Swindall v. Van School Dist. No. 53

• Decision Date: 14 March 1931
• Docket Number: No. 10946.,10946.
• Citation: 37 S.W.2d 1094
• Parties: SWINDALL et ux. v. VAN SCHOOL DIST. NO. 53 et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

37 S.W.2d 1094

SWINDALL et ux. v. VAN SCHOOL DIST. NO. 53 et al.^*

No. 10946.

Court of Civil Appeals of Texas. Dallas.

March 14, 1931.

Rehearing Denied April 18, 1931.

Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.

Suit by G. W. Swindall and wife against Van School District No. 53 and others. Judgment for defendants, and plaintiffs appeal.

Reversed and remanded.

Crawford & Fletcher, of Grand Saline, and Marion S. Church, and Coker, Wilson, Rhea & Neel, all of Dallas, for appellants.

Wynne & Wynne, of Wills Point, and Vinson, Elkins, Sweeton & Weems, of Houston, for appellees.

LOONEY, J.

G. W. Swindall and wife sued for the twofold purpose of canceling, for fraud and deception practiced in procuring a deed executed by G. W. Swindall, February 22, 1924, conveying an acre of land for school purposes to the school authorities of the Van school community or district in Van Zandt county; also to cancel a deed executed by the school authorities, February 21, 1924, conveying the land to R. L. Wells, a certain oil lease and easement granted by Wells, and all royalty contracts, titles, and interests claimed by defendants derived from and under the said deed from Swindall to the school authorities; to remove said instruments as clouds upon plaintiff's title; and also to recover the title to and possession of the land.

The answer filed by defendants contained, among others, general denials, pleas of not guilty, estoppel, that they were innocent purchasers, and the bar of limitation under the statutes of three, four, five, and ten years.

The case was tried to a jury, and, at the conclusion of the evidence, the court directed a verdict for defendants, and judgment was rendered accordingly, from which plaintiffs appealed, and urge, as ground for reversal, that the evidence sustained their allegations, and was sufficient to raise the issue of fraud and misrepresentation alleged to have been practiced by and on behalf of the school authorities on G. W. Swindall that led him to execute the deed in question under the belief that it was in lieu of a deed formerly executed by him, and that it contained a limitation, to the effect that, when no longer used for school purposes, the land would revert to him, his wife and heirs, whereas the deed he was thus fraudulently and mistakenly led to execute was absolute in form and conveyed the land to said authorities without limitation.

The rule is axiomatic that a trial court should never direct a verdict unless the evidence, as a matter of law, will admit of no other conclusion; therefore, in deciding the question presented, we must, as the trial court should have done, disregard any evidence at all favorable to defendants, and consider alone, in its most favorable light to plaintiffs, the evidence that supports their contention. Eastham v. Hunter, 98 Tex. 560, 86 S. W. 323; Walker v. Railway Co., 51 Tex. Civ. App. 391, 112 S. W. 430; Crowley v. Finch (Tex. Civ. App.) 153 S. W. 648; Drew v. American etc. Co. (Tex. Civ. App.) 207 S. W. 547; Guedry v. Jordan et ux. (Tex. Civ. App.) 268 S. W. 191, 195.

The material evidence on the issue is substantially this: G. W. Swindall testified that, about 1880, he conveyed the acre of land in question to the trustees of the Swindall school community (now the Van school community, or district), the conveyance containing a limitation, to the effect that, when no longer used for school purposes, the property would revert back to the grantor and his wife and heirs; the school authorities, in such event, were to have the improvements, and grantor was to pay them $3 back for the land. This conveyance was lost and never recorded, and a number of years later plaintiff executed in lieu a second deed, similar in terms and provisions to the first, the only difference being that, in the latter, the land was conveyed to the county judge for the benefit of the school, instead of to the trustees, as in the first deed. The second deed was not recorded and was likewise lost, so on February 22, 1924, plaintiff was induced to execute the deed which he now seeks, among others, to have canceled and removed as a cloud upon his title.

The record discloses that, on February 21, 1924, the school authorities sold and conveyed the said acre of land and improvements to defendant Wells, and, in order to satisfy him as to the title, undertook and did procure from plaintiff, G. W. Swindall, the execution of the deed in question.

It is pertinent to state at this juncture that, after the execution of the second deed, but before the execution of the third Swindall moved about 15 miles from the Van community, and had been residing at Pole Town seven or eight years; at that time no school was maintained upon the premises, nor had been for at least seven years, the trustees having erected a new schoolhouse where school was conducted; and it seems, for a time after the school was moved, no particular use was made of the acre of land, but for five to seven years prior to February 22, 1924, it had been occupied by tenants and the rents collected were used by the trustees for the benefit of the school. Plaintiffs had known for some time prior to February 22, 1924, that the property was not used for school purposes, but it is not clear that they knew just what use was being made of the property by the trustees.

Swindall detailed the circumstances of the execution of the deed as follows: "* * * Mr. Horace Cook came to me and took the matter up with me in 1924; he said the other deed was lost and that they wanted a third deed in the place of the one that he claimed was lost. He wanted a deed just like the second one I had executed. Mr. Cook did not read that deed to me; he told me it was in the place of the one that was lost. He did not tell me what was in the deed—just said it was like the second deed. I had known Mr. Cook ever since he was a boy. * * * I had no reason to believe that the deed was not as represented by Mr. Cook; I thought it was just like the second deed; I would not have executed a deed different from the second deed. * * * I was only paid a consideration one time—for the first deed. The consideration in the first deed was $2.50 or $3.00. That is all I have ever been paid. * * * At the time I signed the deed in 1924, which was the third deed I had signed covering that property, I did not know anything about Mr. Wells having bought this lot, or about his intention to buy this lot. I first learned that Mr. Wells claimed to have bought this lot three or four years after I made the last deed. * * * At the time I executed the third deed, the notary did not fully explain the deed to me. He did not read the deed to me. He said the deed was just like the second deed I had executed. At the time I executed the third deed I did not know that two of the school trustees up there had already conveyed the property to Mr. Wells. * * * I could not read the deed I made to the school district; it wasn't read over to me by anybody; * * * I have told you that when Mr. Cook came to get this last deed from me, he did not tell me that the school district had sold to Mr. Wells. He claimed that the deed was misplaced, and I didn't know that Mr. Wells had bought the land for three or four or five years after that. * * * It has been thirteen or fourteen years since I lived in the Van community. I don't know who Mr. Wells bought from—I don't know whether he ever bought it or not. I never did talk to Mr. Wells about the matter. * * *"

Mr. W. H. Cook, the notary, testified: "* * * I remember having taken acknowledgment of deed executed by him (G. W. Swindall) to Van School District; I don't remember what year it was (witness reading instrument) Yes, I recognize this deed; I took the acknowledgment of it. I was called upon by the trustees of the Van School District to do that work. I don't remember whether the instrument was read to him. I don't remember that there was any explanation made to Mr. Swindall with reference to the instrument by me as a notary. I don't recall who signed Mr. Swindall's name to the instrument. I have looked at the deed and Mr. Swindall's name on the deed is not in my handwriting. When Mr. Neill and Mr. White (trustees) and I went down to Pole Town to get this deed, I was acting as a notary public. Yes, the school trustees were the ones who got me to go down there; I was acting for them. * * * Yes, when we went down there, I reckon I did know that they already had a trade up with Mr. Wells to sell him the lot; I don't know, really, when I first knew that. Mr. Swindall signed by making his mark by his name. No, I have no recollection of Mr. Swindall's ever touching the pen that made the `X.' I don't remember now who made the cross for him. I had known Mr. Swindall a long time, and I knew that he could neither read nor write; I knew that he could not even sign his own name."

Mr. Neill, one of the trustees, testified, among other things, as follows: "* * * I never did see the first and second deeds he executed to the school. I do not know of my own knowledge what those deeds contained. I never made any investigation to determine what was in those deeds. I don't know, of my own knowledge, to whom they were made. I do not know what kind or character of estate was conveyed by those deeds. Yes, at the time of the execution of the 1924 deed, I understood that it was to be in place of, in lieu of and in substitution of the lost deeds. Mr. Swindall did not prepare this deed. Of course I knew that day that Mr. Swindall could not read or write. Why certainly, I knew that he would have to rely upon my statements or upon Mr. Cook's statements, or upon somebody else's statements as to what the deed contained. I don't think there was anybody with Mr. Cook and me when we went to Mr. Swindall's house. * * * As to the name of G. W. Swindall on the deed— I do not know whose handwriting it is in. No, it is not a fact that the name was written in the deed...