Chaney v. Coleman , 77 Tex. 100 ( 1890 )

HENRY, Associate Justice.

—This suit was brought by appellee.. The' petition charges that plaintiff on the 2d day of September, 1886,. owned and then conveyed to the defendant a tract of land in the county of Denton, State of Texas, which it particularly described; that the consideration of the conveyance was a tract of land in Sumner County, Tennessee, which was conveyed by defendant to plaintiff, and $200 in. money paid to plaintiff by defendant; that the quality and value of the Tennessee land were misrepresented to 23laintiff by defendant, as was also* the character of the improvements situated thereon.

Plaintiff offered to return the $200 in money and reconvey to defendant the Tennessee land, and prayed for a cancellation of his deed for theDenton County'land.

The defendant answered denying the charges of fraud made against: him and resisting the relief sought by plaintiff. He pleaded valuable-improvements placed by him on the Denton County land, and charged that plaintiff was guilty of fraudulent conduct by which defendant was-misled and imposed upon with regard to the value of that tract.

The court sustained exceptions to so much of the answer as related to* improvements and to deception practiced by 2ilaintiff upon the defendant..

The plaintiff recovered.

Defendant, when sued for the cancellation of the deed for the land, conveyed to him on the ground that he had fraudulently procured it by means of false representations made by him to his vendor, could not be, permitted to defeat a recovery and continue to hold the land on the. ground that his vendor had also misrepresented the land conveyed by him.

In that respect plaintiff’s exceptions to the answer were properly sustained.

In the case of The State v. Snyder this court quoted with approval, when discussing the subject of fraudulent conveyances, the following extract from Pomeroy’s Equity:

"It may be regarded as an universal rule governing the court of equity in the administration of its remedies, that whatever may be the nature* of the relief sought by the plaintiff, the equitable rights of the defendant growing out of or intimately connected with the subject of the controversy in question will be protected; and for this purpose the plaintiff will be required, as a condition to his obtaining the relief which he asks, to acknowledge, admit, provide for, secure, or allow whatever equitable right, if any, the defendant may have; and to that end the court will, by its affirmative decree, award to the defendant whatever relief may be necessary in order to protect and enforce those rights.” 66 Texas, 698.

In Kerr on Fraud and Mistake it is said:

“ The terms on which a reconveyance will be ordered are the repayment of the purchase moneys and all sums laid out in improvements and repairs of a permanent and substantial nature by which the present value is improved, with interest thereon from the times when they were actually disbursed. On the other hand, charges for the deterioration of the property must be set off against the allowances for permanent improvements. The party in possession must also account for all rents received by him, and for all profits, such as moneys arising from the sale of timber or from working mines, with interest thereon from the times of the receipt thereof. He must also pay an occupation rent for such part of the estate as may have been in his actual possession.”

We think the court erred in sustaining the exception to defendant’s claim for the value of permanent and beneficial improvements. On another trial such improvements on the one hand, and the value of use and occupation on the other, should be considered.

Appellant complains of the exclusion of evidence offered by him showing the value of some farms adjoining the one sold by him to'plaintiff.

We think the evidence was properly excluded. The question was as to the value of the farm conveyed to plaintiff by defendant. It is not readily seen how its value can be correctly shown by comparing it with others, as was proposed to be done by the defendant in this case. The farm in question was an improved one, and was valued in the trade as such.

Before a value can be given to it by proving the average value of farms in that vicinity, it should be proved that the improvements and other things to be considered in estimating its value correspond with like things on the farms with which it is classed. That was not done in this case, and it is not probable that it can be done, or that a proper predicate can be laid for the adoption of such a method of establishing its value, instead of proving it directly.

A witness for plaintiff, after testifying that the Tennessee farm that had been represented by defendant to plaintiff to be worth $1000 was not worth over $200, was permitted, over defendant’s objections, to state: “ When Mr. Chaney left here three years ago he tried to sell the place, and I bid $1.15 per acre for it, and I was the highest bidder. Chaney had a by-bidder there and he bid over me, and there was no sale. Bill Fuqua bid $1 an acre for it.”

While this evidence suggests that the land had been offered for sale to the highest bidder at public auction, it does not disclose that there were more than two competitors or more than three persons present. We do not find in the record any other evidence relating to an auction or bidding for the land. If in any case what was bid for land when it was offered for sale can be received as evidence of its value, it can only be when the circumstances and conditions attending the transaction are explained so that the court may have the means of estimating the weight of the testimony. In this case the evidence should have been excluded.

Except as indicated we find no error in the rulings of the court upon the admission or rejection of evidence.

The charge given by the court correctly presented the law upon issues in the cause. The only criticism that can be justly attached to it is that it went somewhat beyond what was strictly required in presenting the issues arising out of the evidence.

We deem it unnecessary to discuss other objections, as they are not such as are likely to recur upon another trial.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

Delivered April 29, 1890.