230 S.W. 1017 | Tex. App. | 1921
Lead Opinion
This suit involves 20 acres of the Chas. Underton survey in Liberty county. L. P. Palmer and wife were the plaintiffs. The other appellees and all the appellants were defendants. On the 22d day of July; 1885, one J. J. Moore conveyed to plaintiff Palmer 60 acres of land, part on the Chas. Underton, and the balance on the Jesse Devore, which lies immediately south of the Underton. On February 1, 1894, Moore conveyed to W. S. Swilley all the Underton survey “less 20 acres heretofore conveyed to L. P. Palmer by myself.” This deed was filed for record February 21, 1894. Though referred to by Moore in that deed as “20 acres,” by actual survey the tract he had conveyed to Palmer off the Underton contained only 13.28 acres. On the 4th day of January, 1908, Moore executed and delivered to Palmer another deed conveying him by metes and bounds another tract of land on the Under-ton, containing 5.2 acres of land. This deed recited that it was “for the purpose of correcting a deed heretofore executed by me [J. J. Moore] to L. P. Palmer on the 14th day of March 1894. * * * It is understood that the intention of this deed is to correct that certain deed given by J. J. Moore to L. P. Palmer attempting to convey the land conveyed herein, wherein a mistake was made in the description of said land.” Palmer entered upon that part of the Underton survey conveyed to him by Moore in his first deed about the date of his purchase, improved, cultivated, used, and enjoyed it as his home. Also he used and enjoyed the 5.2 acres, and also had under fence a few acres of the Underton, in addition to these two tracts. On June 1st, after he had bought the Underton survey from Moore, Swilley leased it to Palmer, describing it as being “all that certain piece or parcel of land situated .in Liberty county, Tex., being 300 acres out of a 320-acre survey originally granted to Ohas. Underton, * * * the other 20 acres in this survey already owned by the said L. P. Palmer.” Palmer testified that he held this land for Swilley under this lease from its date until 1913. On the 28th day of January, 1905, Mrs. Mattie B. Phillips, joined by her husband, filed suit in Liberty county against Palmer and Swilley, in the form of trespass to try title, to recover the entire 320 acres Underton survey. This suit was styled Phillips v. Palmer, No. 1328. Palmer answered, disclaiming as to all of the survey except that part conveyed to him by Moore in the deed dated the 22d day of July, 1885, describing the land claimed under this deed by metes and bounds, and as containing 20 acres
‘,‘6/11/13. Interlocutory agreement in favor of L. P. Palmer for the 20 acres claimed by him and described in his cross-bill.”
The cause then came on for trial between the plaintiffs and Swilley, and final judgment was entered on the 12th day of June, 1913. As an adjudication of the rights of Palmer, the judgment so entered recited:
“On this 12th day of June, 1913, came on the plaintiffs, Mrs. Mattie B. Phillips, and her husband, Morris Phillips, and the defendant, L. P. Palmer, into open court and made the court understand that by settlement, adjustment, and agreement the said L. P. Palmer, a party defendant, should have judgment for the land sued for on Ms plea in reeonvention, which, land is fully described in his said plea in reconvention. It is therefore ordered, adjudged, and decreed by the court that the plaintiffs take nothing by their suit against the said L. P. Palmer, on the following described land, and that said L. P. Palmer does have and recover of plaintiffs the following described tract of land, to wit: 20 acres out of the Chas. Underton survey in Liberty county, Tex., and described more particularly as follows. * * * ”
But the land adjudged to Palmer by metes and bounds was not the land claimed by him in his answer and conceded to him by Kott-witz in the agreed settlement and by Swilley in his disclaimer, but was an entirely different tract of land. This error, however, was occasioned by a pure mistake, and was in no way induced by fraud. There is no question as to the mistake in the entry of the judgment on the minutes of the court. It is the contention of appellants that the entry on the judge’s trial docket correctly stated the agreement between Kottwitz and Palmer, b'ut, in deference to the verdict of the jury, we find that the real agreement was that Palmer should recover 20 acres of land, to include the two tracts theretofore deeded to him by Moore, and enough additional land lying north of these two tracts to make exactly the 20 acres. His petition sets forth, by metes and bounds, the land claimed by him under the agreement with Kottwitz, and we find that the land so described in plaintiffs’ petition was the land that Mrs. Phillips, through her attorney, agreed should be awarded to Palmer. As grounds for tolling the statute of limitation, plaintiffs plead:
“That there had been such a serious mistake made in the drafting and entry of said judgment plaintiffs did not discover until about the month of December, 191§, and the fact that such mistake was not sooner discovered cannot be charged to and was not due to any failure on the part of plaintiffs, or either of them, to use ordinary care or reasonable diligence to discover the same, but in this connection the facts are, and plaintiffs further allege, that at the time said cause No. 3812 was compromised and settled as above alleged no definite time was set or agreed upon within which the said 20 acres to be decreed to plaintiffs in accordance with said agreement and settlement was to be surveyed and its actual location thereby definitely determined, nor in making such settlement was it agreed who should survey the land nor that such survey should be made promptly or without delay; but at the time of making such agreement it was known, as. above alleged, by all the parties to said agreement, that the plaintiffs herein at that time were actually occupying and had inclosed with a fence not only a part of the 20 acres which was to be decreed to them, but also an additional portion of said Underton survey which would adjoin such 20 acres when its location was definitely determined by á survey of same, and further the understanding of plaintiffs at that time with the said Mrs. Mattie B. Phillips and Morris Phillips, acting by their said attorney, L. A. Kott-witz, was that plaintiffs might continue to use such additional portion of the Underton survey so occupied and inclosed by plaintiffs’ fence until the lines of plaintiffs’ 20 acres were actually run and located by a survey thereof; and the plaintiffs herein, preferring to have the said 20 acres surveyed by the county surveyor of Liberty county, Tex., did on various occasions apply to H. O. Compton, then and now county surveyor of Liberty county, to make a survey of said 20 acres,- but, being engaged with other duties, the said Compton from time to time postponed making such survey for plaintiffs, and again on different occasions they would call his attention to the matter and request him to make the survey at his first opportunity, and upon every occasion when they so requested him to make such survey the said Compton promised plaintiffs to do so, and they relied upon his assurance that he would at his first opportunity make such survey; and at no time diet the said ■Mrs. Mattie B. Phillips and Morris Phillips, or their said attorney, L. A. Kottwitz, or any person whomsoever, request plaintiffs to have said survey sooner made or request of plaintiffs that they withdraw their fences from that portion*1020 of the Underton survey surveyed for plaintiffs as above alleged, nor did the said Mrs. Mattie B. Phillips, Morris Phillips, or L. A. Kottwitz, or any one whomsoever, at any time complain to plaintiffs that the actual location of said 20 acres definitely should be determined without further postponement, or that there was any need or reason why the actual survey and location of said 20 acres, ought to be immediately, or within any stated time, made and the lines of said 20 acres definitely determined and marked/upon the ground, and plaintiffs during all that time recognized and regarded as binding upon them the agreement to withdraw their fences from that portion of the Underton survey which would not be included in the said 20 acres when the lines of such 20-acre tract were definitely determined by a survey thereof, and'promptly after they were able to secure the said H. O. Compton to make a survey of the said 20 acres and locate the lines thereof plaintiffs complied with and fulfilled their said agreement by withdrawing their fencing from that portion- of the said Underton survey north of the said 20 acres and placing their fences upon the lines of the 20-acre tract, and until about the month of December, 1918, the plaintiffs were not aware of the mistake in said judgment which was entered in said cause No. 3813, but assumed and felt satisfied that a judgment decreeing to plaintiffs 20 acres of said Underton survey had been correctly and properly prepared and entered, in accordance with the said agreement made between the plaintiffs in said cause No. 3813, Mrs. Mattie B. Phillips and Morris Phillips and L. P. Palmer, defendant herein, for the compromise and settlement of said suit and controversy. as between said plaintiffs and this plaintiff L. P. Palmer, and during all of said time nothing had occurred to in any manner indicate to plaintiffs herein that such a correct and proper judgment had not been prepared and entered in said cause No. 3813, and plaintiffs ^herein had no occasion or necessity for ever turning to or examining such judgment'for any purpose, and after making said agreement for the compromise and settlement of said cause No. 3813, with the plaintiffs therein, Mrs. Mattie B. Phillips and Morris Phillips, said plaintiffs in that suit, nor any one else, ever questioned the right or title of these plaintiffs to the said 20 acres of land which was to be and should have been der creed to L. P. Palmer as a defendant in said cause No. 3813 in accordance with the compromise and settlement made and agreed upon by and between him and the plaintiffs in said cause, and no claim of any nature to any part of said 20 acres of land was thereafter made or asserted by any one, so far as known to these plaintiffs, until about one month prior to the filing of this suit.”
Plaintiff’s testimony was in line with and supported his allegations of fact as made in this quoted paragraph of his petition, and, in deference to the judgment of the court, we find as true all the allegations of fact stated in this quoted paragraph of plaintiff’s petition. But we are not adopting as true his conclusions from these facts; for instance, his conclusion “that such mistake was not sooner discovered cannot be charged to and was not due to any failure on the part of plaintiffs or any of them to use ordinary care or reasonable diligence to discover the -same.” In addition to the facts set forth in the quoted paragraph of plaintiff’s petition, we adopt as true the following testimony of Palmer:
“Prior to 1913 Mrs. Phillips and her husband filed suit against me. Mr. Swilley was the other defendant. I know Mr. Tharp, who was an attorney in that case. We tried that case three times before settlement was made by Mr. Kottwitz with me. I made a settlement in June, 1913, in so far as the controversy was between Mrs. Phillips and myself as defendant. In making that settlement with Mr. Kottwitz I did my own talking. While that suit was pending on or about the 13th day of June, 1913, I make a trade with Mr. Kottwitz. I gave him $100 to give me a judgment for 20 acres in that suit. I had talked with Judge Stevens, one of the attorneys for Mr. Swilley. Judge Stevens advised me he believed it would be well for me to give $100, and I talked with H. E. Marshall, and he advised it. Then I returned and talked further with Mr. Kottwitz, and I told him if he would give me a judgment I would give him $100, and he said he would do it, and said he would give me a judgment for 20 acres out of the Charles Underton survey. We were in the town of. Liberty at the time. I don’t know exactly where we were when we agreed on it. The case was going to come up that day. After we made the agreement Kott-witz said, ‘Well, give me the hundred,’ and I says, ‘Xou have got to go and ask him to give me a judgment for 20 acres.’ I said, T will give you the $100,’ and we came over and talked with Judge Llewellyn, who was on the bench, and he [Kottwitz] asked him [Llewellyn] to give me a judgment for 20 acres, and I went to the bank then and gave him the $100. After that I did not consider myself in the case any further.”
In addition to the! above statement of facts, we should add that plaintiff pleaded the usual allegations in trespass to try title and the different statutes of limitation, together with a special plea for the correction of the judgment as entered on the minutes of the court under the agreed settlement between Kottwitz and Palmer. Appellants disclaimed as to the 13.28 acres of land conveyed to Palmer by Moore by the deed dated the 22d day of July, 1885, and, by appropriate pleas, put in issue the title to the remaining 6.72 acres claimed by plaintiff in his petition. Judgment was for plaintiff for the relief prayed for.
Many interesting questions are presented by appellants, but we shall discuss only the assignments presenting error in refusal of the trial court to instruct a verdict in their favor.
We do not see how he can be aided by the fact that under the agreement he was to have the land surveyed; that no time was agreed upon when it was to be surveyed; that he was in possession of the land; and that there was no immediate necessity for a survey. Rather it seems to us that these facts militate against his plea. It was to his 'interest to know the boundaries of his land. It was to the interest of his adversaries that they be given possession of their lands. As claimed by him, he assumed the duty of marking out his lands, and then surrendering to Mrs. Phillips such of her lands as he had under fence. Certainly the exercise of ordinary care on his part required that this be done in a reasonable time. His long delay in having this land surveyed was an affirmative act of negligence against him.
As sustaining us in holding that Palmer’s cause of action is barred by limitation, we cite Watrous v. Rodgers, 16 Tex. 511; Dunn v. Taylor, 42 Tex. Civ. App. 241, 94 S. W. 348; Hamilton v. Blackburn, 95 S. W. 1099, 43 Tex. Civ. App. 153; Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040; City of Goliad v. Weisiger, 4 Tex. Civ. App. 653, 23 S. W. 694; Bass v. James, 83 Tex. 110, 18 S. W. 336; Holt v. Love, 168 S. W. 1019; Hamilton v. Green, 166 S. W. 97; Kuhlman v. Baker, 50 Tex. 636; Alston v. Richardson, 51 Tex. 1; Calhoun v. Burton, 64 Tex. 515; Rowe v. Horton, 65 Tex. 89; Campbell v. Wyatt, 217 S. W. 743; Wood v. Carpenter, 101 U. S. 138, 25 L. Ed. 807.
Appellees attempt to bring the facts of this case within the rule announced in. Cooper v. Lee, 1 Tex. Civ. App. 9, 21 S. W. 1001; Smith v. Talbot, 18 Tex. 783; Smith v. Fly, 24 Tex. 353, 76 Am. Dec. 109; Oldham v. Medearis, 90 Tex. 507, 39 S. W. 919; Harris v. Flowers, 21 Tex. Civ. App. 669, 52 S. W. 1047; American, etc., Co. v. Pace, 23 Tex. Civ. App. 222, 56 S. W. 384; Wright v. Isaacks, 43 Tex. Civ. App. 223, 95 S. W. 57; Isaacks v. Wright, 50 Tex. Civ. App. 312, 110 S. W. 970; Stone v. Burns, 200 S. W. 1122; Smalley v. Vogt, 166 S. W. 1; Riggs v. Pope, 3 Tex. Civ. App. 179, 21 S. W. 1013; Payne v. Ross, 10 Tex. Civ. App. 419, 30 S. W. 670; Gillispie v. Gray, 214 S. W. 731; Gilmore v. O’Neil, 107 Tex. 18, 173 S. W. 203 ; 25 Cyc. pp. 1186, 1192, and 1195.
In announcing the general principles applicable to the statute of limitation as applied to deeds and judgments, we do not understand that there is any conflict between appellees’ authorities and those above cited by us as sustaining our position. However, the facts in some of appellees’ cases are quite different from the facts in this case, and hence the distinctions made in those cases cannot control this case. We believe these facts come clearly within the authorities on which we rely.
If we are correct in what we have said, it follows that the judgment of the trial court in favor of appellees must be reversed, and judgment here rendered for appellants, and it is accordingly so ordered.
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Rehearing
On Rehearing.
On this rehearing, appellees challenge the judgment of this court in reversing the judgment of the trial court and rendering
This proposition is sound where the finding is against the great weight and preponderance of the testimony, but where, as in this case, the testimony does not even raise the issue submitted to the jury, and on the record as made it was the duty of the trial court to instruct a verdict for appellants, it is our duty to reverse the judgment of the trial court and here render such judgment as should have been rendered on the facts and pleadings. This rule has direct application to this cause, because it affirmatively appears from this record, both on the pleadings and the evidence, that appellees cannot strengthen their case on another trial.
We would grant this prayer if it were possible to raise this issue on another trial. We held against this proposition in- our original opinion. We there said:
“Plaintiffs could not recover on their pleas of limitation. If it be conceded that, as between him and Swilley and Mrs. Phillips, he had perfected a title by limitation to the two tracts of land deeded to him by Moore, before the settlement of June 11, 1913, yet this limitation claim was merged into the judgment, and he could assert no rights thereunder without first correcting this judgment. Hamilton v. Blackburn, 95 S. W. 1094. And since the rendition of that judgment he has not perfected another title by limitation.”
“This suit was not brought to correct any error of the court in the rendition of said judgment of district court, but the suit was brought for and the plaintiff prays for the correction of an error made in the entry of the judgment rendered by the court upon the records of the court to the end that the records of the court will correctly show the judgment of the court actually rendered on the agreement of the parties to the suit; and the four-years statute of limitations has no application to this suit.”
Under Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040, the principle of law invoked in this proposition is sound. Conceding, for the sake of argument, that appellees now suggest the proper construction of their pleading (though this was not their position on original submission), it cannot afford them relief. The judgment actually rendered by the court was “in favor of L. P. Palmer for the 20 acres claimed by him and described in his cross-action.” Thus the judgment actually rendered by the court did not include the 5.2 acres, nor the 1.52 acres. If appellees only pray that the judgment entered on the minutes be made to reflect the actual judgment rendered by the court, they now have all the relief that could be granted them, as appellants conceded them the 13.28 acres, and no appeal was taken from that part of the judgment. Under the construction now placed by appellees on their pleadings, no issue was raised as to the 5.2 acres nor the 1.52 acres,'and on their pleadings judgment should have been entered for appellants by the trial court.
“A final judgment on the merits is just as conclusive on the merits if entered by consent as if rendered after contest.”
See, also, Anderson v. Wynne, 25 Tex. Civ. App. 440, 62 S. W. 121; Goliad v. Weisiger, 4 Tex. Civ. App. 653, 23 S. W. 694; Hamilton v. Blackburn, supra; State Bank of Indiana v. Young, 2 Ind. 171, 52 Am. Dec. 501.
Under the cases just cited, appellants advance the following proposition, which we approve as a correct statement of the law:
“The fact that the judgment as entered' did not follow the parol agreement of parties made prior thereto would not make* said judgment any less binding. If said judgment was different from the agreement, the judgment would control so long as it stood unreformed. The fact that the court rendered a judgment different from that agreed upon would not make said judgment any less effective, and until such judgment was reformed to meet the agreement of parties, said judgment will control, and not the agreement of parties.”
The other propositions advanced by appel-lees on this rehearing are covered fully by our original opinion, and require no further discussion.
As appellants, by cross-actions, prayed for affirmative relief, and as the record before us shows that they own the record title to the land in controversy, we think we were correct in rendering judgment in their favor. The motions for rehearing are in all things overruled.
Lead Opinion
This suit involves 20 acres of the Chas. Underton survey in Liberty county. L. P. Palmer and wife were the plaintiffs. The other appellees and all the appellants were defendants. On the 22d day of July, 1885, one J. J. Moore conveyed to plaintiff Palmer 60 acres of land, part on the Chas. Underton, and the balance on the Jesse Devore, which lies immediately south of the Underton. On February 1, 1894, Moore conveyed to W. S. Swilley all the Underton survey "less 20 acres heretofore conveyed to L. P. Palmer by myself." This deed was filed for record February 21, 1894. Though referred to by Moore in that deed as "20 acres," by actual survey the tract he had conveyed to Palmer off the Underton contained only 13.28 acres. On the 4th day of January, 1908, Moore executed and delivered to Palmer another deed conveying him by metes and bounds another tract of land on the Underton, containing 5.2 acres of land. This deed recited that it was "for the purpose of correcting a deed heretofore executed by me [J. J. Moore] to L. P. Palmer on the 14th day of March 1894. * * * It is understood that the intention of this deed is to correct that certain deed given by J. J. Moore to L. P. Palmer attempting to convey the land conveyed herein, wherein a mistake was made in the description of said land." Palmer entered upon that part of the Underton survey conveyed to him by Moore in his first deed about the date of his purchase, improved, cultivated, used, and enjoyed it as his home. Also he used and enjoyed the 5.2 acres, and also had under fence a few acres of the Underton, in addition to these two tracts. On June 1st, after he had bought the Underton survey from Moore, Swilley leased it to Palmer, describing it as being "all that certain piece or parcel of land situated in Liberty county, Tex., being 300 acres out of a 320-acre survey originally granted to Chas. Underton, * * * the other 20 acres in this survey already owned by the said L. P. Palmer." Palmer testified that he held this land for Swilley under this lease from its date until 1913. On the 28th day of January, 1905, Mrs. Mattie B. Phillips, joined by her husband, filed suit in Liberty county against Palmer and Swilley, in the form of trespass to try title, to recover the entire 320 acres Underton survey. This suit was styled Phillips v. Palmer, No. 1328. Palmer answered, disclaiming as to all of the survey except that part conveyed to him by Moore in the deed dated the 22d day of July, 1885, describing the land claimed under this deed by metes and bounds, and as containing 20 acres *1019
of land, though in fact, as above stated it contained only 13.28 acres. Swilley answered, disclaiming as to that particular tract claimed by Palmer, also describing by metes and bounds the Palmer tract just as Palmer described it in his disclaimer, and referring to it as containing 20 acres of land. Palmer and Swilley each further answered by cross-actions for affirmative relief as to the lands claimed by them. These answers were filed on March 5, 1905. On trial of this cause, No. 1328, judgment was rendered for the defendants. The plaintiffs appealed, and the cause was reversed and remanded for a new trial. See Phillips v. Palmer,
"6/11/13. Interlocutory agreement in favor of L. P. Palmer for the 20 acres claimed by him and described in his cross-bill."
The cause then came on for trial between the plaintiffs and Swilley, and final judgment was entered on the 12th day of June, 1913. As an adjudication of the rights of Palmer, the judgment so entered recited:
"On this 12th day of June, 1913, came on the plaintiffs, Mrs. Mattie B. Phillips, and her husband, Morris Phillips, and the defendant, L. P. Palmer, into open court and made the court understand that by settlement, adjustment, and agreement the said L. P. Palmer, a party defendant, should have judgment for the land sued for on his plea in reconvention, which land is fully described in his said plea in reconvention. It is therefore ordered, adjudged, and decreed by the court that the plaintiffs take nothing by their suit against the said L. P. Palmer, on the following described land, and that said L. P. Palmer does have and recover of plaintiffs the following described tract of land, to wit: 20 acres out of the Chas. Underton survey in Liberty county, Tex., and described more particularly as follows. * * *"
But the land adjudged to Palmer by metes and bounds was not the land claimed by him in his answer and conceded to him by Kottwitz in the agreed settlement and by Swilley in his disclaimer, but was an entirely different tract of land. This error, however, was occasioned by a pure mistake, and was in no way induced by fraud. There is no question as to the mistake in the entry of the judgment on the minutes of the court. It is the contention of appellants that the entry on the judge's trial docket correctly stated the agreement between Kottwitz and Palmer, but, in deference to the verdict of the jury, we find that the real agreement was that Palmer should recover 20 acres of land, to include the two tracts theretofore deeded to him by Moore, and enough additional land lying north of these two tracts to make exactly the 20 acres. His petition sets forth, by metes and bounds, the land claimed by him under the agreement with Kottwitz, and we find that the land so described in plaintiffs' petition was the land that Mrs. Phillips, through her attorney, agreed should be awarded to Palmer. As grounds for tolling the statute of limitation, plaintiffs plead:
"That there had been such a serious mistake made in the drafting and entry of said judgment plaintiffs did not discover until about the month of December, 1918, and the fact that such mistake was not sooner discovered cannot be charged to and was not due to any failure on the part of plaintiffs, or either of them, to use ordinary care or reasonable diligence to discover the same, but in this connection the facts are, and plaintiffs further allege, that at the time said cause No. 3812 was compromised and settled as above alleged no definite time was set or agreed upon within which the said 20 acres to be decreed to plaintiffs in accordance with said agreement and settlement was to be surveyed and its actual location thereby definitely determined, nor in making such settlement was it agreed who should survey the land nor that such survey should be made promptly or without delay; but at the time of making such agreement it was known, as above alleged, by all the parties to said agreement, that the plaintiffs herein at that time were actually occupying and had inclosed with a fence not only a part of the 20 acres which was to be decreed to them, but also an additional portion of said Underton survey which would adjoin such 20 acres when its location was definitely determined by a survey of same, and further the understanding of plaintiffs at that time with the said Mrs. Mattie B. Phillips and Morris Phillips, acting by their said attorney, L. A. Kottwitz, was that plaintiffs might continue to use such additional portion of the Underton survey so occupied and inclosed by plaintiffs' fence until the lines of plaintiffs' 20 acres were actually run and located by a survey thereof; and the plaintiffs herein, preferring to have the said 20 acres surveyed by the county surveyor of Liberty county, Tex., did on various occasions apply to H. O. Compton, then and now county surveyor of Liberty county, to make a survey of said 20 acres, but, being engaged with other duties, the said Compton from time to time postponed making such survey for plaintiffs, and again on different occasions they would call his attention to the matter and request him to make the survey at his first opportunity, and upon every occasion when they so requested him to make such survey the said Compton promised plaintiffs to do so, and they relied upon his assurance that he would at his first opportunity make such survey; and at no time did the said Mrs. Mattie B. Phillips and Morris Phillips, or their said attorney, L. A. Kottwitz, or any person whomsoever, request plaintiffs to have said survey sooner made or request of plaintiffs that they withdraw their fences from that portion *1020 of the Underton survey surveyed for plaintiffs as above alleged, nor did the said Mrs. Mattie B. Phillips, Morris Phillips, or L. A. Kottwitz, or any one whomsoever, at any time complain to plaintiffs that the actual location of said 20 acres definitely should be determined without further postponement, or that there was any need or reason why the actual survey and location of said 20 acres ought to be immediately, or within any stated time, made and the lines of said 20 acres definitely determined and marked upon the ground, and plaintiffs during all that time recognized and regarded as binding upon them the agreement to withdraw their fences from that portion of the Underton survey which would not be included in the said 20 acres when the lines of such 20-acre tract were definitely determined by a survey thereof, and promptly after they were able to secure the said H. O. Compton to make a survey of the said 20 acres and locate the lines thereof plaintiffs complied with and fulfilled their said agreement by withdrawing their fencing from that portion of the said Underton survey north of the said 20 acres and placing their fences upon the lines of the 20-acre tract, and until about the month of December, 1918, the plaintiffs were not aware of the mistake in said judgment which was entered in said cause No. 3813, but assumed and felt satisfied that a judgment decreeing to plaintiffs 20 acres of said Underton survey had been correctly and properly prepared and entered, in accordance with the said agreement made between the plaintiffs in said cause No. 3813, Mrs. Mattie B. Phillips and Morris Phillips and L. P. Palmer, defendant herein, for the compromise and settlement of said suit and controversy as between said plaintiffs and this plaintiff L. P. Palmer, and during all of said time nothing had occurred to in any manner indicate to plaintiffs herein that such a correct and proper judgment had not been prepared and entered in said cause No. 3813, and plaintiffs herein had no occasion or necessity for ever turning to or examining such judgment for any purpose, and after making said agreement for the compromise and settlement of said cause No. 3813, with the plaintiffs therein, Mrs. Mattie B. Phillips and Morris Phillips, said plaintiffs in that suit, nor any one else, ever questioned the right or title of these plaintiffs to the said 20 acres of land which was to be and should have been decreed to L. P. Palmer as a defendant in said cause No. 3813 in accordance with the compromise and settlement made and agreed upon by and between him and the plaintiffs in said cause, and no claim of any nature to any part of said 20 acres of land was thereafter made or asserted by any one, so far as known to these plaintiffs, until about one month prior to the filing of this suit."
Plaintiff's testimony was in line with and supported his allegations of fact as made in this quoted paragraph of his petition, and, in deference to the judgment of the court, we find as true all the allegations of fact stated in this quoted paragraph of plaintiff's petition. But we are not adopting as true his conclusions from these facts; for instance, his conclusion "that such mistake was not sooner discovered cannot be charged to and was not due to any failure on the part of plaintiffs or any of them to use ordinary care or reasonable diligence to discover the same." In addition to the facts set forth in the quoted paragraph of plaintiff's petition, we adopt as true the following testimony of Palmer:
"Prior to 1913 Mrs. Phillips and her husband filed suit against me. Mr. Swilley was the other defendant. I know Mr. Tharp, who was an attorney in that case. We tried that case three times before settlement was made by Mr. Kottwitz with me. I made a settlement in June, 1913, in so far as the controversy was between Mrs. Phillips and myself as defendant. In making that settlement with Mr. Kottwitz I did my own talking. While that suit was pending on or about the 13th day of June, 1913, I make a trade with Mr. Kottwitz. I gave him $100 to give me a judgment for 20 acres in that suit. I had talked with Judge Stevens, one of the attorneys for Mr. Swilley. Judge Stevens advised me he believed it would be well for me to give $100, and I talked with H. E. Marshall, and he advised it. Then I returned and talked further with Mr. Kottwitz, and I told him if he would give me a judgment I would give him $100, and he said he would do it, and said he would give me a judgment for 20 acres out of the Charles Underton survey. We were in the town of Liberty at the time. I don't know exactly where we were when we agreed on it. The case was going to come up that day. After we made the agreement Kottwitz said, `Well, give me the hundred,' and I says, `You have got to go and ask him to give me a judgment for 20 acres.' I said, `I will give you the $100,' and we came over and talked with Judge Llewellyn, who was on the bench, and he [Kottwitz] asked him [Llewellyn] to give me a judgment for 20 acres, and I went to the bank then and gave him the $100. After that I did not consider myself in the case any further."
In addition to the above statement of facts, we should add that plaintiff pleaded the usual allegations in trespass to try title and the different statutes of limitation, together with a special plea for the correction of the judgment as entered on the minutes of the court under the agreed settlement between Kottwitz and Palmer. Appellants disclaimed as to the 13.28 acres of land conveyed to Palmer by Moore by the deed dated the 22d day of July, 1885, and, by appropriate pleas, put in issue the title to the remaining 6.72 acres claimed by plaintiff in his petition. Judgment was for plaintiff for the relief prayed for.
Many interesting questions are presented by appellants, but we shall discuss only the assignments presenting error in refusal of the trial court to instruct a verdict in their favor.
Plaintiffs could not recover on their pleas of limitation. If it be conceded that, as between him and Swilley and Mrs. Phillips, he had perfected a title by limitation to the two tracts of land deeded to him by Moore, before the settlement of June 11, *1021
1913, yet this limitation claim was merged into the judgment, and he could assert no rights thereunder without first correcting this judgment. Hamilton v. Blackburn,
Nor could he recover on his plea in trespass to try title. Under our system of pleading, it was permissible to combine the legal plea of trespass to try title with the plea in equity to reform the judgment; yet they are distinct and separate causes of action. Haskins v. Wallett,
On the plea in trespass to try title one can recover if he holds the superior title, whether legal or equitable. Gilmore v. O'Neil,
Now in this case the judgment of date June 12, 1913, vested the legal title to the 6.72 acres of land in controversy in Swilley and Mrs. Phillips. Under the facts found by us, the equitable title was in Palmer, but he could not assert this title nor defend under it without first reforming the judgment which stood between him and his title, so as to make it reflect the actual terms of the agreement. There are these distinctions between this case and Gilmore v. O'Neil: In that case the holders of the superior title — theirs by equity — paid for the land, entered upon it, and made most valuable improvements thereon, thus making their equitable title active and one that the courts could enforce. In this case Palmer paid for the land, but made no improvements thereon after such payment and after the agreed judgment. Again in this case there was an outstanding judgment, to which Palmer was a party, vesting the title in this 6.72 acres of land in his adversaries. No such impediment existed in Gilmore v. O'Neil. It follows then, under McCampbell v. Durst,
Mistake only prevents the running of the statute until the mistake is discovered, or by the use of reasonable diligence it might have been discovered. Oldham v. Medearis,
But, apart from this, as between him and Mrs. Phillips, Palmer's title to this 20 acres of land rested upon this settlement. Holding under this judgment, the law vested him with notice of its terms and conditions. There was nothing about the entry of the judgment to deceive him or to lull him into a false security. No confidential relations existed between him and Kottwitz. He reposed no special confidence in Kottwitz. The only time such a confidence was called for was at the time of the entry of the judgment, and he refused to rest that with Kottwitz, but went himself to see that it was correctly entered. He did not request Kottwitz to protect his interests in the entry of the final judgment, but immediately on the entry of this agreement, at a time when the case was not closed, abandoned all further interest in the case, and, though he was represented by attorneys, did not ask them to protect his interests in the entry of the judgment. It appears from his testimony that in this settlement he did his own "talking." Certainly on these facts one could not be in the exercise of ordinary care in thus abandoning his case and leaving his interests to be protected by his adversaries who dealt with him in perfect good faith. And when, without fraud on their part, and in an honest effort to enter a judgment in conformity with an agreement, a mistake was made, he must take notice of such mistake from its date.
We do not see how he can be aided by the fact that under the agreement he was to have the land surveyed; that no time was agreed upon when it was to be surveyed; that he was in possession of the land; and that there was no immediate necessity for a survey. Rather it seems to us that these facts militate against his plea. It was to his interest to know the boundaries of his land. It was to the interest of his adversaries that they be given possession of their lands. As claimed by him, he assumed the duty of marking out his lands, and then surrendering to Mrs. Phillips such of her lands as he had under fence. Certainly the exercise of ordinary care on his part required that this be done in a reasonable time. His long delay in having this land surveyed was an affirmative act of negligence against him.
As sustaining us in holding that Palmer's cause of action is barred by limitation, we cite Watrous v. Rodgers,
Appellees attempt to bring the facts of this case within the rule announced in Cooper v. Lee,
In announcing the general principles applicable to the statute of limitation as applied to deeds and judgments, we do not understand that there is any conflict between appellees' authorities and those above cited by us as sustaining our position. However, the facts in some of appellees' cases are quite different from the facts in this case, and hence the distinctions made in those cases cannot control this case. We believe these facts come clearly within the authorities on which we rely.
If we are correct in what we have said, it follows that the judgment of the trial court in favor of appellees must be reversed, and judgment here rendered for appellants, and it is accordingly so ordered.
(1) This court is without authority to review findings of a jury and make affirmative findings for appellees.
This proposition is sound where the finding is against the great weight and preponderance of the testimony, but where, as in this case, the testimony does not even raise the issue submitted to the jury, and on the record as made it was the duty of the trial court to instruct a verdict for appellants, it is our duty to reverse the judgment of the trial court and here render such judgment as should have been rendered on the facts and pleadings. This rule has direct application to this cause, because it affirmatively appears from this record, both on the pleadings and the evidence, that appellees cannot strengthen their case on another trial.
(2) And in this connection they say that we should not render judgment for appellants, but should reverse the case so that they may have the privilege of going to the jury on their issue of limitation.
We would grant this prayer if it were possible to raise this issue on another trial. We held against this proposition in our original opinion. We there said:
"Plaintiffs could not recover on their pleas of limitation. If it be conceded that, as between him and Swilley and Mrs. Phillips, he had perfected a title by limitation to the two tracts of land deeded to him by Moore, before the settlement of June 11, 1913, yet this limitation claim was merged into the judgment, and he could assert no rights thereunder without first correcting this judgment. Hamilton v. Blackburn,
Appellees do not question the soundness of our original opinion in so far as it is supported by Hamilton v. Blackburn,
(3) They now advance this proposition:
"This suit was not brought to correct any error of the court in the rendition of said judgment of district court, but the suit was brought for and the plaintiff prays for the correction of an error made in the entry of the judgment rendered by the court upon the records of the court to the end that the records of the court will correctly show the judgment of the court actually rendered on the agreement of the parties to the suit; and the four-years statute of limitations has no application to this suit."
Under Coleman v. Zapp,
We cannot follow appellees in the distinction they would draw between a judgment on trial and a judgment by agreement. If we understand their position, they contend that the docket entry upon a judgment by agreement is not evidence of the judgment rendered by the court; that the judgment so rendered is the actual agreement of the parties; that if a mistake was made in stating this agreement to the court, as a matter of law, the actual agreement must be the judgment rendered. Hence they claim, as this was a suit to make the minutes reflect the actual judgment rendered by the court, and as the judgment so rendered was the actual agreement made, and as the agreement made included the land in controversy, under the rule announced in Coleman v. Zapp, supra, they were entitled to *1024
the relief prayed for, and "the four-year statute of limitation had no application to this suit." We do not so understand the law. A judgment by consent must be proven as other judgment, that is, by the entries made in the due prosecution of the suit, and, as said by Judge Neill, in Insurance Co. v. King,
"A final judgment on the merits is just as conclusive on the merits if entered by consent as if rendered after contest."
See, also. Anderson v. Wynne,
Under the cases just cited, appellants advance the following proposition, which we approve as a correct statement of the law:
"The fact that the judgment as entered did not follow the parol agreement of parties made prior thereto would not make said judgment any less binding. If said judgment was different from the agreement, the judgment would control so long as it stood unreformed. The fact that the court rendered a judgment different from that agreed upon would not make said judgment any less effective, and until such judgment was reformed to meet the agreement of parties, said judgment will control, and not the agreement of parties."
The other propositions advanced by appellees on this rehearing are covered fully by our original opinion, and require no further discussion.
As appellants, by cross-actions, prayed for affirmative relief, and as the record before us shows that they own the record title to the land in controversy, we think we were correct in rendering judgment in their favor. The motions for rehearing are in all things overruled.
