Sammann v. Deitrich

• Decision Date: 06 May 1931
• Docket Number: No. 3612.,3612.
• Citation: 39 S.W.2d 647
• Parties: SAMMANN v. DEITRICH.
• Court: Texas Court of Appeals

39 S.W.2d 647

SAMMANN v. DEITRICH.

No. 3612.

Court of Civil Appeals of Texas. Amarillo.

May 6, 1931.

Rehearing Denied June 10, 1931.

Appeal from District Court, Floyd County; Kenneth Bain, Judge.

Suit by H. E. Sammann against A. M. Deitrich. Judgment for defendant, and plaintiff appeals.

Affirmed.

C. D. Russell and Joiner & Cook, all of Plainview, for appellant.

L. G. Mathews and Jeff D. Ayres, both of Floydada, and G. E. Hamilton, of Matador, for appellee.

HALL, C. J.

The appellant, Sammann, plaintiff below, filed this suit in trespass to try title to recover a strip of land lying between section 7, block M-14, and section 126, block D-2.

The defendant disclaimed except as to the strip in dispute, and pleaded not guilty, and that he, as the agent for O. F. Marschner, the then owner of the S. W. 1/4 of section 7, had an agreement on or about January 25, 1919, with the plaintiff, Sammann, that the dividing line between the two tracts of land was and should be where the fence dividing said tracts is now located, and that plaintiff built said fence in the fall of 1919, and that it had so remained since that date, and was recognized by them as the true boundary line between them. Defendant also set up the statutes of limitation of three, five, and ten years, but they were abandoned, and the case was tried only upon the issue of an agreed boundary.

The court submitted the case to the jury upon two issues, in response to which the jury found: (1) That a deed executed and delivered by Marschner to Mrs. Deitrich was, in fact, a mortgage and security for a loan; and (2) that there was an agreement between A. M. Deitrich, acting as agent for Marschner, and plaintiff, acting for himself, on or about the 25th day of January, 1919, fixing the boundary between their respective tracts of land at the line where plaintiff, Sammann, built the fence where it now stands. Judgment was entered accordingly.

The first contention urged by Sammann is that, because defendant Deitrich had alleged that he, as the agent for Marschner, had agreed with plaintiff, Sammann as to where the line was, it was necessary for Deitrich to show that Marschner was the owner of the S. W. 1/4 of section 7 at the time of the agreement.

This contention is based upon the fact that a deed from Marschner to Deitrich was introduced in evidence, which was acknowledged May 25, 1918, reciting a consideration of $3,300. The defendant's testimony shows that, while this instrument was a deed upon its face, the real consideration for its execution was a loan, and that it was not intended by the parties to convey the title. This being true, Marschner was the owner of the land. Parol evidence is admissible to show the real consideration for a deed or that a purported deed is, in fact, a mortgage.

The second contention is that, before plaintiff can be bound by an oral agreement fixing the line where the fence now stands, it must be shown that there was a dispute between him and Marschner as to where the true line was, and that there is no evidence to show such a dispute, for which reason the court should have...