Smith v. Fly

• Decision Date: 01 January 1859
• Citation: 24 Tex. 345
• Parties: DAVID E. SMITH v. J. D. FLY.
• Court: Texas Supreme Court

24 Tex. 345

DAVID E. SMITH

v.J. D. FLY.

Supreme Court of Texas.

1859.

Where a tract of land has been bought and paid for, as containing a certain number of acres (the purchaser relying on the representations of the vendor, as to the quantity), the vendor will not be excused from liability to account for a deficiency in the number of acres, because his deed describes the tract as containing the quantity sold, more or less; if the deficiency be so great, that it cannot be supposed, it was intended to have been within the risk of the parties, and to be embraced by the words “more or less.” 29 Tex. 313.

To recover back a proportion of the purchase money, in such a case, the purchaser must resort to a court of equity, for relief against the mistake which has been carried into the deed. 4 Tex. 95.

Where the statute of limitations is applicable to a claim in our courts, it must have its full effect and operation upon it, whether the case be one of legal or of equitable cognizance. 12 Tex. 95;21 Tex. 264.

But if the statute do not, in terms, apply to the case, it will be governed by the analogies, in like cases, which are expressly within its provisions.

By the analogies of the statute of limitations, applicable to a case of legal cognizance, the period of two years from the accruing of the right of action, will bar a suit to correct a mistake in a deed, like that committed in this case, and for compensation for the deficiency in the quantity of land purchased.

Whether fraud, or mistake, will be admitted as an exception to the running of the statute, is an open question in this court. But if it be admitted as such, it is well settled, that it will only prevent the running of the statute until the fraud is discovered, or, by the use of reasonable diligence, might have been discovered, by the party applying for relief. 16 Tex. 21;18 Tex. 782;26 Tex. 475.

Where the plaintiff has negligently failed to ascertain the existence of a mistake in fact, upon which his cause of action depends, when there was nothing in the nature of the fact to prevent a discovery of it, he cannot set up as an exception to the statute of limitations, that he had not discovered the mistake.

The acknowledgment in writing, necessary to take a case out of the operation of the statute of limitations, must show positively that the debt is due, either in whole or part, and must be unqualified. 4 Tex. 31;8 Tex. 443;29 Tex. 80.

An agreement which contains neither an express promise to pay any sum whatever, nor an acknowledgment upon which such promise can be raised, by implication of law, is not sufficient to take the case out of the operation of the statute.

The defense of the statute of limitations may be interposed by demurrer, o?? exception. 17 Tex. 30;29 Tex. 172.

APPEAL from Gonzales. Tried below before the Hon. Fielding Jones.

This was a suit brought by David E. Smith against John D. Fly, on the first day of April, 1859, to recover damages for an alleged deficiency of 115 acres, in a tract of land purchased by him from the defendant, on the 29th of December, 1853.

The petition alleged, that on the day last aforesaid, the plaintiff purchased of the defendant a tract of land therein described, and that the defendant then executed to him a deed, which was made a part of the petition; that at the time of the said purchase and the receipt of the deed, the tract was represented by Fly to contain 500 acres of land, and the contract price agreed upon between them was six dollars per acre; that the plaintiff, on same day, paid to the defendant therefor, the sum of $3,000, the plaintiff believing, at the time, that the tract did contain 500 acres, as was represented to him; and in the sale, purchase and payment, the land was rated at six dollars per acre.

The plaintiff alleged that the said tract contained but 385 acres; which fact he did not discover until during the month of January, 1859. He admitted that he did not believe that Fly knew of the deficiency at the time of the sale.

The deed was in the ordinary form of a warranty deed, and in that part of it which set forth a description of the land, at the close of the field-notes of the survey, stated, that it contained “five hundred acres, more or less.”

The petition further alleged that the defendant and the plaintiff, on the 21st day of March, 1859, entered into a written agreement (which was made an exhibit and a part thereof), which recited that on the 29th day of December, 1853, the plaintiff purchased of the defendant the said tract of land; and that, “whereas, it was supposed, by the said Fly and Smith, that the said tract of land contained, as specified in said deed, near about 500 acres; and whereas, the said land has since been surveyed (the same not having been surveyed at the time of the making of said deed to the said Smith), and it is ascertained that the said tract of land falls far short of containing 500 acres, only containing, as represented by said Smith, 385 acres; and whereas, the said Fly purchased the same tract of land from J. S. Brown and Margaret his wife, by deed, bearing date the 25th day of May, 1853, and recorded in Gonzales county, record book of deeds I, on pages 395 and 396, and it was supposed by the said Fly and Brown, that the said tract of land contained 500 acres, or near about that quantity; and whereas, the said Smith has called upon the said Fly to refund back to him the difference between the 500 acres, and what the said tract of land does really contain, at six dollars per acre, the price that said Smith paid said Fly for the said land, and the interest on the difference, from the date of said purchase to this time; and whereas, the said Fly is desirous to have recourse, first, over on said Brown for the difference in the said tract of land at the price said Fly paid for the same, viz., $5.30 per acre; and whereas, the said Smith and Fly have agreed to have but one suit between said Brown, Fly and Smith for the settlement of the said difference, the said Fly alleging and contending that the said Smith is not to recover of him only what the said Fly shall recover from the said Brown; and whereas, it is thought best that the said Fly and Smith shall unite to recover out of Brown, and to divide the expenses and costs; this now is to witness that the said Smith and Fly have agreed to place the said matter into the hands of William H. and Thomas R. Stewart, to bring such suit as they, as the attorneys, may think best for the recovery from said Brown, the said difference, and for the settlement of the said matter; and the said Smith and Fly agree equally to pay all the costs and expenses of any suit that may be brought by the said Stewarts, and also the attorney's fee. But this agreement is not to preclude or prevent the said Smith from suing, separately, the said Fly, nor the said Fly from suing the said Brown, if they, the said Stewarts, shall think it best, and in case no joint suit shall be brought.”

The petition alleged, that the defendant, from the execution of the foregoing agreement, notified the said Stewarts, that he refused to comply with the terms of the same; whereby he represented that he had been damaged $1,000. That he had, since his purchase, made valuable improvements; that he would not have made the said purchase, if he had not believed that the tract contained 500 acres. The plaintiff prayed for a judgment against the defendant, for his damages, amounting, as he averred, to $1,000, and also for the difference between what the tract of land really contained, in acres, and what it was represented by the defendant to contain, at the rate of six dollars per acre, for the deficiency in the land, amounting to $690, and for legal interest thereon, from the said 29th day of December, 1853.

The defendant demurred to the petition, and set forth the following causes thereof:

1. The deed exhibited in the petition, on which the plaintiff sues, and which purports to be the written contract between the parties, shows on its face, that the land was sold by the defendant, and bought by the plaintiff, as an entire tract, for an agreed price for the same; and the plaintiff does not aver fraud, misrepresentation, or any facts that will qualify or vary the legal conclusion upon such contract.

2. Plaintiff contradicts the terms of the deed, without bringing himself within any exception that will avoid the same.

3. Plaintiff's petition shows that his cause of action is barred by the statute of limitation of two years.

4. And the same appears to be barred by the statute of four years.

The defendant excepted to the agreement between the parties, dated the 21st of March, 1859, and made a part of the petition, because of its irrelevancy; that it showed on its face that it was without consideration; that it showed a want of mutuality, and did not purport to bind the parties. The defendant also pleaded to the facts, the statute of limitations of two and four years.

The demurrer to the petition was sustained by the court, on the ground that the plaintiff's action was barred by the statute of limitations; and the exceptions to the agreement were also sustained. Judgment was rendered for the defendant.

The plaintiff appealed, and assigned for error: 1st. The sustaining of the demurred and exceptions. 2d. That in rendering the judgment on the demurrer the court erred in thereby refusing to let the case go to the jury, on the question of limitation. 3d. Sustaining the exceptions to the agreement.

W. H. Stewart, for the appellant. The court erred in assuming that the action was barred by limitation; for limitation is a fact to be found by the jury, as any other fact. If the original cause of action was barred, the subsequent agreement between the parties, was such an acknowledgment, as removed the bar of limitation. Webber v. Cochrane, 4 Tex. 31;Coles v. Kelsey, 2 Id. 541. Although the original cause of action be barred, yet the subsequent agreement was not...