¶1The deed from T. J. Chambers to Thomas Westrope, under whom plaintiff claims, contains these two covenants:
¶21. One, that Chambers had full right to sell and convey the land,
¶32. The other, of general warranty of title.
¶4The charge of the court did not present to the jury any issue upon the covenant of right to sell and convey, and it might be sufficient to dispose of this branch of the case to say that no special charge was asked. It seems, however, that under the statute of limitations, pleaded by the defendant, the right to recover for a breach of this covenant was barred by limitation, and hence the plaintiff cannot complain.
¶5The deed from Chambers to Westrope was dated March 18,1853. Westrope died in 1860. This suit was instituted May 12, 1866.
¶6According to Mr. Bawle, the strong current of American authority is in favor of the position that the covenant for right to convey is one in presentí, and if broken, the breach occurs at the moment of its creation; the covenant, in effect, being that a particular state of things exists at that time, and this not being true, the delivery of the deed which contains such a covenant causes an instantaneous breach. (Rawle on Cov. for Tit., 344-348.)
¶7This narrows the question down to plaintiff’s right to recover on the alleged breach of general warranty of title. The old rule, which required the purchaser to hold possession until ousted by judgment of a court, is now repudiated as being inconsistent with the principles of justice; as, in many instances, he would, by the delay, not only imperil his chances to ultimately secure his claim against the vendor, who might waste or otherwise dispose of his property, but would add additional damage by way of costs in defending a hopeless lawsuit.
¶8*188In adopting, however, the course of voluntarily surrendering the premises, the vendee must do so at his peril, and must assume the responsibility of determining upon the chances of success; and in the suit against the covenantor must assume the burden of proof and make out the adverse title to which he has yielded (Rawle on Cov. for Tit., 260-265.)
¶9In*this case the plaintiff voluntarily yielded to the patent to William R. Baker, assignee of Sarah McKissick, of date September 6, 1863, and hence the case must depend upon the validity of that title. This is virtually settled against the plaintiff by the case of Summers v. Davis, 49 Tex., 541, and Truehart v. Babcock, 49 Tex., 249.
¶10The John R. Williams league, a part of which purported to have been conveyed by the Chambers deed, and which was covered by the patent to Baker, was titled and surveyed land of Austin’s colony before February 5, 1850, ancl by the rulings of the above cases would come within the provisions of the statute of that date. (Paschal’s Dig., art. 809.)
¶11The John R. Williams grant was declared forfeited by the decree of the ayuntamiento. The tendency of this court has been to respect such decrees as conclusive when they had been acted upon by the proper authority by a regrant of the land thereby declared forfeited. The regrant in this case, however, to William R. Baker, was subsequent to the passage of the act in question.
¶12Had the plaintiff made out a prima-facie case against the covenantor, by having stood the test of a suit in which judgment had been rendered against the Chambers title and in favor of the patent to William R. Baker, this prima-facie case wras fully rebutted by the facts as applied to the law of this case, which show the invalidity of the title to Baker.
¶13The plaintiff, then, having volunta,rily yielded to a title under which her claim and possession could not have been disturbed, she cannot recover for the alleged breach of covenant of warranty, and the judgment below must be affirmed.
¶14Affirmed.