Davis v. Teal

¶1 (after stating the facts as above). [1,2] We are inclined to think that none of the assignments in appellant’s brief should be sustained, and that, if those assignments alone should be considered, the judgment should be affirmed. But an examination of the record with reference to appel-lee’s suggestion that the appeal was for delay only, and that the judgment therefore should be affirmed with damages, under article 1629, Vernon’s Statutes, discloses error apparent on the face thereof which requires that it he reversed, and that the judgment be here rendered in appellant’s favor. Article 1607, Vernon's Statutes; Nasworthy v. Draper, 28 S. W. 564; Bates v. Hill, 144 S. W. 288. It appears from appellee’s pleadings that his claim of a right to the recovery he had against appellant was based on the fact that the latter, when he conveyed a part of the land to the former and one Hatta-way, warranted the title thereto. The theory was that a judgment in Sanders’ favor foreclosing the lien he asserted against the land would constitute a breach of appellant’s covenant of warranty. That the theory is wrong was determined by the Supreme Court in Seibert v. Bergman, 91 Tex. 411, 44 S. W. 63, where it was held that a cause of action for a breach of covenant by the vendor against an incumbrance on the land “did not arise until the land was sold under the judgment enforcing it.”

¶2 The judgment will be reversed, and judgment will be here rendered that appellee take nothing by his suit against appellant, but the judgment will be without prejudice to the right of appellee to maintain a suit against appellant on the covenants in his deed if appellee should lose the land as a result of a sale thereof under the Sanders judgment.