Murphy v. Benson

• Citation: 245 S.W. 249
• Decision Date: 05 April 1922
• Docket Number: (No. 6420.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: MURPHY et al. v. BENSON.
• Court: Court of Appeals of Texas

245 S.W. 249

MURPHY et al. v. BENSON.

(No. 6420.)^*

Court of Civil Appeals of Texas. Austin.

April 5, 1922.

Rehearing Denied November 29, 1922.

Appeal from District Court, Tom Green County; C. E. Dubois, Judge.

Suit by A. G. Murphy against Lillie Benson, in which others intervened, adopting the pleadings of plaintiff. From the judgment rendered, plaintiff and interveners appeal, and defendant cross-appeals. Affirmed.

M. E. Sedberry and Thomas & McCarty, all of San Angelo, for appellants.

Blanks, Collins & Jackson, of San Angelo, for appellee.

Findings of Fact.

BRADY, J.

On October 10, 1906, P. I. Elder conveyed to Miss Lillie Benson, appellee here, all of survey No. 10, block A-2, in Schleicher county, Tex., purporting to contain 640 acres. On January 4, 1916, Miss Benson conveyed the west half of the survey to J. M. Choate, and the east half to T. J. Lassater; the deed to Choate being first in point of time. Both sales were entirely on credit, and the deeds retained vendor's liens. On April 23, 1919, Choate reconveyed his half to Miss Benson; the deed reciting the cancellation and rescission of the contract of sale under which Choate acquired the land, and the cancellation of the notes. On November 26, 1920, Choate executed a correction deed to Miss Benson, correcting the description of the land conveyed in his prior deed.

On June 10, 1918, Miss Benson brought suit in the district court of Tom Green county, Tex., against T. J. Lassater, C. S. Chick, L. J. Shugart, Willis Huey, and the appellant, A. G. Murphy, to foreclose the vendor's lien and also a deed of trust lien on so much of section 10 as was inclosed within the fence lines of the defendant Lassater. Lassater, Murphy, Chick, and Huey answered, alleging that the notes sued on were executed as part of the purchase price for the east half of survey 10, but that at the time Lassater purchased the land he was led by Miss Benson to believe that his purchase contained 320 acres, but that in fact it only contained about 260 acres. These defendants, other than Lassater, alleged their suretyship for him on the first note of $300, and all of the defendants prayed that the court adjust and reform the conveyances and the notes, by reducing the indebtedness to an amount equal to the purchase price of $8 per acre on the number of acres actually owned by Miss Benson and conveyed by her to the defendant Lassater.

The defendant Chick, by way of cross-action, sought to recover all of the west half of survey No. 7, in block A-2, lying north of survey 10, in trespass to try title, against Miss Benson and his codefendant Lassater. One J. J. Smalley intervened in the suit, and sought, in trespass to try title, to recover against the same parties the east half of survey No. 7. The defendant L. J. Shugart filed a cross-action to recover against the same parties the south part of survey 8, being a part of the Martha E. Taylor survey, lying on the east and next to the Davis fence. To these several pleadings and cross-actions Miss Benson interposed a general denial and a special answer, alleging that Lassater only purchased from her so much of survey 10 as fell within the limits of the fences inclosing his premises, and that she was only seeking to foreclose her lien on so much of said survey as lay south of the Ozona-Eldorado public road and east of the division fences between the Lassater lands and the west half of the survey, which she had sold to J. M. Choate. By way of trial amendment, she also sought, by trespass to try title, to recover of Choate and Smalley so much of survey 7, block A-2, as lay south of the Ozona-Eldorado public road.

That suit was tried before the court without a jury, and judgment was rendered April 24, 1919. The judgment awarded the plaintiff, Miss Benson, the sum of $2,740.90, with interest from the date of judgment, against the defendant T. J. Lassater, and the further sum of $347.69, with interest from date of judgment, jointly and severally against Lassater, Murphy, Huey, and Chick, with foreclosure of the vendor's and deed of trust liens as the same existed on January 4, 1916. A full description of the land as foreclosed is as follows:

"The east one-half of section No. 10 in block A-2, abstract No. 1300, located by virtue of certificate No. 830, issued to Adams, Beaty & Moulton, which said survey is described as follows: `Beginning 1,900 vrs. S. from an earth mound inclosed by a triangular wire fence, the S. E. corner of survey No. 25, block 57, State University lands, this beginning point being the S. E. corner of survey No. 7, block A-2, A. B. & M.; thence south 1,900 vrs. for S. E. corner this survey, being N. E. of survey 9, same block; thence west 1,556 vrs. to the east line of block 2, G., C. & S. F. Ry. Co. land for the S. W. corner said survey 10; thence N. 1/4 W., with the east line of said block 2, 1,900 vrs. to the lower S. W. corner of survey 7, same block; thence E. 1,564 vrs. along the S. line of said survey No. 7, to the place of beginning.' This foreclosure, however, is intended to cover and does cover only so much of the said east one-half of said section No. 10 as is included within what is known as the T. J. Lassater fences, and in no wise affects what is known as the J. M. Choate west one-half of said section No. 10, containing 320 acres, as the same is found within the fence lines of the said J. M. Choate, and lying west of the division fence between the said J. M. Choate and the defendant T. J. Lassater."

The judgment expressly recites that the plea of failure of consideration and prayer for abatement of the purchase price is sustained and that the defendant Lassater is entitled to abatement on the principal covering the 90 acres lost to Shugart, at the original purchase price of $8 per acre; it being further recited that Lassater, having been in continuous possession of all the lands conveyed and delivered to him by the plaintiff, including those awarded to L. J. Shugart, was therefore not entitled to any abatement of interest on the notes. Miss Benson was given judgment against Chick and Smalley for that part of survey No. 7, sued for by her, lying south of the Ozona-Eldorado road. Shugart was given judgment against Miss Benson and Lassater for the land sued for by him in his cross-action. No appeal was taken from this judgment, and the appellant here, A. G. Murphy, on August 4, 1919, paid off the judgment in full; he having in the meantime become the owner, by deed, of Lassater's part of the section. The release from Miss Benson discharged and quitclaimed the judgment as a moneyed recovery, but expressly declared that such judgment as to other issues involved in the cause should not be affected by the release. On October 1, 1919, Lassater and wife conveyed to Murphy all their right, title, and interest in the dwelling house and other improvements erected by Lassater on land thought at the time to be on the east half of survey 10.

The present suit was filed by appellant, A. G. Murphy, the other plaintiffs intervening as his children and heirs of his wife, who died after the institution of the suit, and adopted the pleadings of Murphy. The first amended petition set up two distinct causes of action; one for improvements mistakenly placed by Lassater, their grantor, on section 7, lying just north of section 10, in the belief that he was locating same on the east half of 10, and the other action being in trespass to try title for the east half of survey 10.

Miss Benson, the appellee, disclaimed as to all the land sued for by appellants, except the west 320 acres of the survey, and thereby limited the controversy to the title to a strip of 57½ acres lying west of the Lassater fence lines. In addition to the pleas of not guilty and general denial, she specially pleaded that, when she purchased survey 10, she was informed by her grantors that the Davis fence on the east, the Ozona-Eldorado road on the north, and the Rae fence on the west, and a line running parallel with the road, one mile south and connecting the Rae and Davis fences, constituted the boundaries of her survey; that the sales to Lassater and Choate were made with the definite understanding between the parties that such were the boundaries of her land; that when the deeds were executed all three parties understood that Choate was getting the 320 acres of land adjoining the Rae pasture, and that Lassater was to get the other 320 acres lying west of the Davis fence and adjacent thereto; that the contract of sale and deed to Lassater were made under a mutual mistake as to the actual boundary lines of survey 10, and should be so reformed and corrected as to convey to him only so much of the section as he had contracted for, and so as to exclude therefrom the entire 320-acre Choate tract, which includes the 57½ acres in controversy; that plaintiffs knew of such mutual mistake, or could have ascertained the same by proper inquiry, because she and Choate had been continuously in possession of the west 320 acres from the date of the original deed to Choate until the trial; and that she did not discover the mistake in description until about two years before this suit was filed. She also pleaded the location and establishment of a division line, by agreement between Choate and Lassater, shortly after they purchased the two halves of the section, and that the line so located ran east of the 57½-acre tract in question, and placed the latter in the Choate inclosure. In addition to the defense of agreed boundary and practical location of the line, locating of fences and building of valuable improvements by Choate on the land in controversy was alleged.

It was further pleaded by Miss Benson that in the former suit of Benson v. Lassater the issues here sought to be raised were adjudicated, proper rebate having been made for the acreage lost by Lassater, and that the effect of the judgment was to give him all the relief which he was entitled to, and in...