Opinion
No. 1600.
April 6, 1916. Rehearing Denied April 13, 1916.
Appeal from District Court, Hill County; Horton B. Porter, Judge.
Action by Cora P. Whitmore against L. J. Harrell and W. N. Orand, with cross-action by defendant Orand against his codefendant. Judgment for plaintiff against both defendants, and judgment for defendant Orand against his codefendant, and defendant Orand appeals. Affirmed.
By a deed dated August 17, 1910, Mose Novich conveyed two tracts of land in Hill county to L. J. Harrell. Each of the tracts was described by its metes and bounds. One of them was further described as being a part of the Henry Ross survey of a league and labor and as containing 164 2/3 acres, more or less. The other was further described as being a part of the A. Pratt survey and as containing 3 1/3 acres, more or less. The consideration recited in the deed was $14,000 paid and to be paid as follows: $6,525 in cash, $1,600 January 1, 1912, and $2,000 January 1, 1913, as evidenced by notes then executed by Harrell to Novich, and the assumption by Harrell of the payment of a note for $3,875 secured by a deed of trust on the land. While it is not so recited in the deed, it is assumed that the $3,875 note was one Novich had made a charge on the land before he sold same to Harrell. By the terms of the deed a vendor's lien was retained on the land by Novich to secure the payment of the notes. From recitals in the instrument it appears that the $2,000 note was to be a charge against Harrell and the land conveyed to him only in the event Novich was unable to collect that sum out of notes aggregating $3,311, assigned to him by Harrell, and secured by a lien on land in Wood county.
By a deed dated November 14, 1910, Harrell, describing the land as it was described in the deed to him, conveyed same to appellant Orand. The consideration recited in this instrument was $16,000, paid and to be paid as follows: $8,525 in cash, and the assumption by Orand of the payment of the notes for $3,875, $1,600, and $2,000, referred to above.
In April, 1912, Novich borrowed $2,000 of appellee, to be repaid in April, 1913, and as collateral security for the debt he thereby incurred to her delivered to her the $2,000 note given by Harrell to Novich as stated above. The note last referred to contained a stipulation binding Harrell to pay interest from January 1, 1911, at the rate of 8 per cent. per annum. January 1, 1913, while appellee held same as stated, Orand by his writing thereon bound himself, instead, to pay interest from that date at the rate of 10 per cent. per annum.
There being about $1,750 of the indebtedness due by Novich to appellee unpaid, she on April 15, 1914, commenced the suit against Harrell resulting in the judgment from which this appeal is prosecuted. Her suit was on the note for $2,000 made by Harrell to Novich, as stated above, which she held as collateral security for Novich's indebtedness to her, and she sought judgment against them for the amount thereof, including interest and attorney's fee stipulated for, and a foreclosure of the vendor's lien retained by Novich to secure the payment of same. Novich was alleged to be a nonresident of the state, and for that reason was not made a party to the suit. Harrell did not answer, and judgment as prayed for was rendered against him by default. Orand in his answer admitted he had assumed the payment of the note, but claimed: (1) That the sale by Novich to Harrell and by the latter to him was of the land by the acre; (2) that there was 12.53 acres less thereof than Novich represented to Harrell and Harrell represented to him there was; and (3) therefore that he was entitled to have set off against the amount due on the note a sum equal to the value of the 12.53 acres shortage, at the price per acre (which he alleged to be $83.33 1/3 Harrell agreed to pay for the land). By a cross-action against his codefendant Harrell, Orand sought a recovery against him in the event the set-off he claimed against plaintiff was not allowed, of a sum representing the value of the alleged deficit in acreage of 12.53 acres at $95.25, the price per acre which, he alleged, he agreed to pay Harrell for the land. In a trial amendment, Orand alleged that the title to the 3 1/3-acre tract had failed, and claimed that for that reason he was entitled to a credit on the note sued on, "to the amount and extent of $277.66, together with 8 per cent. interest thereon from November 10, 1910; that being the date of his purchase and the interest he has paid thereon."
On special issues submitted to them, the jury found: (1) That Novich did not represent to Harrell that the tract of land contained 168 acres; (2) that the tract contained 155.47 acres; and (3) that the price per acre agreed upon between Novich and Harrell was $90. On these findings, and others made by himself, the court rendered judgment in favor of appellee against Harrell for $2,661.12 and against appellant for $2,721.40, foreclosed the vendor's lien as prayed for, directed that the land be sold, and that the proceeds of the sale be applied to the payment of the costs and the sum adjudged in appellee's favor, and further directed that the excess, if any, of such proceeds, be paid over to appellant. The judgment was, further, that appellant recover of Harrell whatever sum he (appellant) might pay on the judgment against him in favor of appellee. The appeal is by Orand alone.
J. D. Williamson, of Waco, and Morrow Morrow, of Hillsboro, for appellant. Wear Frazier, of Hillsboro, for appellee.
The action of the trial court in refusing the special charge No. 2 requested by appellant must be treated as approved of by him, because of his failure to except thereto as required by the statute. Article 2061, Vernon's Statutes. Therefore the first assignment is overruled.
Without reference to whether the note sued upon was negotiable or not and we think it was not, and without reference to whether, if it was, she was a bona fide holder thereof or not, and we think she was not within the meaning of the law, appellee, as the lawful holder thereof, was entitled to recover thereon as sought by her, unless it was subject to defenses appellant would have been entitled to urge against it had it remained in the hands of Novich. It was not disputed in the evidence that the sale by Novich to Harrell was by the acre, and that the two tracts together contained only 155.47 acres. Appellant alleged that Novich in the sale to Harrell represented that the two tracts contained 168 acres, and that the price agreed upon between Novich and Harrell was $83.33 1/3 per acre. He further alleged that the two tracts together contained 12.53 acres less than 168 acres, and that he therefore was entitled to have the value of 12.53 acres at $83.33 1/3 per acre set off against the sum appellee would have been entitled to recover had there been 168 acres of the land. At the request of appellee, the court instructed the jury that the burden was on appellant to prove by a preponderance of the evidence that the price agreed upon between Novich and Harrell was $83.33 1/3 per acre, as he alleged it to be. We think it was not error to so instruct the jury, and therefore overrule the second assignment.
Appellant requested the court to charge the jury as follows:
"You are instructed that the undisputed evidence shows that the 3 1/3-acre tract of land out of the A. Pratt survey was embraced in the deed from Mose Novich to Harrell and from Harrell to defendant Orand, and further shows that the said 3 1/3-acre tract of land was never in possession of either the said Mose Novich or of the said Harrell or said Orand, and that it has been for more than ten years in the adverse possession of other parties, and as to the said 3 1/3 acres of land there is a failure of title, and by reason thereof the said defendant Orand is entitled in any event to an abatement of the note sued on to the extent of the value of said 3 1/3-acre tract of land at the rate of $83.33 per acre, amounting to the total sum of $277.67, together with the further sum of $76.30, bearing 6 per cent. interest from August 17, 1910, to date, and you are instructed to find in favor of said defendant on account of said 3 1/3 acres in the sum of $353.97, which is to be credited on or deducted from amount due plaintiff."
The complaint in the third assignment is based on the refusal of the court to so instruct the jury. The assignment is overruled. It did not appear from the evidence as a matter of law that the 3 1/3 acres had been "for more than ten years in the adverse possession of other parties" than Novich and his grantors, and that the title of Novich thereto had failed. The witness Preston testified, without contradiction, that the 3 1/3 acres of the Pratt survey and the 155.47 acres of the Ross survey were separated by a road. The only testimony we have found in the record which can be said to have tended in tile least to show that the 3 1/3 acres was ever "in the adverse possession of," or claimed by, other parties than Novich and his vendors, was the following: (1) The witness Preston testified that in 1906 the 3 1/3 acres "was in Mrs. White's inclosure." He did not know how long it had been there. (2) The witness Henderson testified that "Mrs. White occupied that land that is across the road there and up to the creek." What land he had reference to does not appear from his testimony. Nor did he say when Mrs. White occupied the land he referred to, nor how long. It is plain, we think, that it did not conclusively appear from this testimony that the statute of limitations had operated to divest Novich of title to the 3 1/3 t acre tract at the time he conveyed same to Harrell.
The fourth assignment presents substantially the same question as the one presented by the assignment last disposed of. It will not be considered, because the ruling of the court complained of, to wit, the overruling of appellant's motion to enter judgment alowing him the set-off he claimed on account of the failure, as he alleged, of Novich's title to the 3 1/3-acre tract, was not complained of in the motion for a trial as required by rule 24 for the government of this court (142 S.W. xii).
The judgment is affirmed.