Evans v. Templeton

• Decision Date: 20 December 1887
• Parties: EVANS v. TEMPLETON.
• Court: Texas Supreme Court

Page 843

6 S.W. 843

EVANS v. TEMPLETON.

Supreme Court of Texas.

December 20, 1887.

Appeal from district court, Tarrant county; R. E. BECKHAM, Judge.

John D. Templeton sued Samuel Evans and E. B. Brown to recover a lot sold to him by Evans, and afterwards sold by Evans to Brown, and, if this could not be had, judgment against Evans for the value of the lot. Judgment was entered for the plaintiff, and Evans appeals.

C. C. Cummings, for appellant. C. M. Templeton, for appellee.

GAINES, J.

Appellee brought this suit in the court below against appellant and E. B. Brown, alleging in his petition that in 1873 the former conveyed to him a certain lot in the city of Fort Worth; that afterwards, in 1874, he again sold and conveyed the property to his co-defendant Brown; and that his deed, duly acknowledged, was deposited in the office of the county clerk of Tarrant county, and, together with the court-house of that county, was destroyed by fire in 1876. It was also averred that the lot in controversy was sold and conveyed to Brown in connection with another lot adjacent thereto, of the same size and value, for the consideration of $2,000, of which Brown had paid, including interest, only the sum of $560. It was further alleged that if plaintiff was mistaken as to the exact locality of the lot sold to him, then it was a lot of the same dimensions, the east boundary of which lies 100 feet further west than that of the lot he first described, and that the east half of this is embraced in the land sold to Brown. Plaintiff prayed for a recovery of the land so conveyed to him, and, if this could not be had, then that he have judgment against defendant Evans for its value. Defendant Evans pleaded a general denial, and the statute of limitations of two, three, five, and ten years. Defendant Brown answered specially, admitting the purchase of the two lots of his co-defendant, and the conveyance of them to him upon the terms alleged in the petition, and that he had paid of the purchase money only the amount therein set forth. He prayed that in the event the court found the plaintiff entitled to recover the land claimed in his petition, that he should have a judgment against his co-defendant canceling his unpaid notes, and ordering that they be delivered up to him. The case was submitted to the jury upon special issues, and they found, in substance, that defendant Evans did convey to plaintiff the lot first described in his petition; that Evans subsequently sold it to Brown on a credit of $2,000, of which only $560 had been paid, and that plaintiff's lot and the other lot conveyed to Brown were of the value of $1,000 each at the date of the sale to Brown, and at the time of the trial. A judgment was accordingly rendered for plaintiff for the recovery of the lot described in his petition and in the verdict, as against both defendants and a decree entered that when defendant Brown should pay his co-defendant a sufficient sum to bring his payments up to $1,000, and the interest thereon from the date of his notes, the notes should be extinguished, and that defendant Evans be enjoined from transferring said notes. From this judgment Evans appeals as against the plaintiff, but not against his co-defendant. Defendant Brown acquiesces in the result.

The second and third assignments of error complain of the refusal of the court to give charges asked by...