Williams v. Turner , 50 Tex. 137 ( 1878 )

Bonner, Associate Justice.

In this case there is no assignment of errors and no statement of facts, and nothing will be considered except such alleged fundamental error of law mentioned in the brief of counsel as being apparent upon the record.

The pleadings of plaintiffs allege that on the 21st of December, 1865, the appellant, William J. Williams, made, executed, and delivered to Thomas H. Turner, for a valuable consideration, a deed to a certain tract of land therein mentioned, in which he covenanted to forever warrant and defend the title and possession of said land unto the said Thomas H. Turner, his heirs' and assignees; that although said deed was taken in the name of the said Thomas H. Turner, in fact the whole of the purchase-money which was paid for said land was the separate property of Ellinor E. Turner, wife of the said Thomas, and that the investment was made for her separate use and benefit; that afterwards one Eancy Rogers instituted suit for said land, and by proper judgment of the District Court, ‘and which was affirmed by this court, she recovered judgment for the title and possession of the same, and by virtue of which and the proceedings thereunder the said Thomas IT. and Ellinor Turner were legally dispossessed. Thereupon this suit was instituted by them jointly, for the' use and benefit of the wife, against Williams for breach of said covenant. During the pendency of the suit Ellinor departed this life, and the said Thomas H. Turner and one Charles Davenport, having qualified as administrators upon her estate, the suit was prosecuted by them as such.

The defendants excepted to the pleadings of plaintiffs. A jury was waived and the cause submitted to the court. Judgment was rendered for the plaintiffs, overruling said exceptions, and that they recover for the use and benefit of said estate the sum of $368.64; and from this judgment the defendant appeals.

The judgment of the court overruling the general, exception of the defendant is the only question sxibmitted for our consideration. The proposition of law insisted on by counsel for appellant is, substantially, that the benefit of covenants for title pass with the legal estate, and cannot be invoked by the holder of a mere eqxiity; and that one who merely entox-s upon and claims title to land cannot sue upon covenants made to a prior occupant, but must prove title by deed.

In 3 Washburn on Eeal Property, chap. 5, secs. 5, 15, 18, 19, 20, the doctrine is laid down, that the broadest and most effective covenant contained in American deeds is that of warranty, which, in some of the States, is the only one in general use; that this covenant of warranty is a personal one, and is in effect a covenant for quiet enjoyment, and runs with the estate in reference to which it is made, and may be sued on by any one to whom the same shall come by deed, even after several successive conveyances, or by descent or devise; and that an action for its breach should be brought by whoever may be the owner of the - land at the time the covenant is broken.

The covenant here under consideration is admitted by the demurrer to be, in express terms, one of general warranty and for quiet possession.

In Eawle on Covenants, 352, it is said: “ But whatever difference of opinion may exist as to the right of an assignee to take advantage of the covenant for seizin, or against incumbrances, there is none as regards the covenants for quiet enjoyment and of warranty.”

Was, then, Mrs. Ellinor Turner such an owner as could maintain an action for the breach of this covenant ?

It is said by Judge Story, and approved by this court, that “ the clear result of all the cases, without a single exception, is that the trust of the legal estate, whether freehold, copy-hold, or leasehold; whether taken in the name of the purchaser and others jointly, or in the name of others without the purchaser; whether in the name of one or several; whether jointly or successively, [successive,] results to the man who advances the purchase - money.” (2 Story’s Eq., sec. 1201; Eeill v. Keese, 5 Tex., 29.)

Under our statute, the husband has the sole management of the wife’s separate property ; and suits for the same may be brought either in his own name or jointly with the wife. (Paschal’s Dig., arts. 4636, 4641.)

There is both good reason and authority to support the position that, as a general rule, the wife should be joined in the suit.

The separate property of the wife remains such, whatever changes it may undergo, so long as it can be clearly and indisputably traced as such. (Rose v. Houston, 11 Tex., 324.)

From these authorities, it seems beyond question that the suit was properly brought for the use and benefit of the wife, and that the demurrer was not well taken. It may be added, that, in fact, the suit was brought both in the name of the wife and of the husband also, to whom the covenant was originally made and in whom was the legal title.

That the wife availed herself of a statutory provision to join in the suit for the protection of her rights, could not, it is believed, have operated to prejudice any rights of the defendant, and affords no legal ground of complaint by him.

There being no error apparent in the record, the judgment below is affirmed.

Judgment affirmed.