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10. VENDOB AND PURCHASER em 236-INNO-, pleadings nor the evidence disclosed any fact CENT PURCHASER.

that would make the defendant, Mrs. T. K. First wife of decedent claiming land in tres- Johnson, liable to R. C. Johnson on account pass to try title in the right of her son against of the fund referred to. There was no proof the second wife held not a bona fide purchaser that any of that fund was used in paying in good faith, having notice when she pur- for the land, and nothing was alleged or chased her son's interest of the second wife's claim, and not having paid valuable considera- proved that would show that Mrs. T. K. tion,

Johnson was liable for that fund, even if her

husband misapplied it. Appeal from District Court, McLennan On May 17, 1917, the defendant filed her County; H. M. Richey, Special Judge.

third amended answer, alleging that the real

estate in question was her separate property, Action by R. C. Johnson against Mrs. T. and, if not, that it was her homestead, and K. Johnson, wherein J. M. Bird and another not subject to partition. On May 21, 1917, became plaintiffs. From judgment that she filed a supplemental answer, denying the plaintiffs take nothing, and for defendant, allegations in the plaintiffs' amended petiplaintiffs appeal. Affirmed.

tion, wherein it was alleged that Mrs. Bird Jas. E. Yeager, of Waco, for appellants. was an innocent purchaser without notice. E. M. Mann, of Mart, for appellee.

On May 23, 1917, plaintiffs filed a supple

mental petition, containing certain excepKEY, C. J. On November 23, 1915, R. O. tions, denying facts pleaded by the defendJohnson iled his original petition in tres-ant, and pleading laches and limitation pass to try title against Mrs. T. K. Johnson, against the defendant's cross-action, wherea feme sole, in which he sought to recover in she sought to have her deed corrected and an undivided one-half interest in a certain cloud removed from her title. lot in the town of Mart. In an amended There was a jury trial, wherein, in repetition, in addition to the lot referred to, sponse to special issues submitted by the he sought to recover

a half interest in court, the jury found that the property in certain personal property, and alleged that question was the separate property of the all the property referred to was community defendant at the time of the death of her property of his father, T. K. Johnson, de- husband, T. K. Johnson. The jury also ceased, and his stepmother, Mrs. T. K. John- found that at that time it was the homeson, the defendant.

stead of the defendant and her husband, T. The proof shows that T. K. Johnson was K. Johnson, and also that it was the homemarried twice; that in 1898 he and his first stead of the defendant at the time this suit

was commenced. wife were divorced, and a few months thereafter he married his second wife, the de

In addition to the verdict, the trial judge fendant in this case. The plaintiff R. C. made findings which were incorporated in Johnson was born during the first marriage, the judgment to the effect that the plaintiff and claimed a half interest in the property Mrs. Bird was not an innocent purchaser of which was acquired during the second mar

the lot in controversy; that the same was riage. T. K. Johnson died in June, 1915, the separate property of the defendant, and and the plaintiff is his only child.

constitutes her homestead; and that her deIn December, 1915, the defendant filed an ceased husband, T, K. Johnson, left no comanswer, consisting of a general denial and munity or separate property. And thereupplea of not guilty. After the divorce refer- on judgment was rendered to the effect that red to, the plaintiff's mother married J. M. the plaintiffs take nothing by their suit, and Bird ; and on September 18, 1916, the plain that the defendant, Mrs. T. K. Johnson, retiff executed a general warranty deed, con

cover the lot or real estate in controversy ; veying all of his interest in the tract of and from that judgment the plaintiffs have land involved in the litigation to his mother, appealed. Mrs. J. M. Bird; and on May 9, 1917, he

[1] Although appellants' brief bas not been and Mrs. Bird, joined pro forma by her prepared in accordance with the rules, inashusband, filed an amended petition, setting much as it does not contain all that is necup the fact that the plaintiff, R. C. Johnson, essary to enable the court to decide some had conveyed his interest in the land to Mrs. questions sought to be presented, nevertheBird, and alleging that he disclaimed any less we have examined the record, includfurther title or right thereto, and thereafter ing the statement of facts, and have reachMrs. Bird became the plaintiff, in so far as ed the conclusion that no reversible error apthe land was concerned. That petition also pears. attempted to set up the right in R. C. John- [24] The real estate in question was deedson to recover on the ground that a certained to the defendant, Mrs. T. K. Johnson; sum of money had been placed in the hands and therefore, although she was at that time of his father, T. K. Johnson, as a trust fund a married woman, the legal title to the propfor R. C. Johnson's benefit, but neither the lerty was vested in her; and the court ruled

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

correctly when it held that she had the right property, our conclusion is that the case to introduce testimony tending to show that should not be reversed. her husband caused the deed to be made [10] As to the question of innocent purchasto her, because he intended it as a gift, which er, we are of the opinion that the testimony would make it her separate property, al was not such as entitled appellants to have though the deed did not state upon its face that issue submitted to the jury. Mrs. Bird that the title was vested in her as her sep- bought the property while it was in litigaarate property. Patty v. Middleton, 82 Tex. tion. She not only had constructive notice 586, 17 S. W. 909.

of the fact that the defendant was claiming (5-7] While it is true that the defendant the property, but the undisputed proof shows pleaded that the scribner who prepared the that she had actual knowledge of the pendeed neglected to use the words "separate dency of the suit, and had been assisting her estate," it was not necessary to so plead, as son in its prosecution. Before she purchased testimony of that kind was admissible un- her son's claim to the property, the defendder the general denial and plea of not guilty. ant had filed an answer denying that he had At any rate, under the pleadings the defend- any interest therein. The facts referred to ant had the right to show that the deed constitute sufficient notice to prevent Mrs. which was made to her was intended for her | Bird from being a bona fide purchaser in separate use and benefit, and vested in her good faith; but, in addition to that, the testhe superior right, which proof could be timony fails to show that she paid what is made by showing that the consideration used deemed in law a valuable consideration. in paying for the property was her separate The testimony did not raise the question of estate, or that her husband had the deed estoppel; and therefore we decide against made to her, intending thereby to make a appellants on that point. gift. By the judgment rendered, the court Our conclusion is that the judgment should did not attempt to reform the deed; and be affirmed; and it is so ordered. therefore it was not necessary that the grantors should have been made parties to the suit. The defendant submitted testimony tending to support the verdict in her favor on all of the issues submitted to the jury; SAN ANTONIO & A. P. RY. CO. v. DUNN. and we are not prepared to say that the

(No. 6121.) jury's finding is so contrary to the testimony as would justify this court in setting the Court of Civil Appeals of Texas. San Anverdict aside.

tonio, Dec. 18, 1918.) Some questions have been presented as to 1. RAILROADSm411(5)-KILLING CATTLErulings upon the admissibility of testimony BURDEN OF PROOF. which we have considered, and they are de

To recover from a railroad for killing catcided against appellants. Error has also tle at a crossing which could not be fenced, it been assigned because of the refusal of cer- devolved on plaintiff to show negligence on tain requested instructions, but we hold that the part of the railroad. reversible error is not shown in that regard. 2. RAILROADS 419(5)–KILLING CATTLE

[8, 9] If the property is the defendant's NEGLIGENCE. homestead, it is not subject to partition, even

It was not the duty of a railroad's engineer if it be community property, in which event to slow his train down when already running Mrs. Bird would be the owner of an undi- at a fairly slow rate because he saw cattle evivided half interest, subject to the defend- dencing no nervousness or excitement standing ant's right to use the property as a home. 50 feet away from the track, as he could not stead. Therefore, if the question of home anticipate they would attempt to cross. stead had been the only defense, we might hold that the court erred in not submitting Appeal from Jim Wells County Court; W. to the jury appellants' requested charge upon R. Perkins, Judge. the issue of abandonment of the homestead

Suit by John F. Dunn against the San Anright; but, if it be conceded that the proper tonio & Aransas Pass Railway Company. ty was not homestead, still, if it was the sep-From judgment for plaintiff, defendant aparate property of the defendant, as found neals. Reversed and rendered. by the jury, the plaintiffs are not entitled to recover; and therefore the judgment should Kleberg, Stayton & North, of Corpus be affirmed.

Christi, for appellant. Hence we conclude that appellants are not entitled to have the case reversed, unless it FLY, C. J. Appellee sued appellant in the appears that material error was committed justice's court to recover damages for three upon both issues, namely, separate property head of cattle killed and two injured by a and homestead right; and, as no such error train of appellant. In the justice's court has been shown upon the issue of separate appellee recovered judgment for $160, and

On For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

on appeal by appellant to the county court L. W. Sandusky, of Colorado, Tex., for apjudgment was rendered for appellee for $140. pellant.

The cattle were killed and injured at a N. R. Morgan, of Seminole, for appellee. ., public crossing when they suddenly darted across the railroad when the train was so

HIGGINS, J. Subsequent to the date upclose that it could not be stopped, although on which chapter 176, Acts 35th Leg. p. 388 the engineer used all means in his power to (Vernon's Ann. Civ. St. Supp. 1918, art. 1903), stop it. The train was moving at the rate of became effective, appellee filed this suit in about 18 miles an hour before the cattle the county court of Gaines county against were seen about 50 feet distant attempting Earl Morrison and L. D. Rodgers upon a to cross the track. When the cattle were money demand. struck, the train was going about 12 miles

Morrison filed a plea of privilege to be an hour. It was the uncontradicted testimo- sued in Mitchell county, where he resided.. ny that the cattle, when first seen, were The plea fulfills the requirements of the act standing about 50 feet from the track, and above noted. Richards filed no controvertwhen the engine was near the crossing they ing plea. Upon hearing the plea was overattempted to cross the track. The engineer, ruled, and Morrison appeals. as soon as the cattle started towards the

The plea was prima facie proof of Morcrossing, sounded the whistle and used all rison's right to a change of venue. In the means in his power to stop the train, but absence of a controverting plea and proof, failed and struck the cattle.

the plea should have been sustained. See [1, 2] The crossing could not be fenced, legislative act above noted. For the error in and in order to recover it devolved upon overruling same, the cause is reversed, with appellee to show negligence upon the part of instructions to the lower court to make the appellant. Railway v. Leuschner, 166 S. W.

proper venue transfer. 418. That was not done, and the judgment Reversed and remanded, with instructions. has no evidence to support it. It was not the duty of the engineer to slow the train down because he saw cattle standing 50 feet away from the track. He could not anticipate that cattle so standing, without evidencing any

ALEXANDER et al. V. ANDERSON. nervousness or excitement, would attempt to

(No. 1440.) cross the track, Railway v. Morris, 63 S. W. 888; Railway v. Byrd, 58 Tex. Civ. App. 609, (Court of Civil Appeals of Texas. . Amarillo. 124 S. W. 738; Irving v. Railway, 164 S. W.

Dec. 18, 1918.) 910. The train was running at a low rate of speed, and the whistle blew for the crossing. 1. FIXTURES Cw35(3)—ISSUES OF Fact-Evi

The judgment is reversed, and judgment bere rendered that appellee take nothing by

In an action for the removal of fixtures, it his suit and pay all costs in this behalf ex. fraud, accident, and mutual mistake in omitting

was error to submit to the jury the question of pended both here and in the courts below. reference to the fixtures from the contract of

sale of the land, where there was no evidence
raising such issue.
2. CONTRACTS Om94(4)_VALIDITY-FRAUDU-

LENT REPRESENTATIONS.
MORRISON V. RICHARDS. (No. 896.)

When a party undertakes to ascertain for (Court of Civil Appeals of Texas. El Paso.

himself the contents of a contract, he will be Dec. 12, 1918.)

charged with its stipulations, and that fraudu

lent representations were made will not justify PLEADING 110PLEA OF PRIVILEGE-SUF. him in relying on them, but he will be charged FICIENCY

with the terms of the contract. In suit on money demand filed subsequent 3. BROKERS 94 - AGENCY — EXECUTION OF to Acts 35th Leg. c. 176 (Vernon's Ann. Civ. CONTRACT OF SALE. St. Supp. 1918, art. 1903), plea of privilege of

A real estate agent who procured purchasone defendant to be sued in county of his residence was prima facie proof of his right to terms, but did not represent to them that there

ers, took them upon land, and gave them the change of venue, and, in absence of controverting plea and proof, plea should have been agent for the owner and not for the purchasers,

was a reservation of the buildings, was acting as sustained.

and the mere act of writing the contract did Appeal from Gaines County Court; T. 0. not confer power to make a contract with dif

ferent terms. Stark, Judge.

4. BROKERS 105-KNOWLEDGE OF BROKER Suit by C. B. Richards against Earl Mor

AS BINDING ON PURCHASERS OF REALTY. rison and another. Plea of privilege of de

The knowledge of a real estate broker, actfendant named overruled, and he appeals. ing as agent of the owner of land, prior to exReversed and remanded, with instructions. ecution of a sales contract, as to whether cer

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

DENCE.

tain buildings on the land sold were to be ex- , sold to appellants as such; that on the date cepted, does not bind the purchasers.

of the contract Anderson executed to appel5. PRINCIPAL AND AGENT Cm178(1)-IMPUTED lants a deed to the land, which was subseNOTICE-KNOWLEDGE OF AGENT.

quently delivered to them; that they had Notice to an agent will be imputed to the no notice that the house and fence were subprincipal only where the agent acquires his ject to removal or that he did not own the knowledge in the transaction of his principal's same, but that appellee removed the house business.

and fence, or caused the same to be done, 6. DEEDS m108—RELATION BACK-Rights thereby breaching his contract, for which act OF PARTIES.

he was liable for the damages sued for. ApA deed, when executed, relates back to the pellee, after general and special exceptions, date of the contract of sale of the realty and and general denial, pleaded in answer: .fixes the right of the parties as of that date.

That there was a contract of sale entered into 7. FIXTURES em 21–CONVEYANCE.

by appellee and appellants, through their agent, A conveyance of land by deed containing J. W. Fawver, “that by fraud, accident, or misno reservation of fixtures passes title thereto to take the improvements sued for were not menthe purchaser, regardless of a verbal sale or tioned in said contract, but said improvements disposition of such fixtures.

were fully reserved by this defendant at the

time he listed said land with the then firm of 8. EVIDENCE Em 413_WITNESSES Om379(2)— Fawver & Seale, a firm composed of J. W. FawIMPEACHMENT-PAROL EVIDENCE.

ver and J. A. Seale, and was fully understood In a purchaser's action against the seller of and reserved and was not noticed until after the land for removing fixtures, evidence that the contract was executed, and when plaintiff came seller's agent, after the contract and deed had out to close the deal the matter of improvements been executed, stated that the fixtures did not sued for was fully discussed, and plaintiffs and belong to the land, etc., could not affect the J. W. Fawver and this defendant went out deed and contract and was not admissible as and went over the land for the purpose of impeaching the agent's testimony that there was seeing and investigating just what improvements no reservation by the owner when the land was did not belong to said land, as it had been exlisted.

plained to them on the day they first went to

look at the land before any contract was ever Appeal from Floyd County Court; W. B. made for the sale of the land.” Clark, Judge.

The court instructed the jury to find for Action by C. A. Alexander and another appellants if there was no fraud, accident, against T. F. Anderson. Judgment for de- or mistake in the execution of the contract, fendant, and plaintiffs appeal. Reversed and but if the appellee reserved the improveremanded.

ments in the deed before the execution of the

contract, and if it was not binding upon apKenneth Bain and A. P. McKinnon, both pellee, then to find for him. This was the of Floydada, for appellants.

only issue submitted by the court. T. F. Houghton and B. B. Greenwood, both

The facts show that on the 15th day of of Floydada, for appellee.

December, 1916, appellants entered into a

written contract with appellee for the purHUFF, C. J. This suit originated in the chase of the land and premises in question. justice court, and upon appeal is brought to There was no mention made of the improve this court. The appellants, C. A. Alexander ments here in question in the written conand Fred Dickert, sued appellee, T. F. An-tract, and no mention of them further than derson, for damages, originally joining H. the agreement to convey the land and premF. Casebeer, but subsequently dismissed him ises by good and sufficient deed, together from the suit. The cause of action alleged with an abstract showing a good, merchantis that appellants owned a section of land able title. The contract was signed by apon which was a certain house, also 25 cedar pellee and by Alexander & Dickert, by J. W. posts, and 264 feet of lumber built into the Fawver. A deed appears to have been delivfence adjoining the house on the premises; ered to appellants for the land some two that appellee entered upon the premises on weeks after the contract was executed. This or about the 20th day of September, 1917, deed is not in evidence or its terms shown. and without the consent of appellants re- There appears to be no contention that there moved therefrom the house and fence and was a reservation of the improvements in converted the same to his use and benefit, set- the deed. ting out that the total value of the property At the time of negotiating for the land, so taken was $150, giving the items. Ap the appellants lived in Hill county and went pellants also allege that on the 15th day of to Floyd county, where this land is situated. June, 1916, they entered into a contract with Fawver and his firm had the land listed with appellee Anderson, for the purchase of said them by appellee, Anderson, for sale. They section of land, at which time the house and procured the appellants as purchasers of the fence were on the premises as fixtures, and land and took them on the land to show it to

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them. Both he and the appellants testify, to go with the place, and that appellants re that he did not tell appellants that the im- quested that they go out on the land and see provements did not go with the land. Faw- just what the improvements were, and that ver testified, at the time of stating the terms they did go, and that he showed them the of the sale to appellants, he did not know improvements, and that they said this was the improvements did not go with the land, all right, and that they would go back and and there was no such reservation mentioned close up. This is denied by the appellants. to him by appellee in listing the land for sale. They claim that they relied on the contract The appellants, after looking at the land, re- and did not agree to the reservation and did turned to Hill county, and after reaching not go to the land for the purpose of disthere wired the agent, Fawver, that they cussing the improvements, as above stated. would take the land on the terms stated to The first assignment will be overruled. them by the agent, and that he could draw We think there was no error in refusing to up the contract on such terms and sign their consider the exception to the answer of the names thereto. The contract was so drawn appellee, filed and presented after the pleadand signed, and appellants put up $1,000 as ings had been read to the jury; at least, no forfeit, which was to be applied on the cash such error as to require a reversal of the consideration. In about two weeks after the case under the pleadings and circumstances contract was executed, they returned to immediately surrounding the ruling of the Floyd county, paid the balance of the cash court thereon. consideration, $8,000, and executed four notes [1-4] Assignments 3, 4, and 5 assail the acfor $960 each, for the deferred payment, and tion of the court in submitting to the jury assumed about $4,000 due on the land to a the question of fraud, accident, and mutual third party. Both appellants testify that, mistake in executing the contract, for the when they went to Floyd county to conclude reason it is asserted there was no evidence the matter, they then learned for the first raising such issue. In this we think appeltime that appellee claimed the improvements lants are correct. There was no reservation did not go with the land and that he so stat- in the contract. There is no fraud shown ed to them. They both testify they did not which induced the appellee to sign the conreply to his statement, but considered that tract or deed. He shows by his testimony they had a contract for the improvements, that he did not rely upon the representations duly executed, and that they had placed up of Fawver that the contract contained such a $1,000 forfeit. Anderson swears the im- reservation, but, on the contrary, he read provements in question did not belong to him the contract for himself and had it read to and that he so told Fawver, the agent, with him. Appellee says he was not a good readwhom he listed the land, and instructed him er, but he does not show he could not underto reserve them in the trade. His two sons stand when he did read, or that he could not corroborate him in this statement, claiming understand when it was read to him. When to have been present when their father so

a party undertakes to ascertain for himself instructed the agent. One of the sons also the contents of an instrument, he will be testified that, when appellants were first on charged with its stipulations, and the fact the land to look at it, they asked him what will not justify him in relying upon them;

that fraudulent representations were made improvements went with the land, and that he then told them the improvements in ques

but he will be charged with the terms of the tion did not belong to the land. The facts

contract. Newman V. Lyman, 165 S. W. show, when the contract was drawn and 136 (3); James v. Doss, 184 S. W. 623; signed, appellants, or either of them, were

Wright v. Bott, 163 S. W. 360. The facts esnot present, but only Anderson, Fawver, and tablish that Fawver was the agent of the apthe lawyer drawing the instrument. Appel- pellee in procuring appellants as purchasers lee testified that when it was drawn up

for the land, and took them on the land and Fawver told him the contract contained the gave them the terms. He did not represent full agreement and said it was just like he to them at that time that there was to be a had the land listed, and that he (appellee)

reservation. While he was so acting, he relied on the contract reserving the shack was the agent of appellee, and what he did and lot, and that he thought the reservation and said, in so far as appellants were conwas in the contract until some time after he cerned at that time, was the act of appellee. signed it. He also testified he was a very Appellants accepted the terms offered on the poor reader, but admits that he did read the land, and all the terms of the contract were contract, and also admits that Fawver also therefore made between appellee and appelread it over to him. He admits that the con- lant. The writing but spoke the agreement tract in evidence was the contract signed by as made. The mere manual act of writing him and "guess it is just like it was when I the contract did not confer upon Fawver the signed it.” Anderson and his two sons also power to make a contract with different testified that, when appellants came back to terms. He was only authorized to sign the close up the trade after making the contract, names of the appellants to the contract he told appellants the improvements were not which had been theretofore agreed upon.

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