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: 421
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1875.] TURNER V. MILLMER. 4f1
Opinion of the Court.
case Justice Livingston delivered an opinion in which the
view was advanced, that counsel fees were allowable, though
from the facts of the ease as reported, it does not appear
whether counsel fees were embraced Hin the recovery or
not. (Staats v. Executors of Ten Eyck, 3' Caines' R.,'115
By the Supreme Court of Louisiana it was said: " We have
," had occasion repeatedly to state, that the law does not ordi"narily
allow fees of counsel who are employed to vindicate
"the rights of parties. (Hale v. The City of New Orleans, 13
La. An. Rep., 502.) .
We are of opinion that the correct rule is, and should be,
not to allow counsel fees in a suit on a general warranty, as in
this case, when there is no question of fraud, imposition, or
malicious conduct involved. A tract of land or a lot may be
sold for a few hundred dollars, both parties believing thle title
to be good. Its value may be enhanced fifty-fold by improvements,
and by the rise of property. The defense ofi>the- title
may require the expenditure in counsel fees of ari- amount
many times greater than that of the purchase-money 6`f the
land or lot and the interest thereon. The value of thee improvements,
far more than of the land, would furnish :the est*mate
of the counsel fees in defending the title. If thee -counsel
fees were allowed, as against the warrantor, it would often
be hazardous in the extreme to sell lands or lots at any price
that purchasers could afford to give for laid upon which to
make valuable improvements. i
Whether it be considered in reference to principle, prece'dent,
or practical operation, the rule as to the mentsgure of
damages in such a case as this, should exclude the counsel feeA
expended in defending the suit of eviction by the vendede
when he sues the vendor upon his general warranty of tiitle,
This being an agreed case, and the counsel fees that wer6
allowed having been designated separately in the verdict and
judgment, being the sum of one hundred and six dollais, gold,
it is ordered and adjudged that the judgment be reversed and
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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/m1/429/: accessed March 30, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .