DocketNumber: No. 1749.
Citation Numbers: 11 S.W.2d 360
Judges: WALKER, J.
Filed Date: 11/23/1928
Status: Precedential
Modified Date: 1/12/2023
Appellee, L. W. King, instituted this suit in trespass to try title and for rent against Mrs. Maud Toler and her husband to recover the title and possession of lot No. 7, block No. 1, Bettie J. addition to the city of Beaumont. The defendants answered by general demurrer, general denial, pleas of limitation, homestead, and the statute of frauds. The judgment was in favor of appellee upon an instructed verdict.
The facts are as follows: On the 20th day of June, 1918, appellant Mrs. Maud Toler was the wife of E. A. Le Roy. For some years immediately prior to that date she and her husband occupied lot No. 5 of said block No. 1 as their home. On that date John Johnson deeded to E. A. Le Roy lots Nos. 6 and 7 of said block No. 1 upon the recited consideration of $300, for which $20 was paid in cash and the balance in a vendor's lien note, maturing in monthly installments of $10 each, beginning with September 1, 1918. After buying these lots, Mr. and Mrs. Le Roy inclosed them under a wire fence with lot No. 5, and held, used, and occupied them as a part of their homestead until 1922, when Mrs. Le Roy, for reasons stated by her, left her husband's home. On April 19, 1923, she instituted suit for divorce against him, which was granted September 27, 1923. E. A. Le Roy remained in possession of the home until his death on January 4, 1925. The issue was raised that the amount of the $280 vendor's lien note was reduced by payments to $80. What part of this was paid before the divorce, and what part subsequent to the divorce, was not shown. After the divorce was granted, E. A. Le Roy told Johnson, his vendor, that he could not pay the balance on the note and asked him to release lot No. 6 from the vendor's lien and take back lot No. 7 in satisfaction of the balance due on the vendor's lien note. Johnson agreed to do that, and on the 14th day of January, 1924, executed to Le Roy a warranty deed conveying him lot No. 6 upon the recited consideration of $150 paid. Le Roy did not surrender to Johnson the original deed, nor did he execute a conveyance back to Johnson of lot No. 7. Mrs. Le Roy was not a party to this transaction, knew nothing about it, and was in no way consulted in regard to it. On the 11th day of April, 1924, Johnson conveyed lot No. 7 by warranty deed to appellee, L. W. King, upon the recited consideration of $200 cash, which was, in fact, paid upon the execution and delivery of the deed. King took this deed believing from the conversations he had had with Le Roy that Le Roy had abandoned his claim to lot No. 7, and he bought the property from Johnson with Le Roy's knowledge and consent, believing that Johnson had rescinded the original sale under which he had conveyed to Le Roy lots Nos. 6 and 7, Before buying, he examined the deed records and found no deed of record from Johnson to Le Roy. For some reason not fully explained by the record, King thought that the sale between Johnson and Le Roy was evidenced only by a contract of sale and not by a deed. King did not know of the existence of the deed until after it was recorded on December 16, 1926. After buying lot No. 7, appellee, King, erected valuable improvements thereon in the form of a dwelling house and the necessary outhouses, which he rented continuously until May, 1927. It was occupied by a Mr. Roscoe from July, 1926, to May, 1927. On the 15th of May, 1927, appellee, through an agent, ejected Mr. Roscoe. As soon as Roscoe moved out, appellant Mrs. Toler, who was at that time living in her old home immediately adjacent to lot No. 7, took possession of lot No. 7 and the improvements thereon, refused to surrender possession to *Page 361 appellee, and remained in possession until this suit was tried. In this connection, it should be said that shortly after the death of Le Roy, appellant Mrs. Le Roy took possession of the old home and lived therein until she moved over into the appellee's improvements on lot 7. The Judgment in appellee's favor awarded him title and possession and $130 for the rental value of the premises.
Appellants complain that the court erred In instructing a verdict in appellee's favor, insisting that under the uncontradicted evidence the verdict should have been instructed In their favor, but, if in error in that contention, that the issues should have gone to the Jury.
This right of rescission, reserved by law to Johnson as the holder of the legal title, could have been defeated by appellants only by a plea setting up facts showing that its exercise would be inequitable. Efron v. Burgower (Tex.Civ.App.)
We construe that case as being directly in point upon the facts of this case against appellants' propositions of limitation.
Affirmed.
Waggoner v. Tinney , 102 Tex. 254 ( 1909 )
Evans v. Bentley , 9 Tex. Civ. App. 112 ( 1895 )
Booty v. O'Connor , 287 S.W. 282 ( 1926 )
Rockhill Country Club v. Nix , 198 S.W. 155 ( 1917 )
Hughes v. Burton Lumber Corp. , 188 S.W. 1022 ( 1916 )
Miller v. Horn , 149 S.W. 769 ( 1912 )
Russell v. State , 37 Tex. Crim. 503 ( 1896 )