American Freehold Land Mortg. Co. v. Pace

• Decision Date: 28 March 1900
• Citation: 56 S.W. 377
• Parties: AMERICAN FREEHOLD LAND MORTG. CO. OF LONDON v. PACE et al.
• Court: Texas Court of Appeals

56 S.W. 377

AMERICAN FREEHOLD LAND MORTG. CO. OF LONDON v. PACE et al.

Court of Civil Appeals of Texas.

March 28, 1900.

Appeal from district court, Travis county; F. G. Morris, Judge.

Suit by the American Freehold Land Mortgage Company of London against Charles Pace and others to foreclose a deed. From a judgment granting defendants reformation thereof, plaintiff appeals. Affirmed.

T. W. Gregory and Geo. F. Pendexter, for appellant. Hogg & Robertson, for appellees.

FISHER, C. J.

This suit was instituted by the appellant March 23, 1896, against appellees Charles Pace and wife, Jessie Pace, and one W. H. Richardson, upon a note of date February 20, 1893, executed by Charles Pace, and due November 1, 1896, and to foreclose a deed of trust executed at the same time by Pace and wife upon certain lands therein described, to secure said note. The description of the land, as given in the deed of trust, and as stated in appellant's petition, is as follows: "Three hundred (300) acres, more or less, a part of the T. Bissell league, beginning at the N. W. line of said league at the N. corner of said J. R. Pace tract and W. corner of W. L. Staniforth tract; thence S., 60 E., 1,036 vrs., with Staniforth line, to Ziveley's corner; thence south, 50 W., 42 vrs.; thence south, 80 W., 265 vrs., up the creek; then south, 49 E., 585 vrs.; thence north, 40 E., 570 vrs. (said six lines last mentioned being boundaries of the 56 acres forming part of our homestead); thence south, 60 E., 987 vrs., with Beckett's line, to N. corner of Stanley's 60-acre tract; thence south, 30 W., 720 vrs.; thence S. W., 343 vrs.; thence south, 60 E., 433 vrs., to the Bissell league line; thence south, 30 W., to the south corner of the James R. Pace tract; thence north, 60 W., to the south corner of the D. C. Pace's 105-acre tract; thence with D. C. Pace's line north, 50 E., 430 vrs., and north, 19 E., 690 vrs., to the creek, a corner of said 56-acre tract; thence westerly with the creek to D. C. Pace's west corner; thence north, 60 W., to the Bissell N. W. line; thence N., 30 E., 1,131 vrs., to the beginning; excepting therefrom 144 acres, forming a part of our homestead, bounded on the N. E. by the dividing line, 987 vrs. long, between our land and Beckett's, on the South E. by Stanley's 60-acre tract, on the N. W. by said 56-acre tract, and on the S. W. by a line parallel to said 987-vara line, at such a distance from it will include 144 acres,—which said deed of trust bears date 20th February, 1893, and was on the 10th day of May, A. D. 1893, duly recorded in vol. 109, page 188, etc., of the mortgage records of Travis county, state of Texas." On the 21st day of November, 1896, Charles Pace and wife filed their first amended original answer, in which the liability of Charles Pace on the note was admitted, and in which it was also asked that the deed of trust, and a certain instrument executed by Pace designating appellees' homestead, be reformed so as to correct the description of the land which was excepted from the operation of the deed of trust. This relief is based upon allegations to the effect that by a mutual mistake of all the parties to these instruments of writing, or by reason of the fraudulent and wrongful conduct of J. Gordon Brown and R. L. Brown—the former the payee named in the note, and the latter the trustee named in the deed of trust—the instruments did not correctly describe the 144 acres which the parties agreed and understood and intended should be excepted from the operation of the lien created by the deed of trust. Instead of being as described in the deed of trust, that instrument should have described a different tract of land out of the southeast end of the tract described in the deed of trust, which is as follows: "That the said homestead tract of land, embracing 200 acres, and which was to be designated as the homestead of these defendants, and was not to be covered by said lien, it was agreed as aforesaid, should be described as follows, to wit: Two tracts of land out of the James R. Pace original tract in the T. Bissell league in the county of Travis and state of Texas: (1) 56 acres, the same conveyed to Chas. Pace by R. E. White and wife, by deed dated July 5, 1881, recorded in the said Travis county deed records in Book 51, page 112, here referred to for description, whereon the home and residence of these defendants was situated; (2) 144 acres described as follows, to wit, bounded on the west by D. C. Pace's 105-acre tract, on the south by the original south line of the James R. Pace survey, on the east by the Nolan tract and the 60-acre tract of Stanley, and on the north by a line running parallel with the south line of this tract at a sufficient distance north of said south line to give 144 acres, which north line of this tract is also parallel with the 987-vara line on the south of Beckett's tract mentioned in said deed of trust." Defendant Richardson filed an answer, disclaiming any interest in the property in controversy.

November 21, 1896, the appellant filed a supplemental petition interposing a general demurrer to appellees' answer, and also specially excepted to the same because it did not, with sufficient certainty, describe the 144 acres which was intended to be reserved from the operation of the deed of trust, and that the appellees were barred in their remedy by the operation of the four-years statute of limitation and stale demand and laches, and pleaded a general denial, and specially that on or about February 26, 1887, appellee Charles Pace executed and acknowledged a homestead designation, setting apart and describing as his homestead the 56-acre tract, and the 144 acres described in plaintiff's petition, and that the same was immediately recorded in the proper records of the county used for that purpose, and that at the same time Chas. Pace and wife executed and acknowledged and delivered to the plaintiff the original deed of trust to secure the note sued on, describing the 56-acre tract and the 144 acres as his homestead as described in the petition, and that the deed of trust was immediately recorded in the records of the county used for recording such instruments; and that the deed of trust sued upon, which was executed February 20, 1893, contained the same description as stated in the two instruments above mentioned. This deed of trust was recorded May 10, 1893. That, if any cause of action existed to reform the deed of trust in question on the ground of mistake or fraud, it arose when the first two described instruments were executed, to wit, February 26, 1887, and is therefore barred by the statute of four years' limitation. That, if any fraud was committed or mistake made concerning the description of the land, the right to reform the deed of trust has become stale, and that by reason of the laches and negligence of appellees they are barred in their remedy, in that they could and should, before signing the instruments, have read the same, which they negligently failed to do; and as there was no confidential or fiduciary relationship existing between them and the Browns, the agents of the plaintiff who negotiated the transaction, they should not have relied upon their representations, and that the mistake or fraud, if any ever existed, could and should have been sooner discovered. That the record of the instruments, as above stated, was notice to the appellees as to what lands were described in these instruments, and thereby furnished the means of discovering the error in description, and that the appellees were wanting in diligence in failing to sooner make such discovery and instituting the action to reform. February 23, 1899, appellees filed their first supplemental answer, in effect alleging that under a pretended judgment foreclosing the deed of trust sued upon, and a purchase of the land therein described at foreclosure sale by the plaintiff, which judgment has subsequently been annulled and set aside, the plaintiff went into actual possession of the land described in the deed of trust, using and enjoying the rents and profits thereof, which are reasonably worth $1,000, for which amount appellees ask judgment. To this relief appellant, by supplemental petition, responded that by virtue of the terms of the deed of trust, upon default in payment, plaintiff or the trustee mentioned in the instrument was authorized to enter upon and take possession of the premises described in the deed of trust, and that the appellant is only responsible to appellees for the sum of $145.20, it being the amount of rents received and collected with due diligence by appellant when in possession of the premises; and, further, that the appellees had been in the possession, use, and enjoyment of 144 acres of the land covered by the deed of trust in the event it should be reformed, and that the rental value thereof is equal to the rental value of the lands which appellant has been in possession of, and asks that, if it be found liable for rents, the two claims for rent be offset.

The case was submitted to a jury, and verdict found in favor of appellant for the amount of the note, principal, interest, and attorney's fees, and the sum of $288, the rental value of the land, which should have been, but was not, covered by the deed of trust; and in favor of appellees Pace and wife as to the issue seeking a reformation of the deed of trust as to the description of the land which was exempted from its operation; and that the failure of the instrument to correctly describe the land was the result of a mutual mistake of both parties to the instrument; and found in favor of appellees the sum of $832 as the rental value of the lands wrongfully held in possession by appellant. The decree entered upon the verdict was to the effect that the deed of trust be so reformed as to except from its operation the 144 acres in controversy, describing and locating it as stated in appellees' answer; and that it, with the...