McShan v. Myers

A. S. Walker, J. 1. In the view of the case taken by us a reversal becomes necessary because the special verdict, or rather the facts found on the issues submitted, do not authorize the verdict as rendered, nor are they sufficiently full to enable this court to reverse and render such judgment upon it as would do justice to the parties. On the part of appellant it is insisted that the pleadings and evidence may be looked to, to ascertain the necessary fact that the executory contract for the sale of the land between Hughes and Myers was terminated by Hughes or repudiated by Myers. Time not being on its face of the essence of the contract, it could only be made so, or terminated by Hughes, by giving express notice of such act to Myers. Scarborough v. Arrant, 25 Tex., 136; Hill v. Still, 19 Tex., 85. Such act on part of Hughes is not shown. The repudiation of the obligation to paj^ the state dues, found in the pleadings and evidence, would, in effect, probably be a repudiation of the contract sufficient to authorize Hughes’ sale to McShan. [105] But neither of these facts is found by the jury. On the other hand, in support of the verdict, Myers looks to the documentary evidence and to the pleadings to supplement the verdict in a basis for the judgment. As apparent from the verdict, there is in it no foundation for the disposition made of the rents; their amount; what was done with the claim for improvements; how the money judgment was computed, etc. ■ Taken in connection with the pleadings and exhibits (all the documentary evidence formed parts of the pleadings as exhibits), the mode of action in the mind of the court below in reaching the judgment can be understood. But we are not allowed to look beyond the special verdict. “ When the verdict is found upon special issues alone, the court" cannot look beyond it to any fact apparent in the record in aid of the judgment.” Kuhlman v. Medlinka, 29 Tex., 391; Ledyard v. Brown, 27 Tex., 406; Rains v. Calloway, 27 Tex., 685; Sharp v. Baker, 22 Tex., 306; Collins v. Cook, 40 Tex., 238; Harrison v. Mabry, 44 Tex., 286; Mussina v. Shepherd, 44 Tex., 626; Frost v. Frost, 45 Tex., 342. 2. The action of the court in excluding the award offered can be remedied on a new trial. The description, if defective, can be corrected by amendment. 3. That the title to the land by Myers was not perfect as against the state or against his vendor,- Hughes, does not prevent homestead rights from attaching to it, under the circumstances provided by the constitution and laws creating such right, as against all others. As against McShan, Avhen this suit Avas brought, Myers could disregard the mortgage, in behalf of the homestead rights of his family. 4. The pleadings of the plaintiff at the time McShan bought of Hughes and wife were clear and pointed that McShan was neither mortgagee nor tenant. Possession and damages for wrongful conversion of the profits were claimed. Ho rights were accorded to McShan under contract. By the petition he Avas a trespasser — mesne profits claimed instead of rents. On the other hand, McShan claimed by his [106] pleadings that his possession was under contract with Myers, both as tenant holding over and having the right to payment in rents of his advances, and as mortgagee having the right to payment of his debt. There was, however, in the amended petition of August 2, 1876, a partial recognition of McShan’s tenancy as lessee in the prayer to offset the rents against his claims set up in his answer. But at the date of his purchase from Hughes and wife, February 12, 1876, there was no recognized contract trust relation between the parties. Will the law affect their relations to the property and to each other with reference to it with such relation? This question we only suggest, it not being before us for decision. The rule is general that a tenant will not be allowed to controvert his landlord’s title. The rule extends to the tenant holding over. Taylor on Landlord and Tenant, § 705. The tenant may buy in the landlord’s title, or one consistent with it, and defend under such purchase. His resistance in such case is tinder and not against the title under which he entered. Id.; Comley v. Stanfield. The right to purchase does not appear to extend further. But the purchase of an outstanding title by a tenant-could be repudiated by the landlord, who is not compelled to adopt the acts of the tenant as his agent in the purchase. Should the landlord disaffirm the act the tenant would be remitted to the assertion of the title; and in such case could do so, subject, however, to all the obligations he is under by the terms of his lease; and in this case, should Myers repudiate McShan’s action in the" purchase, and a successful assertion of right to the land under his purchase be made, he would still be liable for rents up to his purchase, and costs, if the allegations in the petition be proven. The right of the mortgagee to buy at his own sale, when the mortgage has a power to sell, does not include the right of the mortgagee, while administering the property prior to the foreclosure sale, to deal with the trust property otherwise [107] than as a trustee. Howard v. Davis, 6 Tex., 184; Perry on Trusts, § 209. To enable the plaintiff to take the benefit of this relation it should be recognized. The recognition and authority to buy in the outstanding title would be presumed, and the court would charge the property with the expense of such purchase to reimburse the outlay. [Opinion delivered April 26, 1880.] We believe that in the absence of express repudiation on the part of Myers, the law would attach to McShan in • his purchase the obligation and duty of trustee, both as mortgagor in possession and as tenant. Perry on Trusts, §§ 209, 210. This relation to the property could be repudiated by Myers, and he could choose to treat McShan as dealing for himself; in which event he could assert whatever right Hughes and wife could convey to him February 12,1876, in their. deed. To obtain the benefit of McShan’s purchase Myers must recognize McShan as having in some capacity acted for him. It would seem, then, that to prevent McShan from using the Hughes title, his rights as tenant holding over and as mortgagee should be recognized in offsetting rents against his claims, if provided for in the lease and the note, etc., and in paying his outlay in buying the Hughes title. For the insufficiency of the special verdict under the pleadings and evidence to sustain the judgment below it should be reversed. Reversed and remanded.