
    HAYS et al. v. TALLEY.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 11, 1913.
    Rehearing Denied Nov. 27, 1913.)
    1. Limitation of Actions (§ 47) — Breach of Covenants — Warranty of Title.
    Limitations against an action for breach of a covenant of warranty of realty do not commence to run until actual or constructive eviction under a superior outstanding title.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 254-258; Dec. Dig. § 47.]
    2. Limitation of Actions (§ 47) — Limitations — Breach.
    Where there was a conflict in tbe title or location of the land conveyed by defendant to plaintiff and county school land, which required a decision of the courts to determine the rights of the parties, limitations against an action by plaintiff against defendant for breach of warranty of title only began to run from the final judgment of the Supreme Court, adjudging that the county had title as against plaintiff in an action between them, and not from the date of plaintiff’s deed or of the filing of such action.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 254-258; Dec. Dig. § 47.]
    Appeal from District Court, Delta County; Wm. Pierson, Judge.
    Action by J. T. Talley against J. M. Hays and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Appellee brought tbe suit on June 25, 1912, against tbe appellants upon a covenant of general warranty contained in tbe deed of May 22, 1889, by wbicb appellants bad conveyed 80 acres of land in Delta county in tbe headrigbt of J. J. Nidever to Martha .Neathery, by whom, joined by her husband, R. E. Neathery, it bad been conveyed by deed, with covenants of general warranty, on October 22, 1900, to appellee. Tbe covenant of warranty, as alleged, is “to forever warrant and defend tbe title to said land unto tbe said Martha Neathery and her heirs and assigns against tbe claims of all others.” Appellants answered by demurrer and by general denial, and specially pleading tbe statute of limitation of four years in bar of tbe action. Appgllee, in a trial to tbe court, recovered a judgment against appellants on their warranty of title for $500, with 6 per cent, interest from August 1, 1911.
    Tbe court overruled the following special demurrer: “(3) Tbe defendants specially demur to said petition, and say tbe same shows on its face that if plaintiff ever bad a cause of action against defendants, that tbe same is barred by tbe statute of limitation of four years, and that defendants are not required to further answer thereto.” Tbe particular allegations of tbe petition to wbicb tbe demurrer was directed reads: “Plaintiff avers that since tbe conveyance from tbe defendants to Martha H. Neathery, and since the conveyance from Martha H. Neathery and R. E. Neathery to tbe plaintiff as set forth above, tbe title as attempted to be conveyed from tbe defendants to Martha Neathery and from her to tbe plaintiff herein has failed in whole. Plaintiff avers tbe facts to be: That at tbe time of each of tbe two conveyances above mentioned the superior and outstanding title to tbe said 80 acres of land was vested in Lamar county, Tex., and title to tbe same was not in tbe defendants or Martha Neathery at the time of each or either of tbe conveyances mentioned above. That Lamar county was tbe owner of said tract of land as and the same constituted a portion of tbe school land owned by Lamar county, wbicb fact was unknown to tbe plaintiff herein at tbe time of his purchase from tbe Neatberys. That Lamar county, in tbe assertion of its claim of title to said land, instituted its suit in tbe district court of Delta county, Tex., on tbe - day of May, 1905, for tbe recovery against tbe plaintiff herein of tbe title and possession of said tract of land. Said suit was styled ‘Lamar County v. J. T. Talley et al.,’ and numbered upon tbe docket of said court 1309; said suit was against other persons than tbis plaintiff and for tbe recovery of other lands not necessary here to mention. That upon a trial of said cause in tbe district court of Delta county on tbe 22d day of January, 1909, judgment was rendered in favor of tbis plaintiff and tbe other defendants in said cause and against Lamar county appealed to tbe Court of Civil Appeals of tbe Fifth Supreme Judicial District of Texas, wbicb last-named court beard said cause on tbe 26th day of February, 1910 (127 S. W. 272), and rendered its judgment reversing tbe judgment of tbe district court of Delta county rendered therein, and entered judgment in favor of Lamar county and against tbis plaintiff for tbe title and possession of said tract of land. That tbis plaintiff and tbe other defendants in said cause appealed from tbe judgment rendered by tbe Court of Civil Appeals to tbe Supreme Court of tbe state of Texas, wbicb last-named court beard said cause on tbe 24th day of May, 1911 (Talley v. Lamar County, 104 Tex. 295,137 S. W. 1125), and rendered its judgment affirming in all things the judgment as rendered by the Court of Civil Appeals in said cause, which last-mentioned judgment was final and from which there was no further appeal. On August 1, 1911, Immediately after the final judgment of the Supreme Court, Lamar county tocfk possession of the said tract of land and ousted the plaintiff herein from possession of the same. That plaintiff in good faith defended his title to said tract of land, expending in the defense of said suit the sum of $500. That defendants have failed to defend the title to said property. That by reason of the covenant of warranty contained in the said conveyance from the defendants to Martha H. Neathery and the conveyance from Martha H. Neathery to the plaintiff as set out above, and by reason of the failure of the title to said land as set out above, the defendants are liable to the plaintiff upon their covenant of warranty as made to Martha H. Neathery and her assigns for the said sum of $560, paid to Martha and R. B. Neathery by the plaintiff as purchase money for the said land, together with interest on said amount at 6 per cent, from August 1, 1911,” etc.
    Patteson & Patteson, of Cooper, for appellants. Newman Phillips, of Cooper, for ap-pellee.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   LEVX, J.

(after stating the facts as above). The first assignment predicates error on the' part of the court in overruling the special demurrer of limitation to the petition. According to the allegations in the petition, Lamar county ousted appellee from the actual possession of the land on August 1, 1911, after the decision and judgment of the Supreme Court on May 24, 1911, in the appeal of the causé of Lamar county against appellee, which finally decreed title to the land to be residing in Lamar county, and made evident the want of any title in appellee. The effect of the allegations is to show an actual eviction of appellee from the land on August 1, 1911, and a complete legal failure of title in appellee, claiming under deed from appellants relating to the time of such conveyance, as finally determined by a contest in the courts under judgment of the Supreme Court on May 24, 1911.

It is laid down as a rule that the statute of limitations against an action on the breach of a covenant of warranty of realty does not commence to run until an eviction, actual or constructive, under a superior outstanding title. Jones v. Paul, 59 Tex. 41; Westrope v. Chambers, 51 Tex. 178; Clark v. Mumford, 62 Tex. 531; Alvord v. Waggoner, 29 S. W. 797; Wood on Limitations, § 173.

And whatever may be said concerning the ultimate fact that Lamar county was the superior owner of the land as a part of her public school lands, and about limitation not operating as in similar suits against private individuals, we think that in the instant suit limitation should not be held to have run against the suit on warranty of title against appellants until after the alleged eviction and failure of title. Por the facts pleaded show, when properly construed, that the parties were dealing with each other about the land as being “in the headright of J. J. Nidever,” and were not undertaking to contract about school lands belonging to Lamar county; and1 if there was any conflict of title or location of the land as between the Nidever survey and Lamar county school land, as we must presume from the facts, it was upon such facts and law as to require the courts to' determine the rights of parties, and hence limitation began to run against the warranty of title only from the final judgment of the Supreme Court as pleaded, and not from the date of the deed or date of filing of the suit. Alvord v. Waggoner, 29 S. W. 797, approved by Supreme Court on limitations; Eustis v. Fosdick, 88 Tex. 615, 32 S. W. 872; Williams v. Finley, 99 Tex. 468, 90 S. W. 1087; Trevino v. Cantu, 61 Tex. 88: Sievert v. Underwood, 124 S. W. 721. Reference: Seibert v. Bergman, 91 Tex. 411, 44 S. W. 68.

The second assignment, which is the only other assignment, cannot be considered, for the motion for new trial does not contain such assignment.

The judgment is affirmed.  