Perez v. Maverick

• Decision Date: 09 January 1918
• Docket Number: (No. 5941.)
• Citation: 202 S.W. 199
• Parties: PEREZ et al. v. MAVERICK.
• Court: Texas Court of Appeals

202 S.W. 199

PEREZ et al. v. MAVERICK.

(No. 5941.)

Court of Civil Appeals of Texas. San Antonio.

January 9, 1918.

On Motion for Rehearing, April 3, 1918.

Appeal from District Court, Bexar County; J. T. Sluder, Judge.

Suit by W. H. Maverick against Alejo E. Perez and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

W. W. King, of San Antonio, for appellants. Templeton, Brooks, Napier & Ogden, of San Antonio, for appellee.

SWEARINGEN, J.

W. H. Maverick, appellee, brought this suit to rescind an executory contract of sale of 140 acres of land made by him in 1880. The rescission was sought because the purchase-money note secured by vendor's lien reserved in the deed had not been fully paid. The defendants were Alejo E. Perez, Henry Perez, Edmund Perez, Mary M. Perez, Gertrudes Perez, Arturo Perez, Rudolph Perez, and the unknown heirs of Alfredo S. Perez, deceased, and also the unknown heirs of Juana Navarro y Alsbury, deceased. A jury answered special issues submitted to it, upon which judgment was rendered for the appellee.

The petition alleges that on February 23, 1880, appellee made, executed, and delivered to Juana Navarro y Alsbury, deceased, a deed to the described 140 acres of land, which deed expressly retained the superior title in appellee until a purchase-money note for $700 was paid. The note was dated February 23, 1880, and by its terms became due one year from its date, and bore 12 per cent. interest per annum from its date. Failure to fully pay the note was alleged, as was the fact that appellee had exercised his option to rescind the sale because of failure to pay the note. It was further alleged that because appellee had exercised his option to rescind, he owned the superior title, and was entitled to the possession of the land which was wrongfully withheld from him by the appellants. The prayer was for judgment canceling the deed, and for title, for possession of the land, for writ of restitution, and judgment for damages of $5,000, and costs of suit, and for such other relief, both special and general at law and in equity, to which he may be justly entitled. Appellants answered by a general demurrer, a special exception that the petition showed the cause was barred and a general denial. Appellants specially answered that the note was fully paid, and that in good faith they had made permanent and valuable improvements on the land, which were itemized and averred to be of the value of $2,465, for which sum judgment was asked in the event of judgment in favor of appellee for the land.

The evidence discloses that appellee executed a deed for 140 acres of land to Juana Navarro y Alsbury, February 23, 1880, in consideration of a note for $700 of same date, payable one year thereafter. A vendor's lien was retained in the deed to secure the payment of the note. The note bore 12 per cent. interest per annum from its date. On the same day the note was dated, viz. February 23, 1880, a payment of $575 was made and credited on the note, leaving a balance due February 23, 1880, of $125. On May 9, 1882, a payment of $15 was made and accepted on the note, and on the same day $33.75 was paid as interest on the $125 balance due on the note for the period from February 25, 1880, to May 9, 1882, and on the $110 from May 9 to May 23, 1882. This interest was in excess of the contract and lawful rate, which was 12 per cent. Thereafter, on November 11, 1886, a third payment of $40 was made and accepted, and on the same day $61 was paid as interest on the balance of the note, which was in excess of the contract and legal rate. After this last payment of November 11, 1886, there was less than $68, balance due on the note. When the deed was executed and the $575 paid on the note, appellants went into possession of the land, used it for their homestead, and placed on it improvements to the value of $2,540. Since that time appellants have been using and cultivating the land and paying taxes on it as their own.

After the last payment of November 11, 1886, appellee notified one of the appellants by letter dated May 27, 1887, to pay the taxes on the land, and to pay the balance due him on the note. It will be presumed that the tax was paid. On April 23, 1888, Albert Maverick, agent for appellee, notified by letter one of the appellants that the land was advertised for sale for taxes, and requested him to pay $70, claimed to be due on the original $700 note. No further demand for payment was made by appellee until 1913, when Lewis Maverick, a son of appellee, a child of 3 years when the sale was made, had matured into a man and a lawyer, demanded payment of the balance due on the note, which he claimed to be $70, together with interest at the rate of 12 per cent. per annum from November 11, 1886, up to the date of the demand in 1913. During a quarter of a century, from April, 1888, appellee and his agent frequently met the appellant to whom he seemed to have looked for his payments, but never requested further payment of the note.

The only proposition submitted under the first three assignments is that the general demurrer to the petition should have been sustained because it failed to allege an offer to return the portion of the purchase money received, and because it failed to allege notice of intent to rescind. The petition does not disclose that any portion of the purchase money had been received by appellee; the petition clearly alleges that the superior title was in appellee, and that appellants unlawfully entered the premises and ejected appellee, and were withholding from appellee the land, thereby stating a cause of action. The general demurrer was properly overruled. The first three assignments are overruled.

By the fourth assignment it is contended that the right to rescind the contract expired before this suit was filed. The right to rescind for failure to pay the balance of the purchase-money note matured February 23, 1881. By act of the Thirty-Third Legislature (chapter 123), the holder of the superior title was given until July, 1914, in which to bring suit to establish his right. In August, 1913, the Thirty-Third Legislature at its first called session (chapter 27) extended the time to November 19, 1914. The petition in this suit was filed November 16, 1914, which was within the time expressly given by the statute. V. S. R. C. St. art. 5695. The fourth assignment is overruled.

The fifth assignment complains of the admission, over objection, of the testimony of W. H. Maverick, the appellee, to the effect that the balance on the note had never been paid. The objection was that the evidence related to transactions between appellee and a deceased party in an action by appellee against the heirs of the deceased. This assignment must be sustained, because the facts of this case bring it within the prohibition of V. S. R. C. St. art. 3690.

From the testimony introduced by appellee it appears that in 1901 Alfred S. Perez became the owner by warranty deed of the land involved here. In 1908 he conveyed the life estate to Alejo E. Perez, retaining the fee subject only to the life estate. Appellee's petition alleges the death of Alfred S. Perez, and makes the unknown heirs of Alfred S. Perez parties defendants, as provided by V. S. R. C. St. art. 1875. It must be presumed that these unknown heirs appeared and answered as the attorney signed the answer as the answer of all the defendants, and for the further reason that the court did not appoint an attorney ad litem to represent the unknown heirs, as required where no appearance is made by the unknown heirs cited by publication. Vernon's Sayles' Rev. Civ. St. art. 1941.

The bill of exception by which the objection to the evidence was brought before us recites that the objection was made by all the parties defendant. When urged by the heirs of Alfred S. Perez, the objection should have been sustained. Swan v. Price, 162 S. W. 998, par. 5; Johnson v. Lockhart, 16 Tex. Civ. App. 32, 40 S. W. 640; Edelstein v. Brown, 100 Tex. 403, 100 S. W. 129, 123 Am. St. Rep. 816; Abbott v. Stiff, 81 S. W. 562; Wootters v. Hale, 83 Tex. 563, 19 S. W. 134; Newton v. Newton, 77 Tex. 510, 14 S. W. 157; Chamberlain v. Boon, 74 Tex. 660, 12 S. W. 727; Kohlberg v. Awbrey, 167 S. W. 828; Pennybacker v. Hazelwood, 26 Tex. Civ. App. 183, 61 S. W. 153; Baugh v. Geiselman, 23 Tex. Civ. App. 143, 55 S. W. 615. This is reversible error because the note pleaded and introduced in evidence appears upon its face to be more than 30 years past due, which fact creates the legal presumption that the note has been paid in full. Rogers v. Pettus, 80 Tex. 425, 15 S. W. 1093; Fessenden v. Barrett, 9 Tex. 475; Mills v. Alexander, 21 Tex. 154. Appellee's cause of action depends upon the fact that the note has not been paid in full. The presumption of payment, therefore, would defeat the cause of action. To meet this contingency the testimony of appellee was offered. Its exclusion leaves appellee...