Hunt v. Siemers

• Decision Date: 08 November 1899
• Citation: 53 S.W. 387
• Parties: HUNT et al. v. SIEMERS.
• Court: Texas Court of Appeals

53 S.W. 387

HUNT et al. v. SIEMERS.

Court of Civil Appeals of Texas.

November 8, 1899.

Appeal from district court, McLennan county; Marshall Surratt, Judge.

Action by Z. Hunt and others against Hermann Siemers. Judgment for defendant, and plaintiffs appeal. Affirmed.

Lindsey & Smith, for appellants. J. R. Downs and Richard I. Munroe, for appellee.

KEY, J.

The nature and result of this suit is stated as follows in appellants' brief: "Plaintiffs, in their petition, sued to recover a part of lots 2 and 3 of the J. D. Sanches 4-league survey in McLennan county, Texas, describing the same by metes and bounds. Defendant answered by general exception, plea of not guilty, and the statute of limitations. He also answered that he had purchased the land from J. C. Morris and wife, Minnie Louise Morris, and avouched them to warranty, though he never made them parties. But his description of the land so purchased from Morris and wife shows that it was other land than that sued for. Defendant further answered by way of cross bill that plaintiffs were estopped from prosecuting their suit, because that heretofore the plaintiff G. S. Hunt, acting for himself, and having full power and authority to act as the agent of his co-plaintiffs, and bind them, did, on to wit, the 25th day of September, 1898, agree with this defendant that if he would sell plaintiffs the land described in defendant's answer, 107 1/5 acres, and also a tract belonging to this defendant of 221 acres in Falls county, Texas, and fully described below by field notes, and enter into a written contract to sell said two tracts of land to plaintiffs at the price of $25 per acre cash, that plaintiffs would dismiss this suit at their costs, and buy from and pay this defendant for said two tracts of land; and generally averred performance and readiness to perform on his part. Defendant attached to his answer said alleged written agreement, which was dated 1st of October, 1898, and signed, `Estate of Z. Hunt, by G. S. Hunt, Ag't.' But the land so agreed to be sold and purchased in said agreement was different land from that sued for; and said written agreement did not contain any stipulation about dismissing this cause, or any allusion thereto. Plaintiffs filed their supplemental petition, and set up a general demurrer, general denial, that the land mentioned in said alleged agreement was other and different land from that sued for by them, and further asking for judgment for the $250 liquidated damages provided for in said agreement for a violation thereof. The court rendered judgment against plaintiffs and in favor of defendant, dismissing their cause, and enforcing specific performance of said contract. Plaintiffs made a motion for a new trial, which being overruled, they gave notice of appeal, and bring this cause to this court."

1. It is insisted in this court that the judgment is manifestly erroneous, because, as shown by the statement of facts, the parties agreed at the trial that the title to the land sued for by appellants was in them, and appellee had encroached thereon about 21 acres. This would be correct had not appellants made a contract binding themselves to dismiss their suit. No matter how clear and indisputable may have been their title to the land, if they made a binding contract to dismiss their suit for its recovery they are not entitled to prosecute the suit, and recover the land, unless appellee has violated or abandoned the contract.

2. The written contract contains no reference to this suit, and for this reason it is contended that the court committed error in dismissing appellants' suit. This would be true if appellee depended...