Gustafson v. American Land Co.

• Decision Date: 05 October 1921
• Docket Number: (No. 6590.)
• Citation: Gustafson v. American Land Co., 234 S.W. 244 (Tex. App. 1921)
• Parties: GUSTAFSON v. AMERICAN LAND CO.
• Court: Texas Court of Appeals

234 S.W. 244

GUSTAFSON v.AMERICAN LAND CO.

(No. 6590.)

Court of Civil Appeals of Texas. San Antonio.

October 5, 1921.

Rehearing Denied November 2, 1921.

Appeal from District Court, Cameron County; W. B. Hopkins, Judge.

Action by the American Land Company against V. Gustafson.Judgment for plaintiff, and defendant appeals.Affirmed.

Spears & Montgomery, of San Benito, and Jno.C. Myrick, of Harlingen, for appellant.

Canales & Davenport, of Brownsville, for appellee.

SMITH, J.

The American Land Company brought this suit in the form of an action in trespass to try title to recover of V. Gustafson the title and possession of 115.6 acres of land in Cameron county.The land company had previously sold the land to Gustafson, in consideration of a cash payment of $5,400 and $16,200 in deferred payments, to secure which the vendor's lien was reserved in the deed of conveyance.Upon Gustafson's default in the payment of the first two notes the land company elected to sue for recovery of title rather than to foreclose.

In an amended answer and cross-action, appellant, as defendant below, set up certain statements, representations, and promises alleged to have been falsely and fraudulently made to him by appellee's agent, by which he was deceived into undertaking the purchase of the land in dispute, and on account of which he sought a rescission of the contract of sale, cancellation of the unpaid purchase-money notes, the recovery of the amount of purchase money paid, the value of the improvements he had placed on the premises, damages for the loss of the 1917 crop, and actual and exemplary damages for the seizure of the property in an alleged wrongful sequestration proceeding.On account of the alleged fraud and deceit of the vendor, and under the guise of the defense of failure of consideration, appellant in the same pleading also sought to recover damages in the sum of the alleged difference between the contract price of the land and its actual value at the time of the sale, as well as actual and exemplary damages for the alleged wrongful seizure.

Every allegation in this special answer and cross-action was stricken out upon exception, leaving only the general demurrer and plea of not guilty as appellant's pleading.These exceptions were sustained chiefly upon the contentions that the cross-actions set up were improperly joined to an action in trespass to try title, and could not be properly set up as a defense in such suit; that appellant had waived his right to rescind; that the cross-actions were barred by the two-year statute of limitation; and that the false representations set up related to matters to occur in the future, were merely promissory, and accordingly unavailable, and were not shown to have been made by any agent of appellee.Gustafson declined to amend, and the cause proceeded to trial alone upon the petition in trespass to try title and the plea of not guilty.There was judgment for the land company against Gustafson for title and possession of the land, and the latter brings this appeal.

For the purpose of testing the sufficiency of demurrers and exceptions, every allegation at which they are directed must be taken as true, although construed most strongly against the pleader; and so, if any one or more of the allegations in appellant's cross-action admitted to be true were available as defenses, or stated a cause of action, then the sweeping order of the court below striking out the entire pleading was error.We will not undertake to set out these allegations in detail, which cover 18 pages in the record, but will refer to them when necessary in disposing of the case.

The vendor in an executory contract for the sale of land, in which the vendor's lien is reserved to secure the purchase price, has the option, if the vendee defaults in payment, of rescinding the contract and recovering title, or of enforcing specific performance and recovering the unpaid purchase price with foreclosure of his lien; either remedy being pleaded as the alternative of the other.He must finally, however, elect between the remedies, standing upon one and abandoning the other.Or he may, as was done here, bring his suit in the form of an action in trespass to try title.But, no matter which form of remedy the vendor adopts, whether he elects to rescind and assert his superior title, or seeks to enforce specific performance and a money judgment with foreclosure, or brings a simple action in trespass to try title, the vendee may in such suit set up all the rights, remedies, and defenses available to him in either or all of the actions.Accordingly it was proper in this case for appellant to set up the alleged fraud of the vendor in procuring him to execute the contract, and to recover damages sustained by him as a natural and proximate result of the fraud.Moore v. Giesecke, 76 Tex. 543, 13 S. W. 290;Kallison v. Poland, 167 S. W. 1104;Binder v. Millikin, 201 S. W. 239;Wright v. Chandler, 173 S. W. 1173;Hubbs v. Marshall, 175 S. W. 716.

The purchaser has two remedies in case of the fraud of the vendor—one the remedy of rescission and recovery of the purchase money paid, and the value of the improvements he has placed upon the premises in so far as such improvements have enhanced the value of the property; the other, specific performance and the recovery of damages, with which he may set off the unpaid purchase money.These two remedies, however, are inconsistent with one another.One is based upon the continued existence of the sale; the other upon its abrogation; and the purchaser cannot in one form of action obtain the relief appropriate to the other.But he may in one suit plead both remedies, one as the alternative of the other, as was sought to be done here.And he may so plead them, as was also sought to be done here, as the defendant in a suit brought by the vendor to rescind or enforce the executory contract of conveyance.If he seeks a rescission of the contract because of the fraud of the vendor, he must, as appellant did here, tender a reconveyance of the property to the vendor.If he seeks to retain the property, he must tender the unpaid balance of the contract price, although, as has been seen, he may under appropriate pleadings set off or abate the contract price with the damages he may recover.

Where, as in this case, the vendee reconvenes for damages occasioned by the fraud of the vendor, his cause of action is subject to the bar of the two-year statute of limitations.And in such case limitation is tolled from the time the vendee discovers the fraud or should have discovered it in the exercise of ordinary diligence.Binder v. Milliken, supra;Gordon v. Rhodes, 102 Tex. 300, 116 S. W. 40.Of course, if the pleading setting forth the cause of action discloses the presence of the bar, the question may be settled by appropriate exception; otherwise it becomes one of fact to be determined by the court or jury from the evidence.In this case the question was raised in special exceptions leveled at the second amended answer and cross-action of defendant(appellant), Gustafson, which was not filed until November 29, 1920, the original suit having been instituted by plaintiff(appellee) on August 29, 1919.

Appellee contends in its brief that "the cross-action which raises these matters of record for the first time was filed November 29, 1920," but the record here does not affirmatively show this, since the original and intermediate pleadings of appellant do not appear in the transcript.As a general rule the presumption obtains, in the absence of a showing in the record to the contrary, that the cause of action alleged in an amended pleading is the same as that set up in the superseded pleading, so that, in the absence from the transcript of appellant's superseded pleadings, it will be presumed that the cross-actions embraced in the amended pleading were included in those it superseded.Rucker v. Dailey, 66 Tex. 284, 1 S. W. 316;Dwight v. Matthews, 94 Tex. 530, 62 S. W. 1052.

According to appellant's allegations, he did not know of the frauds alleged to have been practiced upon him until within two years of the filing of this suit by appellee, but the record does not show the date appellant filed its original or intermediate answers, and therefore the presumption discussed is of no use here to appellant.If in his amended answer he had complied with the rules (district courtrules 13,14, and84[142 S. W. xviii, xxiii]), and shown in his amended pleading the date of the filing of the pleading thereby superseded, and such date had been within two years of the dates he alleged he discovered the frauds, then the presumption would have been available to him, and we would have been obliged to sustain his assignments complaining of the action of the trial court in striking out his cross-actions on account of limitation.But, as the record does not disclose the dates of filing of appellant's superseded pleadings, we cannot determine the sufficiency of appelle...