Bass v. James

• Court: Texas Supreme Court
• Writing for the Court: Fisher
• Citation: Bass v. James, 18 S.W. 336, 83 Tex. 110 (Tex. 1892)
• Decision Date: 26 January 1892
• Parties: BASS v. JAMES.

Page 336

18 S.W. 336

BASS v. JAMES.

Supreme Court of Texas.

January 26, 1892.

Commissioners' decision. Section B. Appeal from district court, Camp county.

D. R. Bass sued D. R. James before a justice to recover for deceit in a sale of land. From a judgment in the district court reversing a judgment in favor of plaintiff in the justice court, plaintiff appeals. Affirmed.

E. A. King, for appellant. Morris & Crow and W. R. Heath, for appellee.

FISHER, J.

November 14, 1890, appellant sued appellee in the justice court for the sum of $126.90, the alleged value of 14.1 acres of land. Appellants' cause of action flows from what he terms a "deficit" in the quantity of land sold by appellee to appellant. Appellee, for answer, filed a general denial, and plea of two years' limitation. In justice court, judgment was rendered in favor of appellant against appellee for the sum of $98.70. The case was appealed by appellee to the district court, where judgment was rendered in favor of appellee. It appears that appellee, by deed with general covenants of warranty, sold a certain tract of land to appellant. This was in October, 1887. At the time of sale, appellee represented to appellant that the tract of land contained 135 acres. Appellant relied upon the truth of these representations, and was thereby induced to purchase the land. It was subsequently discovered by appellant that these representations were false, in this: the tract of land only contained about 121 acres. This discovery was made in October, 1890. These, in substance, are the findings of fact by the court below. On these facts the court concluded, as matter of law, that appellant's cause of action was barred by the two-years statute of limitation.

A motion was filed in the court below, asking that the appeal from the justice court be dismissed because of defective appeal-bond. The record does not show that this motion was called to the attention of the court below, and was passed upon there. Further, we do not think the objections to the appeal-bond raised in the motion tenable. The grounds of the motion are that the justice of the peace approved the appeal-bond January 4, 1891, when it appears that the case was tried January 26, 1891. The appeal-bond is dated January 29, 1891, and is indorsed by the justice of the peace filed February 4, 1891. It is apparent from this that dating the approval January 4th is clearly a mistake and clerical error, which is corrected by the date of the judgment, and the date of the bond and indorsements thereon.

The finding of the court that appellant was barred in his remedy is the question in the case. This is not an action upon the covenants of warranty for the value of the land lost, but is one of deceit growing out of the false representations as to the quantity of land contained in the tract sold; hence the statute that creates the bar in two years applies. It is contended by appellant that this suit, being brought less than two years from the time he actually discovered the representations of appellee were false and fraudulent, is in time, as limitation commences to run from such discovery. The law is that limitation will begin to run, in cases of fraud, from the time when, by the use of reasonable...