Miller v. Rush

• Citation: 276 F. 641
• Decision Date: 01 December 1921
• Docket Number: 3685.
• Parties: MILLER v. RUSH et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

276 F. 641

MILLER v. RUSH et al.

No. 3685.

United States Court of Appeals, Fifth Circuit.

December 1, 1921

George E. Miller, of Fort Worth, Tex., and R. N. Grisham, of Eastland, Tex., for appellant.

J. M Wagstaff, of Abilene, Tex., for appellees.

Before WALKER, BRYAN, and KING, Circuit Judges.

WALKER Circuit Judge.

This was a bill in equity filed in March, 1919, by the appellant Mrs. Kate Miller, praying the cancellation of a deed executed on September 30, 1910, by the appellant and her then husband J. T. Miller, to the appellees, J. M. Rush and Claude McCauley, conveying 324 1/2 acres of land in Stephens county Tex., which was community property of the grantors, and of a deed executed in April, 1912, by the appellant individually and as the community administratrix of the community of herself and her then deceased husband to the appellee J. M. Rush, conveying the same land, and expressly confirming the first-mentioned deed.

The basis of the relief sought was alleged false statements and fraudulent representations made by said Rush, acting for himself and his codefendant, McCauley, to the appellant and her husband, whereby the latter were induced to execute the first mentioned deed. The consideration recited in that deed was $6,500. The actual consideration for the land conveyed by that deed, which was of the value of $3,000 at the time that deed was made, was $1,000 in cash paid to the grantors, the assumption by the grantees of $315 balance of purchase price therefor owing to the state of Texas, and the delivery to the grantors of a land certificate executed by the Rio Cajones Company, entitling the holders of such certificate to a described tract of land, containing 600 acres and constituting a part of block 35 of a large body of land known as the Rio Cajones estate, in the state of Oaxaco, republic of Mexico. The alleged representations included one as to the climatic conditions in that part of Mexico in which the Rio Cajones lands are located, and others to the effect that the tract traded to the appellant and her husband was located within 3 1/2 miles of a thriving town called Bailey, in which were schools and churches, that that tract was fine and fertile, and that there was a good road, a public highway, leading from Bailey to the larger towns and markets situated in Mexico, where products of the lands in that part of the country could be disposed of.

After the filing of an answer to the bill, a special master was appointed to take testimony and to report his conclusions of fact and of law. The master's findings of fact included the following:

'I do find that said Rush led the Millers to believe that there were churches and schools in or near the vicinity of the town of Bailey, but I do not find that said Rush represented the land in block 35 to be of any particular value, nor that the country was good for any particular kind of disease, nor that block 35 was in 3 1/2 miles from the town of Bailey, and I do not find that he agreed with the said Millers that, if they were not satisfied with the said land when they went to Mexico, he would trade back with them and give them $1,000 for the expenses they were out, or that he made any agreement with the Millers to that effect. While I am unable to find from the testimony that defendant Rush made any direct statements as to the lands in block 35, I do find that J. T. Miller and wife were led to believe said lands in block 35 were good lands and fertile, from the statements of said Rush; that he had been to the town of Bailey, and that the lands in that vicinity were rich and fertile.

'I further find in this connection that after complainant and others in company with them went to Bailey and upon the Rio Cajones estate, that they then found that some of the things that Rush had led them to believe were not true and that the complainant afterwards and on April 12, 1912, confirmed the trade and agreed to accept the land in Mexico with the defendant Rush as hereinafter stated in paragraph 23 of these findings. * * *

'I find that complainant and her husband, with their family and a number of other people, moved to the Rio Cajones colony about the 1st of December, 1910, and that complainant and her husband remained there some two months in the town of Bailey, which was about 10 miles from the lands described in the certificate given to complainant and her husband, and that complainant and her husband became dissatisfied with the country and returned to the United States, and to Cisco, Tex., arriving at Cisco about February, 1911.

'I find that the said J. T. Miller and complainant, while in Mexico, became acquainted with the climate of the country, the general character of the Rio Cajones lands, the conditions as to churches, schools, and roads, and that it was a tropical country, and that they became acquainted as to the surface of the country, including the mountains near by and the dense jungles of underbrush on said lands in general, in and around Bailey and on the Rio Cajones estate; and I further find that they did not go to visit the lands called for in that certificate, and that they never saw the same.

'I find that, while J. T. Miller was in Mexico, he was informed as to the probable character and quality of the land in block 36. I find that, upon what complainant and her husband could see from the town of Bailey, they were put on notice of the fact that the land called for in said certificate was probably rough and rolling, and not easily accessible, and not suitable for farming as American farmers farmed; although I find that the land would produce coffee and other products raised in Mexico, that it was covered with valuable timber, and I do not find that the land is worthless.

'I find that on arrival of the said Millers at Cisco, on their return to Texas, that they were dissatisfied with the trade they had made, and expressed their dissatisfaction to J. M. Rush and McCauley, and negotiations were had between the parties for settlement of their differences, but no agreement was arrived at before the death of J. T. Miller, who died about April, 1911.

'I find that, after the said Miller died, the said McCauley and Rush, after negotiating with Mrs. Miller, about June, 1911, agreed to deed her back the land in Stephens county for the sum of $1,500, with no cash consideration, but for six vendors' lien notes on said land, each for $250, running from one to six years, with 10 per cent. interest, the said McCauley and Rush had theretofore paid to the Millers on the trade for the land $1,000, and in case Mrs. Miller accepted this deed and executed the notes, this would be the final settlement between the parties, the defendants to

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