143 S.W.2d 208 | Tex. App. | 1940
Lead Opinion
This suit was originally filed by the appellants, B. T. Patterson and wife, Eva Patterson, alleged to be residents of Leon. County, Texas, on May 18, 1938, against the appellees, the Shell Oil Company,, George Baumgart, D. A. Robertson and others, in the nature of an action in trespass to try title involving the NE% of Section 826, Block D, in Yoakum County,. Texas. By amended petition filed on May 25, 1939, the appellants sought to quiet title in them to the above land and to cancel a quitclaim deed of the date of November 17, 1937, from appellants conveying the land to D. A. Robertson. The trial court sustained general demurrers filed' by the appellees to appellants’ first amended original petition, arid, upon appellants’ refusal to amend their pleadings, dismissed the suit. It is from such action that this, appeal is prosecuted.
The trial court having sustained a general demurrer to appellants’ petition we are .confronted with the rule which compels us to assume the truth of the facts alleged and to resolve every reasonable in-tendment in favor of the sufficiency of the petition. Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744, and authorities therein cited. In this connection, however, we want it distinctly understood that our conclusions hereinafter expressed are governed by the above rule and are not to be misconstrued as findings of fact upon the merits of this case.
The appellants alleged that on March 20, 1917, Edward Randall and wife, Laura B. Randall, conveyed to J. N. Farris Surveys 828, 826, 866 .and 892, in Block D,.
The appellants further alleged that on or about the month of November, 1937, the Shell Petroleum Corporation (now Shell Oil Company by change of name), by its officers and agents, and all the ap-pellees herein, conspired and fraudulently acted together to induce the appellant, B. T. Patterson, to surrender and divest himself of the ownership of the NE¼ of Section 826; that pursuant to said scheme and purpose on and prior to November 17, 1937, the appellees caused D. A. Robertson, acting for himself and the other appellees, to approach the appellant Patterson and make fraudulent representations to Patterson; that it was represented that Baum-gart had foreclosed on the land, making Patterson a party, and that by reason thereof the appellants had no interest in the land; that it was further represented that the unpaid indebtedness against the section of which appellants’ land was a part, was largely in excess of the actual market value of the land; that upon inquiries made by Patterson, D. A. Robertson, in pursuance of the fraudulent scheme and conspiracy, represented to Patterson that said lands had no mineral value ór value for oil and gas purposes and that there was no mineral development in the vicinity there
The appellants further alleged that neither Baumgart nor any of the other ap-pellees ever rescinded or attempted to rescind the sale or conveyance to Zella M. White of the lands conveyed to her; that neither Baumgart nor any of the appellees ever notified the appellants of any intention to rescind the sale; that Baumgart and the other appellees were not entitled to rescind because Baumgart delayed and did not attempt to rescind the sale when the annual installments became due respectively on March 20, 1925, 1926 and 1927, and for several years thereafter, but Baumgart indicated by his silence and failure to insist upon payment of the notes that he did not intend to insist .upon the prompt payment thereof; and that George Baumgart, in bringing his foreclosure suit, elected not to rescind his conveyance of the lands to Zella M. White. Appellants prayed for judgment for the land and for cancellation of the deed to D. A. Robertson and of a deed from D. A. Robertson to George Baumgart, however, the latter deed was not theretofore mentioned in the petition. They further sought judgment that their title to said land should be quieted. It was upon the above allegations that the demurrer was sustained.
The appellants present numerous assignments and propositions attacking the action of the trial court, to which the appellees have addressed counter propositions seeking to uphold the court’s action. We think the issues are thus reduced to three principal contentions, namely: (1) whether or not there were sufficient allegations for cancellation of the quitclaim deed from the appellants to Robertson; (2) whether or not there was an election of remedies by George Baumgart in his foreclosure suit such as to preclude a rescission after such election; and (3) whether or not the petition of the appellants_ is fatally defective because it shows upon its face that the appellants were guilty of laches as a matter of law or that their claim constitutes a stale demand or is barred by limitations, as asserted by the appellees.
We recognize the general rule that the “mere expression of an opinion is not a representation upon which a party contracting is entitled to rely, and which if found to be incorrect will be sufficient to avoid a contract”. Little v. Allen, 56 Tex. 133, 139. However, there are some exceptions to this general rule. 20 Tex.J-ur. 24, par. 12. We also recognize the general rule that misrepresentations as to a matter of law will not ordinarily support an action for fraud and deceit; however, this rule also has its exceptions. 20 Tex. Jur. 28, par. 14. Without discussing such exceptions to these rules it is our- opinion that the allegations above with reference to the misrepresentations of Robertson contain some 'assertions which are neither expressions of opinions nor representations as to matters of law. We refer particularly to the allegation that Robertson represented to the appellants that the lands had no mineral value or value for oil and gas purposes and that there was no mineral development in the vicinity thereof, and especially is this true since the information furnished was asserted to have been in response to inquiries made by the appellants. These representations, we think, were of very material facts which, if untrue, constituted the very essence of deceit and fraud. Feist et al. v. Roesler, Tex.Civ.App., 86 S.W.2d 787, and authorities therein cited. In controverting the truth of these allegations the appellants alleged that the appellees knew, and the true facts were, that the lands then had a market, value of $700 per acre; that they were situated in the center of what was known as “a hpt oil play”; that they were in great demand by oil companies; and that Baumgart had theretofore executed gas and oil leases on the land and had received large sums in bonuses and rentals therefrom. We think it is apparent that these allegations contain all of the requisite elements of fraud, namely: (1) that they were misstatements of material facts; (2) that such statements were false; (3) that they were made with the intention that' they should be acted upon; (4) that the appellants did not know they were false but relied thereon;' and (5) that they were injured thereby. It is therefore our opinion that these allegations were sufficient to support a judgment cancelling the quitclaim deed.
There is no dispute between the parties in regard to the sufficiency of the allegations of the appellants to show that the foreclosure sale and the sheriff’s deed in 1928 were void. It is the effect of such void foreclosure and sale and the subsequent possession of the appellee Baumgart of the land which affords the chief controversy between the parties herein. The appellants contend that the filing of the suit by Baumgart, the obtaining of the alleged void judgment therein and the attempted sale, amounted to an affirmance of the contract of conveyance and constituted an election of remedies which has not been abandoned and that the appellee Baumgart is therefore a mortgagee in possession without the right to now claim a rescission, a remedy inconsistent with the remedy pursued by him. The appellees contend that the foreclosure judgment and the sale thereunder having been alleged to be void, Baumgart was not precluded from thereafter claiming a rescission of his conveyance to Zella M. White.
We have been unable to find any authorities, and the parties herein have failed to cite us to any, which clearly decide the exact point in issue in this regard. It is elementary that Baumgart had a choice of remedies available to him when he filed his foreclosure suit. He could have abandoned the contract and recovered the land, which would have amounted to a rescission, or he could have asserted the contract and'obtained a judgment for his debt and a foreclosure of his lien. Gardener v. Griffith et al., 93 Tex. 355, 55 S.W. 314; Mozoch v. Sugg, Tex.Com.App., 254 S.W. 770; Bassham et al. v. Evans, Tex.Civ.App., 216 S.W. 446. It is well settled that when a vendor elects to sue for the
On the issues of laches, stale demand and limitations urged by the appellees in support of the judgment, we think a sufficient answer to this contention is that ordinarily these issues are matters of special defense which may not be reached by a general demurrer. The law of limitations is by statute made available in a suit only by a defensive plea and we think (here is no variation from this statutory rule. Article 5540 R.C.S.; Johnston et al. v. Stephens et al., 121 Tex. 374, 49 S.W.2d 431; Rivers v. Washington, 34 Tex. 267; Sasser v. Davis, 27 Tex. 656, 657. It has also been held by the San Antonio Court of Civil Appeals, with the approval of the Supreme Court of this State that “laches or stale demand must be pleaded in order to avail a party invoking it against his adversary * * * Moore v. Miller et al., 155 S.W. 573, 577, writ denied. Also, in Collins et al. v. Griffith, Tex.Civ.App., 105 S.W.2d 895, 898, this court held: “The presumption of laches or limitation arising from lapse of time may be rebutted and overcome by competent testimony, and under the allegations in appellee’s petition and her prpof, the delay is explained. These are issues to be determined on a trial of the merits if appellants plead limitation or laches as a defense. 28 Tex.Jur. p. 285, par. 191; 27 Tex.Jur. p. 31, par. 14.”
The appellants asserted a partial performance of the contract on their part, further pleaded that the appellees had made no effort to collect the purchase money or rescind the sale, and also charged the appellees with fraudulent conduct both in connection with the foreclosure suit and with reference to the execution of the quitclaim deed by the appellants. Under these circumstances we think the defensive issues of laches and stale demand become questions of fact to be decided in a trial upon the merits and cannot be reached by a general demurrer to the pleadings of the appellants. At least, laches and stale demand do not appear as a matter of law upon the face of the petition. Turner et al. v. Hunt et al., 131 Tex. 492, 116 S.W.2d 688, 117 A.L.R. 1066, and authorities therein cited; Johnston et al. v. Stephens et al., Tex.Sup. Court, supra; De Cordova v. Smith’s Adm’x, 9 Tex. 129, 130, 58 Am.Dec. 136; Slaughter v. Coke County, 34 Tex.Civ.App. 598, 79 S.W. 863, writ refused; Drinkard v. Ingram et al., 21 Tex. 650, 73 Am.Dec. 250; Loomis et al. v. Cobb, Tex.Civ.App., 159 S.W. 305, writ refused; Montgomery et al. v. Trueheart, Tex.Civ.App., 146 S.W. 284, writ denied, and authorities therein cited; Bordages et al. v. Stanolind Oil & Gas Co. et al., Tex.Civ.App., 129 S.W.2d 786; Brady et al. v. Garrett, Tex.Civ.App., 66 S.W.2d 502; 21 C.J. par. 211, pages 210, 211; Walker v. Emerson, 20 Tex. 706, 707, 73 Am.Dec.
What we have said above we think disposes of all the issues presented in this case and it follows that it is our opinion the trial court erred in sustaining the general demurrer to appellants’ petition.
The judgment is reversed and the cause remanded.
Rehearing
On Motion for Rehearing.
In appellees’ motion for rehearing one contention is presented which we did not discuss in our original opinion. It is to the effect that appellants’ suit being one for specific performance of an executory contract for the sale- of land the general demurrer was properly sustained because the petition of the appellants affirmatively discloses that they have been guilty of laches as a matter of law. In 'this connection it is asserted that the failure of the Pattersons to pay the purchase money as agreed, together with interest and taxes, precludes their right to seek relief in a court of equity.
We are not in accord with appellees’ contention that this suit is one for the specific performance of the original contract of sale. Under the authorities of this State we think it is settled that a general warranty deed reserving a vendor’s lien securing purchase money is ex-ecutory as between the vendor and vendee only in the sense that the naked title remains in the vendor to be automatically vested in the vendee upon payment of the purchase price and- in all other respects the deed is an executed contract. Humphreys-Mexia Co. et al. v. Gammon et al., 113 Tex. 247, 254 S.W. 296, and authorities therein cited. When the purchase money has been paid the title of the vendee in such deed becomes absolute without any action on the part of the vendor. Carey et al. v. Starr et ux., 93 Tex. 508, 56 S.W. 324. It has also been held by the Supreme Court of this State that upon a tender of the purchase money into court the title of the vendee becomes perfect. Stitzle et ux. v. Evans, 74 Tex. 596, 12 S.W. 326, 327. In the latter case it is said: “Upon payment or tender .of the purchase money in this case, the title of the appellee became perfect. Russell [& Seisfeld] v. Kirkbride, supra [62 Tex. 455]. Nothing remained for the grantors to do to complete it. The contract was not executory on their part.”
Since the appellants have tendered into court the purchase money and such other sums as may be adjudged to be due, it is still our opinion that laches and stale demand do not appear as a matter of law upon the face of appellants’ petition. 21 C.J. 215, par. 213; Riley v. McNamara, 83 Tex. 11, 18 S.W. 141.
The motion for rehearing is overruled.