Gillispie v. Gray

• Decision Date: 12 April 1919
• Docket Number: (No. 9079.)
• Citation: 214 S.W. 730
• Parties: GILLISPIE et ux. v. GRAY.
• Court: Texas Court of Appeals

214 S.W. 730

GILLISPIE et ux. v. GRAY.

(No. 9079.)

Court of Civil Appeals of Texas. Ft. Worth.

April 12, 1919.

On Motion for Rehearing, June 7, 1919.

Further Rehearing Denied June 28, 1919.

Appeal from District Court, Bosque County; O. L. Lockett, Judge.

Action by H. Gray against Thomas L. Gillispie and wife. From judgment for plaintiff, defendants appeal. Reversed, and cause remanded.

James M. Robertson, of Meridian, for appellants.

H. J. Cureton, of Meridian, for appellee.

DUNKLIN, J.

Thomas L. Gillispie and wife have appealed from a judgment rendered against them in favor of H. Gray for the sum of $1,400, which was alleged to be the purchase price paid by Gray to the defendants, Gillispie and wife, for 14 acres of land sold by the defendants to Gray, and to which the defendants owned no title.

In his petition plaintiff alleged that he purchased from the defendants a tract of 128 acres at the agreed price of $100 per acre, but that he later discovered by actual survey of the land that the tract contained only 114 acres, and his suit was to recover the purchase price paid to the defendants for that shortage. There were two counts in the petition, in the first of which it was alleged that the trade for 128 acres instead of 114 acres was the result of a mutual mistake of the parties. In the second count of the petition a recovery was sought upon the theory of a breach of warranty of title to the 14-acre shortage; but both in the trial court and here that theory of recovery was abandoned, leaving the first count in the petition as the only basis for the relief prayed for by plaintiff.

By several special exceptions the defendants invoked the statutes of limitation of two and four years, and several assignments are presented to the action of the court in overruling those exceptions.

According to allegations in his petition, plaintiff purchased the land on August 18, 1913, for a total consideration of $12,800, $1,000 of which was paid cash, and the balance was in deferred payments. The first payment made on the deferred installments was in the sum of $1,000, which was paid more than 12 months after the date of the deed. According to further allegations in the petition, the purchase and sale was upon the basis of $100 per acre, and defendants represented to him that the tract contained 128 acres, which representations plaintiff believed, and relied upon and was induced thereby to consummate the trade. Possession of the tract was not delivered to him until January 1, 1914. After taking possession of the land he continued to believe that the tract contained 128 acres until August, 1917, when he caused a survey to be made which developed the shortage of 14 acres. He was caused to make such a survey by reason of the fact that correct field notes were required by the Federal Farm Loan Bank, to which plaintiff had applied for a loan to pay off the outstanding indebtedness against the land. The field notes of the tract as given in the deed included 128 acres, but the inclosure included only 114 acres. At the time of the trade it was supposed that defendant's fences were on the true boundary lines as shown in the field notes, but upon actual survey it was found that one of the boundary lines diverged from the fence line and left a strip in a V shape between the fence and the boundary line which so diverged, containing 14 acres, and defendants had lost title to that to the owners of an adjoining tract who had acquired title by limitation, and defendants did not own the same at the time of their sale to the plaintiff. As noted above the deed to plaintiff was executed August 18, 1913, but plaintiff did not discover the shortage until August, 1917, and this suit was not instituted until November 2, 1917, more than four years after the deed was executed.

The rule seems to be well settled that in suits for relief against fraud and deceit the statute of limitation does not begin to run until the complainant discovers the fraud, or has learned facts sufficient to put a person of ordinary prudence on inquiry which, if pursued, would have led to a discovery of the fraud; and the same rule is applicable when a suit is predicated upon mutual mistake between the parties. Oldham v. Medearis, 90 Tex. 508, 39 S. W. 919; Isaacks v. Wright, 50 Tex. Civ. App. 312, 110 S. W. 970.

The first question, then, is whether or not the allegations contained in plaintiff's petition showed on their face that plaintiff was guilty of negligence, as a matter of law, in failing to discover the shortage prior to January 1, 1914, when possession was delivered to him, and we have reached the conclusion that that question should be answered in the negative.

In the petition plaintiff alleged that at the time of the purchase he lived some 15 or 20 miles distant from the land and was unacquainted with it; that he was a farmer of little experience in buying and selling land; that the defendant Thomas L. Gillispie, with whom he negotiated the trade, was a business man of high standing, with long experience in buying and selling lands, and plaintiff, having the utmost confidence in his business integrity, relied implicitly upon his assurance that the tract being sold contained 128 acres; that the plaintiff before buying observed the boundaries of the tract as the same were inclosed, and in good faith believed that the inclosure included an area of 128 acres, and had no reason to doubt that fact until he had the survey made, noted above. He further alleged that during the first negotiations defendant Thomas L. Gillispie claimed that the tract contained 127 acres, and that the sale was then agreed to on a basis of 127 acres at $100 per acre, but that later in preparing the deed the defendant discovered that according to the field notes of the tract it contained 128 acres, and thereupon plaintiff agreed to pay for 128 acres at the price of $100 per acre. It was alleged that this was an additional circumstance which caused plaintiff to rely upon the representation made by the defendant Thomas L. Gillispie that the tract did in fact contain 128 acres.

In the case of Bass v. James, 83 Tex. 110, 18 S. W. 336, which was a suit based upon fraud and deceit in the sale of a tract of land in which plaintiff sought to recover for the value of the deficit of quantity of the land sold, our Supreme Court held that the suit was barred by the statute of two years' limitation. In that case the sale was made in October, 1887, and the suit was instituted in October, 1890. According to the allegations in the petition in that suit the defendant had practiced a fraud upon him in representing that the tract sold contained 135 acres when, in fact, it contained 14.1 acres less than that area, for the value of which a recovery was sought. But the petition contained no allegation that after the consummation of the sale the defendant made any representations or did any act to induce the plaintiff to continue in the belief that that tract contained the area represented. And in view of that fact it was held that plaintiff was guilty of negligence, as a matter of law, in failing sooner to discover the fraud, and that the statute of limitation of two years barred the action. The facts of that case were very similar to those of Kuhlman v. Baker, 50 Tex. 636, in which there was a like holding, and which case, together with others, is cited with approval in the case of Bass v. James. See, also, Stanford v. Finks, 45 Tex. Civ. App. 30, 99 S. W. 449. In each of those cases it seems that the only excuse offered by the plaintiff for failure to sooner discover the shortage in the tract sold was that, he relied with implicit confidence upon the honesty and integrity of the defendant with respect to the representations made concerning the area of the tract sold.

But in the case of Isaacks v. Wright, supra, the facts were very similar to those in the decisions noted above, and it was held that the court could not declare, as a matter of law, that the plaintiff was guilty of negligence in failing sooner to discover the fraud practiced upon him in the sale of the land, which caused him to pay for an excess in acreage, and that therefore the suit was not barred by the statute of limitation. That suit was instituted more than four years after the perpetration of the fraud, which was not discovered until two and one-half years after it was perpetrated, and the decision of the case was that the judgment overruling the plea of the four-years statute of limitation, urged by the defendant, should be affirmed. In that case the decisions noted above were expressly discussed, and the similarity of the facts was noted. But it was further noted that in the case under discussion there was a difference by reason of the fact that at the time of the purchase defendant's agent pointed out the exact boundary lines of the land sold, and represented that the tract within those boundaries contained the entire acreage which plaintiff had purchased, which representation was untrue. So in the present suit we think there is also a distinguishing fact, in that plaintiff was not put in possession of the tract of land in controversy until January 1, 1914. To say the least, it cannot be said, as a matter of law, that plaintiff, who, up to that date it seems lived some 15 or 20 miles distant, was guilty of negligence in failing to discover the shortage in the acreage of the tract which he had purchased during the preceding summer, and of which he had never taken possession. Under such circumstances, and in view of the preceding negotiations between the parties, related above, we think that it was a question for the jury to determine whether the plaintiff was guilty of negligence in failing to discover the mistake alleged prior to January 1, 1914, that date being less than four years prior to the date the suit was instituted.

A writ of error was denied by our Supreme Court in Isaacks v. Wright, supra, and in that decision...