Smith v. Miller

• Decision Date: 16 January 1885
• Docket Number: Case No. 1914.
• Parties: E. H. SMITH ET AL. v. ELIZABETH MILLER ET AL.
• Court: Texas Supreme Court

63 Tex. 72

E. H. SMITH ET AL.

v.ELIZABETH MILLER ET AL.

Case No. 1914.

Supreme Court of Texas.

Jan. 16, 1885.

APPEAL from Fannin. Tried below before the Hon. R. R. Gaines.

Suit brought by William Miller and appellee, Elizabeth, his wife, against William C. Whitsett and appellants, J. L. Smith and wife, E. H. Smith; alleging that, in January, 1865, plaintiff Miller, by a verbal contract, purchased from one James M. Collins two tracts of land in Fannin county, embracing together five hundred and ninety-nine and one-half acres; that by the terms of the contract Miller was to pay Collins $1,500 for the land; that in February, 1865, Collins and Miller had a settlement of accounts, when Collins was found to be indebted to Miller $1,000, which, by agreement, went in part payment of the purchase money; that Miller went into possession of the premises and made improvements upon the land; that subsequently Miller paid Collins $300, and they tendered into court $400 to cover any amount that they might be adjudged to owe, and asked for a decree enforcing specific performance of said contract. Plaintiffs alleged further that Collins, after the verbal contract, conveyed the premises to W. C. Whitsett, who, on November 10, 1871, conveyed to appellant E. H. Smith, the wife of appellant J. L. Smith; that Whitsett and Smith had full knowledge of Miller's interest when the conveyances were made.

December 22, 1871, defendants answered by a general demurrer, a general denial, and defendants Smith and wife, by special plea, filed a cross-bill against plaintiffs, setting up the purchase by Whitsett from Collins, and the sale by Whitsett to Mrs. Smith; they allegedthat, January 1, 1871, Whitsett, by a verbal contract, agreed to exchange the premises in controversy with Mrs. Smith for a certain tract she owned, but the trade was not consummated until November 10, 1871, when deeds were passed between them for the respective tracts of land; that in the early part of 1870, Miller had compromised whatever claim he had to the land by renting the premises from Whitsett for the year 1870, and on the 2d of January, 1871, he had again rented the premises from appellant Smith, and executed to Smith a rental contract, agreeing to cultivate the place in corn and cotton, and to pay as rent one-third of the corn and one-fourth of the cotton, and return the place in the following November in as good repair as at that time; that Smith and wife never knew that Miller claimed the land as his own, but did know of his rental contract when they traded with Whitsett; that the land they conveyed to Whitsett was of equal value with the premises they received. Appellants prayed for the recovery of the land Whitsett disclaimed. They amended their answer, and pleaded that the alleged verbal contract between Collins and Miller was in violation of the statute of frauds. They denied that Collins was ever indebted to Miller, but charged that Miller was largely indebted to Collins, and filed receipts of Miller showing that fact. In 1875 appellees amended, alleging that, in February, 1865, a complete settlement was made between Collins and Miller, which effected as its result payment for the land. August 23, 1882, plaintiiff Elizabeth Miller and the children of W. C. Miller filed their supplemental petition containing a general demurrer, general denial and a plea of not guilty. On the same day the heirs of W. C. Whitsett were dismissed from the suit, J. B. Clark was made a guardian ad litem for the minor children of W. C. Miller. A jury found for plaintiffs, and required them to pay defendants $200, with interest at eight per cent. per annum from January 1, 1868. Upon this verdict the court decreed the premises to plaintiffs and gave judgment in favor of defendants for $442.40.

Richard B. Semple, for appellants.

Jas. Q. Chenoweth, for appellees.

DELANY, J. COM. APP.

This case was upon the former appeal submitted to the commission of appeals by consent of parties.

We shall therefore follow the opinion delivered on the former appeal, without stopping to consider whether we concur fully with the views expressed or not. Shannon v. Stell, at last Tyler term.

We will, then, consider the proof as sufficient to sustain the parol contract, and that the plaintiffs were entitled to a decree for specific performance, provided it clearly appeared that Mrs. Smith was affected with notice when she bought.

We will also leave out of view the question of estoppel, and will consider the case upon the supposition that the plaintiff Miller was not estopped by his tenancy to assert his rights to the land.

This will leave only the question of notice to be examined.

Upon this subject the court, in the third paragraph of the charge, instructed the jury that, if they were satisfied that Miller had made the parol contract with Collins, as alleged; had made the payments, had taken possession and made valuable improvements, etc., they would find for the plaintiffs, unless they “find defendant E. H. Smith is a bona fide purchaser of the land without notice, either actual or constructive, of the plaintiffs' claim…. As to what constitutes actual or constructive notice, I refer you to the sixth paragraph of this charge.”

Paragraph 6 is as follows:

“Notice may be either actual or constructive. Actual notice is knowledge of the fact, brought home to the party to be affected by it.

Constructive notice is knowledge of any fact which would put a prudent man upon inquiry.

Possession of real estate, by a claimant thereto, is a circumstance of this character ordinarily, and is, as a general rule, constructive notice to a purchaser of the claim of the possessor.”

Then comes the seventh paragraph as follows:

“If the defendants, before or at the time of the conveyance from Whitsett to E. H. Smith, knew, from any source, that Wm. C. Miller claimed to have bought the land in controversy of J. M. Collins before Collins' conveyance to Whitsett, or if at the time of the conveyance by Whitsett to Mrs. Smith, … Miller was in possession of the land in controversy,...