Williams v. Rand

• Decision Date: 27 February 1895
• Citation: 30 S.W. 509
• Parties: WILLIAMS et al. v. RAND et al.
• Court: Texas Court of Appeals

30 S.W. 509

WILLIAMS et al. v. RAND et al.

Court of Civil Appeals of Texas.

February 27, 1895.

Appeal from district court, Mitchell county; William Kennedy, Judge.

Trespass to try title by George W. Rand and others against W. W. Williams and others. From a judgment for plaintiffs, defendants appeal. Reversed.

Davis, Beall & Kemp and Hunter & Foster, for appellants. H. H. Neill, Allen Blacker, and Z. B. Clardy, for appellees.

HEAD, J.

This is an action of trespass to try title by appellees against appellants for a block of land in the city of El Paso. The paper title is agreed to be in appellants, and appellees rely entirely upon the 10-years statute of limitations. Some of the appellants vouched in their warrantors. The verdict was in favor of appellees for all the land except a small interest, and in favor of the appellants last referred to, against their warrantors, for purchase money and interest. The court overruled appellants' motion for new trial, but granted that of the warrantors.

In view of the fact that the right to make warrantors parties in suits of this kind is expressly given by statute, it may be seriously questioned as to whether or not the effect of granting a new trial to them was not also to vacate the judgment as to those of the appellants who brought them into the case. Ordinarily, but one final judgment can be rendered in the trial court, which must entirely dispose of the subject of controversy as to all of the parties. Wootters v. Kauffman, 67 Tex. 488, 3 S. W. 465. It has been held, however, that in actions of trespass to try title, in which the defendants claim distinct parts of the land, the right to sever exists; and in such cases the granting of a new trial to one is in effect a severance as to him, and does not vacate the judgment as to the others. Boone v. Hulsey, 71 Tex. 176, 9 S. W. 531. Under this decision, we therefore have in the record a final judgment, at least as to some of the appellants; and, as we have concluded that it must be reversed, we will leave undecided the question first suggested. The effect will be the same, whether we grant the new trial or decide that it has already been granted by the trial court.

To show that the possession of Rand, relied upon by appellees to sustain their claim of title by limitation, was not adverse to them, appellants introduced in evidence the following instrument: "El Paso, Texas, Oct. 12, 1880. Mr. Wm. Pierson — Dear Sir: Having had some conversation with W. M. Cook, attorney at law, relative to the property on which I now live, and have lived since 1864, I now wish to state, that there may be no misunderstanding, that I have lived there by permission of yourself and Mr. Williams, whilst living, and that I do not and never have claimed any title to said land, but have always known and recognized that the title was in you and Williams, and I only claim possession for you, always holding under you. What I do claim as just and proper is that I should be entitled to something for my improvements, to wit, the house I have constructed, and more than fifty peach trees and about thirty plum trees growing. But, believing that you will do what is right, I rest content, and with your consent I will remain as heretofore. Respectfully, etc., George W. Rand." As to the effect of this instrument, the court instructed the jury as follows: "In reference to the instrument of writing bearing the date October 12, 1880, you are instructed that if on that date the title of the land in controversy had not been completed in George Rand by ten years' limitation, that if limitation had been running up to that time, but had not been running for as long a period as ten years, and if you find that Geo. Rand signed and delivered said instrument to W. M. Cook, the agent of Williams and Pierson, then that would stop the running of the statute of limitations; and, if you find the facts so to be, you will return a verdict for the defendants, unless you find that notwithstanding the said Geo. Rand signed such instrument, that he could not read, and that he did not know the contents of the same, or unless you find that at the time he signed it he was intoxicated to such a degree that he was incapable of understanding, and did not understand, the nature and effect of his signing said instrument, and that he was incapable of understanding the contents of the same, in which case the signing and delivery of said instrument would not stop the running of limitation." We are of opinion that material error was committed in that part of this charge which instructed the jury that the fact that George Rand could not read and did not know the contents of the instrument would invalidate it. This would be true only in case he was himself free from negligence. In 2 Whart. Ev. § 1028, it is said: "Were a person who signs a deed or other contract able to avoid performing it on the ground that he was mistaken as to its effect, it would be only necessary for him to omit reading the contract before signing it, in order to be bound or not, as he chose. It is the duty of every one executing such a writing to be aware of its contents before signing. It is against the policy of the law to permit those neglecting this duty to benefit by their neglect." Also, in Robertson v. Smith, 11 Tex. 217, the following language is used: "The original agreement entered into at Austin between Smith and Chalmers contained the stipulation that the former should assign to the latter the judgment in question. The reason assigned by him for refusing to do so, when called upon by Chal mers to execute their agreement, was that, when he accepted the proposition of the latter, he was not aware that it contained that stipulation. The evidence, however, will not warrant that conclusion. But whether he knew of the stipulation or not is immaterial, if no deception was practiced upon him, and by the use of ordinary diligence he might have known. There is no evidence that he was deceived or misled by any misrepresentation or concealment of the facts. If mistaken as to the terms of the proposition, it must be ascribed solely to his own carelessness or inattention, and for the consequences of these the party is himself alone responsible. They afford him no ground of relief against the stipulations of his contract." So, in Railway Co. v. Burke, 1 White & W. Civ. Cas. Ct. App. 946, Quinan, J., says: "To overturn a written release because of fraud in obtaining it, the proof of the fraud must be clear, precise, and indubitable. Slight parol evidence is insufficient. Thus, it was held in a case where the plaintiff proposed to avoid a release executed by him by proof that he could neither read nor write, that he did not know the contents of the paper...