Stone v. Robinson

• Decision Date: 07 December 1921
• Docket Number: (No. 262-3479.)
• Citation: 234 S.W. 1094
• Parties: STONE v. ROBINSON et al.
• Court: Texas Supreme Court

234 S.W. 1094

STONE v. ROBINSON et al.

(No. 262-3479.)

Commission of Appeals of Texas, Section A.

December 7, 1921.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Trespass to try title by J. B. Stone against Jim Robinson, Jr., and others. A judgment for defendant on directed verdict was affirmed by the Court of Civil Appeals (218 S. W. 5), and plaintiff brings error. Reversed and rendered.

Bean & Klett, of Lubbock, for plaintiff in error.

Percy Spencer, of Lubbock, for defendant in error.

RANDOLPH, J.

For the sake of brevity, the plaintiff in error and the defendants in error will be termed plaintiff and defendants.

On the 9th day of September, 1909, plaintiff conveyed to defendant Jim Robinson, Jr., 40 acres of land in Lubbock county, Tex., receiving as a part consideration for said conveyance two notes of that date, each for the sum of $3,500, payable to the plaintiff on or before one and two years after date, respectively, and signed by said defendant, to secure the payment of which note an express vendor's lien was retained in the conveyance. On the same day there was executed by plaintiff a power of attorney appointing one Posey his attorney in fact to execute releases of the vendor's lien upon lots as they were sold and the money deposited in the Lubbock State Bank.

There were payments upon the two notes, but, when they were not paid as a whole, suit was instituted in the district court of Lubbock county, cause No. 834. Upon the trial of that case judgment was rendered for plaintiff in part and for defendants in part, and appeal was taken to the Court of Civil Appeals for the Seventh Supreme Judicial District. Under agreement of counsel the only question which the Court of Civil Appeals was to adjudicate was whether or not the district court had properly construed the power of attorney to Posey. The Court of Civil Appeals held that the district court had not properly construed that instrument, and reversed and remanded the case. Stone v. Robinson et al., 180 S. W. 135. After the reversal of the case the defendants filed in the district court their amended pleading, in which, among other defenses, for the first time they pleaded the illegality of the sale and sale contract evidenced by the deed from plaintiff to defendant Robinson, in that same was void for the reason that said sale contract and deed from plaintiff and wife to defendant Robinson were executed and delivered to the defendant Robinson in pursuance of a plan to dispose of said acreage property by a lottery scheme in violation of the laws of Texas.

The case being again tried before the district court, judgment was rendered by that court refusing relief to plaintiff, and ordering that the plaintiff take nothing by his suit as against all of the defendants. The case was again appealed to the Court of Civil Appeals of the Seventh Supreme Judicial District, and upon hearing was affirmed. 203 S. W. 1132.

The plaintiff, abandoning any further effort to insist upon his foreclosure, having made no application to the Supreme Court for writ of error, and not having filed a motion for rehearing, so far as the record discloses, in said cause, proceeded to file suit in trespass to try title in the district court of Lubbock county in cause No. 1188 against Jim Robinson, Jr., and others, seeking to recover the land which had been in controversy in cause No. 834. The defendants here directly concerned in this writ of error proceeding appeared and answered, setting up in their answer the following: General demurrer, plea of not guilty, that plaintiff had previously elected his remedy, res adjudicata, and the statutes of limitation of three, four, and five years—it not being necessary for the consideration of this case at this time to state the pleadings of the parties further, except to say that the defendant's plea involved the defense that the plaintiff's cause of action was based upon an illegal transaction, to wit, a lottery scheme.

The district court instructed the jury to return a verdict against the plaintiff, and on that verdict rendered judgment that plaintiff take nothing by his suit. On appeal to the Court of Civil Appeals at Amarillo, the case was affirmed. 218 S. W. 5. The plaintiff insisted in the lower court and in the Court of Civil Appeals that, his action being in the form of trespass to try title, it was only necessary for him to show title in himself from the sovereignty of the soil in order that he should recover, and that the district court erred in instructing a verdict and in rendering judgment against him. This contention the Court of Civil Appeals refused to sustain, and as their reason for not doing so upon the question of the illegal lottery scheme hold as follows:

"If the trial had ended with the introduction of mesne conveyances, showing title in him from the state, this contention would be correct. His former suit was an effort to collect the amount of the notes and to foreclose his vendor's lien. * * * Having been defeated in this effort by appellee's plea and proof, showing an illegal contract, this action was filed to recover the land, upon the theory that the contract of September 9, 1909, was an executory contract, under which the superior title remained in him. While it is true that under the contract appellant retained the superior title, this fact does not preclude appellee from interposing in this suit as a defense the illegality of the contract which conveyed to him the equitable title. While we think the proof of the illegality in the contract of September 9, 1909, is a defense to appellant's suit, we do not find it necessary to base the disposition of this appeal upon that issue. In Hall v. Edwards, 194 S. W. 674, this court considered the question of the right of a vendee to set up the illegality of a contract, and held that such a defense was available against the vendor's effort to recover the land. While the Supreme Court has granted a writ of error, we are not prepared to recede from our holding in that case."

We believe that this holding was erroneous. Plaintiff and defendants signed and filed in this case, and tendered in evidence, the following agreement in writing:

"It is agreed by and between the plaintiff and the defendants, Jim Robinson, Jr., James Scott, and Mrs....