Culbertson v. Blanchard

• Decision Date: 17 February 1891
• Citation: 15 S.W. 700
• Parties: CULBERTSON <I>et al.</I> v. BLANCHARD.
• Court: Texas Supreme Court

15 S.W. 700

CULBERTSON et al. v. BLANCHARD.

Supreme Court of Texas.

February 17, 1891.

Commissioners' decision. Appeal from district court, Concho county.

J. C. Cook, for appellants. A. H. Graham, A. M. Jackson, Jr., and John I. Guion, for appellee.

MARR, J.

The appellee, Blanchard, as plaintiff below, instituted this suit in the district court of Concho county against the appellants, Culbertson & Cummings, upon two promissory notes, executed and delivered by the latter to the former, for $350 each, on the 29th day of July, 1884, payable, respectively, one and two years after date, with interest at 10 per cent. per annum and attorney's fees, and which notes, as well as the warranty deed from appellee to appellants to survey No. 1, retained a vendor's lien on said survey, and also upon surveys Nos. 2 and 4, and upon all of which plaintiff prayed a foreclosure, but, at final trial, having abandoned the lien on Nos. 2 and 4, the foreclosure was only awarded upon No. 1. These three surveys are those in dispute. No. 1, Gulf, Colorado & Santa Fe Railroad Company, and its alternate, No. 2, each contained 612½ acres, and No. 4, the alternate of No. 3, in the name of Haynes, contained 640 acres. Nos. 2 and 4 are state school lands, purchased by appellee on 30 years' time, etc. The conveyances from appellee to appellants, as the note, were executed, and the contract of sale consummated, on the 29th day of July, 1884. All three sections were sold and purchased on the same day. Section 1 was sold by warranty deed at the price of $2 per acre, $1,225 for the 612½ acres. Appellants paid $525 cash on the purchase of this section, and executed the notes sued on, for the balance of the purchase money of this section. Appellants purchased the two school sections by assuming to pay the amount to become due to the state, and paying appellee in cash $275 for a quitclaim release of his right, title, and interest to said sections. Appellants resisted the payment of the notes, and asked for rescission of the entire contract, because, as they alleged, in effect, that plaintiff falsely and fraudulently misrepresented the true position of survey No. 4, and the title to all three of the sections; that they were strangers, and unacquainted with the lands, and that the plaintiff was a land agent and surveyor, and well knew the true position of the lands, etc.; that they were misled and deceived by such representations; and that, instead of section 4, lying south of section No. 3, and abutting on No. 1, 2,821 varas, it in fact lies west of said section No. 3, and only abuts on No. 1, 1,420 varas, thus destroying the solidity of the lands purchased by them of the plaintiff; that appellee represented the lands as constituting a solid body of 1,865 acres, and "nearly in the form of a square;" that the changed position of No. 4 diminishes its value more than one-half, and affects the value of all, and that, had they known the true position at the time of the trade, they would not have purchased the lands; that they desired the land, and so informed plaintiff, for a stock ranch and farm. There was no demurrer on these points sustained to the sufficiency of the answer, and we think the above may be fairly deduced from what is stated. Defendants also alleged a conflict between the lands sold them and older valid surveys, by which they claimed that they would lose about 1,000 acres of their lands. They are, and have been ever since the purchase, in the undisturbed possession of the lands, and have made valuable improvements on section No. 2, etc. Plaintiff denied that a conflict existed, and the court below so found. He also admitted a mistake upon his part as to the situation of section No. 4, and that its true position is as claimed by the defendants. He claimed, however, that the defendants, after discovering and being fully informed as to the true locality of the lands, agreed to accept and retain them in their present shape in consideration of an extension of time on the first note, then past due. The court below found that plaintiff was mistaken as to the position of section No. 4, and that his representations were innocently made. There is evidence in the record sufficient to support this finding, if it were of any importance to go into that branch of the case. There is also ample evidence to support the conclusion of the court below that no conflict in fact existed to disturb the title of the defendants. The court below, however, wholly omitted, as we think, to find upon the most material points at issue. There was no finding as to the waiver of the right to rescind by defendants which plaintiff pleaded, as above stated, nor did the district court determine the very material question, (raised by both pleading and proof,) whether the defendants in purchasing the lands were influenced by the position and shape of survey No. 4, as they supposed it to be when the sale was made. The court below, as we conclude from the record, evidently proceeded upon the erroneous view of the law that, as the defendants in their pleading alleged fraud, and not mutual mistake, (in so many words,) no defense could be made on the latter ground, and that by the failure to pay the interest on the school sections Nos. 2 and 4 they could not place the plaintiff in statu quo, in case the contract was entirely rescinded.

We think the court below was correct in sustaining the exceptions of the plaintiff to so much of the answer of the defendants as sought to impeach the title of the plaintiff to school sections Nos. 2 and 4, on the ground of fraud against the state in procuring the same, for that he had already purchased "seven" school sections prior to the acquisition of these, etc. The state alone could complain of this, and the time for it to do so had expired anterior to the sale to defendants. Martin v. Brown, 62 Tex. 485; Decourt v. Sproul, 66 Tex. 368; Act 1883, § 6, (Gen. Laws, p. 86.) This disposes of the first assignment of error.

The other assignments may be treated together, in view of what we have already held as to the question of conflict of surveys. The district judge held, inter alia, in his conclusions of law, that, "there being a mutual mistake as to the location of survey No. 4, no cancellation of the trade could be had by defendants on this ground, unless they in their pleadings sought cancellation on this ground, and show their ability and willingness to place plaintiff in as good condition in reference to said land as he was at the time he conveyed to defendants;" that, "by failure to pay interest to the state for said land, defendants placed it out of their power to place plaintiff in statu quo." It is plain, we think, that upon these propositions the court below decided against the appellants. We have carefully searched the entire record, and fail to discover any distinct finding by the court below that would pretermit this question, and justify us in affirming the judgment on the evidence and the conclusions of the court considered as a whole. It becomes necessary, therefore, to determine the correctness of the above propositions of the learned district judge, as applied to the facts of this case.

We think that there was no fatal variance between the allegations and the proof. The defendants, under their pleading, were entitled to rely upon either the fraudulent representations of plaintiff (if any) or a mutual mistake of both parties. So far as they were concerned, it made no difference whether they were deceived through the fraudulent or innocent representations of the plaintiff as to any fact shown to be a material inducement, influencing their action in making the contract. Howsoever innocent may have been the intention of the plaintiff in making the representations, and though he may have been mistaken as to the locality of the land, yet if such representations had, in fact, the effect of misleading or deceiving the defendants, or influencing their conduct in a material matter, the result was, in the eyes of the law, the perpetration of a fraud upon defendants, regardless of the motives of the plaintiff. This is not a case where the vendee assumes...