Brown v. Yoakum

ELY, C. J. This is a suit by appellant, as president and trustee of the National Railroad Company of Mexico, against D. B. Cha-pin, W. E. Sprague, John Closner, and B. F. Yoakum, to recover judgment on three promissory notes executed by D. B. Chapin to appellant, each for $16,481, with interest at 6 per cent, from September 1, 1909, and 10 per cent, attorneys’ fees, and to foreclose a vendor’s lien on 14 surveys of land situated in Hidalgo county, Tex. It was alleged that Sprague, Closner, and Yoakum had acquired the land on which the lien rested. Yoakum answered by general demurrer and general denial. Chapin admitted the cause of action, and alleged that he had sold the land to Sprague and Closner, and that they had assumed payment of the amount of the notes, and prayed for judgment over against them. The answer of Sprague and Closner consists of 26 typewritten pages, in which most of the facts connected with the case were pleaded, the whole amounting to a plea that appellant had fraudulently represented that there -were 14 surveys of land, among the' number being two numbered 255 and 257, represented to contain 1,264.1 acres; that said two surveys had no existence; that appellant had released in writing his vendor’s lien upon all of the land except surveys 255 and 257; that they tendered a deed to said surveys to appellant and prayed for cancellation of the notes and for judgment for the amount paid by them on said surveys 255 and-257. Appellant filed three supplemental petitions denying the fraud alleged, and pleaded mutual mistake in making the release of the vendor’s lien on all the land, except surveys 255 and 257; that appellees knew of the conflict of older surveys with the two surveys and assumed the risk of the title thereto. The cause was submitted to the court and judgment rendered that appellant take nothing by his suit, that the notes be canceled, and that Sprague and Closner recover of appellant the sum of $2,528.20. The evidence justifies the conclusion that the land was sold to appellees Chapin and Closner, the deed being made to Chapin, by the acre, and that it was represented to them that the two surveys, 255 and 257, were in existence, that appellant knew that the two surveys were in conflict with older surveys, or could have known by the exercise of diligence. The conflict is admitted by appellant in his brief. Appellant released the vendor’s lien on all of the other surveys sold by him to Chapin and Closner. [1-3] The deed given by appellant to Chapin contained no general warranty clause, and it is the contention of appellant that appellees accepted all hazard and risk as to the title to the two surveys and could not set up a failure of title to the two surveys to defeat the collection of the notes sued on. If there had been a covenant of general warranty in the deed, it would not include a warranty of the quantity- of land conveyed, unless it affirmatively appeared that it was sold by the acre and the quantity warranted. Smith v. Fly, 24 Tex. 345, 76 Am. Dec. 109; Weir v. McGee, 25 Tex. Supp. 20; Daughtrey v. Knolle, 44 Tex. 451; Rich v. Ferguson, 45 Tex. 396. Whether the deed contains a general warranty or not, in the absence of a warranty for quantity as well as for title, there can be no reduction of the purchase price for a deficit in quantity, unless there is proof of fraud or mistake. Where there has been fraud or mistake in the representations made by the vendor as to the quantity of land conveyed by him, the rule is that the purchase price will be diminished in proportion to the deficit in acreage, in a court of equity. In the cited case of Smith v. Ely, it was held: “It appears to be well settled that, in the sale of land, where there has been misrepresentation as to the quantity, though innocently made, and the parties were under a mistake as to the quantity, and the deficiency is so great as to have been material, in the object of the pur [805] chase, affecting the essence of the contract, equity will grant relief.” Tliis rule has often been approved in Texas. O’Connell v. Duke, 29 Tex. 300, 94 Am. Dec. 282; Moore v. Hazlewood, 67 Tex. 624, 4 S. W. 215; Wheeler v. Boyd, 69 Tex. 293, 6 S. W. 614; Culbertson v. Blanchard, 79 Tex. 486, 15 S. W. 700; Lancaster v. Richardson, 13 Tex. Civ. App. 682, 35 S. W. 749; Wuest v. Moehrig, 24 Tex. Civ. App. 124, 57 S. W. 864; Barnes v. Lightfoot, 26 Tex. Civ. App. 113, 62 S. W. 564; Yates v. Buttrell, 132 S. W. 831; Id., 149 S. W. 347. The matter of special or general warranty cuts no figure in this case, for the action is not based on a breach of warranty, but is an effort to obtain relief from payment of certain purchase money sued for by appellant. As said by the court in Moore v. Hazlewood, cited herein: “That the land was conveyed with special warranty is of no importance, for this action is not based on any breach of warranty.” The court further said: “The defense is one which may be urged at any time when the vendor seeks to collect the purchase money that would be due had the contract not been made under mutual mistake as to a matter which must have influenced the making of it.” However innocent appellant may have been in his representations as to the number of acres, that would not relieve him of liability, if the vendees relied upon such representations and were induced thereby to take the land. Of course, if there had been evidence showing that appellees took the risk as to the quantity of land,, they could not recover; but the mere fact that they accepted a deed without a general warranty did not prove that such risk had been taken. The evidence, on the other hand, tended to show that the vendees expected to get the full acreage paid for by them and relied on the representations of the vendor as to the acreage. The cases cited by appellant do not meet the facts of this case. There is no question but that, if the vendee knows all the facts and accepts a tract of land, he cannot recover on account of the representations made by the vendor. That is all that is held in Hawkins v. Wells, 17 Tex. Civ. App. 360, 43 S. W. 816; McIntyre v. De Long, 71 Tex. 86, 8 S. W. 622; Elder v. Bank, 42 S. W. 124; and Warner v. Munsheimer, 2 Willson, Civ. Cas. Ot. App. § 393. In this ease the evidence showed that the representations of the agent of appellant, who was a skillful surveyor and had just surveyed the lands, induced Chapin and Closner to take the two surveys. They had heard of a conflict, but the surveyor assured them there was none. Appellant treats this case in the first and second assignments of error as though it was one on a warranty, which it is not, but is one founded in mutual mistake, or fraud upon the part of appellant, in consideration of which an abatement of the unpaid purchase money and a return of certain money already paid is prayed for. The third, fourth, fifth, sixth, and seventh assignments are disposed of by the conclusion of this court that the vendees were induced to take the land by the representations made by appellant, and by the fact that the land was bought and was to be paid for by the acre. [4] Chapin had disposed of all of his interest in the lands to appellees, and the debts to appellant had been assumed by them, and Chapin’s confessions and admissions could not bind or affect them. He could only speak for himself, and could not destroy legitimate defenses of his vendees by any admissions The law places no such terrible weapon in the hands of a vendor and does not give him the means of inflicting incalculable injury on the persons he should endeavor to protect. The testimony of Chapin shows that his admissions should never have been made, because not well founded. He swore to facts that established the misrepresentations of appellant, and he could not prejudge the ease of his vendees. The tenth, eleventh, twelfth, and thirteenth, assignments of error are overruled. The evidence fully sustains the validity of the release of the vendor’s lien against all of the surveys except 255 and 257, and, if it did not, it could not remove the fact that there had been misrepresentations as to the acreage. Appellees having paid $2 per acre on the two surveys, 255 and 257, were entitled, under the evidence, to recover that amount from appellant, and it follows that the court did not err in rendering judgment for appel-lees in the sum of $2,528.20. The judgment is affirmed.