Page images
PDF
EPUB

Wright Cassidy to his action, whatever it might be, against the succession of Henry Cassidy; (3) that no such dispossession of the land in question, and no such conclusive conflicting title to the land in controversy, is shown as would create a legal eviction.

1. The first question to be determined is whether this is a personal or real action. Strictly speaking, it is neither; because an opposition to an executor's account is an answer, and has for its object to test its correctness. The executor has not admitted or approved of opponent's claim. It would havebeen more regular and formal for opponent to have brought a direct action against the executor for the recognition and establishment of his demand. But no objection has been raised on that account. Yet, if we should find this opposition to be of the nature of a real action which must be brought against the testamentary executor and the heirs, (Code Prac. art. 123,) there would be a stronger reason why the heirs should be cited to answer it; for, if this is not a personal action, the executor has no authority to represent the heirs, and a judgment against him alone would not bind them. Hart v. Boni, 6 La. 97; Bird v. Geneves, 34 La. Ann. 322; Cronan v. McDonough's Ex'r, 9 La. Ann. 302.

The Code of Practice provides that the obligation by which one contracts to defend another in some action which may be instituted against him is termed "warranty." Article 378. It further declares "that warranty may be of two kinds, real or personal. Real warranty is that which arises in real or hypothecary actions; as when a purchaser is sued in eviction of an immovable property which has been sold him." Article 379. This opposition treated it as a real action, as it undoubtedly is, and hence the heirs of Cassidy, whether present or represented, should have been cited. The fact of the attorney for absent heirs having joined the executor's counsel in making objections to the introduction of testimony, and in insisting on his plea of no cause of action, cannot amount to such a waiver as would confer the power on the executor to stand in judgment.

2. Notwithstanding the view we have expressed will necessitate the remanding the case, we feel it our duty to examine and pass upon the plea of no cause of action; the contention of the executor's counsel being that there is no privity of contract between the succession of Henry Cassidy and the opponents, they now having been subrogated by Horace Wright Cassidy to his right of action in warranty against IIenry Cassidy. His argument is that, unless there has been an express subrogation by Horace Wright Cassidy to Spohn and Hamilton of his action of warranty against Henry Cassidy, no action against the latter is maintainable in favor of opponents against Henry Cassidy's succession and heirs. The Code of Practice provides that when one is sued in eviction of an immovable property sold to him he shall be entitled to a delay in order to have his warrantor made a party to the suit. Code Prac. arts. 380, 387. It further provides that if the defendant is cast in the action, the judge, when he gives judgment against defendant, must render at the same time a judgment in favor of the defendant against his warrantor, for whatever indemnity may be due to such defendant. Article 385. Hence it would seem to be necessary, in order to avoid a circuity of action, that the vendee should be subrogated to his vendor's right of action in warranty against his vendor. This principle has been recognized and applied in the following cases, viz.: Vannorght v. Foreman, 1 Mart. (N. S.) 352; Da-vison v. Chabres' Heirs, 6 Mart, (N. S.) 321; Smith v. Wilson, 11 Rob. (La.) 522; Chambliss v. Miller, 15 La. Ann. 713; Filhiol v. Cobb, 36 La. Ann.. 793.

In each of those cases it was substantially decided that the vendee who has not taken an express subrogation of his vendor's right of action in warranty on the person from whom he bought cannot, in case of eviction, maintain an action against the first seller.

The application of this principle in the instant case does not interfere with the control over contracts given to the lex rei sita, which was so clearly expounded in Succession of Larendon, 39 La. Ann. 952, 3 South. Rep. 219.

The question here is one relating to the form and effect of an action, and not one relating to the law governing the contract. Code Prac. art. 13. Of such a question the courts of this state have the unmistakable right to decide. We are of the opinion that opponents have no right of action against the succession of Henry Cassidy, primarily; that the opponents should have litigated the question of liability with their own warrantor, Henry Wright Cassidy, and contradictorily with him established their demands, under their contract with him. But, inasmuch as the parties concerned are all heirs of the succession of Henry Cassidy, we can see no objection to its final settlement therein, after due citation, and on competent and sufficient evidence. It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed; and it is further ordered, adjudged, and decreed that the cause be remanded to the court a quo, with leave to make proper parties, and that same may be thereupon proceeded with according to law, and the laws herein expressed, the costs of appeal to be taxed against the opponents and appellants, and the cost of the lower court to await final judgment therein.

ON REHEARING. (December 3, 1888.)

POCHE, J. Our reasons for reopening this case originated from doubts which we entertained of the correctness of our conclusions in determining the nature of the action presented in the pleadings of the opposition of Spohn and Hamilton, appellees herein.

A second examination of the question constrains us to reconsider the conclusions announced in our previous opinion. By way of opposition to the final account of the succession of Henry Cassidy, Spohn and Hamilton, the latter therein represented by his widow and surviving partner in community, instituted an action for the recovery of the purchase money of a tract of land which they had bought from Horace Wright Cassidy in 1878, it being the same land which their said vendor had acquired from Henry Cassidy, since deceased, in 1875, from which property they claim to have been evicted under the effect of a decision of the supreme court of the state of Texas, in which said lands are situated, rendered in March, 1884.

Their right of recovery was resisted on the grounds, substantially: (1) That Horace Wright Cassidy should have been made a party to their action; (2) that opponents had no cause of action against Henry Cassidy, who was not their immediate vendor, and was not their warrantor; (3) that opponents had not been legally evicted from the lands. Treating that opposition as a real action, we had remanded the cause for the purpose of allowing opponents to make proper parties, as contemplated by the provisions of the last paragraph of article 123 of the Code of Practice.

And therein lies the error of our previous decision. Opponents' right of action being grounded on an alleged previous eviction, their demand cannot be treated as a call in warranty, within the purview of articles 378 and 379 of the Code of Practice. It is in the nature of a demand for compensatory damages arising out of an eviction from property which they had purchased from the vendee of the deceased; hence it cannot be treated otherwise than as an action for the recovery of a sum of money, growing out of an alleged contract of warranty. The proper definition of its nature must therefore be controlled by the provisions of article 12 of the Code of Practice, which are to the effect that "actions tending to recover an immovable or a real right, or a universality of things, such as an inheritance, are considered as real; while actions for

the recovery of a movable or of a sum of money, though accompanied with a mortgage, are not real actions." The real warranty, as contemplated in article 379 of the Code of Practice, arises only in the cases therein enumerated, in which the sale in warranty partakes of the nature of a real action only in so far as it is an incident to the main demand. But in an action to recover a sum of money in connection with a covenant of warranty, after an alleged eviction of the party claiming the immovable which was the subject-matter of the sale and of the eviction there ceases to be a factor in the controversy, and such a demand must be considered as a personal action. To that effect was the ruling of the court in a case of great, if not absolute, similarity to the status of the present controversy,-Bracey v. Calderwood, 36 La. Ann. 796. The authority of that case also affords an answer to the contention that Horace Wright Cassidy should have been made a party as the immediate vendor of opponents. The record shows that he is a resident of Texas, and it is clear that no valid judgment could have been rendered against him as a warrantor in the present action by the courts of Louisiana; and, moreover, under the views hereinafter expressed, he was not a necessary party in the issues which opponents tender to the succession of Henry Cassidy. The deceased was his vendor, and, as such, the latter could not urge any demand in warranty or for indemnity against his vendee. Hence it follows that, for the purposes of opponents' demand against the succession of Henry Cassidy, all necessary parties were before the court, and that a valid final judgment may, under the pleadings, be rendered in the case. It was not necessary to that end that Horace Wright Cassidy, the absent heir, should have been made a party. The testamentary executor was competent to represent the succession in the present action. Art. 123 of the Code of Practice provides as follows: "Testamentary executors may appear, and defend all the actions brought against the succession they administer, when none of the heirs are present or represented in the state; but if all the heirs, or any one of them, be present or represented, none but personal actions can be brought against the testamentary executor alone." We therefore conclude that the case, although presented in a very unusual form, is in such a shape as to justify us in considering its merits.

This brings us to the discussion of the contested right of the opponents to sue as warrantor a remote vendor in the chain of titles, without first exercising their recourse against their immediate vendor. The sale by Henry Cassidy to Horace Wright Cassidy was executed in this state, and the deed of the latter to Spohn and Hamilton was executed in the state of Texas, and, as already stated, the lands which were the subject-matter of both contracts are situated in Texas. Hence it follows that the right and obligations of the parties under both contracts ought to be governed by the laws of Texas. This question was discussed and maturely considered in the case of Succession of Larendon, 39 La. Ann. 952, 3 South Rep. 219, in which the rule was formulated in the following language: "The rights and obligations arising under acts passed in one state to be executed in another, respecting the transfer of real estate in the latter, are regulated in point of form, substance, and Vaildity by the laws of the state in which such acts are to have effect."

Now, under the laws, and according to the jurisprudence, of the state of Texas, a grantee may maintain an action and recover for breach of covenant of warranty against his immediate or remote vendor. Under that system, "a covenant of warranty runs with the land." The existence and recognition of that principle in the laws and jurisprudence of Texas, in which the common law prevails, are shown by the testimony of eminent practitioners in that state, who support their conclusions by reference to authorities in point. Hobby, Tex. Land Law, § 37; Peck v. Hensley, 20 Tex. 677. See, also, Hunt v. Amidon, 4 Hill, 347; Dupont v. Starring, 42 Mich. 492, 4 N. W. Rep. 190. We therefore hold that in this case opponents could maintain their action

against Henry Cassidy, their remote vendor, or his succession, without first exercising their recourse against their immediate vendor, Horace Wright Cassidy, and this was one of the reasons for which we held, in another part of this opinion, that, as vendor or warrantor, the latter was not a necessary party in these proceedings. We must now discuss the question as to whether opponents have been legally evicted or not, and that involves the consideration of two propositions: (1) One of law; and that is whether such an action must necessarily result from direct judicial process against the alleged evicted vendee. (2) Whether, if evicted in law, these opponents have actually abandoned the property.

1. The negative of this proposition not only flows from competent authority on the laws and jurisprudence of Texas, but the principle is considered in brief by the present counsel of the testamentary executor, who say "The Texas authorities referred to by opponent undoubtedly established the fact that a purchaser may sue his vendor for a breach of the covenant of warranty without showing eviction under legal process, but they also show that, in order to recover in such action, the purchaser must plead, prove, and establish the validity of the adverse title which he admits and claims to be paramount to that transferred to him by his vendor, and must show an actual dispossession by virtue thereof."

We understand both of the foregoing propositions to be correct, and to precisely express the law which governs this point of the case. Hence we shall now turn our attention to the question of the alleged eviction which underlies opponents' right of recovery

2. On this, which is the pivotal point in the case, the record discloses the following facts substantially: The lands which Henry Cassidy sold to his son, and which the latter subsequently transferred to Spohn and Hamilton, were represented, and are now held, as forming a part of a larger tract of land known as the "Eurique Villareal Grant," obtained by the latter from the Mexican state of Tamanlipas. It subsequently appeared from official surveys inade under the authority of the state of Texas that the Villareal grant did not extend as far west as the location of the Cassidy lands, and of other lands held by the grantee of Villareal, and that the state authorities proceeded to survey and to dispose of those lands as belonging to the state. A suit was then instituted by the administrator of H. L. Kinney, who owned the grant in question, against certain parties who held under the state of Texas. That litigation was settled by the supreme court of Texas in May, 1884, in a decision which defined the proper limits and boundaries of the Villareal grant, and which adjudicated that all lands situated west of a certain line which was held to be the western boundary of the grant were not embraced in, or covered by, the Villareal grant. That litigation is entitled Schaeffer v. Berry, and is

reported in 62 Tex. 705.

It is in proof in this record that the lands sold by the Cassidys are situated west of the western boundary of the Villareal grant, as established by that decision; hence they are not a part of the grant, and it follows that the title of the state of Texas and of its vendees and assignees is paramount to the title held by these opponents by means of their purchase from the Cassidys as vendees of H. L. Kinney. That state of things must be held as a legal eviction of Cassidy's purchasers. These facts are gathered from a voluminous record, to which it is unnecessary to refer in detail.

On the question of actual abandonment the testimony is conflicting, but the preponderance of the evidence shows that opponents have been dispossessed of, and that they have actually abandoned, the lands under the title which they had acquired from the Cassidys. The judicial declarations made by them in their action would, of themselves, estop them from hereafter claiming either the ownership or the possession of the lands in question as the grantees of Horace W. Cassidy.

These considerations lead us to the affirmance of the judgment rendered below, which was in favor of opponents for the amount of their purchase price paid to Horace Wright Cassidy, with interest of 5 per cent. per annum from January 1, 1885.

We are not disposed, and we find no reason, to favor appellees' motion for an increase of the rate of interests, and we are satisfied that the district judge has done substantial justice to the parties.

It is therefore ordered that our previous decree rendered herein be canceled and set aside, and that the judgment appealed from be affirmed, with costs.

HAMBRICK et al. v. RUSSELL et al.

(Supreme Court of Alabama. January 9, 1889.)

1. MORTGAGES-FORECLOSURE-PARTIES.

In a suit to foreclose a mortgage, the trustee in whom is the legal title is an indispensable party, and the objection that he has been omitted is available at any time and in any form.1

2. SAME-TRIAL OF ADVERSE TITLES.

In a suit to foreclose, the court has no jurisdiction to try the relative merits of legal titles held by adverse parties. Hence one who claims title from a stranger, or even from the mortgagor, anterior to the mortgage, should not be brought in as a defendant.

3. SAME-PLEA TO THE JURISDICTION.

The objection goes to the jurisdiction, and may be raised at any time, or enforced by the court sua sponte.

Appeal from chancery court, Madison county; S. K. MCSPADDEN, Chancellor.

Bill filed by Martha T. Russell and Mary A. Walker against Bradford Hambrick and his wife, Mary Hambrick, and Joseph M. Hambrick, to foreclose a mortgage on certain lands made by Bradford Hambrick and wife to one George M. Harris, who was described in the mortgage as "George M. Harris, agent of Mrs. Missouri McCalley." The mortgage was given to secure an indebtedness of $1,650 evidenced by a bond payable to Harris as such agent. Harris was not made a party to the suit. The mortgage was executed February 7, 1881, and was duly filed for record in the probate office of Madison county. Mrs. McCalley died in August, 1881, and on March 4, 1882, the complainant Martha T. Russell was duly appointed her administratrix with the will annexed, letters being issued to her April 18, 1882. Thereafter Harris made with her, as administratrix, a settlement of his agency, delivering the bond and mortgage in suit as assets of the estate. On final settlement and distribution of the estate, the bond and mortgage were, by decree, allotted to said Martha T. Russell, the sole legatee and devisee under the will. Before filing this bill the bond and mortgage had been pledged by her to her co-complainant, Mary A. Walker.

The bill avers that the mortgagor acquired title to the lands under a conveyance from one Alfred Hambrick, bearing date April 29, 1877; that the appellant Joseph M. Hambrick "claimed some right, title, or interest in said lands, under what purports to be a deed of conveyance of all or a part thereof, executed to him by said Alfred Hambrick on September 9, 1865:" that the said deed from Alfred to Joseph M. Hambrick was never filed in the probate office for record until September 24, 1884; that said Alfred Hambrick remained in possession of said lands as owner until April 29, 1877, when he

1 As to who are necessary parties to a suit for foreclosure of a mortgage, see Merritt v. Daffin, (Fla.) 4 South. Rep. 806, and note; Jones v. Richardson, (Ala.) ante, 194, and cases cited.

« PreviousContinue »