Dorn v. Dunham

• Decision Date: 01 January 1859
• Parties: ROBERT DORN AND ANOTHER v. M. T. DUNHAM AND OTHERS.
• Court: Texas Supreme Court

24 Tex. 366

ROBERT DORN AND ANOTHER

v.M. T. DUNHAM AND OTHERS.

Supreme Court of Texas.

1859.

A tenant in common of an undivided interest in land, cannot prejudice the rights of his co-tenants, by an agreement to convey a designated portion of the tract; and a selection, made by the obligee, under it, will confer no title on him, as against such co-tenants. 22 Tex. 390.

The tender of a deed, from such obligor, to the obligee, for a different part of the tract from that agreed to be conveyed, and which had been selected in pursuance of their agreement, is not a compliance with the contract, and the obligee may refuse to accept it.

If, under such an agreement, the obligor were unable to make title, by reason of the land falling to the share of another, in a partition between the co-tenants, the remedy of the obligee, would be by a suit for damages, for the breach of the contract; and where the obligee has refused to accept a deed for a different portion of the land, a subsequent conveyance by the obligor, will vest the title.

The acquisition by the obligee, of the possession of the deed which he had so refused, by whatever means obtained, will not avail him, as a title, against such subsequent grantee, if he had notice of such title before obtaining the deed.

The right to recover for improvements, under a suggestion of good faith, is not dependent on the plaintiff's claim for rents and profits; nor is it limited to cases in which rent is claimed, or compensation for the use and occupation is allowed. 14 Tex. 235;19 Tex. 194;26 Tex. 512.

A possessor in good faith, within the meaning of the statute, will be entitled to compensation, for the permanent and valuable improvements he has made upon the land, while so in possession, though it should turn out, that his title is defective, or that another has the superior title. 15 Tex. 310;19 Tex. 194.

As a general rule, to constitute one a possessor in good faith, he must not only believe that he is the true owner, and have reasonable ground for that belief, but he must be ignorant that his title is contested by any person claiming a better right. 12 Tex. 222.

But there may be cases where, though aware of an adverse claim, the possessor may have reasonable and strong grounds to believe such claim to be destitute of any just or legal foundation, and so be a possessor in good faith. 13 Tex. 307.

The doctrine, on the subject of good faith, as recognized in Robson v. Osborn, questioned, as applicable to that case.

Testimony relevant to, and offered in support of, an issue (as of good faith in the defendant, in an action of trespass to try title, under his claim for improvements) cannot be rejected by the court, on the assumption, that the evidence already adduced, shows a state of facts, inconsistent with the truth of the proposition, for the proof of which the testimony is offered.

ERROR from Gonzales. Tried below before the Hon. Fielding Jones.

This was a suit commenced on the 17th March, 1858, by Mortimer T. Dunham, and his wife, Bethsheba Dunham, formerly Bethsheba Best, and widow of E. W. Best, deceased, as guardians of Emily N. Best, John Best, and Stephen Best, the minor heirs of the said E. W. Best, against Robert Dorn and Stephen Best, for the recovery of, and quieting of the title to 1,000 acres of land, conveyed to the said minor heirs by Margaret Best, their grandmother.

Margaret Best was the owner of 2,000 acres (an undivided interest in a tract of land on the San Marcos river, known as the Solomon Seals league), that being her portion in the division of the estate of her deceased husband; the title to the residue of the tract was vested in the heirs of her deceased husband, in Jonathan York, who owned 1,500 acres, and in Isaac Welden, who owned 350 acres.

On the 10th day of September, 1851, Margaret Best executed a deed to the minors, Emily, John, and Stephen Best, for 1,000 acres of the land, “adjoining and below York's land.” The plaintiffs claimed under this deed, and sought to recover the same from Dorn, who was in possession of, and claimed the same.

In August, 1850, the said Margaret made a contract with Robert Dorn, to build houses for her, and for the improvement of a residence, to be selected by Dorn, on the 2,000 acres of the Seal's league of land, which belonged to her; and by the terms of the agreement, for the said services, she was to give him a warrantee title to land on the tract, to include his improvement, at $1.50 per acre, in payment for the buildings and improvements. The work to be valued, by three or more disinterested persons, when finished; and it was further agreed, that Dorn “should have the refusal of the one-half of the above mentioned tract of land, at $1.50 per acre.”

At that time, she was living with her daughter-in-law, the widow of E. W. Best, deceased, and it seems, that she designed giving to the wards of the plaintiffs, 1,000 acres of her land, and that the improvements which she was contracting for, she contemplated, should be occupied and enjoyed by her daughter-in-law, and these minors, who expected to remove unto the same.

Dorn went on the land, and resided there in October, 1850, and continued to occupy it as his residence. There had been no partition, nor agreement for partition, of the land, among the owners of the several interests. He made choice of, and settled on the 1,000 acres, next to the upper 1,000 acres of the league; and it was in evidence, that before the making of the contract, the different undivided interests of the various owners of the league, was the subject of conversation, in which Dorn and Margaret Best, and the witness participated, in speaking of the contract that was in contemplation between them.

Subsequent to the making of the agreement with Dorn, in the fall of the year 1850, Margaret Best proposed to Dorn, to abandon the making of the improvements, to which he assented, expressing himself indifferent as to how he should pay for the land. When he settled on it, under his contract with Margaret Best, he made choice of the 1,000 acres next to, and below the upper 1,000 acres of the league.

On the 18th day of July, 1851, Margaret Best executed a deed to Dorn, for 1,000 acres, of the 2,000 acres owned by her, which was therein described by metes and bounds, “beginning at a stake, set on the bank of said river (San Marcos) for the lower corner of a survey of 1,500 acres, made for Jonathan York, off of the extreme upper part of said Seal's league,” and proceeding to set out the boundaries of the said 1,000 acres, conveyed to him as aforesaid, adjoining to, and below the 1,500 acre survey of York. This deed, with a power of attorney to deliver it to Dorn, upon the payment of $1,500, she delivered to her son Stephen, who, with M. T. Dunham, one of the appellees, who had in the meantime married the widow of Eben Best, went to Dorn, and offered him the deed on payment of the money. But when the deed was read to him, he refused to accept it, and to pay the money, because it did not describe the land which he desired, and declared that he would sue Margaret Best for damages.

Best and Dunham returned to Lavacca county, taking the deed with them; and Margaret Best, on the 10th day of September, 1851, executed a conveyance of the land, for which Dorn had refused to accept a deed, to the wards of the appellees, John, Emily and Stephen Best, junior, as hereinbefore set forth, and delivered the deed to Mrs. Dunham, their mother, for them, having previously, on the 2d day of the same month, revoked the letter of attorney which she had given to her son Stephen.

It was proved, that in the month of January, 1852, Stephen Best, handed to his mother, about ten days previous to her death, the deed which Dorn had refused to accept; and she returned it to him, with the request that he would give it to Dorn, and get the money, which the latter was to pay for the land. This deed was filed for record on the 29th day of May, 1852; but there was no evidence to prove when, or in what manner, it was delivered to Dorn. The plaintiffs alleged that Stephen Best, in violation of the revocation of the power of attorney given to him by his mother, to deliver the deed to Dorn, had fraudulently colluded with the latter, to cheat them, and had, without authority, delivered the deed to Dorn; that Dorn was in possession of the land therein described, claiming the same, and that he had notice that Margaret Best had revoked the said power of attorney, and had required the said Stephen to deliver to her the deed, which, they alleged, he refused to do, and delivered it as aforesaid, after her death; and they prayed that whatever title the said defendants had in the land, might be divested from them, and for a judgment against Dorn, for $1,000, for the use and occupation of the land.

The answer of Dorn suggested, that he had settled upon the said land, and made his improvements in good faith, relying upon the good faith of the said Margaret, and the validity of his said contract with her; that up to the time of her death, his right had never been disputed or disturbed, nor since, until the institution of this suit; and therefore he prayed that the value of his improvements might be allowed to him. He also answered at length to the merits.

On the trial of the case, the defendant, Dorn, offered to prove that Margaret Best put him in possession; and to prove, also, the value of the improvements he had made; to which the plaintiffs objected, and the objection was sustained. The bill of exception did not show what was the ground of objection.

One of the answers of the defendant, Dorn, alleged, that at the time of making his contract with the said Margaret, he was ignorant of the fact, that her interest was undivided, as he afterwards ascertained it to be; but from the representations of the said Margaret, he believed that her 2,000 acres, comprehended the upper side of the league, by a line run, or to be run, from the...