Samuel K. McClelland, Adm'r, v. John L. Moore, 48 Tex. 355

Moore, Associate Justice. The judgment in this case of the 7th of July, 1874, was unquestionably erroneous. Both plaintiff" and defendant were dead when the judgment was rendered. The death of the defendant had been suggested, and the court had granted leave to his executor to enter himself as a party. But this order had not been carried into the minutes of the court. The error of the judgment, for want of a party defendant against whom judgment could be rendered, was owing to a mere defect in the record.

It might) unquestionably, have been obviated by the correction of the record by the notes of the judge on his docket, which show that the death of the original defendant, John L. Moore, had been suggested, and that leave was given to Nicholas S. Moore, his executor, to make himself a defendant to the action in his stead. But the defect in the judgment, for want of a plaintiff, cannot be so easily remedied.

The error, in this particular, does not result from a mere defect in the record, but from the failure of the administrator de bonis non of Zachariah Hinton, deceased, in whose right the action was brought, to make himself a party to the suit. He certainly did not do so by his presence in the court, and by assisting counsel for the plaintiff, by suggestions or otherwise, during the progress of the trial. The error in the judgment, however, is not exhibited by the record. .It is an error in fact, and not in law.

It could not, therefore, be corrected, under our system of judicature, on appeal or writ of error to this court. Eelief must be sought in such ease by a petition in the nature of a bill of review, or for a new trial, or by a motion in the court in which it is rendered, to set aside the judgment; which seems to have been recognized by this court, in cases of this kind, as a substitute in modern practice for writ of error coram nobis. (Milam County v.

Robertson, 47 Tex., 222, and cases cited.) The court did not err in admitting in evidence the certified copy from the General Land Office of the patent to Daniel Hopkins. If we look merely to the statutes establishing and organizing the General Land Office, and to such of their provisions as prescribe the duties of the commissioner, we think there can be but little hesitancy in concluding that it is not only proper, but absolutely essential, in conducting the business of the- office, to keep a record of patents issuing from it. But we are not left to inference or deduction in arriving' at this conclusion.

So important is this matter deemed, that it has been provided in every Constitution adopted by the people of the State, from 1845 to the present "time, that “ all titles which have heretofore emanated, or may hereafter emanate, from the government, shall be registered in the General Land Office.” The registry of said titles, when made, is unquestionably a record of the office.

It is, we think, too plain for argument, that a certified copy by the commissioner of a patent thus registered in said office is admissible as secondary evidence of the contents of the patent, where a proper predicate for the admission of secondary evidence has been laid. (Paschal’s Dig., art. 3715.) The only remaining question which it is necessary for us to consider is,—Did the evidence before the court warrant its judgment ? We are clearly of the opinion that it did not. On the 13th of August, 1859, Zachariah Hinton, appellant’s testator, in consideration of the sum of $5,000, sold to John L.

Moore 913 acres of land, and executed to Moore a deed, with covenant of general warranty. Moore, it seems, went at once into possession of the land, and he and his executor have been in possession of it from the date of said deed to the present time, and have never been evicted, hindered, or disturbed in their possession, use, or enjoyment of it. On the 15th of September, 1866, Samuel K. McClelland, the administrator of Hinton, brought suit against Moore for the sum of $1,000 purchase-money for said land, still unpaid.

That this amount of the stipulated price which Moore agreed to pay for the land had not been paid, is not controverted. The defendant Moore, however, set up in his answer a cross-demand for damages sustained by a breach in the covenant of warranty in Hinton’s deed, by the failure of his title to 203 acres of the land sold him, the value of which, he avers, is more than the amount for which he was sued, estimating it at the proportional price agreed to be paid for the entire tract.

The testimony shows that the 203 acres of land in question had been located and surveyed by virtue of a genuine land certificate, long before its sale to Moore. But it is not shown how or by what title Hinton held or claimed it. The certificate by virtue of which the land was surveyed, was not returned to the General Land Office by the 29th of July, 1872. The survey was therefore forfeited. Moore, after it became subject to reappropriation, had it located and surveyed by virtue of a certificate belonging to him, and subsequently obtained a patent for it.

The evidence in support of appellee’s answer clearly establishes a breach of the covenant of warranty in Hinton’s deed. The only question is as to the amount of damages to which the appellee was entitled by reason of this breach. The judge who tried the case supposed him entitled to such part of the contract price of the entire land as the part for which the vendor’s title failed was worth, in proportion to the entire tract.

This, no doubt, is the correct rule, if the purchaser had been evicted or lost the land. (Field’s Law of Damages, 394.) But the essential nature of the contract of warranty plainly indicates that it is not the rule by which the damages are to be measured in such a case as this, and in the absence of fraud on the part of the vendor. The nature and purpose of such a covenant is for the indemnity of the purchaser against the loss or injury he may sustain by a failure or defect in the vendor’s title.

While there has been much difference of opinion in the courts of different States as to what is the proper measure or extent of this indemnity where the purchaser has been evicted, or yielded possession to a superior title, there seems to be little if any difference among them, where the purchaser has voluntarily removed the incumbrance or acquired the paramount title. “ In such case,” says Rawle on Covenant for Title, 100, “ his damages are of course limited to the amount reasonably paid for that purpose.” And Field, in his recent work on The Law of Damages, 396, says: “When the covenantee purchases the paramount title, the measure of damages is the actual loss thereby sustained; and it is incumbent on the purchaser, in order to recover more than nominal damages, to prove the amount paid by him to extinguish the paramount title.” Some courts have gone so far as to hold that he must also show that the amount paid was the reasonable value of the interest acquired, and that it cannot be assumed to be reasonable from the bare fact of payment. (Anderson v.

Knox, 20 Ala., 160.) The judgment is reversed and the cause remanded. Reversed and remanded. [Chief Justice Roberts did not sit in this case.]