Campbell v. Everts, 47 Tex. 102 (Tex.)

Moore, Associate Justice.

Quite a number of objections were made by the appellee to the introduction of the deed, or contract for the sale of the land in controversy, from WEliam Kinsey, upon which appellants, who were plaintiffs in the court below, reEed to maintain their action. We are of opinion, however, that none of these objections were of a

character to authorize the ruling of the court, excluding said deed or contract from going before the jury in evidence. It is wholly immaterial whether or not this instrument can be properly designated as a deed, though we see no valid reason why it may not. Evidently, it seems to have been understood, and intended by the parties to it, to convey to and vest in the vendees (the appellants) whatever right, title, or interest Kinsey, the vendor, had to the land. Unquestionably, there are stipulations and covenants embraced in the instruments which are not usually found in deeds of conveyance ; but unless they are of such a character as to render the instrument ineffectual to pass the title to the land, or unless it can be plainly seen, when we look to the entire instrument, that it does not convey or vest in the vendees the legal or equitable title Or interest which the vendor held, evidently the defendant had no cause to complain, or valid ground of objection to its going in evidence to the jury.

■ It certainly cannot be maintained, without running counter to the former decisions of this court, that the deed is, upon its face, void for champerty. (Carder v. McDermett, 12 Tex., *550; McMullen v.* Guest, 6 Tex., 276.) There is no stipulation by either of the parties to the conveyance, to pay attorneys’ fees or costs and expenses for prosecuting a suit by or in the name of the other, in consideration of a part of or interest in the subject-matter of litigation. Although it is beyond question that, at common law, no interest in land could be conveyed by deed, unless the grantor was in actual or constructive possession, still it is an admitted principle in this State, that the adverse possession of land in no way hinders or precludes its sale and conveyance by tire owner, though he may have been ousted from its possession. The purpose of this deed, so far as we can judge from its contents, was to convey all the title or right of the grantor, Kinsey, absolutely and unconditionally to the vendees. Both the vendor and vendees were unquestionably aware, when the deed was executed, that the land was in possession of an

adverse claimant; but if a suit had to be brought for its recovery, the purchasers were to bring and prosecute it in their own names and at their own expense. It cannot bo said, because the parties have agreed to substitute, in place of a general warranty of title, a special covenant for a deduction of the amount to be paid for the land by the vendees, in case they should be unable to get possession of it, either by compromise or suit, that this will avoid the deed, or of itself show that the contract between them was void for champerty.

The ruling of the court upon the deed was evidently fatal to the plaintiffs’ action. Appellee, however, was not content with the mere defeat of a recovery by them, but, by plea in reconvention, asked for an affirmative judgment against the plaintiffs on his own title, and to remove the cloud cast upon it by the claim which they had asserted; and on the verdict returned by the jury, the court gave judgment in Ms favor, as prayed for in tins plea. The verdict, however, in view of the special direction given by the court as to the fact to be proved, and the alternative form in which it should be returned, does not justify the judgment.

The court instructed the jury, if they should find in favor of the defendant, on his plea in reconvention, their verdict, in substance, should be, “ We, the jury, find for the defendant the land in controversy against the plaintiffs, on the plea in reconvention.” But if they failed to find in favor of defendant, on tins plea, “ plaintiffs having abandoned their suit,” says the court, “the jury would simply say by their verdict, ‘We, the jury, find for the defendant.’” In response to the issue thus clearly and specifically submitted to them, the jury returned the following verdict, viz: “We, the jury, find for the defendant against the plaintiffs.”

Though the verdict is not in the precise language in which the jury were told by the court they should return it, if they did not find for the defendant upon his plea of reconvention, it is certainly nothing more in substance. If the plaintiffs

had abandoned their suit, as the court in its charge says they had, and as we suppose they must have done after their title had been ruled out by the court, the only issue before the jury was in reference to the title set up by the defendant. And had not the jury been directed, if their finding on this issue should be in favor of the defendant, to return their verdict in a particular form, the verdict as returned would seem to be sufficient to warrant the judgment rendered upon it. But if, as we must presume, the jury intended to conform their action to the instructions given them by the court, the inference to be drawn from the verdict, as' rendered, is, that their finding in favor of the defendant was not for the land upon his plea of reconvention, but simply against-the plaintiffs, because they had failed to maintain their action. We may also add that the evidence before the jury does not appear to warrant a verdict for the defendant on this plea, at least, for the entire survey of three hundred and twenty acres of land for which he had judgment. The deed purporting to have been executed by the patentee, Thomas Kinsey, junior, though referred to by several of the witnesses, was not in evidence; while that from Henderson, upon which reliance alone seems to have been placed on the trial, was only for two hundred and forty-three acres of the survey.

There are several questions of interest to which appellees’ pleas of limitation gave rise, which will probably have to be considered upon another trial of the case, which we might have felt-authorized to pass upon at this time, if we had had the benefit of a discussion of them by counsel. But as the briefs upon which the case was originally submitted to our predecessors have not come into our hands, we deem it improper at present to make any comment upon them.

The judgment is reversed and the cause remanded.

Reversed and remanded.