Potter v. Wheat

• Decision Date: 01 January 1880
• Docket Number: Case No. 3344.
• Citation: 53 Tex. 401
• Parties: WILLIAM POTTER v. SAMUEL D. WHEAT.
• Court: Texas Supreme Court

53 Tex. 401

WILLIAM POTTER

v.SAMUEL D. WHEAT.

Case No. 3344.

Supreme Court of Texas.

1880.

APPEAL from Bell. Tried below before the Hon. E. B. Turner.

Samuel D. Wheat, as the administrator of Samuel Wheat, Sr., filed his suit in the district court of Bell county, August 20, 1873, against William Potter, alleging that Wheat, Sr., sold and conveyed to Potter a certain tract of land, on the 19th of September, 1864, the metes and bounds of which were set forth in the petition; that as the consideration, Potter executed an instrument in writing to Wheat, by which he agreed with Wheat to sow all the land in cultivation on the tract in wheat, from year to year, and the wheat raised on the land was to be the property of Samuel Wheat until he had realized from that source twelve hundred dollars. The wheat was alleged to have been worth one dollar and a half per bushel at the time the contract was made, and from thence to the bringing of the suit; and that Potter had paid on the contract only four hundred and ninety-three bushels of wheat and one hundred dollars in gold, which was credited on the note; that the balance he refused to pay, and damages were alleged to be nine hundred and sixty-one dollars and fifty cents, with interest from 25th of July, 1864, at eight per cent. Petition alleged a vendor's lien, and prayed for damages and foreclosure of lien on the land described in the petition.

The original petition made the heirs of Samuel Wheat, Sr., parties plaintiff with the administrator.

There was a general demurrer, and upon the hearing the court sustained the objection made under the demurrer, that the heirs were not necessary parties, and the suit proceeded in the name of the administrator, as sole plaintiff. No other order was made on the demurrer.

For answer, defendant pleaded:

1. General denial.

2. Payment generally.

3. A plea admitting the contract, as stated in the petition, denying that wheat was worth the price alleged in the petition; that it was understood between the parties the value of the land was twelve hundred dollars, and wheat was worth one dollar per bushel; that the contract might be discharged by paying twelve hundred dollars; that at the instance of Wheat, Sr., he delivered to him five hundred and ninety bushels of corn, at fifty cents per bushel, in part payment of the contract; and in 1868 he delivered to Wheat, Sr., one hundred and seventy bushels of wheat, on the contract, at one dollar per bushel; and for hauling said wheat, etc., Wheat, Sr., was to pay him eleven dollars.

Defendant alleged also that Wheat, Sr., represented to him that the tract contained a certain number of acres, but, in fact, it contained thirty-four acres less than was represented; that these thirty-four acres were specially valuable to him, and were worth six hundred and eighty dollars; that one R. G. Hampton sued for the thirty-four acres, and recovered them from defendant; and that Wheat, Sr., was and is liable to pay him $307.43, the costs paid by him in that suit. He alleged that he had to move his houses, lots and pens, and was damaged thereby in the sum of three hundred dollars. Defendant pleaded these aggregate sums, amounting to $1,709.43, in set-off and reconvention.

The judge charged the jury that the defendant had failed to show that he had been evicted from any portion of the land, and that he was entitled to no deduction on that ground; instructing them to return a verdict for the amount due on the note, and to find whether the same was due as purchase money for the land. Verdict for $706.42, and that the amount was due, as purchase money, for the land described in plaintiff's petition.

The deed from Wheat to Potter conveyed two tracts of land, each by separate metes and bounds; the one known as the Wheat pre-emption, the other represented as being fifty-nine and a half acres out of Wiley Jones' league, contiguous to and immediately south of the Wheat pre-emption; the two tracts calling to begin at the same point -- the southeast corner of the E. Davis labor, on the north line of the Wiley Jones league.

The plaintiff, Sam. D. Wheat, testified his understanding was that the fifty-nine and a half acre tract was south of Potter's house and out of the Wiley Jones league, and that the south line of the Wheat pre-emption ran immediately south of Potter's house.

Wm. Potter, the defendant, testified that the south line of the Wheat pre-emption is marked, and its southeast and southwest corner easily identified; that its south line runs immediately south of his house, and the fifty-nine and a half acre tract calls to adjoin the Wheat pre-emption on the south, and to be out of the Wiley Jones league, and that the thirty-four acres recovered of him by Hampton is a part of said fifty-nine and a half acre tract.

W. T. Rucker testified that he had surveyed the fifty-nine and a half acre tract described in the deed from Wheat to Potter, and had found the corner of the Wheat pre-emption on the north line of the Wiley Jones league; that if the fifty-nine and a half acre tract is out of the Wiley Jones league, and adjoining the Wheat pre-emption, as called for in the field notes, it will include the tract of land recovered by Hampton from Potter; that the tract so recovered in the suit of Hampton v. Potter was about thirty-four acres lying immediately south of and adjoining the Wheat pre-emption, and is in the Wiley Jones league, immediately below the north line of the same; but that to run out the fifty-nine and a half acre tract, according to the natural calls and calls for distance in the field notes, it lies almost entirely within the Wheat pre-emption and will not include said thirty-four acres recovered by Hampton from Potter.

The testimony of Potter was offered to show as a fact what disposition he had made of the corn raised upon the land under his contract. This was excluded, and Potter excepted. Other facts are stated in the opinion.

A. J. Harris for appellant.

I. There was evidence to support the defense set up of eviction, and it was error for the court to charge the jury to find for the plaintiff, even though the weight of evidence may have been against him. Gilkey v. Peeler, 22 Tex., 669;Steagall v. McKellar, 20 Tex., 268;Walling v. Kinnard, 10 Tex., 509;York v. Gregg, 9 Tex.,...