Payton v. City of Big Spring

• Decision Date: 05 December 1941
• Docket Number: No. 2211.,2211.
• Citation: 157 S.W.2d 975
• Parties: PAYTON v. CITY OF BIG SPRING et al.
• Court: Texas Court of Appeals

157 S.W.2d 975

PAYTON v. CITY OF BIG SPRING et al.

No. 2211.

Court of Civil Appeals of Texas. Eastland.

December 5, 1941.

Rehearing Denied January 9, 1942.

Appeal from District Court, Howard County; Cecil C. Collings, Judge.

Trespass to try title by the City of Big Spring against Florence Payton and others, wherein a cross-action was filed. From an adverse judgment, named defendant appeals.

Reformed and affirmed.

Thomas & Thomas, of Big Spring, for appellant.

Coffee & Coffee and Sullivan & Sullivan, all of Big Spring, for appellees.

GRISSOM, Justice.

The City of Big Spring filed its suit in trespass to try title against Thelma McGee, a widow, and Florence Payton and husband, Walter Payton, to a tract of land which was a part of the tract used by the City for an airport. Thelma McGee answered by a plea of not guilty, and, by way of "cross-action" against Florence Payton and husband, alleged that in March, 1940, the Paytons conveyed to her by general warranty deed a strip of land 125 feet east and west by 100 feet north and south out of a certain tract adjoining said airport. She alleged that at the time of the purchase the Paytons pointed out the property she was purchasing and the improvements thereon and told her said tract extended 100 feet south from the south line of Highway 80 and represented they owned and were conveying said land to her. That she believed said representations and believed the tract described in her deed from the Paytons in fact extended from the south line of the highway as the north boundary of said tract a distance of 100 feet, thus including all the improvements pointed out to Mrs. McGee. That but for such false and fraudulent representations she would not have accepted the deed to the property and agreed to pay the purchase price therefor, to-wit, $2,700. She alleged the payment of $500 in cash and the execution of an installment vendor's lien note for $2,200; that she had paid the installments as they accrued and reduced the note to $2,000. That the land described in the deed actually included a tract of land approximately 50 feet in width which was included in Highway 80 "and that instead of having a tract of land 100 feet north and south by 125 feet east and west, that of the land described in said deed, this defendant only actually has a tract approximately fifty feet (50') north and south extending south from the south boundary line of said U. S Highway No. 80, and that the said Florence Payton and Walter Payton in fact conveyed to this defendant approximately 50 by 125 feet to which they did not have title and to which they could not give possession, but due to the false and fraudulent representations made to this defendant by the said Florence Payton and Walter Payton this defendant believed that in fact the said Florence Payton and Walter Payton owned the full 100 feet lying south of the south line of said Highway, and that they were conveying to this defendant such tract of land."

Thelma McGee alleged that a part of her house was located on land claimed by the City in its suit, and that if the City prevailed she would be required to move her building; that she would have to make new cesspools and changes in the facing of the building; that the expenses in making said changes and the damages caused to the building in making them, together with the value of the loss of the land, etc., would cause her great damage, for which the Paytons were liable.

She alleged that if the City prevailed in its suit she would be damaged in the sum of $2,000 as the direct and proximate result of the fraud perpetrated on her. That the property actually conveyed by the Paytons was of a value of $2,000 less than that pointed out by the Paytons. That she had already paid as much as the value of the property actually conveyed and asked for cancellation of the unpaid portion of the installment note, to-wit, $2,000, "by reason of the partial failure of warranty to the property heretofore purchased by this defendant" from the Paytons.

Intermingled with allegations of fraud were allegations to the effect that in the deed the Paytons warranted the title to the property conveyed; that the Paytons were responsible to her on their warranty, and she pleaded partial failure of said warranty, and that, in the event the City of Big Spring should prevail in its suit, that she "be given damages for the actual loss of the acreage and real estate as well as for the damages suffered and sustained by * * * [her] for the fraud perpetrated on * * * [her]."

On the same date, by separate instruments, Mrs. Payton filed her plea of not guilty as to the suit by the City; a plea in abatement as to the suit of the City; a plea in abatement as to the cross-action of Thelma McGee, and an answer to the cross-action of Thelma McGee. Mrs. Payton's answer to Mrs. McGee's cross-action consisted, among other things, of allegations, in substance, that there was no real controversy between the City and Thelma McGee, and that the Paytons were not proper parties to the suit brought by either of them; a general demurrer, special exceptions, and a general denial. Mrs. Payton alleged that in March 1940 the Paytons executed a general warranty deed to Thelma McGee conveying to her a tract of land 100 feet wide and 125 feet long; that none of the land described therein was included in the land sued for by the City; that they were different tracts of land, and that there had been no breach of the warranty contained in the deed from the Paytons to Thelma McGee. She alleged that Thelma McGee had notice that the north 50 feet of the tract of land conveyed to her was subject to an easement and was being used as a public highway, and with such knowledge accepted the deed and paid a part of the consideration and could, therefore, not assert either fraud or breach of warranty. Mrs. Payton alleged she had offered to return to Thelma McGee all payments made, conditioned upon a reconveyance of the property to the Paytons, but that Thelma McGee had refused to make such reconveyance. She alleged a conspiracy between the City and Thelma McGee whereby Thelma McGee was to retain the property without paying for it. Mrs. Payton further alleged that the tract of land 100 by 125 feet conveyed to Thelma McGee had certain improvements on it, and that its north side was burdened with an easement; that there was a business conducted on the premises and that at the time of the sale the things mentioned were "a unit and of such a nature as to be indivisible and defendants in this cross-action here allege that said sale was one in aversionem and that there can be no partial abatement of the purchase price of the said tract even in case of a partial failure or breach of the warranty in said deed; that the remedy, if any, on account of a partial failure of the consideration or a partial breach of the warranty, is to return the property, as a unit, unto these defendants * * * and demand the return of the whole of the consideration plus legal interest thereon."

All special pleas, demurrers and exceptions were overruled. The cause was submitted to the jury on four special issues, which issues and the answers thereto are as follows:

"Special Issue No. 1. Do you find from a preponderance of the evidence that defendant Florence Payton represented to Thelma McGee that the tract of land sold and conveyed by defendant Florence Payton and husband Walter Payton to the said Thelma McGee on March 26, 1940, was a tract of land extending 100 feet south from the south line of United States Highway No. 80? Answer: Yes.

"Special Issue No. 2. Do you find from a preponderance of the evidence that the representation, inquired about in special issue No. 1, if you have found that the defendant Florence Payton made such representation, was a material inducement to the said Thelma McGee to purchase the real estate in question and but for which she would not have done so? Answer: Yes.

"Special Issue No. 3. What, from a preponderance of the evidence do you find was the fair reasonable market value of the real estate actually conveyed by Florence Payton and husband Walter Payton, by deed March 26, 1940, to Thelma McGee? Answer: $2350.

"Special Issue No. 4. What, from a preponderance of the evidence, do you find would have been the fair, reasonable, market value of the real estate sold by Florence Payton and Walter Payton to Thelma McGee on March 26, 1940, at the time of such sale, if the boundaries of said real estate had in fact extended 100 feet south of the south boundary line of U.S. Highway No. 80? Answer: $2700."

In connection with special issues 3 and 4, the court gave the following definition: "By the term `fair, reasonable, market value' as that term is used in this charge, is meant the amount of money that a person desiring to sell, but not bound to do so, could within a reasonable time procure for such property from a person who desires to buy but is not bound to purchase the property."

As to the suit in trespass to try title by the City of Big Spring against both Thelma McGee and the Paytons, the court instructed a verdict for the City. On the instructed verdict the court rendered judgment for the City awarding it the title and possession of the land described in the City's petition. As between Thelma McGee and the Paytons, the court rendered judgment based on the verdict that Thelma McGee recover of the Paytons $350 damages and that Thelma McGee have the $350 credited as a payment on the vendor's lien note; that the judgment be credited on the installment of principal and interest due September 1, 1940, and the balance be credited on the principal of said note as of the date of the deed, to-wit, March 26, 1940. From said judgment only Florence Payton has appealed.

Appellant's first proposition is, in substance, that no personal judgment could be rendered against Walter Payton, because he owned no part of the land conveyed to Thelma McGee, took no part in the...