Buckingham v. Thompson

• Decision Date: 15 February 1911
• Citation: 135 S.W. 652
• Parties: BUCKINGHAM v. THOMPSON.
• Court: Texas Court of Appeals

135 S.W. 652

BUCKINGHAM v. THOMPSON.

Court of Civil Appeals of Texas.

February 15, 1911.

On Motion for Rehearing, March 15, 1911.

Appeal from District Court, Zavalla County; R. H. Burney, Judge.

Action by E. J. Buckingham against J. S. Thompson, in which a writ of sequestration was sued out. From a judgment in part for plaintiff and in part for defendant, and in favor of the sureties on the sequestration bond, plaintiff appealed, and defendant made cross-assignments of error. Reversed and remanded except as to sureties, as to whom judgment is affirmed.

George C. Herman and Mason Williams, for appellant. Stirling T. Phelps, Albert S. Phelps, and Percy Faison, for appellee.

JAMES, C. J.

This action was instituted by Buckingham on January 21, 1909, alleging: That on or about November 15, 1907, he and defendant, Thompson, entered into a contract whereby he agreed to sell certain land to Thompson, being certain farm lots in the subdivision of the Cross S Ranch in Zavalla county and certain town lots in Crystal City, also a part of said ranch, for the price of $3,600, to wit, $900 in cash which was paid, and three notes of $900 each payable respectively on November 15, 1908, November 15, 1909, and November 15, 1910, with 6 per cent. interest from date; the contract providing that, upon the payment of all said notes, plaintiff was to execute to defendant a general warranty deed, and providing also that, should defendant fail or refuse to pay or cause to be paid any of the payments specified in said contract, then the contract should become null and void. That defendant has failed and refused to pay the first of said notes or any part thereof, wherefore defendant has breached the contract, and under its terms the same has become null and void, and plaintiff is the owner in fee simple of said property and entitled to the possession thereof. That possession has been demanded, but defendant has failed and refused, and still fails and refuses, to deliver possession to plaintiff. The prayer was for possession and for a writ of sequestration, which writ was issued and executed and plaintiff given possession.

The defendant pleaded fraudulent representations, whereby he was induced to enter into the contract and to make improvements on the land of about the value of $300 or $400. The false representations set up were, substantially: (1) That plaintiff informed defendant that he had a good and perfect title to the land, when in fact at that time the Cross S Ranch lands, of which this land was a small part, were subject to outstanding vendor's lien notes for about $780,000, and there was no title from Pratt & Hays to Buckingham on record; although later such deed was put on record, which recited a cash consideration of $15,000 and notes of the denomination of $15,000, many of which were due and unpaid at the time, each note providing for the maturity of all the notes, at holder's option, if any became due and unpaid. (2) False and fraudulent representations made to defendant by plaintiff and his agents concerning the value, quality, and productivity of the land, upon which defendant relied and, so relying, made the purchase. It was alleged that, when defendant ascertained the true conditions, he refused to make further payment, and demanded of plaintiff a rescission and cancellation of the sale and contract and a refunding of what he had paid and the value of his improvements and interest, which appellant refused; that appellant refused to cancel the contract, but sued defendant and sequestered the property and had the sheriff throw defendant and his family and all of his furniture and effects out and move them eight miles distant from the land, and dumped them in the middle of a country road during a drizzling rain and while defendant's wife and daughter were sick, greatly injuring their health and damaging the furniture. More briefly stated defendant answered by general demurrer, denial, and not guilty, and by way of cross-action asked for the rescission and cancellation of the contract of sale and a recovery of his $900 with interest and the value of the improvements he had placed on the land, and also asked for damages because of the wrongful suing out of the writ of sequestration and because of the manner in which the writ was executed.

It appears from appellee's brief that the trial court held that appellee was not entitled to recover on account of the sequestration, and damages in that regard were, therefore, not submitted. It appears that the only matter of damages submitted pertained to the question of fraud and misrepresentation of appellant and his agents as to title to the land and plaintiff's failure to tell appellee of the outstanding vendor's lien notes. The matter of fraud in respect to representation concerning the value, quality, and productivity of the land was not submitted.

The jury returned a verdict in favor of plaintiff for the possession of the land, in favor of defendant against Buckingham for $900 and the cancellation of the contract, and (under the instruction of the court) in favor of the sureties on the sequestration bond. Judgment was entered accordingly and is appealed from by Buckingham. Appellee has cross-assignments alleging errors.

We are of opinion that the court erred in submitting the case on the issue of fraudulent representation as to the title. There was, it is true, testimony to the effect that Buckingham informed Thompson that his title was perfect, and that the latter trusted to such statement in making the purchase, and but for this assurance would not have purchased. The title as it then stood was not perfect in Buckingham for the reason that the entire property of which this purchase formed a part was in his hands, subject to an incumbrance in the form of vendor's lien notes, and there was at that time no provision or arrangement existing between Buckingham and his vendors, which safeguarded Thompson against the possibility of his losing the land after he had paid for it.

Under the above conditions, Thompson, on discovering the fact, would have had the right to rescind the contract. And he had this right to rescind notwithstanding that afterwards the danger to him from the incumbrance was removed. Green v. Chandler, 25 Tex. 148; Hall v. Clountz, 26 Tex. Civ. App. 348, 63 S. W. 941. In other words, the subsequent removal of the defect would not defeat defendant's right to rescind; the right having accrued.

The above rule applies only in connection with the exercise of the right of rescission; and in this case Thompson never rescinded nor undertook to rescind. His testimony was that in the last days of April or the first days of May, 1908, he learned of the lien on the land. He did not act promptly in declaring a rescission. In September, 1908, he says he undertook to tell Buckingham that he was dissatisfied, that he and his agents had misrepresented things, and that the whole matter was a fraud and he wanted his money back. He, on that occasion, had prepared a letter to Buckingham, which the latter refused to take when offered to him; the letter stating what Thompson demanded. This letter, according to the memory of a witness, was in substance that Thompson was disappointed with the Cross S Company and the land, and wanted his money back, and that he was willing to lose his work and improvements, interest on his money, and a year's time, and would get off the land, provided Mr. Buckingham returned him his money within 30 days, and that he (Thompson) refused to further go on with the contract. Thompson in his testimony stated that this letter was a demand for a rescission of the contract, as he had been swindled, and that he wanted to turn the land back and get his money and improvements.

The above conduct of Thompson was no rescission of the contract. In order to rescind and obtain the advantages that attend a rescission, it was necessary for him to surrender, or offer to surrender, the possession of the property unconditionally. Demaret v. Bennett, 29 Tex. 264. This he did not do, nor propose to do. He was clinging to the land, and proposed holding it, unless plaintiff complied with his...