing of that appeal the Supreme Court held that the covenant of warranty passed by both the sheriff’s deed and the quit-claim deed, and reversed and remanded the case. 67 Texas, 633. On the trial which resulted in the judgment from which this appeal is prosecuted Saunders and Allen pleaded that Flaniken and Moffatt expressly waived a warranty when they purchased the land and bought only the chance of title. The court instructed the jury to find for Flaniken and Moffatt one-sixth of the land, and in their favor against Saunders and Allen for such amount as the evidence showed that they had paid Denny for the land, with interest at 8 per cent from the time of payment. It is contended that the court erred in this charge, because the evidence showed that in any event Flaniken and Moffatt were entitled to recover one-sixth of the land and to that extent were not entitled to recover the purchase money paid by them, and because the evidence showed that Flaniken and Moffatt had been in possession and using the land ever since they [666] purchased it, and were not, therefore, entitled to interest on the purchase money paid by them. The jury returned a verdict in favor of Flaniken and Moffatt for one-sixth of the land and in their favor against Saunders and Allen for ñve-sixths of the purchase money paid by them for the land and interest thereon at 8 per cent from the date of payment, from which it is evident that the jury understood the charge to mean that they should find on the covenant of warranty an amount of money in jiroportion to the' quantity of land for which they were instructed by the court to find a verdict against Flaniken and Moffatt. The verdict cured the error in the charge as to the amount for which Saunders and Allen were liable to Flaniken and Moffatt, and Flaniken and Moffatt having filed in the court below a remittitur for the interest found by the jury, the charge complained of did not operate to the prejudice of appellants. We do not think that Flaniken and Moffatt could have waived a warranty in a more express or emphatic way than by taking a quit-claim deed. Such waiver, under the former decision in this case, could not have the effect to relieve Saunders and Allen of liability on the covenant of warranty in their deed to Berrys and Boothe. That covenant was in the usual form “ to warrant and forever defend all and singular the said land and premises against the lawful claims of all persons whomsoever.” On the former appeal it was in effect decided that Saunders and Allen were liable on this covenant to Flaniken and Moffatt, and there was nothing disclosed by the last trial that-could relieve them of such liability. ■ We are of opinion that the judgment of the court below should be affirmed. Affirmed. Adopted June 17, 1890.