129 S.W.2d 825 | Tex. App. | 1939
This record is substantially the same as on former appeal; plaintiffs, G. W. Swindall, his wife, and original defendant R. L. Wells, being now deceased, their heirs were properly substituted in fifth amended original petition filed September 9, 1935. A statement of the case and pertinent issues, for which remand was ordered, are fully set forth in Swindall et ux. v. Van School District, Tex.Civ.App.
The jury issues and answers on retrial (omitting formal parts and Nos. 10 and 11, which were not answered because of negative answer to Issue 9) were:
"1. Do you find from a preponderance of the evidence that the first and second deeds executed by G. W. Swindall and wife to the land in controversy for the use and benefit of Van School District (and lost without being placed of record) contained a provision that the title to said land would revert to them or their heirs in the event said school district ceased to use the same for school purposes? Answer Yes or No. Answer: Yes.
"2. Do you find from a preponderance of the evidence that representations were made to G. W. Swindall at the time he executed the deed dated February 22, 1924, that it contained the same provisions as the two lost deeds formerly executed by him to the land in controversy? Answer Yes or No. Answer: Yes.
"3. Do you find from a preponderance of the evidence that the representations, if any, made to G. W. Swindall that the deed dated February 22, 1924, contained the same provisions as the two deeds formerly executed by him and lost without being placed of record, were false? Answer Yes or No. Answer: Yes.
"4. Do you find from a preponderance of the evidence that G. W. Swindall was induced to execute the deed dated February 22, 1924, by representations then made to him, if any were so made, that it contained the same provisions as the two deeds, lost without being placed of record, formerly executed by him? Answer Yes or No. Answer: Yes.
"5. Do you find from a preponderance of the evidence that G. W. Swindall knew, or by the exercise of ordinary diligence could have known, that the deed executed by him, dated February 22, 1924, did not contain a provision, that the title to the land in controversy would revert to him or his heirs in the event Van School District *827 ceased to use the same for school purposes, for a period of more than four years prior to the filing of this suit on March 22, 1930? Answer Yes or No. Answer: No.
"6. Do you find from a preponderance of the evidence that G. W. Swindall knew, or by the exercise of ordinary diligence could have known, that the Trustees of Van School District had executed a deed to the land in controversy to R. L. Wells, for a period of more than four years prior to the filing of this suit on March 22, 1930? Answer Yes or No. Answer: No.
"7. Do you find from a preponderance of the evidence that G. W. Swindall, or his attorney, was guilty of negligence in failing to have a provision incorporated in the deed dated February 22, 1924, providing that the title to the land in controversy would revert to him or his heirs in the event Van School District ceased to use the same for school purposes? Answer Yes or No. Answer: Yes.
"If you have answered Special Issue No. 7 `Yes', and in that event only, then you will answer:
"8. Do you find from a preponderance of the evidence that the negligence of G. W. Swindall or his attorney, if any you have so found, in failing to have incorporated in the deed dated February 22, 1924, a provision that the title to the land in controversy would revert to him or his heirs in the event Van School District ceased to use the same for school purposes, induced R. L. Wells to become the purchaser thereof? Answer Yes or No. Answer: Yes.
"9. Do you find from a preponderance of the evidence that the provisions of the deed executed by G. W. Swindall, dated February 22, 1924, were explained to him at or prior to the time he executed the same? Answer Yes or No. Answer: No.
"13. Do you find from a preponderance of the evidence that G. W. Swindall knew or could have known by the use of ordinary diligence, that R. L. Wells or his tenants were privately using, possessing and claiming title to the land in controversy for a period of more than four years after the execution of the deed dated February 22, 1924, and prior to the filing of this suit on March 22, 1930? Answer Yes or No. Answer: Yes."
Both parties moved for judgment on the above jury verdict, the motion of defendants being sustained, and final order accordingly entered that plaintiffs take nothing, followed by this appeal. The former opinion of this Court, as announced by Justice Looney (
Only facts tending to support jury findings will be considered when the testimony is assailed as wanting or insufficient; Dallas R. Co. v. Hallum, Tex.Civ.App.
As to Issue 8, we think the evidence was sufficient to authorize the finding of inducement. While it is true that the testimony of Mr. Wells was susceptible of a finding either way, yet, it is fairly inferable from the record that all parties to the Wells deed understood that a companion deed from Mr. Swindall was essential before the warranty conveyance could be executed by the school trustees; and that Wells did not pay for the property until he was assured that a third deed from Mr. Swindall had been secured. His testimony is quoted, in part:
"I told the school folks that if they would give me a warranty deed, I was ready to trade with them. I think I knew the school trustees personally at that time — that is, the ones who dealt with me. Yes, I knew Mr. Swain personally. I know Mr. White personally; they are the ones who made the trade with me; I said I left it to them to fix up the deeds. Yes, I believed what those men told me there at that time about getting deeds to this property; they said they were sure (?) the old deed had been lost and they would go and see him and see if he would make a new deed in lieu of the one that was lost; they came back and reported to me that they had seen him, and they told me Mr. Swindall said that he had given it once and that he would give it again"
"Yes, he gave a deed at that time. I paid my consideration when the trustees brought my deed from Mr. Swindall, then I paid for it. Yes, it is correct that Mr. Swindall had executed the deed before I paid for the property."
The fact that other testimony of Wells may be inconsistent with the above statements does not take from the whole of his testimony its probative force as regards the construction the jury decided to place upon it. It is for that fact-finding body to reconcile such inconsistencies. Norwich Union Indemnity Co. v. Wilson, Tex.Civ.App.
The issues just discussed, of course, involve an estoppel by negligence and appellants emphasize the proposition that defendants' pleadings are wholly insufficient as a basis for the particular estoppel that the jury found to exist. This defensive plea was not excepted to for insufficiency, and by reasonable intendment could only refer to defendant Wells, or those succeeding to his rights after his demise, for, upon this trial, no others are parties defendant. Moreover, the general averment of estoppel is sufficient, unless excepted to, being expressive of acts and omissions of such character as to mislead another to his damage; it not being necessary, we think, for defendant to allege a sole reliance upon plaintiffs' negligence as asserted and proven. Stewart v. Crosby, Tex. Civ. App.
Turning to a study of Issues 12 and 13, considering all findings of the jury together, harmonizing and reconciling them, one with another, as is our duty, it may be that these issues are evidentiary and incomplete; not comprehending the material facts of knowledge sufficient to toll the four-year statute of limitation. In other words, it is doubtful if the facts embraced in Issues 12 and 13, which the jury found were known to Mr. Swindall for more than four years prior to filing suit, are, in fact, sufficient to charge him with notice of all the material elements forming the basis of the 1924 fraud; Deaton v. Rush,
Issues 12 and 13 may be inconclusive and incomplete for another reason. On former appeal was stated the uniform rule that [37 S.W.2d 1098]. "The statute of limitation will not begin to run in cases involving fraud, until it is discovered, or, by the use of reasonable diligence, could have been discovered" (citing cases). And it is equally well settled that "Actual knowledge of the fraud is not required; reasonable prudence must be exercised to discover the fraud, and knowledge of acts sufficient to put one upon inquiry will operate as notice of the fraud." Carver v. Moore, Tex.Com.App.,
Finding no reversible error in this record, the judgment of the district court is, in all things, affirmed.
*830Affirmed.