Byrnes v. Morris

• Decision Date: 13 April 1880
• Docket Number: Case No. 4061.
• Citation: 53 Tex. 213
• Parties: THOMAS E. BYRNES ET AL. v. W. A. MORRIS ET AL
• Court: Texas Supreme Court

53 Tex. 213

THOMAS E. BYRNES ET AL.

v.W. A. MORRIS ET AL

Case No. 4061.

Supreme Court of Texas.

Apr. 13, 1880.

ERROR from Montague. Tried below before the Hon. J. A. Carroll.

On the 11th day of August, 1877, W. C. O. Driscal brought trespass to try title against the defendants in error, in the district court of Montague county, to recover one thousand nine hundred and thirty acres of land, a part of the F. Escobar survey.

The plaintiff set forth his title specially, alleging in substance that in August, 1873, he recovered a judgment against S. S. Munger in the district court of Harris county, Texas, for the sum of $831.16 gold; that in December, 1874, he procured to be issued on that judgment an alias execution to Montague county, by virtue of which the land was sold in March, 1875; that a short time prior to the sale he employed the defendant W. A. Morris to attend the sale and buy the land for him; that for a reasonable consideration Morris agreed to do this, and that Morris did attend the sale and purchase the land for plaintiff; that long after the sale Morris, in violation of the trust reposed in him by plaintiff, procured the sheriff of Montague county to make the deed to the land to him, Morris; that the other defendants obtained whatever title they had from Morris, with a full knowledge of plaintiff's claim to the land, and without paying value.

The defendants answered not guilty, improvements in good faith by all the defendants except Morris and Davis, and denied the agreement between plaintiff and Morris as set out by plaintiff. They alleged that a short time before the sale of the land in March, 1875, Morris agreed with plaintiff to attend the sale and buy the land, and if the plaintiff, in a reasonable time thereafter, paid the cost of the sale, that Morris would have the deed made to plaintiff; that in accordance with this agreement Morris did attend the sale and bought the land in for himself, and that after plaintiff was notified of the sale he refused to comply with the bid, and Morris then had the deed made in his own name. In several amendments the defendants further alleged that the plaintiff had waived whatever right he might have acquired by the sale, and had procured a second sale of the land under another execution upon the same judgment at which he purchased the land.

In reply to this, the plaintiff alleged he never intended to abandon his right to the land, but believing the first sale was irregular, because made on a legal holiday, he had procured the second sale to be made alone for the purpose of curing this supposed defect. At the June term, 1878, the case was tried and resulted in verdict for defendants, and the court granted plaintiff a new trial. Another trial was had at the October term, 1878, and again resulted in a verdict for defendants. After which, the plaintiff W. C. O. Driscal died without having perfected an appeal, and the plaintiffs in error having been appointed his executors, brought the case up by writ of error.

The court, in the subdivisions three and four of instructions to the jury, charged them, in substance, that if they believed any such contract as that alleged by defendants in their answers (but setting forth the terms of the agreement in full), had been made between plaintiff and the defendant Morris, and that plaintiff failed to comply with his part of said contract, then they would find for defendants. To this charge the plaintiff excepted, because the same was not called for by any issue in the case, and was not the law of the case, and was calculated to confuse and mislead the jury.

The record is quite voluminous; it is sufficient, in view of the opinion, to say that the evidence did not sustain the averments regarding the contract, set up by Morris.

Grigsby & Willis and C. C. & C. L. Potter for plaintiffs in error.

I. The purchase at the first sale was the purchase of plaintiff, and defendant Morris incurred no liability for the payment of the bid or cost. Story on Agency, 5th ed., p. 261.

II. If plaintiff failed to comply with his bid at said first sale, then there was no sale, and the officer should have resold the land, or returned the execution not satisfied, and the second sale would have passed title to plaintiff. Pasch. Dig., art. 3787; Revised Statutes, art. 2322.

III. When an agent seeks to hold property acquired by virtue of his agency, upon the ground that the principal had abandoned his right to the same, or had, by acts, ratified the conduct of the agent with reference thereto, it must appear that the acts of the principal, relied on to show such abandonment or ratification, were done by the principal with a full knowledge of both the law and the facts concerning the same. And in this case the jury should have been informed by the court upon whom was the burden of showing the alleged abandonment or ratification, and what would constitute a legal ratification of the acts of Morris by plaintiff. Commercial Bank v. Jones, 18 Tex., 827;Reese v. Medlock, 27 Tex., 124;Smith v. Sublett, 28 Tex., 172; Vincent v. Rather, 32 Tex., 91; 2 Washburn on Real Property, 483-509; Story on Contracts, 160; Story on Agency, 90, 239.

IV. It is error in the court to submit to the jury an instruction upon a defense set up by defendants in their pleadings, but in support of which there was no testimony. McGreal v. Wilson, 9 Tex., 426;Earle v. Thompson, 14 Tex., 583;Austin v. Talk, 20 Tex., 164;Andrews v. Smithwick, 20 Tex., 118;Hutchins v. Masterson, 46 Tex., 553;Cravens v. Wilson, 48 Tex., 343.

Stephens & Matlock and W. O. Davis for defendants in error.

I. The contract between W. C. O. Driscal and W. A. Morris, as alleged in appellees' amended answer, was in substance the contract that the law would imply, or the jury were authorized to find from the correspondence that had taken place between them and the circumstances that surrounded them.

II. The gist of the amended answer is, the land was knocked off to defendant Morris at the sheriff's sale, and the deed made to him upon his compliance with the bid, and plaintiff afterwards waived, abandoned and forfeited all claim to the land by virtue of the sale, the contract between the parties being mere matter of inducement which need not be precisely proved as alleged. Sayles' Pleading, sec. 14.

III. The fourth and fifth assignments should be disregarded, because no motion asking for a new trial for the reasons set forth in said assignments was filed in the court below, all that part of the motion in which the verdict was complained of being void for uncertainty. The only complaint of the verdict in the motion for new trial is as follows: Third. “The verdict of the jury is contrary to, and not supported by, the law and the evidence in the case.” Rules of District Court, No. 67; Foster v. Smith, 1 Tex., 70;Tarpley v. Poage, 2 Tex., 152;Hillebrant v. Brewer, 6 Tex., 51;Cotton v. State, 29 Tex., 187.

IV. The plaintiff in his petitions deraigned title to the land in dispute through the sheriff's sale of March 2, 1875, and not through the second sale, and could not, upon the trial, avail himself of any right acquired through the second sale.

BONNER, ASSOCIATE JUSTICE.

So much of the answer of witness Masterson, in which he says that he knew that Driscal, plaintiff below, had not abandoned the first sheriff's sale of the land made on March 2, 1875, because of his “whole course of conduct in regard thereto, and especially by his indignation at the perfidy of W. A. Morris, his agent, in trying to keep the land after buying it in for him as per agreement,” was subject to objection, as being but the conclusion of the witness and argumentative, and it was not error in the court to reject the same.

The pleadings of plaintiff Driscal were sufficient to entitle him to recover upon his title derived through the second sheriff's sale, if the first was invalid because made upon a legal holiday.

The validity, however, of the first sale was not put in issue by Munger, the defendant in execution, and who is not a party to this suit, and...