Campbell v. Jones

• Decision Date: 06 April 1921
• Docket Number: (No. 1785.)
• Citation: 230 S.W. 710
• Parties: CAMPBELL v. JONES et al.
• Court: Texas Court of Appeals

230 S.W. 710

CAMPBELL v. JONES et al.

(No. 1785.)

Court of Civil Appeals of Texas. Amarillo.

April 6, 1921.

Rehearing Denied May 11, 1921.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Randall County; Henry S. Bishop, Judge.

Action by J. I. Campbell against Cecil C. Jones and others. Judgment for defendants, and plaintiff appeals. Affirmed.

C. E. Gustavus, of Amarillo, and Templeton & Milan, of Fort Worth, for appellant.

Sayles & Sayles, of Eastland, and W. J. Flesher, of Canyon, for appellees.

HUFF, C. J.

This action was instituted by appellant, Campbell, against Cecil Jones and J. M. Tanner and their tenants, R. W. Foster and R. H. Long, to rescind a sale of about 952 acres of land situated in Randall county, and to cancel a general warranty deed executed by Campbell to Jones and Tanner.

While the first count of the petition is in the form of trespass to try title, the second count sets out his cause of action specifically, and alleges, in effect, that he was the owner of the Randall county land, and was induced to execute the deed to Jones & Tanner upon false and fraudulent representations made by them. It is alleged, among other things, that Campbell was indebted to two different corporations in the sum of $6,000 and $5,000, respectively, with interest secured by deed of trust on the land which Jones and Tanner were to assume; that the parties agreed verbally to make an exchange of properties; that appellees Jones and Tanner owned and claimed to have good and merchantable title to certain interest in and to eight separate oil tracts of land in Eastland county, describing each separate tract, and interest, which interest was to the oil and gas to be produced from said lands; that the appellees agreed to convey such tracts and interests by good warranty deeds, free from liens and incumbrances of whatsoever character or kind, and the appellant to convey the Randall county land by a like warranty to appellees, who were to assume the indebtedness thereon. As an inducement to appellant to make and enter into the exchange of properties, appellees fraudulently, with the intent to deceive, represented they had good and merchantable title to all of said lands except lot 5, block 4, in the town of Desdemona, known as the Tate tract, which at that time was not perfect; that appellees agreed and bound themselves to furnish abstracts of title for examination; that they were not then in possession of all the abstracts of title, but that they could and would secure such abstracts; that they knew their titles to said properties were all good and that they had good and merchantable titles, upon which appellant relied and acted, and but for which he would not have executed a deed to the land in question; that it was understood the deeds should not convey title to appellees until the trade was finally consummated by the conveyance of a good and merchantable title to appellants to the properties in Eastland county; that the appellees did not have good and merchantable titles to the land claimed by them; that several of the titles were not only imperfect, but bad, and he verily believed they had no title whatever to some of the properties.

Appellees furnished abstracts to the tract described in part as the Pleasant Grove school title, one-acre tract, to lots 22 and 23, in the town of Desdemona, but failed and refused to furnish abstracts to the remainder of the lands. Soon after the trade was made appellant was informed and ascertained that the title to the Pleasant Grove property was defective, and that a suit had been instituted by other parties against appellees and other parties to recover the property and to cancel the lease under which it was held, which suit was pending at the time of the transaction, known to the appellees, but unknown to appellant, which appellees fraudulently concealed from him; that the title to lots 21, 22, and 23 in the town of Desdemona was defective; that suit had been instituted and was then pending against appellees and other parties to recover a material interest in said property, which facts appellees then knew and which were not known to appellant, and which appellees fraudulently concealed from him, and of which he did not ascertain until he secured an abstract to lots 22 and 23 and had it examined by attorneys. It is charged that as an inducement to the trade appellees represented they had a drilling contract with the company to drill one or more wells on lots 21, 22, and 23, which they represented as a fact, and guaranteed that the wells would be drilled thereon at an early date. While they had made such drilling contract, they had agreed with the company to clear the surface of lot 21 and part of lot 23 of all obstructions so the company could use the surfaces for drilling purposes. They failed to carry out their contract with the drilling company, and permitted the drilling company to abandon the contract, and it did abandon, with the consent of appellees, the drilling on said lots, and because of appellees' breach no wells were drilled on the lots. By reason of the representations so made appellant was induced to believe appellees had a good and merchantable title to all of said property, and they tendered deeds thereto to appellant with the purpose of defrauding him out of his land, and he was induced thereby to tentatively accept said conveyances except as to lot 5, block 4, which was never accepted by him. As soon as he learned of the defects he notified appellees that he would not accept the title and then and there demanded a rescission, all of which appellees refused to do. He alleged that he obtained the properties for the purpose of at once reselling, which he could not do on account of the title, all of which the appellees knew. The appellant tenders or offers in his pleading to reconvey the properties received in the exchange for the land conveyed by him to appellees. There are some other grounds stated, which will be noticed in considering the assignments.

Appellant sues in the alternative for damages for $125,000. He offered to credit the interest paid by appellees on the note for $6,000 on any damages which he should recover and prayed for rescission of the trade and cancellation of the deed to the land in question. The appellees answered by plea of not guilty, general denial, and specially denied each of the grounds setting up as representations inducing the trade, and they also alleged their title to the property, which he had given in exchange was good; that the appellant undertook to make an independent investigation of the title before he purchased and consulted attorneys and others with reference thereto; that he did not rely on the statements alleged to have been made by the appellees, but sought for himself to ascertain the truth as to the title. Appellees also filed with their answer a plea in the nature of a cross-petition, in the form of trespass to try title to the land in question. They prayed for the restitution of the land and that they be quieted in their title, etc. The appellant answered this plea by a plea of not guilty and general denial. The case was submitted to a jury upon special issues, which, with the answers thereto, are as follows:

"Special Issue No. 1.

"(1) Did the defendants Cecil C. Jones and J. M. Tanner, or either of them, before the exchange of the respective properties involved was consummated, make the plaintiff any false representations concerning the properties and titles thereto located in Eastland county, Tex., as alleged in plaintiff's petition? Answer: No.

"(2) If so, did plaintiff rely upon said false representations, if any, as true? Answer: No.

"(3) Was plaintiff thereby induced to make the exchange of his property in Randall county for said properties located in Eastland county? Answer: No.

"Special Issue No. 2.

"Did the defendants Jones and Tanner, or either of them, at any time prior to the delivery of the deed from Campbell to Jones, make any fraudulent representations to plaintiff and relied upon by plaintiff as to the condition of the title to lot No. 21, referred to as the Carruth lot, in Desdemona, Tex.? Answer: No.

"Special Issue No. 3.

"Did the defendants Jones and Tanner, or either of them, at any time prior to the delivery of the deed from Campbell to Jones, make any fraudulent representations to plaintiff and relied upon by plaintiff as to the condition of the title to lots 22 and 23, referred to as the Greenhall lots, in Desdemona, Tex.? Answer: No.

"Special Issue No. 4.

"Did the defendants Jones and Tanner, or either of them, at any time prior to the delivery of the deed from Campbell to Jones, make any fraudulent representations to plaintiff and relied upon by plaintiff as to the condition of the title to the Tate lot in Desdemona, Tex.? Answer: No.

"Special Issue No. 5.

"(1) Did the defendants Jones and Tanner, or either of them, during the negotiations between them and plaintiff, and before the trade and exchange of properties was finally consummated, state and represent to plaintiff that their titles to the Eastland county properties, which they proposed to trade to plaintiff, with the exception of the Tate lot, were good and merchantable titles, and that their deed to plaintiff to said properties would convey a good and merchantable title thereto? Answer: Yes.

"(2) Did the plaintiff believe and rely upon such statements, if any were so made to him by defendants, and was he by said statements so made to him, if any, thereby induced to close the trade and make the exchange of properties and deliver the deed to his land to C. C. Jones and to accept the conveyances by Jones to him of the Eastland county properties, without waiting to secure abstracts of title to said Eastland county properties? Answer: No.

"Special Issue No. 6.

"(1) Did the defendants Jones and Tanner, or either of them, in their negotiations with plaintiff for the exchange of their respective properties, agree...