181 S.W. 782 | Tex. App. | 1915
Appellant relies for a reversal upon two assignments of error: (1) That the court erred in not granting his motion to instruct a verdict in his favor; and (2) in instructing a verdict in favor of the appellee.
In the charge, the court, after stating the issues made by the pleadings of the parties, as substantially hereinbefore given, charged as follows:
"You are instructed that the following facts appear by the evidence with respect to which the minds of reasonable men cannot differ: First, that the plaintiff is unable to read or write, and that he relied in the purchase of the property upon the representations made to him by the defendant as to the title and to thè effect of the deed; second, that defendant did assure plaintiff at the time of the sale that his *784 title was good and perfect, and that the deed made to him would convey good and perfect title; third, that, relying on defendant's representations, plaintiff paid the purchase money and improved the property as a home; fourth, that plaintiff had no title at the time of the sale, but there was a clear record title in a third party. The court determines as a matter of law that there is no issue on the statute of limitations to be submitted to you. You will therefore find a verdict for the plaintiff, and assess his damages at the amount of purchase money paid, with interest thereon at the rate of 6 per cent. per annum from the date of the sale to the present time, together with the present value of his improvements; no deduction being allowed for use and occupation."
We find from the evidence in the record that every finding of fact contained in the charge was proved by the undisputed evidence. A brief review of the facts proved will make this apparent. The appellee testified without dispute, in substance, that during the negotiations leading up to the sale the appellant represented to him that he, the appellant, had a good and perfect title to the land, and he, the appellee, relied upon such representations as to the title and appellant's assurance that his deed would convey to appellee a good and perfect title; that, so relying upon said representations, appellee paid the purchase money and improved the properly as a home. The evidence further shows without dispute that the appellant had no title at the time of the sale, but that there was a clear record title in a third party. This is shown by the following facts: The land in question was patented by the state of Texas to Temple 0. Harris. March 18, 1857. The title passed by the will of Temple 0. Harris to his nephew, Albert W. Harris. Afterwards, on May 11, 1888, the title passed from Albert W. Harris to Alice Wallace by his general warranty deed of that date. On November 14, 1910, Alice Wallace conveyed the land by deed of general warranty to L. F. Heckman. All of these deeds were duly recorded. It was shown that a search of the record of deeds of Galveston county failed to disclose any deed from Temple 0. Harris, or his successors in title, to the appellant or those under whom he claimed. The appellant testified that during the negotiations he represented to appellee that he had a good and perfect title to the land, and could convey such title to appellee by his deed, and that at the time of the sale appellee told him that he intended to build a house on the land.
The evidence was wholly insufficient to raise the issue of title in appellant by virtue of adverse possession, and this a brief summary of the evidence will make apparent. August 21, 1888, Temple 0. Harris, by his agent, H. M. Trueheart Co., executed a written lease of the land to William B. Hance, which was duly placed of record. This lease provided among other things, that the lessee, Hance —
"will deliver said premises to said lessor, or agent, on the first day of August, 1889, or whensoever thereafter the same shall be demanded."
Hance took possession of, and with his wife and children resided upon, the land by virtue of this lease, and remained in possession until he died, the date of his death being anterior to the storm of 1900. His wife, Emma Hance, died upon the land in the 1900 storm. Thereafter administration was had upon her estate, and on August 21, 1902, her administrators filed in the probate court an application for the sale of the land, reciting that, so far as the administrators knew, Mrs. Hance, nor those under whom she claimed, ever acquired title to the land, but that, on the contrary, her claim to said lot was based on the fact of occupancy, and that, owing to the fact that she never acquired the record title, her claim to the same was of doubtful character; and they prayed that they be authorized to sell the land to appellant for the sum of $25. The application was granted, and in pursuance thereof the administrators made a deed to appellant upon the payment by him of $25. Several affidavits were introduced in evidence, stating, in effect that Mrs. Emma Hance, and those under whom she claimed, claiming to be the owners of the land, had had and held the actual, adverse, peaceable, and continuous possession thereof for more than 10 years prior to the death of Mrs. Hance in 1900. We are of the opinion that the foregoing facts do not afford a basis for claim of title under the statute of limitations of 10 years, for the reason that the possession of William B. Hance, and afterwards the possession of Mrs. Emma Hance, having commenced under and by virtue of the lease from the owner of the legal title, could never have become adverse unless the lessees had repudiated their tenancy under the lease and given notice of such repudiation; and no proof of such repudiation was made upon the trial. Casey v. Hanrick,
The statement by the appellant to the appellee that he had, and could convey, a good title, although it embodied a conclusion drawn from the facts relative to title, was in effect a representation that the facts which would constitute a good title to the land existed, and it is sufficient, in order to a cancellation of the sale, that the appellee relied upon the representations so made. Buchanan v. Burnett,
We find no error in the record, and the judgment of the court below is affirmed.
Affirmed.