Tunnell v. Van School Dist. No. 53, 12815.

• Decision Date: 13 May 1939
• Docket Number: No. 12815.,12815.
• Citation: 129 S.W.2d 825
• Parties: TUNNELL et al. v. VAN SCHOOL DIST. NO. 53 et al.
• Court: Texas Court of Appeals

Page 825

129 S.W.2d 825

TUNNELL et al. v. VAN SCHOOL DIST. NO. 53 et al.

No. 12815.

Court of Civil Appeals of Texas. Dallas.

May 13, 1939.

Rehearing Denied June 17, 1939.

Appeal from District Court, Van Zandt County; G. O. Crisp, Judge.

Suit by Ida Tunnell and others against the Van School District No. 53 and others to cancel a deed for alleged fraud and deception, conveying an acre of land for school purposes to the trustees of the Van School District No. 53, and to cancel a deed executed by the school authorities to R. L. Wells. Judgment for defendants, and the plaintiffs appeal.

Judgment affirmed.

Crawford & Fletcher, of Grand Saline, and Prentice Wilson, of Dallas, for appellants.

Storey, Sanders, Sherrill & Armstrong, of Dallas, for appellees.

YOUNG, Justice.

This record is substantially the same as on former appeal; plaintiffs, G. W. Swindall, his wife, and original defendant R. L. Wells, being now deceased, their heirs were properly substituted in fifth amended original petition filed September 9, 1935. A statement of the case and pertinent issues, for which remand was ordered, are fully set forth in Swindall et ux. v. Van School District, Tex.Civ.App., 37 S.W.2d 1094; Pure Oil Co. v. Swindall, Tex.Com.App., 58 S.W.2d 7. On first appeal, the judgment of the trial court was reversed and remanded as to defendant R. L. Wells only, hence, the same issues are here presented between the original parties and their successors, under the law of the case as declared in the two above decisions. Suit of substitute plaintiffs involved the cancellation, for alleged fraud and deception, of a deed executed by G. W. Swindall February 22, 1924, conveying an acre of land for school purposes to the Trustees of Van School District No. 53; also to cancel a deed executed by the school authorities February 21, 1924, conveying the same land to R. L. Wells; removing said instruments as cloud upon the title and recovery of title and possession thereof. The defenses of substitute defendants were: Innocent purchaser for value, without notice; the three, four, five and ten-year statute of limitations; negligence of G. W. Swindall in not ascertaining the true nature of the instrument of February 22, 1924, before signing; waiver and estoppel.

The jury issues and answers on retrial (omitting formal parts and Nos. 10 and 11, which were not answered because of negative answer to Issue 9) were:

"1. Do you find from a preponderance of the evidence that the first and second deeds executed by G. W. Swindall and wife to the land in controversy for the use and benefit of Van School District (and lost without being placed of record) contained a provision that the title to said land would revert to them or their heirs in the event said school district ceased to use the same for school purposes? Answer Yes or No. Answer: Yes.

"2. Do you find from a preponderance of the evidence that representations were made to G. W. Swindall at the time he executed the deed dated February 22, 1924, that it contained the same provisions as the two lost deeds formerly executed by him to the land in controversy? Answer Yes or No. Answer: Yes.

"3. Do you find from a preponderance of the evidence that the representations, if any, made to G. W. Swindall that the deed dated February 22, 1924, contained the same provisions as the two deeds formerly executed by him and lost without being placed of record, were false? Answer Yes or No. Answer: Yes.

"4. Do you find from a preponderance of the evidence that G. W. Swindall was induced to execute the deed dated February 22, 1924, by representations then made to him, if any were so made, that it contained the same provisions as the two deeds, lost without being placed of record, formerly executed by him? Answer Yes or No. Answer: Yes.

"5. Do you find from a preponderance of the evidence that G. W. Swindall knew, or by the exercise of ordinary diligence could have known, that the deed executed by him, dated February 22, 1924, did not contain a provision, that the title to the land in controversy would revert to him or his heirs in the event Van School District ceased to use the same for school purposes, for a period of more than four years prior to the filing of this suit on March 22, 1930? Answer Yes or No. Answer: No.

"6. Do you find from a preponderance of the evidence that G. W. Swindall knew, or by the exercise of ordinary diligence could have known, that the Trustees of Van School District had executed a deed to the land in controversy to R. L. Wells, for a period of more than four years prior to the filing of this suit on March 22, 1930? Answer Yes or No. Answer: No.

"7. Do you find from a preponderance of the evidence that G. W. Swindall, or his attorney, was guilty of negligence in failing to have a provision incorporated in the deed dated February 22, 1924, providing that the title to the land in controversy would revert to him or his heirs in the event Van School District ceased to use the same for school purposes? Answer Yes or No. Answer: Yes.

"If you have answered Special Issue No. 7 `Yes', and in that event only, then you will answer:

"8. Do you find from a preponderance of the evidence that the negligence of G. W. Swindall or his attorney, if any you have so found, in failing to have incorporated in the deed dated February 22, 1924, a provision that the title to the land in controversy would revert to him or his heirs in the event Van School District ceased to use the same for school purposes, induced R. L. Wells to become the purchaser thereof? Answer Yes or No. Answer: Yes.

"9. Do you find from a preponderance of the evidence that the provisions of the deed executed by G. W. Swindall, dated February 22, 1924, were explained to him at or prior to the time he executed the same? Answer Yes or No. Answer: No.

* * * * * *

"12. Do you find from a preponderance of the evidence that G. W. Swindall knew or by the exercise of ordinary diligence could have known, for a period of more than four years, after the execution of the deed dated February 22, 1924, and prior to the filing of this suit on March 22, 1930, that Van School District had ceased to use the land in controversy for school purposes? Answer Yes or No. Answer: Yes.

"13. Do you find from a preponderance of the evidence that G. W. Swindall knew or could have known by the use of ordinary diligence, that R. L. Wells or his tenants were privately using, possessing and claiming title to the land in controversy for a period of more than four years after the execution of the deed dated February 22, 1924, and prior to the filing of this suit on March 22, 1930? Answer Yes or No. Answer: Yes."

Both parties moved for judgment on the above jury verdict, the motion of defendants being sustained, and final order accordingly entered that plaintiffs take nothing, followed by this appeal. The former opinion of this Court, as announced by Justice Looney (37 S.W.2d 1094), suggested certain jury questions as between the Swindalls and defendant Wells, the Commission of Appeals approving our conclusions on this phase of the litigation. The court's charge and issues above properly presented the fact questions involving the rights and claims of the respective parties in conformity to aforesaid decisions and should finally dispose of this case, provided appellants' assignments and propositions are not maintainable. The jury found that Mr. Swindall signed the last deed to the School District while ignorant of its contents through inability to read and because of fraud and misrepresentations, yet, that he was negligent in failing to have a provision incorporated in the instrument, providing that the title to the land in controversy would revert to him or his heirs in event the District ceased to use the same for school purposes (Issue 7); and that such negligence induced defendant Wells to become the purchaser thereof (Issue 8). The issues just mentioned are proper defenses in cases of this character, if sufficiently plead and sustained by testimony of probative force. Plaintiffs' objections to said Issues 7 and 8, at the time of trial, were that they were not supported by any evidence of probative value; that Issue 7 was immaterial, and, as to Issue 8, that Mr. Wells...