Chicago, T. & M. C. Ry. Co. v. Titterington

• Decision Date: 26 March 1892
• Citation: 19 S.W. 472
• Parties: CHICAGO, T. & M. C. RY. CO. <I>et al.</I> v. TITTERINGTON <I>et ux.</I>
• Court: Texas Supreme Court

19 S.W. 472

CHICAGO, T. & M. C. RY. CO. et al. v. TITTERINGTON et ux.

Supreme Court of Texas.

March 26, 1892.

Commissioners' decision. Section A. Appeal from district court, Dallas county; R. E. BURKE, Judge.

Action by Daniel Titterington and his wife against the Chicago, Texas & Mexican Central Railway Company and others to cancel a deed to right of way. Plaintiffs had judgment, and defendants appeal. Reversed.

The other facts fully appear in the following statement by MARR, J.:

Daniel Titterington and his wife brought this suit on the 20th day of June, 1887, against the appellants to cancel and annul a certain deed to a right of way, made on April 6, 1881, upon the ground of fraud and failure of consideration, and on account of the alleged incapacity of the officer to take the privy acknowledgment of Mrs. Titterington to the deed. They also prayed for judgment for the land, and for rents, and, upon a verdict of the jury in their favor, that character of judgment was rendered for them, but damages were duly remitted, and the judgment now stands only for the possession of the land. The court submitted to the jury only the issue of fraud upon the part of the Chicago, Texas & Mexican Central Railway Company in procuring the deed originally, and in failing to erect a depot, as that company had agreed to do, upon the land of the appellees. It appears that the land conveyed by the appellees to the railway company was a part of their homestead, and from the allegations in the petition it is to be presumed that the homestead was founded upon community property, and not upon the separate land of the wife. No question is raised upon this point, and we shall assume that the homestead is community. The deed evidences a fully executed contract, in so far as the conveyance of the title to the land is concerned, and contains no condition expressly providing that the estate shall revert to the grantors, or terminate, in case the railway company shall fail to perform its promises, which constituted the sole consideration for the deed. The deed read in evidence by defendant, and under which it claimed title, was made by appellees to the Chicago, Texas & Mexican Central Railway Company, April 16, 1881, and recorded in the county of Dallas, April 23, 1881. This deed contained the following recital of consideration, viz.: "That, for and in consideration of the enhanced value to be given and is contemplated to arise to our lands and other property by the location and construction of the Chicago, Texas & Mexican Central Railway Company, and for the consideration of full and complete value accruing to us by this transaction, in locating and maintaining a station on the lands hereby granted, we," etc. The testimony of a number of witnesses introduced by plaintiffs, and of which there was no contradiction, showed representations made to plaintiffs and others to the effect that the Chicago, Texas & Mexican Central Railway Company would not only erect its railway across the land, but would establish and maintain a passenger and freight depot thereon. These representations were made to the plaintiff Daniel Titterington; the railway company going so far as to plot a town or village on land adjacent to the right of way which had been contracted for with the plaintiffs. No depot was ever built at the place indicated, and no attempt has ever been made to build one there. There is a switch, and trains stop when flagged, and freight cars are occasionally set out on the switch to be loaded or unloaded. There is no building and no station agent. The railway company went into possession of the strip of land in the spring of 1881, shortly after the grant, constructed its road thereon, and the same has been continuously since in its possession, or the possession of the Gulf, Colorado & Santa Fe Railway Company, which is now operating the same. It was distinctly alleged in the petition of the plaintiffs that the Chicago, Texas & Mexican Central Railway Company falsely and fraudulently represented to the plaintiffs, before and at the time of the execution of the deed, that said company would erect the depot, etc., as specified in the deed, and that these representations were made by said defendant for the sole purpose of cheating and deceiving the plaintiffs, and that the representations, so falsely and deceitfully made, did in fact deceive them, and induced them to make said deed; otherwise they would not have executed it at all, etc. The defendant interposed the statutes of limitation of two, four, and five years.

Leake, Shepard & Miller and J. W. Terry, for appellants. John Bookhout, for appellees.

MARR, J., (after stating the facts.)

Under the several assignments of error submitted by the appellants, it will be necessary to determine — First, whether, in legal contemplation, the deed from the appellees contains any condition of defeasance; second, the effect of the statutes of limitation upon plaintiffs' right of action, supposing that the deed was voidable only for fraud, and which will also involve the inquiry whether the representations which are relied upon to avoid the deed constitute fraud in legal acceptation; third, whether the officer who took the privy acknowledgment of the wife was competent to do so, and, in this connection, whether the deed would be void, even without the acknowledgment of the wife, the property being community.

1. We have already sufficiently described the character and the terms of the deed in the statement of the case. We are of the opinion that the deed is in no sense executory, but that it passed the title to the land entirely out of the grantors, and to the railway company. The appellees neglected to reserve any title in themselves, or to provide for the reversion of the estate in the event that the contract should be broken by the grantee. They have not attempted in this suit to recover damages, and to charge the land with any lien in their favor. Howe v. Harding, 76 Tex. 23, 13 S. W. Rep. 41; Mayer v. Swift, 73 Tex. 367, 11 S. W. Rep. 378. Of course, the right to a lien would depend upon a subsisting right (not barred by limitation) to obtain a judgment for some sum of money, but this would not give the right to avoid the deed and defeat the title conveyed by it. It is very evident that the deed contains no condition precedent, nor do we think that the language used would indicate a condition subsequent. This case is plainly different from Railway Co. v. Dunman, 74 Tex. 265, 11 S. W. Rep. 1094. There the deed expressly provided that the title should revert to the grantor in case of nonperformance upon the part of the grantee. Of course, in case of a condition subsequent broken, the grantor has his election to re-enter and reclaim the land, or to sue for damages for a breach of the contract, and a suit for the land would be equivalent to a re-entry. Railway Co. v. Dunman, supra. But conditions of this character are not favored by the courts, and, in case of doubtful language or intention, the promise or obligation of the grantee will be construed to be a covenant limiting the grantor to an action thereon, and not a condition subsequent, with the right to defeat the conveyance. Under the authorities, we think that it must be held, and we do hold, that the promises or obligations of the railway company referred to in the deed are in the nature of covenants, not conditions, and therefore the plaintiffs, aside from the other questions in the case, could not reclaim the land itself on account of the nonperformance of the covenants or promises by the grantee, but would be required to sue for the damages arising from the breach of the contract. Johnson v. Gurley, 52 Tex. 222; Mayer v. Swift, 73 Tex. 365, 11 S. W. Rep. 378; Chapin v. School Dist., 35 N. H. 445; Baker v. Compton, 52 Tex. 252; 2 Cruise, Dig. 2, 3, kt. 120; Rawson v. Inhabitants, 7 Allen, 125; Packard v. Franklin, 16 Gray, 327; Insurance Co. v. Mowry, 96 U. S. 548, Selden v. Pringle, 17 Barb. 458. See, also, Ludlow v. Railroad Co., 12 Barb. 440, though in that case a condition subsequent was expressly created. It follows from what we have said that the court below should have instructed the jury, as requested by the defendants, that the deed in...