Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 419
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1875.] TURNER v. MILLER. 419
Opinion of the Court.
(No briefs have reached reporter for plaintiffs in error.)
Foord, Tltompson & MficCormick, for defendant in error.
ROBERTS, C. J. This case is brought up as an " agreed:
"case," under the statute, presenting one question, which is,
what is the measure of damages in a suit upon a general warranty
of title to land, after an eviction of the vendee, by superior
title, maintained in a suit against the vendee. (Paschal's
Digest, Article 1516.)
The judgment was rendered upon, and in accordance with
the following verdict: "We, the jury, find for the plaintiff
"the sum of five hundred and fifty-four dollars and twenty"four
cents in gold, amount of purchase-money and cost due,
"and the further sum of one hundred and six dollars, gold, at"torney's
fees paid by him."
In the agreement it is stated that "the precise point now
" presented to the Hon. Supreme Court is as to the liability of
"defendants in this action for attorney's fees expended by plaint"iff,
in the said suit of Key and wife above-named ;" it being,
the suit in which the plaintiff, as vendee, was evicted. The
vendee upon being sued in the last-mentioned suit, did not give
notice of it to his vendor. This, however, has not been held to
make any difference as to the measure of damages, but only as
to the conclusive effect of the judgment of eviction, as matter
of evidence. (Rawle on Cov. for Title, p.123. Note 2 Harrison,
N. Y. Rep., 309.)
From the authority cited it would appear that attorney's fees
taxed as costs of the suit are allowed in England, and also in
America in those States generally where attorney's fees are taxed'
As to the allowance of counsel's fees, not taxed, there is a
difference of decision in different States. In New York, and.
other States following its precedents, they are allowed as damages.
In Massachusetts, and other States following its precedents,
they are not allowed.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/427/: accessed May 29, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .