Cadwallader v. Lovece

JAMES, Chief Justice. The action was forcible entry and detainer, and the judgment of the District Court of Bexar County on appeal was in favor of plaintiff for the possession of the premises and for damages in the sum of $90. A motion is made to dismiss the appeal for want of jurisdiction. Article 2461, Revised Statutes, provides in such a case that no further appeal shall be allowed, and that the judgment of the County Court shall be conclusive of the litigation. The jurisdiction of the County Court of Bexar County in civil cases is now vested in the District Court by statute. The amendments to the Constitution relative to the judiciary, adopted in 1891, created the Courts of Civil Appeals, and declared their jurisdiction to extend “to all civil cases of which the District or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law.” The Legislature thereupon provided that the jurisdiction of said courts should extend to civil cases of which the County Courts have original jurisdiction, and to cases of which the County Courts have appellate jurisdiction when the judgment or amount in controversy shall exceed $100, exclusive of interest and costs, but placed no restriction on appeals from cases tried in the District Courts. The language of this Act of April 13, 1892, is, that the jurisdiction of the Courts of Civil Appeals shall extend to civil cases of which the District Court has original or appellate jurisdiction; and, without further legislation on the subject, it seems clear to us that this court must entertain this appeal. *4 The question as to whether or not there had been a demand for possession of the premises before action commenced, was raised by special plea, and it appears that the plea was separately heard and passed on by the district judge, and overruled. There is no bill of exceptions showing the testimony upon which the ruling was based, and we therefore can not revise it. The second and third assignments of error present preliminary issues that likewise appear to have been tried in limine, and there are no bills of exceptions that place us in possession of the matter upon which the judge acted. The court did not err in overruling the special exception to the complaint, which claimed that the complaint was insufficient in not alleging that F. G. or F. C. Cadwallader ever rented the premises from plaintiff. The complaint alleges that plaintiff, on June 28, 1894, rented the premises to C. M. Cadwallader for the term of thirty days, and that C. M. Cadwallader, F. G. Cadwallader, and F. C. Cadwallader, by virtue of said lease, entered into possession of the premises, and still are in possession of the same. This sufficiently alleged a relation of tenancy between plaintiff and all of the defendants. ' A person who is in possession of leased premises through or under the lessee is liable to be dispossessed in this form of action. The eighth, ninth, and tenth assignments will be disposed of together. The material evidence in the case is substantially as follows: C. M. Cadwallader had been living with his family, including the other defendants, his sons, upon the lot in question for about a year and a half. He had purchased it from Frank J. Beitel, gave his note for $1000 in the purchase thereof, due in five years, with 8 per cent interest, and took a deed which reserved a vendor’s lien on the lot, and erected a dwelling thereon. On June 22, 1894, H. Lovece and F. C. Cadwallader entered into an agreement by which the former was to transfer to F. G. Cadwallader and F. C. Cadwallader a certain stock in trade and fixtures, subject to certain liens, and to receive in return therefor a deed to certain incumbered real property, among which was the lot and improvements in question, which was to be subject to the lien held by Beitel, and it was provided in the agreement that possession of this lot was to be given to plaintiff thirty days from the date of the agreement. Appended to the agreement appears the following: “It is further agreed, that if the party of the second part (N. Lovece) should sell or dispose of the property on Upson street (the said lot), the aforesaid party of the second part will give possession at the same date. [Signed] “C. M. Cadwallader.” It was in testimony that C. M. Cadwallader had originally left his deed in Beitel’s hands, and that C. M. Cadwallader, F. G. Cadwallader, hf. Lovece, and a land agent were at Beitel’s office when the *5 trade evidenced by the written agreement was made. Both C. M. and F. G. Cadwallader requested Beitel to deed the property to Lovece, saying that they had sold the property to Lovece in exchange for a fruit stand. Thereupon and at their request Beitel made a deed of the lot to Lovece, retaining a lien thereon for $1000, for which Lovece gave his note to Beitel. C. M. Cadwallader then settled the accrued interest partly in cash and partly by note, and Beitel destroyed the deed and note that had been made in the sale to C. M. Cadwallader. We take it, that it is upon these facts that the court based the conclusion that “the relation of landlord and tenant sprang from the consummation of the sale by Beitel to Lovece, and the execution of the contract of sale and to give possession by the Cadwalladers, and that in contemplation of law the Cadwalladers are held to have entered the premises on the date of said contract as the tenants of FT. Lovece.” Does the evidence above stated sustain this conclusion? We are of the opinion that it does. C. M. Cadwallader had an equity in this property, and it was competent for him to reconvey it to his vendor in settlement of the purchase money note, without being joined by his wife. Oury v. Saunders, 77 Texas, 281, and cases cited. It is true he did not execute a formal reconveyance to Beitel, but the evidence discloses that he surrendered his title, was relieved of the note he had given in the purchase thereof, and was active in substituting Lovece as the purchaser in his stead, and that Lovece took a deed from Beitel at his, C. M. Cadwallader’s, instance, and became obligated to pay the purchase price. This in equity would have the same force and effect as if Cadwallader had executed a reconveyance to Beitel, and the latter had sold to Lovece. In the same transaction it appears that possession of the property was to be given to Lovece thirty days thereafter, and, as we understand and construe the intention of the writing subjoined to the agreement signed by C. M. Cadwallader, the latter not only assented to the provision that the property should be delivered to Lovece at the expiration of thirty days, but consented on his part that it should be done sooner if Lovece should sell or dispose of the property. If we were to regard the transaction as a disposition of the property, as is suggested by appellants, with a reservation of the right of possession for thirty days, a constructive tenancy in favor of Lovece would exist after that time had expired. Hoffman v. Clark, 29 N. W. Rep., 695. We see no objection to joining F. C. Cadwallader as a defendant. The evidence shows that he was living on the premises with his father, C. M. Cadwallader, and was there by virtue of the latter’s possession and tenure. The judgment for rent and attorney’s fees is supported by evidence. A new trial was asked upon the ground of newly discovered evidence, which consisted of testimony that the attorneys for whose fees *6 recovery had been allowed had not paid their occupation tax, and were practicing law in violation to the statutes of the State. Whatever merit there might be in the proposition asserted can not be considered, as the application was not accompanied by the affidavits of the proposed witnesses. Russell v. Nall, 79 Texas, 664. Ordinarily a new trial would not be granted to enable a party to plead the statute of limitations, and the defense here sought to be utilized would certainly not be regarded with more favor. • The evidence that was admissible was sufficient to authorize the conclusions at which the court arrived, and the judgment will be affirmed. Affirmed. Delivered February 6, 1895.