Hoffman v. Buchanan

• Citation: 123 S.W. 168
• Parties: HOFFMAN v. BUCHANAN.
• Decision Date: 04 November 1909
• Court: Court of Appeals of Texas

123 S.W. 168

HOFFMAN v. BUCHANAN.

Court of Civil Appeals of Texas.

November 4, 1909.

Rehearing Denied December 9, 1909.

Appeal from District Court, Red River County; Ben H. Denton, Judge.

Suit by G. D. Hoffman against E. H. Buchanan. From a judgment for defendant, plaintiff appeals. Affirmed.

Kennedy & Robbins, for appellant. Moore & Park, for appellee.

HODGES, J.

The appellant instituted suit in the court below in the form of an action of trespass to try title for the recovery of 20 acres of land, a part of the Haskell survey in Red River county. The appellee answered by a plea of not guilty, improvements in good faith, limitation of two, four, and five years, stale demand, and laches. In a supplemental petition appellant alleged an agreement or contract between him and the appellee under and by virtue of which the land involved was purchased, and charged that if he had been guilty of laches in bringing his suit the same was caused by the conduct of the appellee, and that the improvements pleaded by the appellee were made with full knowledge of appellant's rights. The case was tried before the court without a jury, and a judgment rendered in favor of the appellee, defendant below.

At the request of the appellant, the court filed his conclusions of fact and law, which are substantially as follows: On the 6th day of June, 1898, appellee, Buchanan, purchased, and by deed properly executed acquired title to, 195 acres of land, a part of the Haskell survey in Red River county, the consideration for which was paid for wholly from his own money; the price being $4 per acre. Prior to the date of the abovementioned sale and conveyance, in the latter part of 1897 or spring of 1898, the appellant, Hoffman, had negotiated with the agent of the owners of the aforesaid tract for the purchase of 50 acres off of its north end; but those negotiations failed to result in any sale. Before the date of the sale and conveyance of the above-described land to Buchanan, the latter by a parol agreement promised to let the appellant have 20 acres off the north end of the 195-acre tract, and agreed to make him a deed thereto when he (the appellee) secured a deed to himself for the entire tract, upon appellant's paying him the same price paid therefor. Immediately upon the execution of the deed conveying to Buchanan the 195-acre tract, he went into the actual, adverse, and exclusive possession of the same, and has ever since remained in such actual, adverse, and exclusive possession, using, cultivating, and enjoying said land and paying all taxes assessed against the same. Upon Buchanan's going into such possession, he at once fenced the same and began clearing and putting it into cultivation, and put about 17 or 18 acres of the 20 acres sued for into an actual state of cultivation, erected houses thereon, and made other improvements amounting in value to $500. Appellant had notice of the fencing, clearing, and putting of said 20 acres into a state of cultivation at the time it was done. The court also finds that Hoffman, the appellant, never paid or tendered to Buchanan the price paid by the latter for the 20 acres. This suit for the recovery of the 20 acres was filed on the 14th day of December, 1906, about eight years and six months after the date of the deed conveying title to the land to Buchanan. The value of the land when purchased was placed at $4 per acre. The value of the 20 acres without the improvements placed on it would be $10 per acre. that the improvements had enhanced the value $500. The rental value of the land is placed at $4 per acre per annum. From the foregoing the court concludes as a matter of law that, if Hoffman ever acquired any interest in the 20 acres of land sued for through the parol agreement between him and the appellee, then by reason of not having paid or tendered payment of the purchase price of the land such interest was only an equity, as distinguished from an equitable title, and that having no title, legal or equitable, Hoffman could not maintain a suit of trespass to try title to recover the land. He further concludes that if the parol agreement mentioned in the conclusions of fact is sufficient, without the payment or tender of payment of the price paid by Buchanan for the land, to raise an express parol trust in favor of the appellant in said land, the act of Buchanan in fencing clearing, and improving the land was a repudiation of the trust, and that Hoffman had notice thereof at the time, and consequently his cause of action, if he ever had any, is barred by the statutes of limitation of two, three, and four years.

Complaint is made at the refusal of the court to file additional conclusions of fact upon the request of the appellant to do so. Whatever may be the merit of the request for additional conclusions of fact, we do not think the refusal of the court to comply with it is sufficient grounds to justify a reversal of this case. It appears that a full statement of facts, agreed to by the parties, accompanied the transcript, and it does not appear that the appellant has suffered any injury by reason of the failure complained of. The rule seems to be well recognized in this state that the failure of the court to file additional conclusions of fact and law upon the request of the party appealing will not be grounds for reversal when it appears that no injustice has been done. City Nat. Bank v. Stout, 61 Tex. 567; Implement Co. v. Templeton (App.) 14 S. W. 1015; Alamo Fire Ins. Co. v. Shacklett, 26 S. W. 631; Crocker v. Crocker, 19 Tex. Civ. App. 296, 46 S. W. 871.

By the second assignment of error appellant assails the correctness of the conclusion of the court wherein he finds as a fact that the appellee by parol agreement promised to let the appellant have the land in controversy. It is claimed that the testimony upon which that finding is based showed, if it showed anything, that the appellant and the appellee entered into an agreement for the joint acquisition of the land; the title to all to be taken in the name of the appellee, and he thereafter to deed to the appellant the 20 acres involved in this suit, upon the payment by the appellant of the price at which the land was purchased. The appellant insists that such an agreement created an express trust, by which appellee was to acquire the title to the 20 acres for the benefit of the appellant, and that the court also erred in not so concluding as a matter of law. The testimony on the part of the plaintiff in the court below was to the effect: That some time about the beginning of the year 1898 Hoffman, the plaintiff below, had been negotiating for the purchase of 50 acres of land, a part of the Haskell survey, and which included the 20 acres in controversy; that the appellee, Buchanan, desired to purchase 195 acres of the Haskell land, including the land in controversy; that he and Hoffman by a parol understanding between themselves agreed that inasmuch as there were several owners of the land, scattered over different sections of the country, and because of the difficulty and expense attending the execution of deeds, he (Buchanan) should take the deed to the land in his name, and that upon a reception of the conveyance from the owners he should immediately convey 20 acres, the part which is now involved in this suit, to Hoffman upon Hoffman's paying him the same price at which the land was purchased. The testimony further shows that Buchanan received a conveyance from the owners of the land in June of 1898, and that the purchase price paid by him was $4 per acre. The evidence upon which those facts are based consisted of the testimony of Hoffman himself, who was in some material points corroborated by Graves,...