Stephens v. Motl

• Decision Date: 03 November 1891
• Citation: 18 S.W. 99
• Parties: STEPHENS v. MOTL.
• Court: Texas Supreme Court

18 S.W. 99

STEPHENS v. MOTL.

Supreme Court of Texas.

November 3, 1891.

Commissioners' decision. Section B. Appeal from district court, Bell county; W. A. BLACKBURN, Judge.

Action of trespass to try title to land by Vincence Motl against J. H. Stephens. Verdict and judgment for plaintiff. Defendant appeals. Reversed.

Harris & Saunders, for appellant. Monteith & Furman, for appellee.

GARRETT, P. J.

The controversy in this suit arose over the disputed location of the north-west corner of the William Woodford league. Appellant seeks a reversal of the judgment of the court below upon the following grounds, which have been assigned as error: "(1) The refusal of the court to admit in evidence the record of a suit involving the title to the land in controversy, brought by P. G. Rucker against J. C. W. Midkiff. (2) The charge of the court with reference to the circumstances under which course and distance should be resorted to in establishing the north boundary of the Woodford league, and in the submission of issues to the jury. Also in failing to instruct the jury as to the settlement between the parties in the suit in the justice court. (3) That the verdict is contrary to the law and charge of the court in failing to fix the boundary; and that it decides nothing, but leaves the matter still in dispute, and unsettled. (4) That the verdict is contrary to the evidence, in that the line claimed by the plaintiff as the north line of the Woodford league was marked in 1872, and is not the true line." A bill of exceptions was saved to the exclusion of the record in the suit of Rucker v. Midkiff. It sets out the petition, answer, and judgment in that suit, from which it appears that after the sale by the Ruckers to appellee, and the transfer of the notes by Ed. T. Rucker to P. G. Rucker, the latter brought an action of trespass to try title against Midkiff for the land sold by him to Motl. This suit was filed November 30, 1882, and was finally tried December 31, 1885, and resulted in a judgment for Midkiff. It is contended that by this judgment the claim of Motl to the land became res adjudicata, because Rucker held the superior title thereto, from the fact that the purchase money had not been paid. Notwithstanding the reservation of the vendor's lien in the deed, Motl had the right to the possession of the land under his contract of purchase, and title was vested in him, subject only to be defeated by rescission for failure to pay the purchase money, and it might become perfect on payment of the notes. He was then the proper party to bring a suit for the land. Rucker did not have the right of possession. In an action of trespass to try title the petition must state that the plaintiff was in possession of the land when the right of action accrued, or when ousted, or that he was entitled to such possession. Rev. St. art. 4786. Although he held the superior title as between himself and his vendee, Rucker stood in the relation of a mortgagee of the land out of possession, and not entitled to possession until default on part of the vendee, and a rescission by him of the contract, or a foreclosure. We refer to the following cases as bearing upon the points: Webster v. Mann, 52 Tex. 416; Lodge v. Leverton, 42 Tex. 23; Fisk v. Miller, 13 Tex. 224; Edrington v. Newland, 57 Tex. 627; also, Pratt v. Godwin, 61 Tex. 334. The case of Kramer v. Breedlove, (Tex. Sup.) 3 S. W. Rep. 561, cited by appellant, was decided on a quite different state of facts. In that case there was, in the first place, an agreement between Wilkins, the vendor of the land, Breedlove, the holder of the notes, and Kramer, the grantee in the deed and the maker of the notes, that Wilkins should bring the suit against the heirs of R. D. Evans in his own name to clear up the title. Also, it appeared that R. D. Evans had the power to convey the land to Wilkins. It was held that the recovery by Wilkins inured to the benefit of Kramer. Motl was not concluded by the judgment in the suit of Rucker v. Midkiff, and there was no error in excluding the record.

Taken as a whole, the charge of the court was full, clear, and explicit as to the rules of law which should control the jury in ascertaining the true location of the north boundary line of the Woodford league, and we find no error in it for which the case should be reversed. The failure of the court to instruct the jury with reference to the agreement of settlement in the...