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: 420
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420 TURNER V. MILLER. [Term of
Opinion of the Court.
(Rickert iv. Snyder, 9 Wendell's R., 422. Contra; Leffingwell
et al. v. Elliott, 10 Pick., 204; Sedg. on Damg. Marg.,
p. 174; Rawle on Cor. of Title, 121-125.)
The rule has been laid down in covenants for title in this
.tate, that upon failure of title the measure of damages is the
purchase-money, with interest.
(Garrett v. Gaines, 6 Texas, 443; Hall v. York, 22 Texas,.
In a case decided by this court, where there was a general
Warranty, and an eviction by suit, the vendee claimed and recovered
counsel fees upon a special promise that the vendor
would bear the expense of litigation, if the vendee would de-.
fend the suit, which he did, and failed by reason of a superior
title. (Rowe v. ITeath, 23 Texas, 620.)
~ In sustaining that case, Justice Wheeler in delivering the.
opinion, incidentally remarked: "And it seems from the au"
thorities that he was so entitled (to recover the attorney's fees)
"without proving any contract or express promise to that
effect, the more especially as he made defense at the instance
"of the grantor. (Rawle on Covenants, 121-125.)" The case,
however, was not decided on that intimation, but expressly
Upon the special contract to pay counsel fees.
We have been referred to no case in our reports, wherein
counsel fees have been allowed as damages in a suit upon a
general warranty alone, and have found none such.
Chancellor Kent, in his Commentaries, states the rule of damatges
to be the purchase-money and interest thereon. IIe arrives
at it by reference to the rule on the ancient warranty at
common law, which was to restore to the party evicted other
land of equal value, estimating it at the time the warranty was
nade. Hence he says in reference to the personal covenants
of warranty Snow in use: " The buyer on the covenant of seizure
"Rrecovers back the consideration money and interest, and no
'Cmore." (4 Kent's Corn., 475.)
The same view is presented by him in his opinion in an
early case decided in the State of New York. In the same
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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/m1/428/: accessed December 15, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .