Lott v. Dashiell

• Decision Date: 28 June 1921
• Docket Number: (No. 6588.)
• Citation: 233 S.W. 1103
• Parties: LOTT et al. v. DASHIELL et al.
• Court: Texas Court of Appeals

233 S.W. 1103

LOTT et al. v. DASHIELL et al.

(No. 6588.)

Court of Civil Appeals of Texas. San Antonio.

June 28, 1921.

Rehearing Denied October 12, 1921.

Error from District Court, Bexar County; J. T. Sluder, Judge.

Suit by Jas. Polk against D. D. Harrigan and J. N. Lott, in which Mrs. C. L. Dashiell was substituted as plaintiff and in which Sabino Sandoval and others intervened. From judgment for plaintiffs, J. N. Lott and others bring error. Affirmed in part, and reversed and remanded in part.

Don A. Bliss, and Douglas, Carter & Black, all of San Antonio, for plaintiffs in error.

T. F. Mangum, of San Antonio, for defendants in error.

BALL, Special Chief Justice.

This suit was originally instituted by one Jas. Polk against D. D. Harrigan and plaintiff in error J. N. Lott, seeking recovery against them on vendors' lien notes aggregating $4,500, together with foreclosure of lien on a certain 13½-acre tract situated in an outlying part of the city of San Antonio, Tex. Later defendant in error Mrs. C. L. Dashiell was substituted as plaintiff, she having acquired the notes after they were declared due. In her third amended original petition, besides declaring upon her notes, Mrs. Dashiell alleged that the 13½-acre tract described in the warranty deed from B. K. and W. R. Edwards, the original vendors, to the defendants Lott and Harrigan, was not the tract actually purchased by the latter, and that the error in description arose in this wise: Mrs. M. J. Martin, by deed dated March 2, 1887, conveyed to Isabella Steves a certain 15-acre tract described as commencing at the southeast corner of a tract of land conveyed by Mrs. M. J. Martin to Tarleton & Keller, and after the death of Isabella Steves, intestate, P. O. Steep acquired through guardian's deed and otherwise, the title of her four heirs at law to a 13½-acre tract, a part of the aforesaid 15-acre tract and described as having the same starting point, and W. C. Edwards acquired through Steep and his grantee of a one-half interest, Madge Waring, the same property by the same description, and by will of Edwards, upon his death, title to same passed to B. K. and W. R. Edwards who conveyed by the same description to the defendants Lott and Harrigan; that Mrs. Martin intended to convey to Isabella Steves 15 acres with the same metes and bounds, except that the beginning point was to be at the southeast corner of a tract conveyed by her to C. A. Keller (instead of Tarleton & Keller), and the other grantors named in the succeeding deeds each intended to convey to their several grantees the same 13½ acres, commencing as intended in the Martin deed, and that the error in the description in all of said deeds arose through mutual mistake on the part of the several grantors and grantees; that the defendants Lott and Harrigan took and hold actual possession of the last-described 13½-acre tract, actually intended to be conveyed. And plaintiff made all of these grantors and grantees parties defendant and asked that their several deeds be corrected, and that she have recovry on her notes against Lott and Harrigan, with foreclosure on the 13½-acre tract intended to be conveyed, on the basis of this correction.

Harrigan filed simply a formal answer, and in the course of his testimony in behalf of plaintiff admitted his liability. Lott, for the purpose of obtaining the right to open and close the case, under rule 31 governing district courts (142 S. W. xx), admitted of record that the plaintiff "has a good cause of action as set forth in her petition except in so far as it may be defeated in whole or in part by the facts of his answer constituting a good defense which may be established." These facts in avoidance specially pleaded by Lott are, briefly stated, as follows: That W. R. and B. K. Edwards, the original vendors of the land involved, represented to Lott, acting for himself and Harrigan, that they had a good and perfect title and would furnish an abstract of title to cover, and that any apparent clouds would be immediately cleared; that it was contemplated by all concerned that the land would be cut up by defendants and sold out as cheap lots, obtaining guaranty of title by a responsible title guaranty company; that Lott had no knowledge or notice of the actual condition of title and that he relied on the Edwardses, with whom he was intimate; that the deed was given and the defendants proceeded to clear the land, but the Texas Guaranty Title Company refused to guarantee the title upon the advice of their attorneys. As specific defects in title he alleged: First, that there was an outstanding undivided one-half interest to said land in the heirs of the first wife of Mariano Rodriguez, which was now being asserted; second, that there were certain incumbrances and legacy charges; third, that Mrs. Norton has had actual and peaceable possession of about 2½ acres of this tract, claiming the same as her own, for more than 10 years, thereby acquiring title thereto by limitation; fourth, that prior to the time Mrs. Martin conveyed this land to Isabella Steves, under whom the Edwardses deraign title, Mrs. Martin had already conveyed the same land to C. A. Keller. He averred that none of these outstanding titles had been acquired by the Edwardses; that he had asked the Edwardses to clear these defects, which they had failed to do, and that by reason of such defects in title the land could not be sold for more than one-half of the amount of the notes, in which amount he was damaged. Finally, he alleged certain schemes on the part of the Edwardses, Polk, Mrs. Dashiell, and Harrigan in the transfer of the notes to defraud him, and that Harrigan maliciously procured his aunt, Mrs. Dashiell, to buy and enforce the notes, himself being the real owner of same. He asked that the Edwardses be required to clear the title before recovery be allowed on the notes, and in the alternative that the transaction be rescinded in toto, the notes canceled, and the title divested, offering to convey the land back to the Edwardses or their assigns or if the transaction be not rescinded allowance be made on the notes to the extent that their consideration had failed.

Plaintiffs in error other than Lott, namely, Sabino Sandoval et al., intervened in the suit, setting up a separate and distinct cause of action in trespass to try title to the same land, claiming a one-half interest in same as the heirs of Maria de Jesus Carvajal, first wife of Mariano Rodriguez; it being her community interest in same.

Mrs. Dashiell, by supplemental petitions, as against the interveners' claim of title, as well as against Lott's plea of failure of title, pleaded the three, five, and ten years' statutes of limitation, and in defense against the interveners' action alleged that there was an outstanding legal and equitable title not held by interveners, and specifically pleaded ten-year limitation title in M. L. Merrick. She also alleged that Lott waived the defects in the title and his right to rescission by taking and holding possession of the land.

Prior to trial Mrs. Dashiell dismissed as to all the parties to the deeds as to which she sought reformation except the Edwardses and Lott and Harrigan. The cause was then submitted to the jury upon numerous special issues, and upon the basis of the answers thereto the court rendered judgment correcting only the deed from the Edwardses to Lott and Harrigan (the Edwardses having been served with nonresident notice and defaulted), and in favor of Mrs. Dashiell upon her notes as against both Lott and Harrigan, and for foreclosure of the vendor's lien against the property covered by the corrected description and as intended to be conveyed, and decreeing that the interveners take nothing by their suit as against Mrs. Dashiell, Lott, Harrigan, or the Edwardses.

It is the settled rule in this state that a vendee in possession under an executed warranty deed may defeat his vendor's suit upon the purchase-money notes, in whole or in part, by showing that there has been a failure or partial failure of title to the land, that there is a valid, existing outstanding title, that there is danger of eviction, and also such facts as would prima facie repel the presumption that at the time of purchase he knew and intended to assume the risk of the defect. Cooper v. Singleton, 19 Tex. 260, 70 Am. Dec. 333; Brown v. Montgomery, 89 Tex. 250, 253, 34 S. W. 443; Blewitt v. Greene, 57 Tex. Civ. App. 588, 122 S. W. 914, 916, and cases there cited. There would seem to be a special and stronger reason for this where, as here, vendors, liable on their covenants of warranty, are nonresidents of the state. The defense in such case is really an affirmative showing of equitable considerations entitling the vendee to a rescission, and must accordingly be tested by the strict rule applicable to that doctrine. Clearly plaintiff in error Lott did not discharge his peculiar burden of proof, under this rule, in such manner as to entitle him to a peremptory instruction; and his first assignment is overruled. In order to make ourselves plain in the subsequent discussion, we will even go further and say that, under the jury's findings on some issues and the undisputed testimony on others, Lott failed to establish the defenses pleaded by him so as to defeat plaintiff's right to the judgment rendered.

In our view of the record it is necessary to accept as an absolute fact, from the standpoint of the defendant in error, as well as from Lott's under his record admission, the existence of the mutual mistake in the deed from Mrs. Martin and similarly throughout in subsequent chain of title, because it is so alleged in plaintiff's petition, not in the alternative but absolutely, and her foreclosure is asked only upon a totally different tract from that described in the Edwards deed in view of the existence of such mistake. Some doubt whether the two deeds, in evidence, executed the same day by Mrs. Martin,...