Ponce v. McWhorter

50 Tex. 562 | Tex. | 1879

Gould, Associate Justice.

In October, 1835, Zoraster Eobinson conveyed the west half of his headlight league to Daniel L. Eichardson, the deed, dated at San Felipe de Austin, reciting that it was made “ in consideration of the sums of money by Daniel L. Eichardson paid for commissions, office, secretaries and surveyors, and government fees on a league of land granted to me as a colonist by the commissioner of government, Eobert Peebles, and for other sums paid and services rendered, in all amounting to one hundred and fifty dollars.” This deed was acknowledged by Eobinson in August, 1838, and was recorded in October, 1840. In 1867, appellant Ponce, the grandson and one of the devisees of Eichardson, brought this action of trespass to try title against sundry parties in possession of said half league, claiming under conveyances from Eobinson, made subsequent to his deed to Eichardson.

The defendants answered, amongst other things, that Eichardson did not, in fact, pay the government dues, as he should have done, but that Eobinson, in September, 1838, was compelled to pay them himself to protect his land, and that afterwards, in January, 1841, Eichardson, in consideration of that fact and of $75 then paid him by Eobinson, had agreed to rescind their trade, and as evidence thereof executed the following instrument: “ January 13,1841.—This day received of Zoraster Eobinson $75 in full for moneys paid by me in 1835 at San Felipe de Austin in clearing out said Robinson’s headlight league of land, he (the said Robinson) having paid the government dues on the same. Daniel L. Richardson.” Whilst these facts were alleged as invalidating the deed to Richardson, and the foregoing instrument was claimed to be sufficient evidence of a rescission or sale under the statute of frauds, it was further claimed that, after this instrument was executed, Robinson took possession of said half league in pursuance of said rescission, claimed and controlled it, paid taxes on it, and sold it to the defendants, who, each of them, made valuable improvements; no objection thereto being made by Richardson, who, they allege, had abandoned all claim. The fact of the rescission or resale is testified to, with full details of the circumstances, by Robinson. There is ample evidence that thereafter Robinson, whose residence and improvements were on the east half, openly claimed the west half, making sales to the defendants, who went into possession and made valuable improvements. One of Robinson’s vendees took possession and improved in 1843 or 1844, some five years before the death of Richardson. The sales to the other defendants were later, after 1849, when Richardson died in Sabine county, where ho resided. There is no evidence of any claim or acts of ownership by him after 1841, but after his death his executors inventoried the land in controversy, and in the partition of the large landed estate left by him it was allotted to his grandson, the plaintiff, then a minor, quite young. The trial resulted in a verdict and judgment for defendants, and the plaintiff has appealed.

Under the charge of the court the defendants, in order to entitle themselves to a verdict, were required to establish the verbal rescission as alleged, that Richardson thereafter abandoned his claim to the land, and Robinson afterwards notoriously asserted and exercised ownership and put parties in possession of it, who erected valuable improvements.

The court treated the receipt or instrument executed by Richardson in 1841 as insufficient evidence of a rescission or resale under the statute of frauds, hut admitted it as evidence tending to establish the alleged verbal contract. Taken in connection with the recitals of the deed as to its consideration, the receipt was certainly strong evidence of that alleged resale, and was properly admitted in evidence, although insufficient of itself to satisfy the statute.

Counsel for appellant complain that the court erred in overruling exceptions to some of the pleas of defendants. But if this he conceded, it was an error which did not prejudice the plaintiff’s cause, for the court in its charge did not submit to the jury any issue under these pleas. There are, it is true, in the charge some general expressions on the subject of fraud, but they are not such as could have led the jury to find for defendants on the ground only that Richardson had failed to perform what he had undertaken, and that the consideration of the deed had failed. The issue submitted to the jury was that growing out of the alleged verbal rescission or resale, and of the equities which had grown out of improvements made on the faith thereof. Assuredly the fact of the original sale by Robinson to Richardson, and that the second contract was regarded by them as a rescission of the first, would not prevent its enforcement, if the equities were such that it would have been enforced as a mere verbal sale of land.

The cases in this court are numerous in which verbal sales of land have been recognized as valid, and enforced, where the purchase-money has been paid, possession taken with the consent of the vendor, and improvements made without his objection. (Garner v. Stubblefield, 5 Tex., 552; Dugan’s Heirs v. Colville’s Heirs, 8 Tex., 126; Ottenhouse v. Burleson, 11 Tex., 87; Whitson v. Smith, 15 Tex., 36; Neatherly v. Ripley, 21 Tex., 434; Hubbard v. Horne, 24 Tex., 270; Taylor v. Rowland, 26 Tex., 293; Hendricks v. Snediker, 30 Tex., 306; Robinson v. Davenport, 40 Tex., 341; Ann Berta Lodge v. Leverton, 42 Tex., 31; Castleman v. Sherry, 42 Tex., 59; Willis v. Matthews, 46 Tex., 483.)

The ground upon which such verbal sales are enforced, notwithstanding the statute, is the prevention of fraud. (42 Tex., 31, supra.) The rule is thus stated by Justice Clifford in a recent case: “ Where one of the two contracting parties has been induced or allowed to alter his position on the faith of such contract to such an extent that it would be fraud on the part of the other party to set up its invalidity, courts of equity hold that the clear proof of the contract and of the acts of part performance will take the case out of the operation of the "statute, if the acts of part performance were already such as to show that they are properly referable to the parol agreement.” (Williams v. Morris, 5 Otto, 457.)

The change of circumstances growing out of valuable improvements has been assumed to be such as to make it difficult or impossible to restore the vendee to his position. That difficulty is rather increased than diminished where the vendee has, on the faith of his contract, made sales to others, and the improvements have been made by them instead of by him. We cannot see that the equity of the defendants, is affected by the fact that the improvements were made not by Eobinson, but by parties claiming under him.

The instructions on the subject of verbal sales asked by plaintiff required Eobinson to have taken possession and made improvements in person or by tenants, and that it should have been done in the lifetime of Eichardson and with his knowledge. The evidence was abundant and uncontradicted that possession had been taken and improvements made by Eobinson’s vendee during Eichardson’s lifetime. Whether he actually knew it or not, he was chargeable with notice, and could only have remained ignorant by a failure to give proper attention to his lands. The errors of fact and of law embodied in the charges asked justified their refusal.

We are satisfied that the court committed no material error in the mode in which the case was submitted to the jury, and that the verdict was in accordance with the evidence and with the justice of the case.

The judgment is accordingly affirmed.

Affirmed.