Payne v. Ross

• Decision Date: 03 April 1895
• Citation: 30 S.W. 670
• Parties: PAYNE v. ROSS et al.
• Court: Texas Court of Appeals

30 S.W. 670

PAYNE v. ROSS et al.

Court of Civil Appeals of Texas.

April 3, 1895.

Appeal from district court, Hunt county; E. W. Terhune, Judge.

Action by Lewis Payne against B. J. Ross and others for reformation of a deed, and to quiet title. From judgment for defendants, plaintiff appeals. Reversed.

Sherill & Hefner, for appellant.

FINLEY, J.

This is a suit by appellant to remove cloud and to quiet him in his title to a lot of land situated in the city of Greenville. The petition alleges the following facts as the basis of the suit: "That the said N. J. Ross, during his lifetime, on, to wit, the 11th day of April, 1882, and the 1st day of April, 1884, respectively, for a valuable consideration to him in hand paid by H. P. Cridale, made, executed, and delivered to the said H. P. Cridale his two certain deeds in due form of law, whereby he conveyed to the said H. P. Cridale two certain lots or parcels of land situated in the city of Greenville, Hunt county, Texas, and being portions of the headright survey of John Gillespie, the two lots so sold lying adjoining each other. The first lot so sold is described in said deed as being a part of a one and three-fourths acre tract sold to said N. J. Ross by I. N. Harrison and wife, and beginning at the northwest corner of said tract, and running from that point south 56 varas; thence east 70 feet; thence north 56 varas; thence west 70 feet, to the beginning. The second lot, sold as aforesaid, calls in said deed to begin at the northwest corner of the first lot sold, and runs from that point south 54 varas; thence east 50 feet; thence north 54 varas; thence west 50 feet, to the beginning. That the call made in the last deed for the northwest corner of the first lot sold as the beginning corner of the second lot sold was a mutual mistake of the parties, made at the time the deed was executed; and that neither the said N. J. Ross nor H. P. Cridale knew that said mistake was made; and that said mistake was never discovered by said Cridale or his vendees until a short time before the filing of this suit. That it was the intention of the said N. J. Ross and H. P. Cridale that the second or last deed made should begin at the northeast corner of the first lot sold, and run from that point south 54 varas; thence east 50 feet; thence north 54 varas; thence west 50 feet, to the beginning, — this being the land actually bought and paid for by said Cridale, and intended to be conveyed by the said N. J. Ross in said last deed. That, by reason of the aforesaid mistake in the beginning call in said deed, it does not describe the land actually bought and intended to be conveyed by said deed, but makes a misdescription of same, and only includes within the field notes the western portion of the land conveyed in the said first purchase. That the said H. P. Cridale, upon the execution and delivery of said last deed, paid the purchase money to said N. J. Ross, and immediately thereafter went into possession of said land as intended to be conveyed, and of the identical land bought and paid for, and placed valuable and permanent improvements thereon, of the value of five hundred dollars; and the said H. P. Cridale and his vendees, whose estate this plaintiff has, have had and held actual, adverse, peaceable, and continuous possession of said lot or tract of land as last above described, and paid the taxes due thereon from the date of said deed to the filing of this suit, and are still in possession of same. That the defendant N. A. McLeod, after the death of her former husband, to wit, on the 31st day of December, 1888, signed and acknowledged both of said deeds. Plaintiff alleges, further, that he is, by reason of the facts hereinbefore alleged, the real and equitable owner of the land as last described in this petition and as intended to be conveyed in the said last deed, and that the said mistake and misdescription casts a cloud upon his...