Tipton v. Tipton ( 1907 )

Appellee brought this suit against the heirs of E. G. Tipton, deceased, seeking a moneyed judgment and the foreclosure of a vendor's lien upon 115 1/2 acres of land, conveyed by appellee to E. G. Tipton. The deed recited a cash consideration of $1800, but the plaintiff alleged as an additional consideration a parol agreement between herself and E G. Tipton, to the effect that she was to be paid the rents for the land during the remainder of her life. It was further alleged that the rents consisted of one-third of all the grain and one-fourth of all the cotton grown upon the land, and was of the alleged value of $400 per annum. The plaintiff sought to recover $400 per annum from the year 1884 to May 25, 1906, when her amended petition was filed.

The answer of the defendants included a general denial, pleas of limitation and res adjudicata. The court sustained the plea of limitation, and limited the plaintiff's right of recovery to two years next before the filing of her amended petition.

There was a jury trial, which resulted in a judgment in favor of the plaintiff for $800, and the defendants have appealed.

We sustain the assignments of error which complain of that portion of the court's charge which instructed the jury, if they found that the contract was made as alleged by the plaintiff, to estimate the value of the crops grown on the land for two years next before the date of May 25, 1906, and to find a verdict for the plaintiff for the amount so estimated; and of the action of the court in rendering judgment for the plaintiff upon the verdict rendered in conformity with that charge.

But for the language of the verdict, in view of the uncontradicted testimony in the record, we might adopt the suggestion in appellee's brief to the effect that the jury were not misled by the charge, and decided the case upon the theory that the plaintiff was only entitled to a portion of the crops raised upon the land; but the suggestion referred to can not reach and cure the fundamental error in the judgment. The verdict reads as follows: "We, the jury, find for the plaintiff, and further find that the value of the grain and cotton grown on the premises in controversy for two years next before May 25, 1906, is $962.50; and we further find that the plaintiff was to be paid said sum as a part of the consideration of said land in controversy, and that the plaintiff has a lien on said land to secure the payment of said sum, and said lien is hereby foreclosed."

The plaintiff remitted $162.50, and the court rendered judgment for her and against the defendants for $800. The plaintiff did not seek to recover the value of all of the products raised upon the land, but only a portion thereof, and when the jury, in response to the charge of the court, found in specific and certain terms that the entire product of the land for the two years in controversy was only $962.50, it was fundamental error for the court to render judgment for the plaintiff for $800, because that was in excess of the proportionate part claimed by her in her petition. If the verdict had stated how much of the $962.50 was for cotton and how much was for grain, it might have been permissible to render judgment for the plaintiff for one-fourth of the value of the cotton and one-third of the value of the grain; but the verdict finding only the aggregate value of all the crops, does not furnish a basis for any judgment for the plaintiff. It is a well settled rule of law that in jury cases the judgment must be based upon and in conformity with the verdict, and that the court can not properly render a judgment that is inconsistent with the verdict. (May v. Taylor, 22 Tex. 349; Bledsoe v. Wills,22 Tex. 650; Akin v. Jefferson, 65 Tex. 141 [65 Tex. 141]; Blum v. Rogers, 71 Tex. 668; Eastham v. Patty, 83 S.W. Rep., 885; Williams v. Smith, 98 S.W. Rep., 916.)

On the other questions presented we rule against the appellants. It is well settled in this State that when a deed merely recites a moneyed consideration, an additional consideration may be shown by parol evidence, and a suit maintained to enforce the contract for such additional consideration. (Taylor v. Merrill, 64 Tex. 496; McLean v. Ellis, 79 Tex. 400; Martin Rogers v. Rotan Grocery Co., 3 Texas Ct. Rep., 865; Moroney v. Coombes, 13 Texas Ct. Rep., 527; Womack v. Wamble, 27 S.W. Rep., 154; Johnson v. Elmen, 24 Texas Civ. App. 45[24 Tex. Civ. App. 45].) We do not think that the contract by which the plaintiff was to receive the rent derived from the premises constitutes such a limitation upon the title conveyed as to take this case out of the rule referred to and applied in the cases just cited.

For the reasons above stated the judgment will be reversed and the cause remanded for another trial.

Reversed and remanded.