Thompson v. Pitts
| Decision Date | 11 January 1928 |
| Docket Number | (No. 7896.) |
| Citation | 2 S.W.2d 899 |
| Parties | THOMPSON et al. v. PITTS. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hidalgo County; J. E. Leslie, Judge.
Action by C. W. Pitts against J. H. Thompson and another. Judgment for plaintiff, and defendants appeal. Affirmed.
Dawson, Hill & Walker and W. R. Blalock, all of Mission, for appellants.
Henry D. Lauderdale, of Mercedes, for appellee.
Appellee instituted an action of trespass to try title against J. H. Thompson and L. B. Thompson, to recover land described as farm tract No. 2205, out of the North Capisallo district subdivision of the Llano Grande grant in Hidalgo county. Appellants answered by general demurrer and plea of not guilty, and further alleged that they were induced to come to Hidalgo county by the Stewart Farm Mortgage Company and were shown a desirable parcel of land by said company, and the same was purchased by appellants, and afterwards a deed by said company and notes for part of the purchase money were sent to them, and the notes were executed by appellants. Several months afterwards appellants, who resided in Kansas, returned to Hidalgo county, and upon going upon the land described in the deed discovered that it was not the land purchased by them, but was a much less valuable and desirable parcel of land. They immediately protested to the mortgage company, and its agents promised an adjustment if appellants would accept the land described in the deed. They went into possession of the land in November, 1920. They alleged that the land actually bought by them was of the reasonable market value of $300 per acre, and the land conveyed to them was of the value of $100 an acre, and they claimed damages in the sum of $7,096. The amount of the notes executed by them amounted to $1,774 and were payable to the Stewart Farm Mortgage Company and secured by a deed of trust on the land. They pleaded open, peaceful, and notorious possession and use of the land from November, 1920, until December 21, 1926, when this suit was filed. It was alleged in the answer that no adjustment as to the change of parcels of land was made by the mortgage company; that on May 10, 1922, P. W. Baron, the trustee in the deed of trust, resigned. On September 25, 1920, the mortgage company assigned the notes to the Missouri State Life Insurance Company, and that company, on February 1, 1924, assigned the five notes to the Rio Grande Land & Irrigation Company, and on November 1, 1925, the company last named appointed M. R. Beamer substitute trustee in place of Baron, resigned. On December 1, 1925, Beamer, as trustee, executed a deed to the land to the American Rio Grande Land & Irrigation Company, and on the same day the last-named company conveyed the land to the Stewart Farm Mortgage Company. On August 24, 1926, R. B. Creager, who has been appointed receiver for the mortgage company estate, conveyed the land to C. W. Pitts, appellee herein. Appellants tendered payment of the notes and prayed for damages in the sum of $7,096, for a cancellation of the vendor's lien and a removal of cloud from their title. The cause was heard by the court without a jury, and judgment was rendered in favor of appellee for the land and for rent amounting to $710, after a general demurrer to the answer of appellants had been sustained by the court.
The substitute trustee, acting under the terms of the deed of trust, sold the property in dispute on December 1, 1925, and it was not alleged by appellants in their answer that they were not fully notified of the contemplated sale and of the actual sale of the property, nor is it indicated that they offered any objection to the sale or made any effort to prevent it or to have it set aside. For over a year they acquiesced in the sale, and neither demanded a rescission of the original sale or set up any claim for damages. For six years they remained in possession of the lot of land in controversy and made no effort to obtain the parcel of land they claim they purchased, nor to collect any damages arising from the substitution of an inferior tract of land for the parcel bought by them. They indefinitely and inconclusively allege that an adjustment was promised by the mortgage company, but made no effort, in six years, to compel the adjustment, whatever it may have been. What that contemplated adjustment was appellants did not disclose, and it may be inferred from their pleading that they did not know how or in what way the matter was to be adjusted. While they sat supinely by, the intervening rights of others were coming into existence.
The promise of adjustment was an oral one, and under it appellants entered into possession of the substituted tract, thereby waiving any fraud in connection with the substitution, and for six years no effort was made to obtain the adjustment. There was no record, no suit to place any person desiring to purchase the...
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