210 S.W. 710 | Tex. App. | 1919
Charles W. Green sued William and Nellie Hesse, upon a certain vendor’s lien note, executed by A. G. Morriss to Will A. Morriss, and assumed by said William and Nellie Hesse upon the purchase by them of certain tracts of land situated in ICerr county. William Hesse died pending the suit. Nellie Hesse and the children of William Hesse filed a plea, making A. G. Morriss a party, and sought to recover damages from him on account of the fact that at the time he conveyed said tracts of land to said Nellie Hesse, to wit, on July 12, 1909, they were in the possession of a tenant, who continued in possession thereof until the latter part of November, 1909. For thfe purposes of this appeal, the cause of action thus asserted may be said to have been one based upon the covenant against incumbrances in the deed from said A. G. Morriss to Nellie Hesse, implied from the use of the words “grant and convey” therein and a general warranty of title, which covenant was alleged to have been breached by such failure to deliver possession. Said Morriss’ answer contained the following allegations:
“ * * * This defendant says that it is not true that he represented to or agreed with said defendant Hesse, nor her husband, William HeSfee, that she or they should have immediate possession of the property conveyed by this defendant to said Hesse, upon the execution and delivery of said deed to her, but, on the contrary, avers that at the time of his agreement to convey said property to said Hesse, and at the time of the execution and delivery of his said deed, and as a part of the consideration therefor and at all times thereafter, it was understood and agreed between the parties that one Burks was then a tenant on the property so conveyed to said Hesse, and that the husband of defendant Hesse, to wit, William Hesse, under instructions and agreements with this defendant, saw and interviewed said tenant with regard to the time when said tenant could give possession of said lands and premises to said Hesse, and said Hesse took said property with the agreement and understanding that he should not have possession of same until such time in the fall or winter of 1909, when said tenant should surrender the possession of said premises, or when the tenancy of said tenant for the year 1909 should expire, and that said Hesse should have the lease or use of the premises in San Antonio, so traded by them to this defendant for said property, until such time as they could get possession from said tenant Burks, said William Hesse having prior thereto seen and interviewed said tenant with regard to the time when he, said tenant, should surrender said premises, and fully understanding and agreeing to the continued occupancy of said lands by said tenant until such later period in said year when said tenant could and would remove therefrom.”
The cause of action asserted, by Green having been severed from that of Nellie Hesse and the heirs of William Hesse against Morriss, the court, as to the cause of action against said Morriss, submitted to the jury only the question:
“By what amount, if any, was the value of the use and enjoyment of the land by an owner of the fee simple title diminished by Burk’s occupation or use of the same, or such part of the same as you may believe from the evidence that he occupied or used, and during such time as you may believe from the evidence that he occupied or used the same after the delivery of the deed for the land by A. G. Morriss to Mrs. Hesse?” The jury answered: $250.00.”
Thereupon judgment was rendered in favor of Nellie Hesse against said Morriss for said sum, with interest thereon from January 1, 1913, at the rate of 6 per cent, per annum, and against the heirs of William Hesse, who also had sought a recovery against said Morriss.
Upon the trial appellant, Morriss, offered to prove by Will A. Morriss:
“That he, the said Morriss, acted, throughout the negotiations with William Hesse, for A. G. Morriss in making the deed for plaintiff, Hesse, and that all of his dealings were with William Hesse, the husband of the plaintiff, Nellie Hesse; that when said William Hesse and the said witness were first discussing said deal, the said witness, Will A. Morriss, told the said William Hesse that a man by the name of Burks was on the property subsequently deeded to said Nellie Hesse, living in the house; that he had some sort of crops in the fields, and that as he, the said Hesse, was going up there with Mr. Hixon, the agent -who brought said Hesse to the witness, to look at the place and see whether he wanted it, the said witness wanted him to see the occupant, Mr. Burks, and find out from, and agree with, Burks as to when said Burks could get off, as said witness knew that Burks had some crops on there, and it might take him some little time to get off the property, and that said witness would not make the deal with him, except for him to let Burks stay on and get his crops off, or for him, the said Hesse, to deal with Burks as he saw fit; that after Hesse went up there and saw the property he came back, and in the course of a discussion between said witness and said Hesse he, the said Hesse, discussed it with Burks, and that; Burks did not have any crops over much of the fields, and that he, the said Burks, said that he could get off what crops he had there — principally cotton — as soon as the cotton was ready to pick, and that this would be satisfactory to him, provided the witness would let the said Hesse and his family occupy the place he was to trade A. G. Morriss on Ma- . tamoras street, until such time as he could get possession up there, and he said that would be*712 satisfactory, as it would take him some time to get possession any way, and the witness told him that he would not let him have the property for the price he was paying therefor, except on his making his own arrangements and assuming any kind of occupancy under Burks; that this was agreed to and understood between said William Hesse and said witness, and that witness agreed that he should keep the place on Matamoras street until such time as he could go up there and get possession from Burks; that such agreement was the understanding, and a part of the consideration at the time of the delivery of deeds, that he should assume the matter of getting Burks off or waiting to take possession until Burks should get off.”
The case of Burroughs v. Pate, 166 Ala. 223, 51 South. 978, is very similar in its facts to this case. The Supreme Court of Alabama held that if the parol testimony reduces the estate conveyed, or limits or restricts the unqualified use and enjoyment of the land conveyed, it is inadmissible. See, also, O’Connor v. Enos, 56 Wash. 448, 105 Pac. 1039; Simons v. Diamond Match Co., 159 Mich. 241, 123 N. W. 1132; Anthony v. Rockefeller, 102 Mo. App. 326, 76 S. W. 491.
Had it been alleged and proven' that the Hesses actually received benefits under the parol agreement, an element of estoppel would have been introduced into the case, which would probably be sufficient to prevent
We conclude that the court did not err in excluding the testimony.
The judgment is affirmed.
®5»ITor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes