P. J. Willis & Bro. v. Robinson

HEAD, Associate Justice.

The findings of fact filed by the court below do not connect the appellants, Willis & Bro., with the land in controversy in any manner whatever. From the substituted statement of facts, however, we understand that C. M. Byars at one time owned an undivided one-twelfth interest in the south half of section 18 and north half of section 64 of the Houston & Texas Central Railroad Company surveys in Wilbarger County. That the several tenants owning this land undertook to lay it off into lots and blocks, for the purpose of building a town thereon; but by mistake as to the correct location of their east line, a portion of this town was surveyed too far east, upon land they did not own, and a corresponding amount of their own land, being a strip 366 varas wide, was left undivided. That after this town was so surveyed and platted, the cotenants partitioned it by conveying to each one his interest in lots by numbers as shown on this plat.

After this partition, Willis & Bro. levied an execution upon the lots so conveyed to Byars in severalty, and at the sale thereunder became the purchasers thereof. A part of the lots so purchased were in that part of the town located east of the correct line of said sections, and their title *9 thereto having therefore failed, appellants ask in this suit to be recompensed for such loss by having set apart to them the interest of Byars in the 3.66 varas strip left undivided as aforesaid.

We believe appellants are not entitled to this relief. If it be conceded that by their purchase at the execution sale they acquired Byars’ right to the covenants of warranty in his claim of title (Flaniken v. Neal, 67 Texas, 629 ), including his right to call upon his cotenants for compensation, or, in a proper case, for a repartition, this will not give them his interest in other land not included in the division. Arnold v. Cauble, 49 Texas, 527 . Where the title of one of the tenants fails to all or a part of the land set aside to him in partition, he has the right in this State to look to his cotenants to compensate him; but this does not mean compensation for the entire loss, but only their proportionate part thereof. Grigsby v. Peak, 68 Texas, 235 .

Sometimes this compensation is sought and obtained by a repartition; but in such cases the tenant whose title failed does not get the full number of acres he lost, but only his proportionate share of the remainder, after deducting this loss from the whole. Grigsby v. Peak, supra.. So, in this case, if Byars had remained the owner, when it was ascertained that he had lost a part of the land set aside to him, other rights not intervening, he might have demanded of his cotenants a repartition of that part of the town the title to which was good, and in such partition there would have been given him his proportionate share thereof, but he would also have been required to bear his proportionate share of the loss; or he might, if he preferred, have demanded of his cotenants money compensation, to be governed, however, by the same principles as the repartition.

We know of no principle, however, by which he could have demanded compensation out of other lands his cotenants may have owned. The difficulties that would necessarily attend such an adjustment would be sufficient reason for its rejection. Now it is. contended that Willis & Bro., by their purchase, acquired only the interest of Byars in the specific lots described in their deed, and his right to recover upon the implied covenant of warranty by reason of the partition; and, of course, their right under this covenant would not be greater than his would have been had he not sold.

We know it may be contended that Byars still had an interest with his cotenants in the land that was not included in the first partition, and if he were the acting party, this might also be included in the repartition. If the status of all the parties had remained the same, it may be that under our liberal practice this could have been done; but Byars did not acquire his interest in this other land by reason of the implied covenant in the first partition, but he owned it outside and independent thereof, and appellants, by their purchase at the execution sale, at most acquired only his interest in the specific land sold and his right of action upon that *10 covenant, and did not acquire the title he had in other land by reason of other facts, even though there be nothing to prevent him having it partitioned in that suit, had he so desired.

Delivered November 1, 1893.

We conclude that the judgment of the court below should be affirmed as against the appellants, P. J. Willis & Bro., and it is so ordered.

Affirmed.