Fryer v. Meyers

• Decision Date: 02 May 1890
• Parties: FRYER <I>v.</I> MEYERS <I>et al.</I>
• Court: Texas Supreme Court

13 S.W. 1025

FRYER

v. MEYERS et al.

Supreme Court of Texas.

May 2, 1890.

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

J. J. Stoker and A. P. Hodge, for appellant. McKinnon & Carlton, for appellees.

COLLARD, J.

Plaintiff below, the appellant, deraigns title to the Smith 640 acres of land in Hill county, Tex., by deeds as follows (1) By general warranty deed of I. N. Vandyke and wife to William and George Walters, dated July 29, 1873, which was filed for record in Hill county, October 7, 1873; (2) by deed of W. H. Walters and wife to plaintiff, Fryer, dated July 22, 1883, which was filed for record in Hill county, January 10, 1883. Defendants claim title from Vandyke as follows: (1) By power of attorney to T. Bethel to sell the land, dated December 23, 1880, filed for record in Hill county, January 25, 1881; (2) deed of Vandyke and wife by the attorney, Bethel, to Thomas Simpson, dated January 10, 1881, filed for record January 25, 1881; (3) deed from Thomas Simpson back to Vandyke, dated January 9, 1883, filed for record January 30, 1883; (4) deed from Vandyke to Wesley Meyers, dated May 28, 1883, filed for record May 7, 1884; (5) deed from Wesley Meyers to defendant A. A. McGraw, dated October 6, 1884, filed for record June 15, 1885. The defendant Wesley Meyers, after his sale to Mrs. A. A. McGraw, remained in possession of the land for her, and was so in possession as her tenant at the time this suit was brought, to-wit, on the 24th day of May, 1888.

It is seen by the deeds and records that Vandyke had sold the land to George and William Walters many years before his sale to Meyers, of which sale Meyers and his vendee had constructive notice at the time of their purchase. But in order to defeat the deed of Vandyke to George and William Walters, and to cut off plaintiff's claim from Vandyke, the common source, defendants were permitted to read in evidence, over the objections of plaintiff, a decree of the circuit court of Coles county, Ill., in the fifteenth judicial district, of date January 1, 1875, of the following purport: The court found that on the 2d day of September, 1872, George and William Walters, owning certain land in Coles county, Ill., conveyed the same to H. J. Ashmore, father-in-law of said Vandyke, in consideration of a conveyance to them by Vandyke and wife of the 640 acres in controversy, and $1,450 paid to them by Ashmore. The court further found that the trade and exchange of lands were procured by fraud and misrepresentation on the part of Ashmore and Vandyke, practiced upon George and William Walters, the complainants; that Vandyke received $1,500 for his interest in the land from Ashmore; that Ashmore was dead, and left the defendants in that suit his heirs, — and declared the sale void for fraud, and set the same aside, requiring the complainants to pay to Ashmore's administrator the $1,450, with 6 per cent. interest from September 2, 1872, within 60 days from the rising of the court, and at the same time to convey, by special warranty deed, their interest in 640 acres in Texas to the heirs of H. J. Ashmore, or tender the same to said parties, and also requiring defendants in the suit, except Ashmore's widow, thereupon to reconvey to complainants the land in Coles county, Ill., and in default thereof that the master in chancery should make such conveyance. This decree was filed for record in Hill...