114 S.W. 408 | Tex. App. | 1908
This suit was brought by appellee to rescind a purchase of land on the alleged ground of fraud. It was alleged in his petition that appellee parted with $1,240 upon the strength of certain fraudulent representations made by the appellants, in that it is alleged that about January 30, 1905, appellants represented to appellee, W. H. M. Haile, in effect, that they owned a certain 160 acres of land out of the Jesse Humphries survey in Eastland County, Texas, and that they had an absolute and perfect title thereto, and that the deed *633 of conveyance which appellants would make would invest the appellee with an absolute and indefeasible title thereto. It is further alleged that appellee relied upon said representations, and that, in truth, the appellants had no title to said land, and that the appellee had been sued for said land in the District Court of Eastland County, Texas, and claiming that the superior title was in the party who had thus brought suit. Appellee further alleged that said $1,420 was afterwards invested by the appellants in certain land situated in Comanche County, Texas, the title thereto being invested equally in the appellants and one E. W. Lee, he owning one-half interest in the said land. Appellee asked that the sale of said Eastland County land be rescinded, and that he have judgment against appellants for the said $1,240, and have adjudged an equitable lien on said Comanche County land as to the half owned by appellants, and that the same be sold to satisfy said judgment.
Appellants answered by general demurrer and special exception, and also by general denial, and specially pleading that appellee was in no way misled by appellants, and that he had every opportunity of knowing the condition of the title that they had, and that appellee informed himself as to the condition of the title before he made the said purchase, and in said investigation and obtaining said information the appellee ascertained the true condition of the title, or that, if he did not do so, that he could have done so by the exercise of diligence, and that it was his fault if he did not know the condition of the title at the time he purchased said land. And that whatever statements appellants made in regard to the title were only expressions of opinion, made in good faith, and that appellants informed appellee before the purchase that he had never had the title examined.
Trial before a jury resulted in a verdict for the plaintiff for rescission of said purchase, and a judgment against appellant, G. F. Lee, for $1,245, and adjudging and foreclosing an equitable lien upon the interest of appellants in said Comanche County land and ordering the same to be sold.
Appellants in due time filed their motion for a new trial, which was by the court overruled, to which action of the court they duly excepted, and in open court gave notice of appeal to this court, and assign numerous errors which will not here be consecutively considered.
Opinion. — We are of the opinion that appellants' objections to the sufficiency of appellee's petition, as set forth in his first and second assignments of error, are not well taken, and that appellee's petition in all material respects properly alleged such fraud as, if found to be proven, would have avoided the transaction complained of and entitled him to the relief sought, and that the court did not err in overruling appellants' general and special demurrers.
Appellants, in their third assignment, complain of the refusal of the court to give the following requested special charge: "If you should find that plaintiff had the same means at hand of knowing the condition of the title that defendant G. F. Lee had, and if you should further find that plaintiff resorted to such source of information, if any there was, and undertook to investigate the title for himself or to have it done, and if you should find that the means or source of information so *634 furnished defendant in fact disclosed the true condition of the title of the said defendant G. F. Lee to said Eastland County land, then you are instructed that plaintiff could not recover in this case." We are of opinion that the court did not err in refusing to give this special charge, in that it was not the law of the case, and because the issue, so far as made, as to whether or not appellee had the means of knowing, or undertook to discover for himself, the condition of the title proposed to be conveyed him, or relied upon the representations of appellant Lee, was fully covered by the general charge of the court.
Appellants' fourth assignment of error complains of the court's refusal to give appellants' special charge No. 2, as follows: "If you find from the evidence that the defendant G. F. Lee made any representations or statements to the plaintiff in regard to the title to the Eastland County land prior to or at the time of executing his deed therefor to plaintiff and the payment of the purchase money, and if you should further find that such statements, if any, made by defendant G. F. Lee to plaintiff in regard to said title were the mere expressions of an opinion or belief by said G. F. Lee to plaintiff that his title was good, and if you should further find that the said G. F. Lee honestly believed the title to be good, and if you should further find that plaintiff's means of knowing or ascertaining the condition of the title was equal to that of defendants, and if you should further find that defendant directed plaintiff, or that plaintiff resorted to such means or sources of information that defendant had, and undertook to make an investigation from such source of information for himself or to have it done, then in such event the plaintiff would not be entitled to recover in this case, although he may have relied on the representations of the plaintiff (defendant)." We are of opinion that this assignment should be sustained, and that, in view of the issues made, the evidence in the case, and the general charge given, the error complained of was so material as to require that this case be here reversed and remanded.
The issue as to whether the statements and representations made by appellant G. F. Lee, in reference to the condition of his title, were merely expressions of opinion, or were, on the contrary, affirmative statements of fact, was clearly made by the defensive pleadings in the court below, and on a thorough investigation of the evidence, as shown by the record, we are constrained to the opinion that the proof adduced on the trial of this cause warranted and required the court, on being requested so to do, to submit said issue under proper instruction for the determination of the jury, and the court, having omitted in his general charge to instruct the jury upon this issue or phase of the case, should have given the special charge requested by appellants. In the case of Hawkins v. Wells, 17 Texas Civ. App. 360[
In other respects the general charge sufficiently presents the law of the case, and appellants' various remaining assignments, complaining of alleged errors of the court in its general charge, and in its refusal to give other special charges requested, and in the admission of evidence objected to by appellants, and in overruling the appellants' motion for a new trial because of the alleged insufficiency of the evidence, having been each fully considered, are here disallowed and overruled. *636
Because of the error complained of in appellants' fourth assignment, as hereinbefore set out, we conclude that this case should be here reversed and remanded for a new trial, and it is accordingly so ordered.
Reversed and remanded.