190 S.W. 1157 | Tex. App. | 1916
"This suit was instituted by the appellees, L. G. Gilbert and wife, Ida Gilbert, in the district court of Milam county, Tex., against Maggie E. Pitt, Frank Pitt, and J. W. Cartwright, on the 24th day of September, 1914. The first count in plaintiffs' petition is a suit in trespass to try title, involving 143 1/3 acres of land situated in Milam county, Tex., the plaintiffs alleging that they were the owners of said land on October 15, 1913, and that on said day the defendants and each of them unlawfully ejected plaintiffs therefrom and continued to withhold possession thereof. In their second count plaintiffs allege that on or about the 17th of September, 1913, they were the owners of said tract of land; that on said date plaintiffs were induced to execute and deliver a deed conveying said land to the appellant Maggie E. Pitt; that plaintiffs were induced to so act by the false and fraudulent representations of Frank Pitt that certain land which plaintiffs were to receive in the state of Oklahoma was very valuable, and that, on the contrary, said land was in truth ant in fact of very little value. Plaintiffs further allege that they would not have executed the deed to the Milam county land had it not been for the alleged false representations of the appellant Frank Pitt; that they relied upon his representations; and that they were thereby defrauded out of their Milam county land. Plaintiffs sue to cancel the deed, and file among the papers a quitclaim deed conveying to appellants Maggie E. Pitt and Frank Pitt title to 100 acres of land in Atoka county, Old., which plaintiffs allege that they had received in exchange for their Milam county land. Plaintiffs further allege that J. W. Cartwright is in possession of said Milam county land, and that he, together with the appellants, have deprived the plaintiffs of the use of said land to the plaintiffs' damage in the sum of $150. Plaintiffs also sue these appellants for $100 for the expense in moving to and from the land in Oklahoma and for $500 as the actual loss of their time in moving to and from said Oklahoma land, and also sue for $1,000 as exemplary or punitive damages.
"The appellant Maggie E. Pitt in her first amended original answer alleges that on or about the 17th of September, 1913, she was the owner of one certain note in the sum of and of the value of $972.48, executed by one G. E. Jackson, payable to the order of Maggie E. Pitt, and was also the owner of 158 acres of land situated in Beckham county. Okl; that on or about said date the said Maggie E. Pitt conveyed to the said Jackson said Beckham county land and canceled said $972.48 note in consideration of the conveyance of the Atoka county land to the appellees Gilbert, and that she received as consideration for the cancellation of her note and for the conveyance of the Beckham county land the 143 acres of Milam county land involved in this suit. She also denied that she was guilty of any fraud, and denied that any one had any authority to make any representations for her, and denied that she had ever ratified or confirmed any fraudulent transactions of any of the parties to this suit. She also denied that any fraudulent representations were made, and says that if they were made that plaintiffs have waived their right to rescission by the long delay in seeking restitution and in not having ever made any claim against appellants for the land in controversy. She also alleges that she never at any time until the filing of the suit received any notice of the desire on the part of the appellees Gilbert to rescind. She further pleads that, since it is impossible to place her in statu quo, the appellees Gilbert take nothing by their suit against her.
"The appellant Frank Pitt filed a disclaimer in so far as the land in controversy is concerned, and pleaded a general denial to the allegations of plaintiffs' petition. J. W. Cartwright also filed a disclaimer.
"Plaintiffs in their supplemental petition specially deny the allegations of Maggie E. Pitt that the property was her separate property and attack the entire transaction as being fraudulent.
"Trial was had before a jury on the 18th day of October, 1915, and the case was submitted on special issues. Upon the issues as determined by the jury, the court entered a decree cancelling the deed from L. G. Gilbert and wife to Maggie E. Pitt and decreeing that the said Gilberts recover of the defendants the 143 acres of land in Milam county, Tex. A judgment was also entered against the defendant Frank Pitt for the sum of $380."
From this judgment the appellants have prosecuted this appeal.
The earlier authorities in this state appear to sustain appellants' second contention, but appellees insist that these have either been overruled or modified by subsequent decisions, citing to sustain their contention Hermann v. Alien,
Appellees, however, did not complain of the judgment on account of this failure to dispose of the items of damages raised by the pleadings either in the lower court or in this court, and therefore must be held to have acquiesced therein.
At any rate, we think they are concluded by said judgment, and the same became res adjudicata as to such items of damage. If so, it is, in effect, a final judgment from which an appeal could be prosecuted to this court. In Rackley v. Fowlkes,
"The proposition seems to be sound in principle and well supported by authority that, where the pleadings and judgment in evidence show that the pleadings upon which the trial was had put in issue plaintiff's right to recover upon two causes of action, and the judgment awards him a recovery upon one, but is silent as to the other, such judgment is prima facie an adjudication that he was not entitled to recover upon such other cause."
And this principle seems to be applicable here.
In view of these later decisions we are constrained to hold that the judgment appealed from is final, and overrule appellants' contention.
The court properly declined to give a peremptory charge in behalf of appellants, based on their contention that no notice of dissatisfaction or formal demand for rescission was made prior to the filing of the suit by appellees. Under the circumstances disclosed by the record, no such notice or demand was necessary. As soon as appellees returned to Milam county, which was within about a year after the exchange of lands, this suit was filed and the deed of reconveyance was tendered by them. Besides this, appellants were nonresidents, and it appears from the evidence that notice and demand for rescission was made upon their agent, King, in charge of the land, which was communicated to appellants before the filing of the suit, for which reason we overrule appellants' second assignment.
The court did not err in submitting to the jury the issue of the reasonable and necessary expense of the Gilberts in going to and returning from Oklahoma, since there was evidence in the record which authorized the submission of this issue.
It appears from the evidence that Maggie Pitt, about the 17th of September, 1913, held a note for $972.48 against G. E. Jackson, and was also the owner of 158 acres of land in Beckham county, Okl; that on said date she conveyed to said Jackson said Beckham county land, canceling and delivering to him said note; that in consideration therefor she procured Jackson to convey to appellees the Atoka county land, upon consideration that appellees would convey to her, Mrs. Pitt, the Milam county land, which they did, and it is now urged on the part of appellants that appellees are not entitled to rescission of the contract, because they have not been placed in statu quo, in that appellees did not return or offer to return to them the Jackson note. Appellees had nothing to do with the trade between Jackson and the appellants. They had never been in possession of the $972 note, and it was therefore impossible for them to return it to appellants; and, as between the parties to this suit, the situation was the same as if the appellants had deeded the Atoka county land direct to appellees. We therefore overrule all of the assignments complaining of this matter.
We sustain the 6th assignment complaining that the court erred in rendering judgment against F. E. Pitt for the sum of $380, of which $300 was for rent for two years. The pleading only authorized a recovery for rent for the year 1914 at $150 and the item of $80 damages for money expended in going to and returning from Oklahoma. Appellees, however, have offered to remit $150. We therefore reform the judgment in this respect so as to entitle them to recover the sum of $230 for rents and damages, and as thus reformed the same will be affirmed, the costs of this appeal being taxed against appellees.
Reformed and affirmed.
