Dalton v. Rust, 22 Tex. 133

Dalton v. Rust

22 Tex. 133 | Tex. | 1858

Bell, J.

On the trial of this cause in the court below, special issues wore submitted to the jury, and the court rendered its judgment upon the responses of the jury to the issues submitted to them. In consequence of this course of proceeding, no instructions were given the jury; and in order to ascertain the views which the judge, who tried the cause below, entertained of the law of the case, we are obliged to look to the judgment itself, in connection with the verdict.

The plaintiffs below, who are also the plaintiffs in error, assign for error, the finding of the jury upon several of the issues submitted to them. The sixth and seventh errors assigned by the plaintiff, involve the whole merits of the case; and we do not think it necessary separately to consider all the errors assigned, inasmuch as the decision of the cause will turn upon a few general considerations presented by both parties.

The record discloses the fact, that the defendants in error, Bust and wife, and Caroline Stuart, sold to one Matthew W. Lindsay, a tract of land, and executed bond for title to said Lindsay, who was the former husband of Yirginia Dalton, one *152of the plaintiffs. The title bond to Lindsay was executed in June, 1853. Lindsay paid a portion of the purchase money, and died some time in the year 1854. At the January term of the County Court, for the year 1855, Edwin Eust and his wife Phoebe, and Caroline Stuart, filed their petition in said court, representing that the estate of Lindsay was indebted to them for the balance of the purchase money of the land described in their bond. They made their bond to Lindsay a part of their petition, represented that they had sold to Lindsay the land described in the bond, and prayed that the same might be sold by the administrator, Greenwood, in satisfaction of their claim. They mentioned the land as containing about 1780 acres. The County Court ordered the administrator to sell the land. The administrator advertised the land, giving a general description of it, as situated on York’s creek, about fifteen miles north of Seguin, and containing about seventeen hundred and eighty acres. In pursuance of the order of court, the administrator sold the land, and Mrs. Yirginia Dalton became the purchaser, for the round sum of twenty-seven hundred dollars, the land being offered in bulk by the administrator.

The administrator received the $2,700 from Mrs. Dalton, and paid off the claim of Eust and wife, and Caroline Stuart, out of the money. The administrator made due return of the sale to the County Court, and that court confirmed the sale, and ordered the administrator t8 make title to Mrs. Dalton, describing the land according to the bond of Eust and wife, and Caroline Stuart, to M. W. Lindsay. On the 30th of April, 1857, Mrs. Dalton, and her husband, E. II. Dalton, brought suit to recover the land, according to the description contained in the original title bond to Lindsay, and in the deed of the administrator, Greenwood, to Mrs. Yirginia Dalton. The defendants resisted the suit, on the ground that Phoebe Eust, the wife of Edwin Eust, had never acknowledged the execution of the title bond to Lindsay, in the manner required by law, in cases of sales of separate property by married women; and on the further ground, that, during Lindsay’s lifetime, there had been a sur*153vey of the land, to which he had assented, changing the boundaries from those contained in the bond. Defendants alleged that they never intended to ask the County Court for the sale of the land actually described in the bond, and that their attorney made a mistake in asking for the sale according to the bond. They alleged that Lindsay, in his lifetime, only claimed 1780 acres, according to a survey made by one J. W. Cummings; that the administrator, Greenwood, only sold, or intended to sell, 1780 acres; and that Mrs. Dalton supposed that she was purchasing only 1780 acres. There was evidence that, in Lindsay’s lifetime, a survey was made by Cummings, though not in accordance with the bond, and at the request, and according to the instructions of Rust. Lindsay was not present when this survey was made. There was no proof that a plot of the survey, by Cummings, was ever exhibited to Lindsay; and there was no proof that Lindsay, and either of his vendors, had ever made any agreement, or had ever had any conversation, about the survey made by Cummings., One witness stated that he had been with Lindsay, on the principal line of the survey made by Cummings, had shown him where the line ran, and that Lindsay said he was satisfied with it.

It is proper to state, also, that the original title bond, from the defendants to Lindsay, stipulated for the sale of the land described, at the price of two dollars per acre.

The jury found, by their verdict, that the attorney of the defendants, Rust and wife, and Caroline Stuart, did not commit any mistake in asking the County Court for the sale of the land, according to the title bond. The jury found also, that the land, described in the bond, contained twenty-three hundred and ten and a half acres, less one hundred and fifty acres, known as the Ward survey, which had been excepted out of the sale, by the terms of the bond. They found the other principal facts as herein before stated.

The court gave judgment for all the land described in the bond, less the Ward tract, in favor of Mrs. Dalton and her husband; and further judgment, that Mrs. Dalton and husband should *154pay to the defendants two dollars per acre, for the excess of the land over and above 1780 acres, which was ascertained to amount to the sum of nine hundred and fifty-six dollars.

We are of opinion that there was error in the judgment, in requiring the plaintiffs to pay to the defendants the value of the excess of the land described in the bond, over and above 1780 acres, at the rate of two dollars per acre. Without inquiring into the sufficiency or competency of the evidence to establish the fact that Lindsay, in his lifetime, ever assented to any other boundaries than those contained in the bond, we think the defendants are estopped, by their own acts, from asserting any claim against the plaintiffs for any portion of the land described in the bond. The defendants themselves asserted in the County Court, that they had sold the land described in the bond, to Lindsay. They procured the sale of the same land by the administrator, Greenwood, and received payment out of the money paid by Mrs. Dalton for the land. The whole controversy relative to the number of acres contained in the description given in the bond, seems to have arisen subsequent to the administrator’s sale. There is no pretence of any fraud or concealment on the part of Mrs. Dalton, or that she- had any better means of ascertaining how many acres of land were included in the description contained in the bond, than the defendants, or any other person, had. All parties seem to have adopted the idea, that Lindsay had purchased 1780 acres of land, and that his administrator sold 1780 acres. It is a well settled principle, that where land is sold by metes and bounds, the recital of the number of acres is mere matter of description, and is not supposed to influence the contract of the parties ; inasmuch as men may easily err in the irestimate of the number of. acres within certain lines, but cannot err as to where marks or monuments, or natural objects, are on the earth’s surface.

It is also equally well settled, that courts of equity cannot relieve against a mistake as to the number of acres contained in a tract or parcel of land, sold by metes and bounds, where there *155is no element of fraud. (1 Story’s Eq. Jur. § 144a, and authorities there cited.)

We are of opinion, that Phoebe Rust, the wife of Edwin Rust, was estopped from setting up any defect in the original bond for title, by her action in the County Court, and by the fact that she afterwards received the purchase money,

The judgment ought to have been for the plaintiffs, for the land described in the title bond to M. W. Lindsay, and for their costs. The judgment of the court below is therefore reversed, and the cause remanded for further proceedings, in conformity with this opinion.

Reversed and remanded.