Temple v. Shaw

203 F. 974, 123 C.C.A. 582, 1913 U.S. App. LEXIS 1236

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 25, 1913
• Docket: Nos. 2,367, 2,403
• Status: Published

Opinion

PER CURIAM.

Both writs of error aré sued out in the same case and to reverse the same judgment. On consideration of the transcripts and briefs, we find no reversible error in the rulings and judgment of the trial judge.

It follows that in each of the above entitled and numbered cases the judgment is affirmed, with costs.

On Petition for Rehearing.

■ While the suit is one on a joint warranty of title to recover for a defective title to a limited portion of the lands conveyed, the judicial admission by the plaintiff in the court below—

“that the title of the defendants in this suit came from a source different from that of Evelyn C. Howard, Mrs. Anna R. B. Miller, and Samuel B. Foard, alleged in the plaintiff’s petition in this case as nonresidents of the state of Texas, and out of the jurisdiction of this court, and the further admission of the plaintiff that the defendants in this suit received one-half of the purchase price of the 280 acres to which title is alleged by plaintiff to have failed, and the said nonresidents, Evelyn O. Howard, Anna R, B. Miller, and Samuel B. Foard, received the other one-half part of said purchase money, and the further admission that the fee-simple title to said land was on M¡iy 17, 1005, an undivided one-lialf in the said Evelyn C. Howard, Anna It. B. Miller, and Samuel B. Foard jointly, an undivided one-fourth in the defendant, Mrs. Hattie Byars, and an undivided one-fourth in Carey Shaw and Frieneh Simpson, jointly, except in so far as same might have been divested out of them by the adverse possession of one Henry Smith”

—warranted the trial judge to construe the contract of warranty as severable and not joint.

The petition for rehearing is denied.