Applegate v. Kilgore
| Decision Date | 27 January 1906 |
| Citation | 91 S.W. 238 |
| Parties | APPLEGATE v. KILGORE. |
| Court | Texas Court of Appeals |
Appeal from Lamar County Court; John W. Love, Judge.
Action by T. T. Applegate against W. H. Kilgore. From a judgment for defendant, plaintiff appeals. Reversed.
Hale, Allen & Dohoney, for appellant. Sturgeon & Moore, for appellee.
Appellant sued appellee to recover for rent of certain land. Appellee recovered judgment, from which this appeal is taken.
Applegate, the appellant, being the owner of certain land, 25 acres, rented it to one Casey for the year 1904, by the terms of which Applegate was to receive one-half the crops grown thereon at gathering time. Applegate removed to the Territory, leaving the land in the possession of Casey. He owed some debts, and told one Carr that he (Carr) could sell it for $1,000, for which Applegate would receive his indebtedness. Carr, in pursuance of this understanding, tried to sell it to appellee, Kilgore, and Kilgore offered him $700 for the land, which Carr finally agreed to take; Kilgore putting up $100 as a forfeit to secure the trade. Carr says he told Kilgore at this time that if Applegate sold at this price, he would reserve the rents for that year, 1904. Kilgore denies this. Carr got together claims against Applegate amounting to $1,000, went to the Territory and had Applegate make him, Carr, an absolute warranty deed on its face to the land, Carr turning over to Applegate $1,000 in claims. In this transaction Applegate verbally reserved the rents for 1904. When Carr returned he executed a deed to Kilgore, at which time Carr states he informed Kilgore that Applegate had reserved the rents for 1904. Kilgore denies that Carr gave him any such information. After this Kilgore made some deal with Casey, whereby he got possession of the place. Kilgore refused to pay Applegate the rent for 1904, and this suit is for the purpose of recovering the same.
It is contended that when a deed is made and no reservation is made therein of the rents, that such deed conveys the premises, including the growing crops, and a parol reservation of the rents for the current year is not binding and cannot be shown. We do not concur in this contention. This court, in Hamilton v. Clark, 26 S. W. 575, speaking through Justice Finley, announced the following principle as laid down by Devlin on Deeds: ...
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