Lott v. Dashiell , 233 S.W. 1103 ( 1921 )

I concur in the affirmance of this case as to the interveners, F. S. Sandoval et al., but am unable to agree with the majority opinion that the cause should be reversed and remanded as to plaintiff in error Lott, D. D. Harrigan, and W. R. and B. K. Edwards.

To the statement of the case made in the majority opinion it should be added that plaintiff in error Lott also pleaded that he and the defendant Harrigan formed a partnership for the purchase, subdivision, and sale of the land in controversy; that the $4,000 note represented the agreed purchase price of the land, and the $500 note represented cash advanced by the Edwardses to Lott and Harrigan to enable the latter to improve the land; it being understood that both said notes should be secured by a lien retained in the deed.

Before entering into a discussion of the fundamental reasons why I cannot agree with the majority opinion, I shall endeavor to show that the record does not bear out the contention of plaintiff in error Lott, and that the deed from the Edwardses as originally executed conveyed one tract of land and said deed as reformed by the judgment of the trial court conveys an entirely different and distinct tract of land. The following sketch compiled from data in the statement of facts shows the location of the land involved in this suit:

[EDITORS' NOTE: SKETCH IS ELECTRONICALLY NON-TRANSFERRABLE.]

It is true that the original description places the Steves tract immediately east of the "Tarleton and Keller tract," while the reformed description places the Steves tract immediately east of the C. A. Keller tract. However, both the original and the reformed description of the Steves tract are otherwise the same, and a careful examination of the statement of facts leads to the inevitable conclusion that the description contained in the Edwards deed as originally executed describes no land whatsoever or else it describes identically the same land as the reformed description, although the descriptions may be different in verbiage.

The evidence definitely establishes that the Tarleton Keller tract and the C. A. Keller tract have for their west boundary line identically the same line. The southwest corner of the Tarleton and Keller tract is also the southwest corner of the C. A. Keller tract. The northwest corner of the Tarleton Keller tract is also the northwest corner of the C. A. Keller tract. The Tarleton Keller description, after taking us to the northwest corner of the tract intended to be conveyed, calls to go "east" to the northwest corner of the C. A. Keller tract; thence south to a given point; thence west to the place of beginning. As the northwest corner of the two tracts are identical, manifestly it is impossible to go "east" to the northwest corner of the C. A. Keller tract. If, however, in the Tarleton Keller deed we reverse the call for the "northwest" corner of the C. A. Keller tract and make it read "northeast" corner of the C. A. Keller tract, then the description in the Tarleton Keller deed and in the C.

A. Keller deed will describe identically the same land. Therefore we are forced to the conclusion that the Tarleton Keller deed describes no land whatever, or else it describes the C. A. Keller tract as shown on the foregoing sketch. Furthermore, if the Tarleton Keller deed does not describe any land, then it follows that the Edwards deed as originally executed does not describe any land. On the other land, if the Tarleton Keller deed and the C. A. Keller deed describe the same land, then it is immaterial whether the Steves tract be described as being immediately east of the Tarleton Keller tract (as in the deed from the Edwards) or as being immediately east of the C. A. Keller tract (as reformed by the judgment of the trial court). M. J. Martin, who appears to have executed both the Tarleton Keller deed and the C. A. Keller deed, testified on the trial of the case that she did not convey but one tract. Harrigan, a surveyor, testified that the Tarleton Keller tract could not be located on the ground because said tract and the C. A. Keller tract had the same line for their west boundary line and that the southwest corner of the two tracts was identical and the northwest corner of the two tracts was identical.

There is ample authority for reversing the call in the Tarleton Keller deed from the "northwest corner" to the "northeast corner," and it is also well established that parol evidence is admissible to explain a latent ambiguity in a deed and identify the particular tract intended to be conveyed. Coffey v. Hendricks, 66 Tex. 676, 2 S.W. 47; Mansel v. Castles, 93 Tex. 414, 55 S.W. 559; Poitevent v. Scarborough, 103 Tex. 111,124 S.W. 87.

I am utterly unable to agree with my associates as to the effect which should be given to Lott's admission, which was made under rule No 31 governing the district and county courts. Lott's admission as set forth in the judgment is as follows:

"The defendant J. N. Lott admits that plaintiff has a good cause of action as set forth in her petition, except in so far as it may be defeated in whole or in part by the facts of the answer of J. N. Lott constituting a good defense, which may be established."

What was the plaintiff's cause of action as set forth in her petition? Simply this: That B. K. and W. R. Edwards in May, 1914, executed a general warranty deed to Lott and Harrigan covering 134 acres of land as described in the petition; that as the purchase price for said land Lott and Harrigan executed to said Edwardses the two notes aggregating $4,500; that a vendor's lien was retained in the deed and acknowledged in the notes to secure the payment of said notes; that said notes and lien were transferred to and were owned by the plaintiff and were past due and unpaid; that through mutual mistake on the part of B. K. and W. R. Edwards and Lott and Harrigan there was an error in the description of the land; that the Edwardses intended to convey, and Lott and Harrigan intended to buy, the 13 1/2-acre tract immediately east of the C. A. Keller tract; "that said last described 13 1/2-acre tract was the tract which Lott and Harrigan actually purchased from said B. K. and W. R. Edwards; that on or about May, 1914, the said defendants, Harrigan and Lott, took actual possession of said last-described 13 1/2-acre tract and held possession of same and are now in possession of same.

Certainly if Lott's admission is to be given any effect whatsoever, it must be held that Lott admitted all of the foregoing facts, for all of said facts are essential to plaintiff's recovery. If, after Lott made said admission, neither party had introduced any evidence, the plaintiff would as a matter of law be entitled to judgment against Lott. Smith v. Bank, 74 Tex. 541, 12 S.W. 221, cited in the majority opinion, holds:

"An admission made in the very language of the rule must be construed to mean that the defendant admits every fact alleged in the petition which it is necessary for the plaintiff to establish in the first instance to enable him to recover." And further the defendant "does not purport to admit the allegations of the petition, but merely to admit that the plaintiff has a prima fade case."

In Sanders v. Bridges, 67 Tex. 93, 2 S.W. 663, it is said:

"The contemplation of the rule is that the admission shall be such that if no evidence be introduced by either party the plaintiff must recover to the extent of the claim made in his pleadings."

In Taylor v. Reynolds, 47 Tex. Civ. App. 344, 105 S.W. 65, it is held:

"Having admitted the appellee's cause of action, and that admission reaching to the entire cause of action, the appellants cannot question the insufficiency of the evidence in proof of the appellee's cause of action."

Again in Berry Bros. v. Fairbanks, 51 Tex. Civ. App. 558, 112 S.W. 427, it is held:

"The contemplation of the rule is that the admission relieves the appellees of proving the case, and to allow them to recover to the extent of the claim made in their pleadings. * * * The admission reaches to the entire cause of action pleaded, and appellants cannot question failure to offer evidence on any material allegation."

In Meade v. Logan, 110 S.W. 188, it is held:

"When the admission contemplated by this rule is filed and entered of record, the plaintiff is thereby relieved from the burden of proving any fact material to his recovery in the action pending. The proceedings are placed in such a status that, if neither party offered any evidence, judgment would be rendered as a matter of law in favor of the plaintiff."

See, also, Workman v. Ray, 180 S.W. 291.

From what has been said, it necessarily follows that the judgment of the trial court should be affirmed as to the defendant Lott, unless he has defeated plaintiff's cause of action in whole or in part by establishing the facts of his answer constituting a good defense. Has Lott under his answer established a good defense to the cause of action he has admitted to be good? It seems very certain to me that he has not.

The contract sued upon was evidenced by the deed from B. K. and W. R. Edwards to Lott and Harrigan and by the notes executed by the latter to the former. The deed and the notes constituted the final written contract into which all previous negotiations and agreements were merged, and these instruments must be held to determine the rights of the parties in the absence of fraud or mistake. Luckenbach v. Thomas, 166 S.W. 99; Manley v. Noblitt, 180 S.W. 1154.

In order for Lott to defeat plaintiff's cause of action it was necessary for him to show three things:

(1) That the title to the land had failed in whole or in part.

(2) That there was danger of eviction, which is shown by establishing definitely that there is a paramount title outstanding in a third person and the land is actually claimed under such paramount title.

(3) Such circumstances as would repel the presumption that at the time of the purchase he knew and intended to run the risk of the defects. Tarpley v. Poage, 2 Tex. 139; Cooper v. Singleton, 19 Tex. 267,70 Am.Dec. 333; Cook v. Jackson, 20 Tex. 209; Haralson v. Langford,66 Tex. 111, 18 S.W. 339; May v. Ivie, 68 Tex. 379, 4 S.W. 641; Ogburn v. Whitlow, 80 Tex. 239, 15 S.W. 807.

According to the rule laid down in the cases cited, Lott has failed to establish a good defense. As stated by the majority opinion in the present case:

"Clearly plaintiff in error Lott did not discharge his peculiar burden of proof, under this rule, in such manner as would entitle him to peremptory instruction, and his first assignment is overruled. In order to make ourselves plain in the subsequent discussion, we will even go further and say that under the jury's findings on some issues and the undisputed testimony on others, Lott failed to establish the defense pleaded by him so as to defeat plaintiff's right to the judgment rendered."

In view of the above finding made in the majority opinion, it is unnecessary for me to enter into a detailed discussion of the evidence. However, it may be well to state that for some years prior to the conveyance by the Edwardses to Lott and Harrigan, Lott was engaged in the real estate business in San Antonio, the Edwardses residing outside the state, that all the negotiations leading up to the sale were by correspondence, that Lott was requested by the Edwardses to sell and dispose of said land for them, that Lott interested Harrigan in the land, and Lott and Harrigan formed a partnership for the purpose of purchasing, subdividing, and reselling said land, that before the deed and notes were executed Lott at the expense of the Edwardses obtained an abstract of title, which was examined by the law firm of Terrell, Walthall Terrell, and said firm under date of March 17, 1914, gave an opinion on the title, which Lott received before the execution of the deed and notes, which opinion is in part as follows:

"We have examined the abstract of title to about 13 1/2 acres of land out of subdivision 2 of the Merrick subdivision of the G. Martinez survey No. 28 in the city of San Antonio, Bexar county, Tex., and find the title good in William R. Edwards and Benjamin K. Edwards, subject to the following objections:

"At your suggestion we have assumed the title to be good in M. J. Martin. In a deed shown, on page 73, from M. J. Martin to Isabella Steves, the description calls to begin at the southeast corner of a tract of land conveyed to Tarleton Keller. The tract sought to be conveyed is described as being 400 varas by 211 varas. As a matter of fact, on February 23, 1887, M. J. Martin conveyed to C. A. Keller 30 acres directly east of the tract conveyed to Tarleton Keller, and the deed to Isabella Steves dated March 2, 1887, and the property sought to be conveyed had already been conveyed to C. A. Keller. The same objection applies almost all through the balance of the abstract."

The opinion also states further objections not necessary to quote.

Lott testified that the reason he went on through with the transaction and took the deed from the Edwardses and executed the notes sued on, after this opinion had been rendered by Terrell, Walthall Terrell, was because witness had sent the opinion to the Edwardses and the other matters had been agreed upon, and he got a letter back from the Edwardses to go ahead with the transaction just as though all papers were fixed up.

Harrigan testified in substance that he knew the location of the C. A. Keller tract on the ground; that he made a plat of it to show the location on the ground of the Steves tract and the Miller tract; that immediately east of the C. A. Keller tract is the Steves tract, the one that witness and Lott bought; that east of the Steves tract is the Miller tract; that witness and Lott bought this Steves tract in the early part of 1914, made a survey of it at that time, and began to clear it; that it was fenced in and is still fenced; that Edwards claimed to own it and that witness and Lott bought from Edwards and had rented it since continually; that witness had surveyed the land at the time they bought it; that witness had been previously employed as a surveyor to survey a tract of land immediately west of it; that this was the C. A. Keller tract; that when witness surveyed the tract he found that the northwest corner of the Tarleton Keller tract was identical with the northwest corner of the C. A. Keller tract and that the west line of the two tracts was identical and that there was no Tarleton Keller tract that he could locate; that at the time witness and Lott bought the land they had the opinion setting forth the objections raised by Terrell Terrell; that Edwards got the releases of the legacies that were required under the opinion, which releases have been offered in evidence, and that they found the Steves release of record, which cured that, and the elimination of the Tarleton Keller tract cured that; that this was what he and Lott did at the time they bought; that at the time they bought the controversy about the Keller tract had been eliminated, and about that time all other matters had been cleared up; that witness had satisfied himself as to the title of the land before ever having signed the notes back in 1914; that the way witness satisfied himself that the objections were not valid objections to the title was that they got the releases to the legacies to the Morris Pratt Institute and Katherine Tobey and they secured the release from the Steves heirs; that the Steves release was on record at the time; that Lott told witness the title was good; that Lott and witness went to see Earnest Steves, who was the guardian of the Steves minors, and he said, "Why, these are paid and forgotten long ago," that witness asked him for a release, and he said, "That release is on record or ought to be. I furnished it." That they afterwards found the release; that defendant Lott at the time Lott spoke to witness about going in to buy this land said that he had had the Stewart Title Company examine it and Lott told witness that the title to it was good; that from the time they got a release up to the time of filing of this suit witness never heard Lott make any claim about the title not being good; that before witness and Lott bought the land there was rumored that a Mrs. Norton claimed the land; that Lott told witness that Mrs. Norton claimed all that land out there at one time, kind of an indefinite claim, and witness and Lott went to see her.

From the foregoing it seems to me that it is necessary to conclude that even though it be found that the title is defective, still Lott and Harrigan cannot defeat recovery on the notes, for they held under a general warranty deed, are in undisturbed possession of the land, no danger of eviction is shown, and it was known by them, at the time the deed and notes were executed, that the title was defective.

The opinion of the majority that the judgment of the trial court is fundamentally erroneous is based on the theory that the plaintiff's petition affirmatively alleges facts which defeat her recovery, but with this view I am unable to agree. The plaintiff does not affirmatively allege that the Edwardses had no title to the land, which they sold to Harrigan and Lott. At most, she merely alleges a defect in description such as to make the record title imperfect. She does not allege that the Edwardses did not have a good limitation title. She does not allege that there is a paramount title outstanding in a third person under which the land is claimed, nor does she allege any fact which would show any danger of eviction. She does not allege that Lott and Harrigan were ignorant of the defect and did not intend to run the risk of the same. Before she can be held to have defeated her own recovery, it must appear that she has by her allegations admitted all the facts it was necessary for Lott to establish in order to resist payment of the notes. The plaintiff's petition contains no such allegation.

For the reasons above stated, I cannot agree with the majority opinion that there is fundamental error requiring that this cause should be reversed and remanded as to the plaintiff in error Lott and the defendants D. D. Harrigan and B. K. and W. R. Edwards. I therefore respectively enter my dissent.