We deem it necessary to notice only one of the errors assigned, and that is the refusal of the judge below to give the second special charge asked by appellant’s counsel. This charge fixed the measure of damages upon failure of title conveyed by .a warranty deed, when the paramount title had been bought in by the vendee, at the amount of expense incurred by the latter in making the purchase and perfecting his title.
The facts proved upon the trial established this state of case, and if the principle of law involved in the instruction asked is correct, the court should have given it either in the general charge, or upon request of the appellant’s counsel. It was not included in the general charge, but the measure of damages was stated in it to be the value of that portion of the land to which the title failed, if not more than the amount of the note sued on. Under the circumstances of the contract as testified by the defendant, this might have been the true measure of damages upon eviction, or where there had been no extinction of the paramount title for the benefit of appellees. But the rule as established by the great weight of authority, in fact the almost universal rule, where such extinction has *472occurred at the expense of the vendees, is that stated in the special charge refused by the court. A few may be cited. Sedg-w. on Measure of Damages, marg. p. 174; Rawle on Covenants of Title, p. 100; Field on Damages, p. 396; Loomis v. Bedel, 11 N. H., 74; Fawcett v. Wood, 5 Iowa, 400; Bailey v. Scott, 13 Wis., 618; Hurd v. Hall, 12 Wis., 112; Lawless v. Collier, 19 Mo., 480.
[Opinion delivered January 30, 1883.]It has been authoritatively decided to be the proper - measure of damages by the supreme court of this state in the case of McClellan v. Moore, 48 Tex., 355, a case almost exactly like the present in the nature of the contract of purchase and the circumstances under which the superior title was acquired and extinguished. It is therefore not an open question in our courts. Under the evidence adduced upon the trial, the utmost limit of the damages which the defendants below were entitled to claim was the $76.50 paid for the Hill title to be credited upon the note sued on at date of the payment. In this the deficit in the quantity of land conveyed is not taken into consideration. That involves a question of fact as to boundaries, to be determined upon another trial of the cause. It appears by undisputed proof made below, that $70 of the above amount Avas credited on the note at the proper time, and appellant in his petition offered to credit the other $6.50 of the same date. So far, then, as any question of damages arising from a breach of the warranty of title was concerned, he was entitled under a proper charge to recover the amount claimed upon the note, Avhich is equivalent to alloAving that amount Avith interest from the date of payment.
As to the error assigned upon the refusal of the court to grant a uoav trial on account of newly discovered testimony, the point cannot be of practical importance upon a neAv hearing of the cause, and we refrain from commenting upon it.
For the error of the court in refusing the above special charge asked by appellant, the judgment is reversed and the cause remanded.
Reversed and rendered.