Schneider v. Lipscomb County Nat. Farm Loan Ass'n

• Decision Date: 16 September 1946
• Docket Number: No. 5714.,5714.
• Parties: SCHNEIDER v. LIPSCOMB COUNTY NAT. FARM LOAN ASS'N et al.
• Court: Texas Court of Appeals

196 S.W.2d 954

SCHNEIDER v. LIPSCOMB COUNTY NAT. FARM LOAN ASS'N et al.

No. 5714.

Court of Civil Appeals eof Texas. Amarillo.

September 16, 1946.

Rehearing Denied October 28, 1946.

Appeal from District Court, Lipscomb County; W. R. Ewing, Judge.

Action to recover money paid for the purchase of land by Edward Schneider against Lipscomb County National Farm Loan Association and others. From a judgment for the defendants, the plaintiff appeals.

Affirmed.

Boyer, McConnell & Hankins, of Perryton, for appellant.

H. A. Berry, of Houston, Witt, Terrell, Lincoln, Jones & Riley of Waco, Hoover, Hoover & Cussen, of Canadian, Roy Sansing, of Higgins, and A. H. McCulloch, of Dallas, for appellees.

STOKES, Justice.

Appellant, Edward Schneider, instituted this suit against the appellee, Lipscomb County National Farm Loan Association, on February 11, 1943. The purpose of the suit was to recover purchase money which appellant had paid to the appellee for 401.6 acres of land theretofore conveyed to the appellant by the appellee under a deed of general warranty, the title to which had failed.

In its answer, the appellee, among other allegations, set up the four year statute of limitations, Vernon's Ann.Civ.St. art. 5529, and in reply thereto, appellant filed a trial amendment in which he pleaded estoppel upon grounds which will hereafter be discussed.

The case was submitted to the court without the intervention of a jury and resulted in a judgment denying appellant any relief. He duly excepted to the judgment, gave notice of appeal and presents the case here upon three assignments or points of error. In view of the disposition we make of the case, it will be necessary to discuss only two of them, which present the contentions that the court erred, first, in sustaining appellee's plea of limitations and, secondly, in overruling and denying appellant's plea of estoppel.

The record reveals that on August 21, 1925, appellee, by general warranty deed, conveyed to appellant all of surveys number three and number four, block D of the W. P. Wiser surveys in Lipscomb County, containing approximately twelve hundred acres. The deed recites that as consideration for the land appellant agreed to pay the total sum of ten thousand dollars, of which eighteen hundred dollars was cash and the balance evidenced by the assumption of outstanding indebtedness against the land held by the Federal Land Bank of Houston. The deed purports to convey all of the land lying north of the south lines of the two surveys and south of the north line of the Panhandle of Texas. In 1937 the 401.6 acres in controversy was filed on by one Roy Sansing as unsurveyed and unappropriated school land, and on December 8, 1938, the State Land Commissioner recognized it as being vacant and unappropriated school land belonging to the school fund of the State and awarded it to Sansing. The tract so awarded lies between the true north lines of surveys three and four and the true north boundary line of the State of Texas. The strip of land found to be vacant and unappropriated school land runs entirely across the north end of the Panhandle of Texas and the award involved land then occupied by numerous owners of the adjoining lands in block D besides the appellant. After Sansing filed upon the land and it was awarded to him by the authorities of the State, eleven parties, including appellant, filed suits against Sansing in the district court of Lipscomb County, in which they challenged his contention that the land was unsurveyed and unappropriated school land.

All of the parties, however, except appellant, exercised their prior rights of purchase, by virtue of their having been occupants thereof, and filed with the Commissioner of the General Land Office their applications to purchase the same. The eleven suits were consolidated, tried as one suit and resulted in a judgment in favor of all of the owners of the adjoining lands, except appellant, upon their respective applications. Appellant failed to exercise his prior right of purchase but contested the suit upon the sole ground that the land was not vacant and unappropriated school land but was a portion of surveys three and four. An appeal was perfected from the judgment by Sansing, and also by the appellant, Schneider. Upon a hearing in this court, the judgment was affirmed, Sansing v. Bricka, Tex.Civ.App., 159 S.W.2d 142, and a writ of error was refused by the Supreme Court. Mandate issued out of this court on May 6, 1942, directing the enforcement of the judgment below and a patent to the 401.6 acres was afterwards issued by the State to Sansing. Having lost the land as a result of that litigation, appellant filed this suit against the appellee, in which he seeks to recover $5,137.60, which he alleges represents the purchase price of the 401.6 acres, together with other legitimate and necessary expenses incurred by him by reason of its loss.

Under his first assignment of error, appellant contends that he was not dispossessed or evicted from the land until May 6, 1942, when the mandate issued out of this court in the former litigation and that, an eviction being necessary before a suit could have been maintained by him upon the warranty, the period of four years had not elapsed on February 11, 1943, when he filed the instant suit, and the court erred in holding otherwise. The law is of long standing and universal application that an eviction must take place before a cause of action upon a warranty of the nature here involved can be maintained, and it is a well established rule that possession is not disturbed by the mere existence of a superior title. The vendee has no right to presume that his possession will be disturbed until something has been done which brings home to him the fact that the holder of a superior title is asserting his rights or, as aptly expressed in an early case by our Supreme Court, "he actually feels the pressure upon him." Jones' Heirs v. Paul's Heirs, 59 Tex. 41. The ancient rule was that such a suit could not be maintained until the warrantee had been actually evicted from the land, but that rule has long since been modified and it is now well established in this State that the eviction may be constructive and does not have to be an actual one. Our courts have held in many cases that if a paramount title is positively asserted against the vendee he is not required to make an unavailing and useless resistance against a claim, which is manifestly superior and must prevail. Jones Heirs v. Paul's Heirs, supra; Beck v. Kouri, Tex.Civ.App., 158 S.W.2d 75; Love v. Minerva Petroleum Corporation, Tex. Civ.App., 105 S.W.2d 892; Felts v. Whitaker, Tex.Civ.App., 129 S.W.2d 682; Groesbeck v. Harris, 82 Tex. 411, 19 S.W. 850; Whitaker v....