33 Tex. 139 | Tex. | 1870
This is an action of trespass to try title, commenced by the appellee in the District Court of Harris county, at the Fall term for the year 1860.
The plaintiff appears, from his pleadings, to count upon a legal title, but as the cause progresses it becomes rather a conflict of equities, between plaintiff and defendant.
■In those States where law and equity are blended, and the remedy in each class of cases is sought in the same tribunals, it has been held that an equitable title may support the action of ejectment. (Miller v. Alexander, 8 Tex., 43.)
We will have necessarily to look to the facts to determine the legal status of the parties to the suit.
It appears that in the month of September, 1852, Yiser sold a boat to D. W. C. Harris, in part or in whole consideration for
Nothing more is heard of the matter for a little more than two years. In December, 1854, Groesbeeck, Rice & Go. concluded to take the property themselves, and accordingly filled the blank in the deed with the name of. William M. Rice. Of this they gave no 'notice to Yiser, nor did they credit him with anything upon their books for some three years after they had thus filled up and recorded the deed. In 1856, Yiser came to Houston and inquired about the matter of Rice, who, from some cause or other, gave him but little satisfaction about it further than to say, that he did not know what had become of the deed, but when Mr. Groesbeeck returned (who appears to. have been absent,) it would all be right. Yiser found the deed on record, and appears to have been displeased with the transaction. Rice afterward, in December, 1862, procured a deed for the same property, from John B. Harris. This deed could only operate in furtherance and assurance of the title intended to be conveyed by his brother, D. W. C. Harris, and could only operate as an acknowledgment of his power to convey.
The evidence appears to lead to the conclusion that an offer of sale was made in September, 1852, by Yiser to Groesbeeck, Rice ■& Co., which they then declined accepting; that Yiser then made them his agents to sell the land for him to any third party who would give the sum of $>220 for it; or if they saw proper they might take it at the same price and credit his account with that sum.
It may be well here to notice that Groesbeeck, Rice & Co. could not be agents to sell the property to themselves, nor is their claim that the deed left with them would operate as a contract in writing to take the case out of the statute of frauds, as between them and Yiser, supported by any principle of law or equity; nor does the claim that they held the deed as a mortgage to secure their debt stand upon any better footing. If a mortgage, and good as such, they have their remedy upon it, but not in this action of trespass to try title.
■ 'In view of all the facts, as we derive them from the record,
The conduct of Rice furnishes fair presumption that he did not so understand the matter. He gave Yiser no notice of his taking the property at his offer, and four years afterward appears to have forgotten that he had taken the deed to himself, and entered no' credit on Yiser’s account for over three years after he had taken the deed and recorded it to himself; and a year or more after Yiser appears to have repudiated the transaction.
Having thus declared what we conceive to be the law of this ease, we reverse the judgment, and remand the case for inquiry of damages and to be tried in accordance with the view of the law which we have presented herein.
Reversed and remanded.