McCulloch v. Nicholson ( 1913 )

By the sixteenth assignment, first considered, error is predicated upon the portion of the charge authorizing a verdict for appellees upon the finding by the jury upon the evidence: (1) That there was a denial and repudiation by W. S. Nicholson of the contract of sale from H. A. Garrison and wife to him as made in 1883; and (2) that Nicholson notified Garrison that he denied and repudiated the contract of sale; and (3) that thereafter for more than ten years continuously before the bringing of this suit Nicholson, claiming to have absolute ownership of the land, had and held peaceable and adverse possession, using, cultivating, and enjoying the same. Appellant contends that the charge is error upon the grounds: (1) That Nicholson having gone into possession of the land under an executory contract of sale from Garrison and wife, and not having paid the purchase money therefor, he could not dispute the possession or title of the Garrisons and hold adversely; and (2) that the evidence does not show that Mrs. Garrison was notified by Nicholson that he had repudiated the contract of sale.

In respect to the second point of objection made to the charge, it must be said that it was not error for the court to limit notice of repudiation of the contract of sale to the husband; for it does not appear from the record that the property was the separate property of Mrs. Garrison, as assumed by the objection. It appears from the record that on March 8, 1876, W. Fore deeded the land in suit to "Susan C. Garrison and H. A. Garrison" in consideration "of the sum of $500.00 to me paid by Susan C. Garrison and H. A. Garrison." It further appears that the grantor, Fore, was the father of Mrs. Garrison, and that he was the owner of the property at the time of the conveyance. And it appears that Mr. and Mrs. Garrison were married in 1876. There are no other facts, but the above, from which to determine the legal status of the property. The deed reciting a payment of money for the land during marriage, the legal presumption, in the absence of other facts, would prevail that the property was purchased with community funds. And the bare fact alone that the grantor, Fore, was the father of Mrs. Garrison, would not be sufficient to overcome or negative the presumption of payment with community funds.

In respect to the first point of objection made to the charge, it is believed that the doctrine is well established that, as charged by the court, the possession of the vendee is not adverse to his vendor, unless the vendee within the knowledge of his vendor repudiates the trust relation and claims to hold the land in opposition to the claim of superior title on the part of his vendor. Howard v. McKenzie, 54 Tex. at p. 187; Smith v. Pate, 91 Tex. 596, 45 S.W. 6; Burnett v. Attebury,145 S.W. 582.

And if the assignment by intendment means that the evidence fails to make an issue of repudiation and adverse claim, it must be overruled also on that ground. The facts testified to by Nicholson are, in substance, that he executed four notes calling for payment in twenty bales of cotton, and that he delivered cotton and syrup and the proceeds of the sale of three acres of the land to Mr. Garrison, all of which was applied on his contract of purchase; that appellee was ignorant and could neither read nor write; and that Mr. Garrison figured up the balance that was due in full on the contract and stated it as seven bales of cotton. Appellee then tendered the seven bales of cotton in a very short time afterwards to Mr. Garrison, and Mr. Garrison would not take the cotton because the price was so low in the market Appellee then told Mr. Garrison that he had complied with the contract and had offered to him the full payment in cotton, and that he was not going to hold under the claim any longer, and that in the future he was going to claim the land independent of him or any one else and regardless of him or any one else. Later appellee caused a letter to be mailed to Mr. Garrison, stating that, as Mr. Garrison had failed to accept settlement and make a deed, appellee from that time claimed "adversely to him and the whole world." It is not disputed that appellee occupied the land for more than ten years, publicly claiming it, within Mr. Garrison's knowledge. The testimony of Mr. Garrison was not taken in the case, and it does not appear that Mr. Garrison ever at any time further demanded payment or sought to enforce any rights under the contract or for the land after 1889. Thus it would reasonably appear that appellee had offered the cotton in full settlement of the balance owing on the contract, and that Mr. Garrison had refused it and refused the demand to make deed. It could be concluded, we think, that because there was a failure and refusal to further perform the terms of contract on the vendor's part, appellee Nicholson had repudiated the contract and refused to further pay or offer to pay on the contract, and that the vendor himself knew appellee had repudiated the terms of contract. The evidence further tends to show that Mr. Garrison had so acquiesced in appellee's repudiation as to constitute mutual rescission. An issue for the jury of repudiation and adverse possession was made by the evidence.

We have considered all the remaining assignments, and think there is no error presented warranting a reversal of the judgment.

The judgment is affirmed.