Isaacks v. Wright

• Decision Date: 20 April 1908
• Court: Texas Court of Appeals
• Parties: ISAACKS et al. v. WRIGHT.<SMALL><SUP>*</SUP></SMALL>

110 S.W. 970

ISAACKS et al. v. WRIGHT.^*

Court of Civil Appeals of Texas.

April 20, 1908.

Rehearing Denied May 21, 1908.

Appeal from District Court, Liberty County; L. B. Hightower, Judge.

Trespass to try title by J. Wright against L. A. Isaacks and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Stevens & Pickett, for appellants. Nugent & Foster and H. E. Marshall, for appellee.

REESE, J.

In this suit J. Wright, appellee, sued L. A. Isaacks, Wm. Morris, and Mrs. L. A. Jemison in trespass to try title to recover lots 5 and 6 in block 5 in the town of Cleveland. Plaintiff also sought by appropriate allegations to have corrected the description in a deed by Mrs. L. A. Jemison to C. C. Cherry, and also in Cherry's deed to himself for the lots sold and intended to be conveyed, on the ground of mutual mistake, whereby the lots were described in said deeds as lots 5 and 6 in block 8, whereas he had bought, and it was the intention of vendor and vendee that there should be conveyed by said deeds, lots 5 and 6 in block 5. Defendants pleaded the general issue and, by both plea and special exception, the statute of limitations of four years. Upon the trial, at the request of defendants, the only issue submitted to the jury by the charge of the court, which was submitted as a special issue, was as to whether C. C. Cherry, by the exercise of reasonable care and diligence, could have discovered the mistake in his deed dated October 6, 1896, more than four years before the institution of this suit, on July 7, 1902, which question was answered in the negative. At the request of plaintiff, the jury was further instructed that reasonable care and diligence was such care and diligence as an ordinarily prudent man would exercise under the same or similar circumstances. The court refused to submit to the jury a charge requested by plaintiff as to his right to recover on the parol sale to Cherry, on the ground that Cherry had testified that he took possession and made improvements on the faith of his deed. The court also refused an instruction requested by plaintiff as to the right of Peebles, as agent of Mrs. Jemison, to sell, on the ground, as stated, that the evidence is uncontroverted that Peebles had such authority, and that defendants admitted the mistake and asked the court to submit the one issue of limitation. Upon the return of the verdict, judgment was rendered for plaintiff for the title and possession of the lots and correction of the deeds as prayed for, from which defendants appeal.

The case was before the court upon a former appeal, wherein a judgment for defendants upon an instructed verdict was reversed and the cause remanded. Wright v. Isaacks, 95 S. W. 55, 15 Tex. Ct. Rep. 991, 16 Tex. Ct. Rep. 1020. The facts are as follows: The property is situated in the town of Cleveland, Tex., and, prior to the sale hereinafter referred to, belonged to Mrs. L. A. Jemison, a resident of the state of Alabama. One Tom Peebles, who was the local agent of the Houston East & West Texas Railway Company, was also authorized to represent Mrs. Jemison in the sale of lots, of which she owned a good number in Cleveland. About October, 1896, C. C. Cherry applied to Peebles to purchase the land in controversy, not knowing the numbers of the lots or blocks. He showed Peebles the ground he desired to buy. From a plat of the town in his office, Peebles got the number of the lots and block and sent to Meldrum, Mrs. Jemison's representative, an application of Cherry to purchase, containing such description. In due time a deed to Cherry duly executed by Mrs. Jemison was received by Peebles, in which, however, the property was described as lots 5 and 6 in block 8. This deed was dated October 6, 1896. The deed was then delivered by Peebles to Cherry, who paid the purchase price, $50. Peebles, by measuring out the proper distance from the railroad track, ascertained and pointed out to Cherry the exact lines of the lots 5 and 6 in block 5 and put him in possession. Cherry took possession at once, put up a substantial fence inclosing the entire property, at an expense of $25, and planted out some fruit trees, at an expense of $2, and remained in possession until January 9, 1900, when he sold the lots for $100 to appellee, Wright, who took possession and built a house—value not shown— on the property and has continued in such actual possession up to now. In the deed from Cherry to Wright, the same mistake occurs; the description having been copied from Cherry's deed. In September, 1901, Wright bought from Mrs. Jemison lots 5 and 6 in block 8 and received a deed therefor. In April, 1902, in rendering his property for taxes, it was made known to Wright that he had two deeds for lots 5 and 6 in block 8, and no deed to lots 5 and 6 in block 5; in other words, that in his first deed there was a mistake in the number of the block of the lots he had bought in the first sale. This was the first notice that either Cherry, Wright, or Peebles had of this mistake. Peebles had ceased to be agent for the railroad company and for Mrs. Jemison in 1900, and had been succeeded in both capacities by the appellant Wm. Morris. When he discovered the mistake in his first deed, Wright applied to Morris, as Mrs. Jemison's agent, to have the mistake corrected, and left the deed with Morris for that purpose, upon his promise to do so. Instead of doing this, Morris bought the lots from Mrs. Jemison himself for $60 and got a deed therefor, and in a few days thereafter sold them to appellant Isaacks for $250. Both Morris and Isaacks had full knowledge of Cherry's purchase of the lots and of the mistake in his deed. At the time of the purchase by Cherry, the town tract was mostly in the woods, and there were no marks or monuments by which to determine the location of the different lots and blocks, or to determine the proper lot or block number on the plat of the town of any particular piece of ground. This could be done by taking the plat and making careful investigation on the ground. The only plat of the town was one which hung in Peebles' office, on which the numbers of the lots and blocks were marked, but in many cases very dimly. Peebles can only account for the mistake in Cherry's deed upon the theory, either that he mistook the block No. 5 on the plat for 8, or that he got the block number right in his application and the person drawing the deed made the mistake. The price of the lots in block 5 and in block 8 bought by Cherry and Wright was the same. Peebles was in ignorance of the mistake, and so remained, thinking that the deed conveyed the lots actually sold and delivered to Cherry. Peebles himself owned a lot in block 5 adjoining the lots sold to Cherry on which he lived; his fence extending over on Cherry's lots. Peebles' office was in 250 feet of the lots, and he at all times had full knowledge that Cherry was in possession and had improved lots 5 and 6 in block 5. The lots were generally known as Cherry's lots. When Cherry got his deed, he had it recorded and put it away. He made no investigation to determine whether the lots sold to him were properly described in the deed. He relied upon Peebles to get him a proper deed. Being put in possession by Peebles of the lots actually sold him, continuing in such possession, fencing the lots, etc., under Peebles' eye, there was nothing to call for such inquiry on his part, or to raise any suspicion that his lots were not properly described, during the time of his ownership and occupancy, which continued until January, 1900, when he sold and conveyed to Wright, and the condition was the same with Wright until he discovered the mistake in the manner indicated. The suit was filed July 7, 1902; the mistake having been actually discovered in April, 1902. The facts herein found were sufficiently set out in the petition.

By the first assignment of error it is contended by appellants that the verdict and judgment are contrary to the law and the evidence, for the reason that the uncontradicted testimony clearly shows that C. C. Cherry could, by the exercise of reasonable care and diligence,...