113 S.W. 961 | Tex. App. | 1908
This is a suit by appellee Broocks against appellant Harrell and several other parties named as defendants, to recover the timber on the tract of land in controversy, sold by Robt. P. Shelby and wife to appellee. All of the defendants in the court below are out of the case except appellant Harrell, and as to him the trial court instructed the jury to return a verdict for the plaintiff. *335
The facts, so far as necessary to be stated, are as follows: On July 15, 1905, Robt. P. Shelby and wife conveyed to appellee Broocks the timber standing on the 640 acres of land in controversy, known as the Stephen Williams survey. Thereafter Shelby and wife by deed conveyed the land in question to appellant Harrell. This sale and conveyance to Harrell was negotiated and procured by one J. O. Banks, who at the time knew of the existence of the previous deed executed by Shelby and wife to appellee Broocks conveying the timber. In the deed so procured by Banks appellant Harrell was named as vendee, and for the purchase price, the amount agreed to be paid Shelby and wife, the sum of $2,000, a draft was drawn on Harrell, which draft, together with the deed, was sent and delivered to Harrell, who paid the draft. The deed from Shelby and wife to Broocks was not of record before the second conveyance was executed to Harrell. There is evidence in the record which would justify the conclusion that Harrell himself had no actual knowledge of the existence of the prior conveyance to Broocks.
The question in the case is as to whether Harrell should be charged with knowledge as to the existence of the conveyance from Shelby and wife to Broocks. The question may arise from the facts whether or not Banks was the agent of Harrell at the time he negotiated the trade with Shelby and wife and procured the deed to Harrell, but it is clear from the admissions of Harrell, as shown in his cross-examination, that he expected Banks to purchase this land for him, and that he knew when he paid the purchase price and received the deed from Shelby that the trade had been made and the conveyance executed for his benefit by and through the efforts of Banks. Therefore, we are of the opinion that the trial court properly instructed a verdict in favor of appellee, upon the theory that the knowledge possessed by Banks would be imputed to the appellant. He would not be permitted to accept the benefits of the transaction that arose through the personal efforts of Banks without also being charged with knowledge of the vice in the title known to Banks.
This relieves us of the necessity of passing upon the remaining assignments of errors, for if it be conceded that the assignments of errors which complain as to the admissibility of certain evidence are well taken, the error would be harmless. That evidence could be excluded and in nowise affect the conclusion reached by the trial court and this court. The disposition of the case is, in the main, based upon the admissions of the appellant himself, and the undisputed fact that Banks knew of the existence of appellee's title.
We find no error in the record, and the judgment is affirmed.
Affirmed.
