Payne v. Beaumont

Decision Date25 October 1922
Docket Number(No. 6788.)
Citation245 S.W. 94
CourtTexas Court of Appeals
PartiesPAYNE et al. v. BEAUMONT et al.<SMALL><SUP>*</SUP></SMALL>

Appeal from District Court, Cameron County.

Suit by Mrs. Daisy Beaumont and others against Mrs. Betty H. Payne and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Seabury, George & Taylor, of Brownsville, for appellants.

Graham, Jones, Williams & Ransome, of Brownsville, for appellees.

COBBS, J.

This was a suit instituted on May 18, 1921, by Mrs. Daisy Beaumont and her husband, C. W. Beaumont, and J. M. Compton, filing an original petition in which they sue Mrs. Bettie H. Payne, Adlie Owen Payne, Harless Neville Payne, Nora Price Calloway, and her husband, I. A. Calloway, Ernest Bedford Payne, Ollie Mae Payne, and Lyle Payne, and allege Ollie Mae Payne and Ernest Bedford Payne and Lyle Payne are minors, and Mrs. Bettie H. Payne is sued as the guardian for said minor defendants, said suit being instituted for the purpose of recovering on five promissory notes executed by H. E. Payne on November 20, A. D. 1912, and delivered to Mrs. Daisy Beaumont as part consideration of the purchase price of 160 acres of land described in plaintiff's petition.

Soon after the purchase of said property by said H. B. Payne, who was the husband of Mrs. Bettie H. Payne and the father of the other appellants in this case, with the exception of I. A. Calloway, who was his son-in-law, the said H. B. Payne died intestate, and left surviving him his wife, Bettie H. Payne, and his children as named in this suit, and on or about the 20th day of March, A. D. 1917, Mrs. Bettie H. Payne was appointed guardian of the estates and persons of her minor children, Harless Neville Payne, Nora Price Payne, Ernest Bedford Payne, Ollie Mae Payne, and Lyle Payne, by the county probate court of Cameron county, the county in which H. B. Payne died and was living at the time of his death, and qualified as such guardian, and that thereafter the said Mrs. Bettie H. Payne, acting for herself and as guardian of the estate of her minor children, with permission from the county probate court of Cameron county, and Adlie Owen Payne, acting in his own behalf, entered into a contract with Mrs. Daisy Wilson and J. H. Compton, whereby the amount of said above-described notes and the time of payment were renewed and extended as follows:

"In reply, defendants pleaded total and partial failure of consideration for the execution and delivery of the notes sued on by H. B. Payne, deceased, and also total and partial failure of consideration for the renewal of the notes or extension of the notes, and, among other things, pleaded that the said plaintiff, acting through her agent, under such circumstances, falsely represented to the said H. B. Payne that the irrigation system under which said lands were situated and the water conditions with reference thereto were perfect; that ample water was had and could be had at all times for all purposes within a period of six hours after calling therefor over the telephone, and that the soil itself was very productive, and that by reason of the abundant water supply for said land, the actual and reasonable market value of the said land was far in excess of $200 per acre, and that the canal system was financially sound.

"That H. B. Payne relied upon said false representations as to the character and efficiency of the canal system, its ability to furnish and supply water to all the lands under its system, as to the real, actual, and market value of the land in controversy, with and without the irrigation therefor, did enter into contract to purchase said land in controversy; that the La Feria mutual canal system under which the said lands were situated was wholly inefficient in point of capacity to irrigate the lands that it was under contract at that time to irrigate; that the pumps in said system were inefficient to pump, and the canals were inefficient to carry, a volume of water sufficient to irrigate the lands under said system, which said system was under contract to irrigate; that the said canal system was at that time insolvent and without finances to operate for the purpose of furnishing any water at all, and that the plaintiff and her agents aforesaid well knew said conditions, and falsely represented the same to the said H. B. Payne, who was not familiar with the facts aforesaid.

"Defendants further pleaded, in the alternative and in addition thereto, if it should appear that the reasonable market value or actual value of the lands in controversy at the time of the purchase of the same in its then condition, with its then existing facilities for irrigation, was greater than the sum of $15,500, but less than $32,000, the contract price, then to such an extent and to such an amount there was a partial failure of consideration by reason of the fraud and misrepresentations aforesaid.

"The plaintiffs, in reply, pleaded the statute of two and four years' limitation, and in addition thereto they alleged that these defendants, by reason of having entered into the extension agreement as set out in their original petition, are estopped from pleading the defenses pleaded in their first original amended answer, and they further allege that by reason of the fact that the defendants had been in possession of the land since said extension agreement was executed, and have enjoyed its use and benefit, it would be inequitable for them to be relieved from the binding force and effect of said contract of extension, and that the plaintiffs had no knowledge at the time of the extension that the defendants would assert any plea in bar of plaintiffs' right of recovery on said notes.

"Defendants specially excepted to the plea of two and four years' limitation contained in plaintiffs' first supplemental petition, and also to the plea of estoppel, and alleged that at the time of the execution of said extension agreement they did not know of the material facts and circumstances under which said contract was entered into, the incapacity of said canal system, and that said fraud with reference thereto had been perpetrated upon their deceased husband and father in order to induce him to purchase said land; that, had they known of the fraud that had been perpetrated upon H. B. Payne, deceased, at the time he purchased said land, they would not, under any circumstances, have executed said extension agreement, and that they did not intend to waive the fraud perpetrated upon said H. B. Payne or their right to plead the same in bar of recovery upon the notes in controversy. The pleadings of both parties were unusually full and sufficiently responsive to each other, so we will make no further statement, except as found necessary in the discussion herein.

"The defendants then admitted in open court before the introduction of any of the testimony that plaintiffs herein had a good cause of action, as set forth in their petition, except so far as it might be defeated in whole or in part by the facts set forth in these defendants' answer as constituting a defense to the cause of action pleaded by plaintiffs.

"The defendants, in their first trial amendment alleged that at the time the said H. B. Payne purchased the land in controversy from plaintiff herein, the said land had no market value in Cameron county, state of Texas.

"The plaintiffs, in reply, pleaded the permission of the probate court and the orders made in connection therewith, giving Mrs. Bettie H. Payne permission to enter into the extension agreement with reference to the notes herein sued on as res adjudicata of the matter set up in defendants' first amended original answer. In reply to the plea of res adjudicata, defendants specially excepted to said plea on the ground that the county probate court was a court of limited jurisdiction, and was without jurisdiction to adjudicate either the matter set up in plaintiffs' petition or the matters alleged in defendants' answer, and that said judgment, if it attempted to do so, was void, and further, it was not known by the court or any of them the alleged fraud committed on their ancestor.

"The trial was before the court with a jury, and at the conclusion of the testimony the appellees filed a motion for a peremptory instruction, which motion was granted by the court, and the court proceeded to enter a judgment for the full amount of the principal, interest, and attorney's fees sued upon, and foreclosure of the lien, and also a personal judgment against the defendant Mrs. Bettie H. Payne and the defendant Adlie Owen Payne."

As the trial court instructed a general verdict for appellees, it raised a fundamental error, though the supposed errors have been properly assigned, requiring us to give a very careful examination of both the pleadings and evidence to support such ruling. The error is raised very fully in various assignments and propositions made by appellants.

It is well, in considering this case, to start out with the general proposition that the legal title remains in the vendor until all the purchase money is paid (White v. Cole, 87 Tex. 500, 29 S. W. 759), and that the vendor may sue to recover the land on his legal title or elect to sue for specific performance of the contract. In this case the latter course was pursued. In such a case the contract is executory so long as the purchase price remains unpaid. Kennedy v. Embry, 72 Tex. 387, 10 S. W. 88; Ogburn v. Whitlow, 80 Tex. 241, 15 S. W. 807; Lanier v. Foust, 81 Tex. 189, 16 S. W. 994.

The proof shows here that the vendees are in possession of the land, under a deed with general warranty, passing also all water rights. It is alleged and shown that fraudulent representations were made to H. B. Payne as to the irrigability of the lands, their value, and the irrigation to be furnished by the irrigation system of the La Feria Mutual Canal Company, a company organized to furnish water...

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