Corbett v. McGregor

• Decision Date: 19 October 1910
• Citation: 131 S.W. 422
• Parties: CORBETT v. McGREGOR et al.
• Court: Texas Court of Appeals

131 S.W. 422

CORBETT v. McGREGOR et al.

Court of Civil Appeals of Texas.

October 19, 1910.

Rehearing Denied November 9, 1910.

Appeal from District Court, Harris County; W. P. Hamblen, Judge.

Action by W. C. Corbett against J. D. McGregor and others. There was a directed verdict for defendants, and plaintiff appeals. Affirmed.

Presley K. Ewing, D. F. Rowe, and J. A. Gillette, for appellant. Andrews, Ball & Streetman, for appellees.

FLY, J.

This is a suit by appellant against J. D. McGregor, A. S. Fisher, Harris Masterson, Elliott Cage, Bettie Bryan, and the Merchants' National Bank of Houston, in which it is alleged that appellant was the owner in fee simple of certain land in Holman's addition to the city of Houston, but that appellees are claiming the same by virtue of a certain deed, made by appellant to J. D. McGregor on June 18, 1903, which deed was null and void and was obtained by fraud and deceit on the part of McGregor, or through the mutual mistake of appellant and McGregor; that on June 17, 1903, McGregor claimed to be the owner in fee simple of a tract of land in the Stephen Jackson league, out of the Wirt Davis tract at Sour Lake, the same being 6/16 interest in the R. E. Brooks subdivision 18, and being 27.4 feet wide by 1,261 long, and a contract was entered into by and between appellant and McGregor as follows: "Sour Lake, Texas, June 17, 1903. This contract and agreement made between W. C. Corbett, party of the first part, and J. D. McGregor, party of the second part, both of Houston, Tex., witnesseth: Part.... of the first part is owner of subdivisions 1, 2, 3 and 4, being the east one-half of 10-acre lot 39, Holman addition to the city of Houston, located as per map hereto attached, except 350 feet on the corner of the extension of Crawford street, and 100 feet on extension of Holman street heretofore sold to Fisher. A lien of $1,600.00 exists against above property, also an agreement to accept a loan of $3,000.00 at 7 per cent. from one Neyhouse for building purposes, and pay Judge Hamblen $40.00 to examine abstract for Neyhouse. There is also another lien of $500.00 which the party of the first part agrees to remove. Party of the second part is owner of an undivided six-sixteenths interest (6/16) in R. E. Brooks subdivision (No. 18) number eighteen of the Wirt Davis tract in the Stephen Jackson league, Hardin county, being 27.4 by 1,261 feet. The parties hereto agree to exchange above lands with each other, with the understanding that party of the first part shall reserve five lots of 50 by 100 feet adjoining each other, clear of all incumbrance. Said lots to front 350 feet on the extension of either Holman, La Branch, Crawford or Elgin, as selected by party of the second part, good and sufficient warranty deeds to be made by each party, together with abstracts to be furnished showing a clear title to above properties, free from all liens except above mentioned lien of $1,600.00, which is to be assumed by party of the second part. Party of the first part agrees to complete barn about 20 by 47 feet with shed of about 10 feet. Barn to be covered with galvanized iron and planked up and down, nothing to be done with the interior. Fence to be completed with woven wire as now started. Titles to be good, or made good. Abstracts to be owned jointly. Party of the second part reserves the right to pay party of the first part fourteen hundred dollars in lieu of five lots herein reserved by party of the first part."

Appellant alleged his full compliance with the terms of the contract, and that deeds were exchanged between him and McGregor to their respective lands. It was further represented that McGregor and his attorney had falsely represented that the title to the land sold him was perfect, and concealed from him the defects in the title. Numerous defects are set forth in the title, and appellant prayed for a rescission of the exchange of the lands, and a cancellation of the deeds. These are, in substance, the allegations of appellant's pleadings, which are very voluminous, embracing some 30 typewritten pages of the transcript. The cause was tried by jury, which was instructed to, and did, return a verdict for appellees, upon which verdict was rendered, the judgment from which this appeal has been perfected.

The evidence showed that McGregor had told appellant that he had a good title to the land, and that the abstract showed it. McGregor was not a lawyer, and appellant stated that he would not have employed him to examine a title to land. He further stated: "I did not trade with him on the statement that he had examined it, but agreed to take the opinion of some reputable attorney or reliable attorney. I would take that opinion in lieu of the abstract; that is, in lieu of what he said. * * * I did agree to take the opinion of Judge Brooks on the title, and the opinion of Judge Brooks as introduced in evidence here was furnished me by Dr. McGregor, and on that we closed the trade, and the statement that was made to me by Dr. McGregor that he knew that the title was good. I did know, as I have said, that he (McGregor) was not a lawyer, and knew that he could not pass on an abstract, but he had told me that he had had the abstract examined, and that the title was good; that he knew it was good, and, furthermore, he would bring me the opinion of a good attorney to show that it was. And he brought me the opinion of Judge Brooks, to which I have just referred. I then closed the trade with him." McGregor furnished appellant with the following opinion of Judge R. E. Brooks, who is admitted to be a reliable and reputable attorney: "Beaumont, Texas, June 18, 1903. Dr. Jno. D. McGregor, Sour Lake, Tex.—Dear Sir: I have carefully examined the abstract of title to block 18 of the R. E. Brooks subdivision of 28 acres of the Wirt Davis tract in the Stephen Jackson league, in Hardin county, Texas, and find the title thereto to be good in you at this date, free from any liens or incumbrance of any kind. R. E. Brooks."

Brooks swore that he was a lawyer by profession and had practiced from 1885 to 1895, when he went on the bench as a district judge and remained in that office until 1905, when he resigned; that he had owned the land conveyed by McGregor to appellant and had examined the abstract of title to it and had other eminent lawyers to examine it; and that every objection to the title raised by any one had been removed before he bought it. He stated that he had no interest in the trade between appellant and McGregor. There was nothing to indicate that he had acted fraudulently in giving his opinion as to the title, or that there was any collusion between him and McGregor. The evidence indicated that McGregor acted in good faith in his statements as to the title.

The evidence of appellant indicated that McGregor concealed no facts, and made no false statements as to any facts, but merely stated an opinion as to the title and sustained that opinion by that of an eminent judge. Appellant agreed to take the opinion of any reputable attorney and to act upon it, and McGregor obtained the opinion without resort to fraud or deceit, and appellant acted upon it. Appellant knew that he...