Norvell v. Phillips

46 Tex. 161 | Tex. | 1876

Moore, Associate Justice.

The first, second, and third errors in the first assignment of error, complain of the action of the court in overruling exceptions to parol evidence offered by appellees to show a conflict of an eleven-league grant with the headlight league of land of appellant, and that there was a rumored or reported conflict of an eleven-league grant with said league, and the comparative estimate in which these titles were held as affecting the value of the land bought by appellees.

The gist of appellant’s complaint is the inadequacy of the ■ price at which he was induced by fraud of appellees to sell the land about which this controversy has arisen. This fraud is alleged to have been perpetrated, in part at least, by representations .made in regard to the conflict of appellant’s headlight with an eleven-league grant. There is no pretense that appellees represented that they had seen or examined that grant, or had any personal knowledge regarding it; or that they claimed or represented themselves as possessed of more legal skill, greater ability, or better information for determining the relative merits of these titles than appellant. The statements of appellees in reference to the supposed conflict were of a general character, such as usually occur in the negotiation of a bargain when one party is seekiug to enhance and the other to diminish the price at which the trade shall be made. That the conflict in fact exists, or is reputed to exist, in the vicinity of the land; and that the supposed merits of the two titles, as affecting the value of the land in general esteem, or with those who might desire to purchase it, is unquestionably relevant to and is admissible in evidence where the question is as to adequacy or inadequacy of the price at -which it was sold. The testimony was also legitimate as tending to disprove the fraudulent character of the representations alleged to have been made by appellees in reference to this conflict; nor do we perceive any valid reason why the existence of such conflict could not be proved by parol testimony. It would not ordinarily appear from an inspection of the grants, but must be shown by proof of their position upon the ground. Though the existence and extent of such conflict can only be definitely determined in many cases by a survey, we know of no reason why it may not be proved by any one who can testify to the fact, and especially where, as here, it is not important to know the precise extent of such conflict, but merely the general fact of its existence, as affecting the value of the property alleged to have been fraudulently purchased at a grossly inadequate price.

The bill of exceptions does not state the grounds of objection to the admission of the testimony assigned as the fourth error. It cannot be seen from a mere inspection of the bill that the testimony was under no circumstances admissible. If in some aspects it was objectionable, or some part of it was inadmissible, had the proper exception been taken, and the attention of the court called to it, we must suppose the correct ruling would have been made. If the testimony objected to had been excluded, appellees would then have had an opportunity of proving any fact which they relied upon in this evidence to establish by other competent testimony.

The fifth and sixth assignments of error ask a reversal for errors in the charge. These errors, if there are any, are not pointed out by either of these assignments; and as there is certainly no error of a controlling character plainly obvious on an inspection of the charge, the com’t, as it has been often held, is not called upon to make a critical examination to ascertain whether it is in all respects, strictly accurate.

The refusal to give the charges asked by appellant is assigned as the seventh ground of error. Appellant sought by three of these charges to renew his objections in.a different shape to the insufficiency and defective character, as he supposes, of the proof of a conflict between his headlight league of land and the eleven-league grant. What has already been said suffices to show that there was no error in the refusal to give these charges. The court could not have given them without overruling its previous decision. The deed which gives rise to this litigation, and appellant’s letter, which seems to have been the inception of the negotiation in reference to this part of the land, show, that appellant was informed of the conflict, and regarded it as' depreciating the average price at which the land could be sold.

The fourth charge asked by appellant could not have been given, unless it had been shown, which it was not, that the time within which the land in conflict was to be surveyed and paid for, was of the essence of the contract.

The eighth assignment complains of the ruling of the court on the motion for a new trial, and that the verdict of the jury is against the law and evidence. As the motion for new trial presents no specific and distinct error not embraced in the assignments of error, and the evidence is conflicting, this objection to the judgment is evidently not well taken. It is also too general.

Neither of the grounds presented in the second assignment of errors are believed to show any sufficient reason for the reversal of the judgment. Ho objection was made by appellant to appellees intervening in the suit; and it is now too late for him to object, if he would. It may he, the judgment for appellees amounts to no more than a judgment against appellant on his cross-demand to cancel the deed executed to them. The contract, as regards the thousand acres of land, with which there is no conflict, had been fully consummated. Certainly, as to it, the petition of intervention shows no ground of action' against appellant; nor do ' we see that it shows that appellant was in default, or had violated the contract for the land in conflict. But they were no doubt proper, if not necessary parties to Horton’s action; ' and certainly no one can object, if they choose to do so, that they did for him, by their voluntary appearance, what he should have done. Appellant is not alleged to have ejected appellees from the land, or to have disturbed them in its possession. There is, therefore, n othing in the pleading warranting the judgment ordering the writ of possession; but this, at most, is a mere h'regularity, which does appellant no injury and gives him no good ground to. ask a reversal of the judgment.

The judgment, in respect to the land in conflict, is certainly indefinite, if not defective. The only matter which was not disposed of when appellant’s demand for the cancellation of the contract was refused, was the ascertainment of the quantity of land in conflict with the eleven-league grant, and the payment for it by appellees as proffered in their petition. This, we think, should have been adjusted and disposed of before the case passed from the control of the court. But neither party called the attention of the court to it, nor invoked its action upon it. Nor is the failure of the court to take such action as would have enabled it to have made a proper disposition of this part of the controversy, assigned as error.

The judgment is affirmed.

Affirmed.

Chief Justice Egberts did not sit in this case.