McCord v. Bailey
| Decision Date | 14 February 1947 |
| Docket Number | No. 2573.,2573. |
| Citation | 200 S.W.2d 885 |
| Parties | McCORD v. BAILEY. |
| Court | Texas Court of Appeals |
Appeal from District Court, Coleman County; A. O. Newman, Judge.
Action by Dr. R. Bailey against J. P. McCord, executor of the estate of Martha T. Overall, deceased, to recover for shortage in the number of acres purchased. From an adverse judgment, defendant appeals.
Affirmed.
W. Marcus Weatherred, of Coleman, for appellant.
Dibrell, South & Snodgrass, of Coleman, for appellee.
In April, 1946, Dr. R. Bailey filed this suit against J. P. McCord, executor of the estate of Martha T. Overall, deceased, to recover the amount paid for 53 acres of land, which was the shortage in the number of acres bought from said executor by Dr. Bailey and others in 1928, with interest thereon. Plaintiff alleged in substance that he and others purchased from said executor a tract of land that all of said parties believed consisted of 207½ acres, for $33.73 per acre; that the tract actually contained only 154½ acres; that the sale was by the acre; that after the probate of the will of Martha T. Overall and the appointment and qualification of McCord as executor, McCord employed W. T. Knox of Coleman, a licensed surveyor, to survey on the ground and subdivide the Overall ranch into blocks; that Knox actually surveyed on the ground and subdivided the ranch into 72 blocks, which were marked on the ground, and filed a map of said subdivisions in the office of the County Clerk, on which he stated the number of acres in each block and on which he stated that block 3, sold to Dr. Bailey and others, contained 207½ acres; that Knox was a surveyor of long experience and good reputation in Coleman County for accuracy and reliability; that his work in surveying and subdividing the Overall ranch was relied upon by McCord and by Dr. Bailey and the other purchasers; that McCord obtained an order of the Probate Court authorizing him to sell block 3 to Dr. Bailey and others as containing 207½ acres of land; that pursuant to said order McCord, executor, in March, 1928, executed a deed to block 3 as containing 207½ acres of land; that the purchase price was partly paid in cash and the balance was evidenced by vendors lien notes; that in 1934 those who joined with Dr. Bailey in said purchase conveyed their interest to him; that the entire consideration was paid by Dr. Bailey; that Dr. Bailey sold and conveyed said tract as containing 207½ acres to F. W. Taylor and others; that the sellers and purchasers believed block 3 contained 207½ acres and relied on the Knox survey; that said tract was covered with mesquite timber; that after it was purchased by the Taylors they planned the eradiction of the mesquite thereon under the AAA program; that the Agriculture Department made an aerial survey and learned that a shortage existed in block 3 and reported that fact to the Taylors in November, 1945; that thereafter the Taylors employed a surveyor to survey block 3, and he discovered a shortage of 53 acres therein and reported said fact to the Taylors on January 31, 1946; that Dr. Bailey paid the Taylors for the shortage of 53 acres and thereupon demanded reimbursement for the purchase price thereof and interest thereon from the executor; that the shortage of acreage was a mutual mistake; that the executor and the purchasers believed the tract contained 207½ acres and relied upon the survey made by Knox; that there was no notice to the purchasers of the shortage until after said aerial survey had been made and the suspicion of the shortage confirmed by an actual survey on the ground by surveyor Leach, who was employed by the Taylors.
McCord answered in substance that the executor's deed could convey only the decedent's right, title, and interest in the land and, therefore, the estate was not liable for the shortage. He also pleaded limitation and laches. The executor further answered by general denial and a special answer setting up laches and stale demand, in which it was alleged that the administration had continued for 19 years; that the property of the estate had been sold; that the land had been conveyed to Dr. Bailey and others 18 years before the suit was filed; that the indebtedness against the estate had been paid and the administration should be closed and the residue of the estate delivered to the legatees.
Upon a trial to the court, judgment was rendered for Dr. Bailey for the price paid for the 53 acres he did not get, with interest. The executor has appealed. The court filed findings of fact, which were substantially the same as plaintiff's pleadings, heretofore mentioned. The court also filed conclusions of law to the effect (1) that the rule of caveat emptor does not apply to the facts of the case because plaintiff's claim is based on a mutual mistake of the grantor and grantees as to the number of acres included in the tract; (2) that plaintiff's claim is not barred by the four years statute of limitation and that the purchasers were not guilty of laches in failing to ascertain the shortage prior to the time it was discovered; (3) that plaintiff is entitled to recover for a shortage of 53 acres at the rate of $33.73 per acre, with 6% interest from the date of sale.
Appellant contends in effect that the executor's deed could convey only the right, title, and interest of the decedent in the land and that the estate was not liable for the shortage. Under the facts found by the court, which we find are sustained by the record, we are of the opinion that the estate was liable for the shortage.
"* * * the rule of caveat emptor applies only so far as it...
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