Franco-Texan Land Co. v. Simpson

• Decision Date: 13 December 1892
• Citation: 20 S.W. 953
• Parties: FRANCO-TEXAN LAND CO. v. SIMPSON.
• Court: Texas Court of Appeals

20 S.W. 953

FRANCO-TEXAN LAND CO. v. SIMPSON.

Court of Civil Appeals of Texas.

December 13, 1892.

Appeal from district court, Parker county; J. W. PATTERSON, Judge.

Action by the Franco-Texan Land Company against A. B. Simpson. Judgment for defendant. Plaintiff appeals. Affirmed.

Hood & Hood, for appellant. G. A. McCall and W. R. Viorett, for appellee.

TARLTON, C. J.

This suit was brought in the district court of Parker county, by appellant against appellee, to recover the sum of $90.27, amount of a promissory note, with interest, and to foreclose the vendor's lien on certain land described in the petition. The defendant relied as a special defense upon a partial failure of consideration arising out of the deficiency in the quantity of land. The court tried the case without a jury, and rendered judgment for the defendant; hence this appeal.

Conclusions of fact: (1) November 18, 1881, the Franco-Texan Land Company, by deed, conveyed to defendant the land on which foreclosure is sought. (2) This deed, by metes and bounds, sets out the land conveyed, and concludes the description therein with the recital that the land contains "102.59 acres, more or less, being the southwest fractional part of survey No. 327." The instrument recites a consideration of $82.07 cash, the balance secured in six promissory notes, the last of which is the one here involved. It expressly retains the vendor's lien, and provides that the deed shall become absolute as a conveyance on payment of all the notes. (3) The land conveyed is out of a larger tract owned by appellant, through patent from the state recorded February 20, 1878. The patent describes the entire tract as containing 511.79 acres. The tract, however, does not contain this quantity, because the calls for distance are required to yield to the calls in the patent for marked lines and corners. (4) At the time of the purchase, the plaintiff (vendor) represented to the defendant that there were 102.59 acres in the tract conveyed. The defendant relied upon these representations, and so purchased the land. There was no actual fraud on the part of the vendor, both the vendor and vendee believing at the time that the tract contained the quantity named. (5) There were, however, only 85 acres embraced in the tract conveyed. The deficiency is caused by the calls for distance being controlled by calls for lines and corners marked and established. (6) The sale was a sale by the acre; that is to say, in arriving at the price the parties estimated the tract to contain 102.59 acres, and the price agreed upon was four dollars per acre. (7) Soon after the purchase, the defendant moved on the land, and has ever since resided thereon, undisturbed in his title or possession of the land actually conveyed to him. He did not, however, discover the deficiency until after he had paid the purchase-money notes, except the last, which is here sued upon. (8) The deficiency in the land, 17.59 acres, at four dollars per acre, exceeds the amount of the note involved, with interest.

Conclusions of law: We do not concur with appellant in its first contention, — that the answer of defendant is subject to general demurrer. The answer, in effect, alleges that the land was sold by the acre; that the plaintiff falsely represented that there were 102.59 acres in the tract; that defendant relied...