Dashiel v. Lott

• Decision Date: 11 October 1922
• Docket Number: (No. 349-3718.)
• Citation: 243 S.W. 1072
• Parties: DASHIEL v. LOTT et al.
• Court: Texas Supreme Court

Page 1072

243 S.W. 1072

DASHIEL v. LOTT et al.

(No. 349-3718.)

Commission of Appeals of Texas, Section A.

October 11, 1922.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by James Polk against D. D. Harrigan and J. N. Lott, in which Mrs. C. L. Dashiel was substituted as plaintiff, and in which Sabino Sandaval and others intervened. From judgment of the Court of Civil Appeals (233 S. W. 1103), affirming in part and reversing and remanding in part judgment for plaintiff, plaintiff brings error. Judgment of Court of Civil Appeals, in so far as it reversed judgment for plaintiff, reversed, and judgment of the trial court affirmed.

T. F. Mangum and W. C. Douglas, both of San Antonio, for interveners.

Don A. Bliss and D. D. Harrigan, both of San Antonio, for defendants in error.

GALLAGHER, J.

The honorable Court of Civil Appeals has made a clear and comprehensive statement of this case, which we adopt, as follows:

"This suit was originally instituted by one Jas. Polk against D. D. Harrigan and plaintiff in error, J. N. Lott, seeking recovery against them on vendor's lien notes aggregating $4,500, together with foreclosure of lien on a certain 13½-acre tract situated in an outlying part of the city of San Antonio, Tex. Later defendant in error Mrs. C. L. Dashiel was substituted as plaintiff, she having acquired the notes after they were declared due. In her third amended original petition, besides declaring upon her notes, Mrs. Dashiel alleged that the 13½-acre tract described in the warranty deed from B. K. and W. R. Edwards, the original vendors, to the defendants Lott and Harrigan, was not the tract actually purchased by the latter, and that the error in description arose in this wise: Mrs. M. J. Martin, by deed dated March 2, 1887, conveyed to Isabella Steves a certain 15-acre tract described as commencing at the southeast corner of a tract of land conveyed by Mrs. M. J. Martin to Tarleton & Keller, and after the death of Isabella Steves, intestate, P. O. Steep acquired, through guardian's deed and otherwise, the title of her four heirs at law to a 13½-acre tract, a part of the aforesaid 15-acre tract, and described as having the same starting point, and W. C. Edwards acquired through Steep and his grantee of a one-half interest, Madge Waring, the same property by the same description, and by will of Edwards, upon his death, title to same passed to B. K. and W. R. Edwards, who conveyed by the same description to the defendants Lott and Harrigan; that Mrs. Martin intended to convey to Isabella Steves 15 acres with the same metes and bounds, except that the beginning point was to be at the southeast corner of a tract conveyed by her to C. A. Keller (instead of Tarleton & Keller), and the other grantors named in the succeeding deeds each intended to convey to their several grantees the same 13½ acres, commencing as intended in the Martin deed, and that the error in the description in all of said deeds arose through mutual mistake on the part of the several grantors and grantees; that the defendants Lott and Harrigan took and hold actual possession of the last-described 13½-acre tract, actually intended to be conveyed. And plaintiff made all of these grantors and grantees parties defendant and asked that their several deeds be corrected, and that she have recovery on her notes against Lott and Harrigan, with foreclosure on the 13½-acre tract intended to be conveyed, on the basis of this correction.

"Harrigan filed simply a formal answer, and in the course of his testimony in behalf of plaintiff admitted his liability. Lott, for the purpose of obtaining the right to open and close the case, under rule 31 governing district courts (142 S. W. xx), admitted of record that the plaintiff `has a good cause of action as set forth in her petition except in so far as it may be defeated in whole or in part by the facts of his answer constituting a good defense which may be established.' These facts in avoidance specially pleaded by Lott are, briefly stated, as follows: That W. R. and B. K. Edwards, the original vendors of the land involved, represented to Lott, acting for himself and Harrigan, that they had a good and perfect title and would furnish an abstract of title to cover, and that any apparent clouds would be immediately cleared; that it was contemplated by all concerned that the land would be cut up by defendants and sold out as cheap lots, obtaining guaranty of title by a responsible title guaranty company; that Lott had no knowledge or notice of the actual condition of title, and that he relied on the Edwardses, with whom he was intimate; that the deed was given, and the defendants proceeded to clear the land, but the Texas Guaranty Title Company refused to guarantee the title upon the advice of their attorneys. As specific defects in title he alleged: First, that there was an outstanding undivided one-half interest to said land in the heirs of the first wife of Mariano Rodriguez, which was now being asserted; second, that there were certain incumbrances and legacy charges; third, that Mrs. Norton has had actual and peaceable possession of about 2½ acres of this tract, claiming the same as her own, for more than 10 years, thereby...