| Tex. App. | May 24, 1913
Appellee sued Otis Alston and Durer Alston, as makers, and W. D. Martin, as indorser, of two promissory notes, aggregating, at the date of the judgment, $652.90, given by the Alstons to Martin for *1166 a section of state school land in Reeves county. Neither Martin nor the Alstons contested the plaintiff's right to recover, but the Alstons pleaded over against Martin, alleging that at the time of the purchase they received a regular warranty deed without notice of an indebtedness of $936 due the state of Texas as purchase money which constituted a lien on the land, and they prayed for judgment against Martin for the $936 as damages for the breach of the implied covenant against incumbrances. Martin answered that as part of the consideration or the land the Alstons assumed and agreed to pay said indebtedness to the state, and that such agreement had been omitted from the recitals of the deed by the mistake of the attorney who drafted it. The trial was before the court without a jury and resulted in a judgment for appellee M. S. Pierson as prayed for by her with a foreclosure of the vendor's lien on the land mentioned, and also in favor of appellee Martin as to the cross-action of the appellants Alston.
The deed from Martin to Otis and Durer Alston did not recite as part of the consideration therefor any assumption or agreement on the part of the Alstons to pay the indebtedness due the state, which without question constitutes a superior lien on the land conveyed; nor was there any express covenant against incumbrance, but as part of its granting clause the terms "grant" and "convey" were used, which, by force of our statutes on the subject (Revised Statutes, art. 1112), imply a covenant on the part of the grantor that the land granted was free from incumbrances, and appellant's principal contention on this appeal is that the special answer of appellee Martin to appellants' cross-action was demurrable and the evidence in support thereof inadmissible for the reason that both were in opposition to the terms and legal effect of the deed from Martin.
It is clear that the answer was not demurrable, for Martin alleged that the agreement of appellants to pay the debt due the state was omitted from the deed by mistake of the scrivener who wrote it. The rule is well established in equity that, where a mutual mistake is made in drawing an instrument, such mistake may be alleged, and, if sufficiently shown by the evidence, the instrument may be reformed so as to announce the true facts and a decree rendered thereon accordingly. Gammage v. Moore,
Appellee Martin testified specifically that as part of the consideration of the sale the Alstons did assume and agree to pay the state debt as alleged and that the attorney engaged to prepare the deed was so informed and directed to so write the deed, but that he failed to so do. This evidence, regardless of the issue of mistake, was admissible and sustains the court's judgment on the ground that the consideration of a deed may always be inquired into. See 2 Devlin on Deeds, § 1073; Johnson v. Elmen,
The only remaining question presented is whether the court properly admitted the testimony of De Etta Martin to the effect that about October 15, 1910, after the sale to the Alstons and prior to the due date in November, 1910, of interest payments to the state on school lands, she heard Otis Alston say "that it would soon be time for him to dig up the interest money due the state on his Reeves county land which he bought from W. D. Martin." Contrary to appellants' objection, we think this testimony was relevant as tending to prove that Otis Alston not only knew of the existence of the state's debt, which he denied, but also recognized his obligation to pay the same.
It follows that the judgment below must be affirmed; but, it appearing that no complaint of the judgment in favor of appellee M. S. Pierson has been or well could be made, it is further ordered that as against appellants the judgment in favor of M. S. Pierson be affirmed with 10 per cent. damages as in such cases is authorized by statute.