Neff v. Heimer

SPEER, J. Louisa C. Heimer instituted this suit against Roy Neblett, C. D. Neff, Mrs. <3. H. Marrett, and J. F. Fates to recover the title and possession of a certain lot in the city of Ft. Worth and to declare null and void deeds executed by plaintiff to C. D. Neff, by C. D. Neff to Mrs. C. H. Marrett, and by Mrs. Marrett to J. F. Fates, respectively, conveying the property, alleging a conspiracy to defraud plaintiff out of her property. The defendants Neblett, Neff, and Marrett disclaimed any interest in the property, while the defendant Fates answered pleading specially that he was an innocent purchaser of the property and further alleging facts constituting an estoppel against plaintiff to question his title to the property. The case was submitted to a jury on special issues, upon their answers to which judgment was rendered for the plaintiff against all of the defendants for the recovery of the property, and the defendant Fates alone has appealed and assigns errors. We sustain appellant’s thirty-second assignment of error, to the effect that the court erred in refusing to render judgment in his favor upon his motion for same, notwithstanding the verdict, because the undisputed evidence shows that before he purchased the property in controversy from Mrs. Marrett he made due inquiry of Mrs. Heimer as to all objections which she might have to Mrs. Mar-rett’s selling him the property, and that he refused to purchase the same until she (Mrs. Heimer) was satisfied; that she subsequently gave her consent, and upon such consent he purchased the property and paid a valuable consideration therefor without notice of any defects in his title. The findings of the jury on the special issues submitted to them were, in effect, that there was a conspiracy between C. D. Neff, Roy Neblett, and Mrs. O. H. Mar-rett to defraud appellee out of the property in controversy, and that these defendants, or some of them, not only made false and fraudulent representations, but employed threats and force, whereby she was induced to convey her property to O. D. Neff, who in turn conveyed it to Mrs. C. H. Marrett, and that appellant Fates, either personally or through his agent, Rose, knew of the fraudulent representations, force, and threats inducing the appellee to make the conveyance prior to his purchase of the property. The verdict embraces the further finding that the property in controversy was of the value of $5,-000, and that the value of property in Midlothian traded by appellant to Mrs. Mar-rett over and above an indebtedness existing at the time against it was ,$1,350, which finding, in connection with the undisputed evidence of a cash payment made and the assumption of a vendor’s lien note for $2,400, which Neff and Mrs. Marrett had agreed to pay to appellee, constituted an adequate consideration for the property. The undisputed evidence shows that appellee was at all times in possession of the property, and that before appellant purchased the same from Mrs. Marrett he sent his representative, Webb Rose, and his attorney, E. O. Orrick, to see appellee, and these representatives informed appellee that their principal would not purchase the property unless she was entirely satisfied with her trade with Mrs. Marrett. She was fully informed that appellant was buying the property from Mrs. Marrett and unless she made some objection the trade would be closed immediately. She made no objections whatever further than to require an indemnity covering a supposed lien against some property known as the Sagerton property, vendor’s lien notes against which she had taken in the sale to Neff and Marrett, and also to increase the vendor’s lien note which Neff was executing to her from $2,000 to $2,400. These were the only objections made, and appellee does not deny that she knew appellant expected to buy the property, or that she was called upon to state if she-was satisfied with the transaction. Nor does she deny that she made no objections to appellant’s purchase. Under these circumstances about which there is no controversy in the proof, we hold that appellee is estopped to question appellant’s purchase from Mrs. Marrett. For the purposes of this opinion we are assuming that Mrs. Heimer’s possession of the property (Collum v. Sanger, 98 Tex. 162, 82 S. W. 459, 83 S. W. 184) and the oral testimony were sufficient to charge appellant with notice of the fraud perpetrated by Neff, Neblett, and Mar-rett on appellee. There is no finding, nor is there any evidence raising such an issue, that appellant in any manner actively participated in such fraud. Being chargeable then with notice of some vice affecting Mrs. Marrett’s title, the law imposed upon appellant the duty of making a proper inquiry to ascertain the facts. We hold it to be a complete discharge of this duty to go, as appellant did, to Mrs. Heimer, herself, and there make inquiry if his purchase of the property would be agreeable to her. Upon his doing so, the law imposed upon appellee the duty, if she had any valid objections, to interpose them then and there. Failing to do so, she should not afterward be heard to complain when appellant upon the faith of her silence has purchased the property, paying a valuable consideration therefor. Under the undisputed facts the trial court should have rendered judgment for appellant, notwithstanding the verdict, which, as we have already seen, in no manner connected appellant actively with the fraud committed on appellee. The judgment of the district court is, [142] therefore, reversed, and judgment here rendered in favor of appellant for the land in controversy; but judgment is also rendered in favor of appellee Mrs. Louisa ■ O. Heimer for the sum of $2,400, together with interest at the rate of 8 per cent, per annum from February 18, 1910, being the amount of the C. D. Nett note assumed by appellant, together with a foreclosure of the vendor’s lien on the land in controversy. Reversed and rendered.