Pitts v. Kennedy

• Citation: 177 S.W. 1016
• Decision Date: 10 June 1915
• Docket Number: (No. 5492.)
• Court: Court of Appeals of Texas
• Parties: PITTS et ux. v. KENNEDY et ux.<SMALL><SUP>†</SUP></SMALL>

177 S.W. 1016

PITTS et ux. v. KENNEDY et ux.^†

(No. 5492.)

Court of Civil Appeals of Texas. San Antonio.

June 10, 1915.

Rehearing Denied June 25, 1915.

Appeal from District Court, Polk County; J. Llewellyn, Judge.

Action by C. N. Pitts and wife against C. M. Kennedy and wife. Judgment on a directed verdict for defendants, and plaintiffs appeal. Affirmed.

Campbell & Campbell, of Livingston, for appellants. S. H. German, of Livingston, for appellees.

MOURSUND, J.

C. N. Pitts and wife, M. V. Pitts, sued C. M. Kennedy and wife, Annie E. Kennedy; the material allegations of the petition being as follows: That defendants were the owners of a place in the town of Livingston, known as block No. 8, which they invited plaintiffs to purchase. That on December 8, 1913, plaintiff C. N. Pitts wrote to said C. M. Kennedy rejecting a prior offer made by said Kennedy, and stating:

"If you care to take it I will give you two thousand dollars cash for the property, as it now stands, without any reservations. If you care to take this, you can make out the deeds and put them in the bank, and I will send money over to cover same."

That this offer was accepted by said C. M. Kennedy over the telephone. That by the terms of said sale said Kennedy bound himself to prepare and execute a deed to the whole of block 8, and place said deed, together with his original deed and an abstract of the title to said property, in the Guaranty State Bank of Livingston, and plaintiffs were to send $2,000 to said bank to pay therefor. That said Kennedy, knowing that plaintiff C. N. Pitts was busily engaged at Onalaska, and could not in person come and attend the receiving of said deed, and would have no opportunity of seeing it, and knowing the great confidence the plaintiffs reposed in him, and that he would have plaintiffs' money before any fraud could be detected, caused a deed to be prepared and executed to only a portion of block 8, the portion omitted being off the west end of said block and being 140 feet by 250 feet. That said Kennedy placed such deed in said bank and failed to place his original deed and abstract of title in the bank, thus making it improbable that the fraud would be detected before the plaintiff had paid his $2,000. That said Kennedy telephoned to plaintiffs that he had prepared and deposited the deed in accordance with the agreement, whereupon plaintiffs paid the $2,000 to the bank as agreed upon, and the deed which had been prepared and executed by defendants was sent to plaintiffs. That the acts of said C. M. Kennedy were fraudulently, willfully, and schemingly done with intent to deprive and defraud plaintiffs of said land. Plaintiffs prayed for judgment divesting out of defendants the title to said parcel of block 8 not included in said deed, and vesting the same in plaintiffs, and in the alternative for damages in the sum of $1,000, alleging that the value of said parcel was $500 and that the part actually conveyed would be worth $500 more if the other part was held therewith.

The answer of the defendants was very lengthy, and it will suffice for the purposes of this opinion to say that they denied the making of any such agreement as was pleaded by plaintiffs, and alleged that the land omitted from the deed was never intended or agreed to be conveyed; that as soon as they learned that plaintiffs were dissatisfied, and before the deed was recorded and before any improvements were made, they offered to return the $2,000 to plaintiffs and accept a reconveyance of the property described in the deed, but plaintiffs declined such proposition. They also pleaded the statute of frauds, and alleged that all of said block 8 was their homestead at the time of the transactions with plaintiffs. They alleged further that plaintiffs had taken possession of the land in controversy, and that their claim cast a cloud upon defendants' title, which they prayed should be removed.

Each party filed supplemental pleadings, but the above statement sufficiently sets out the material pleadings of each party.

The court instructed a verdict for defendants, which being duly returned, judgment was entered in accordance therewith.

The evidence shows the following facts to be undisputed: (1) Regardless of who is correct about what land was to be conveyed, the fact remains that there is no written contract or memorandum signed and delivered by either Kennedy or his wife wherein it was agreed to convey the land not included in the deed. (2) The possession of plaintiffs was taken under a deed specifically describing the land conveyed, and such description does not include the lot in controversy. (3) No improvements whatever have been put upon the lot in controversy, which was inclosed separately from the remainder of block 8. (4) Plaintiffs made about $300 worth of permanent improvements upon the premises actually conveyed, but such improvements were made after they...