Thomas A. Raines v. L. C. Calloway, 27 Tex. 678

Bell, J. It is plain from the evidence, that in the deed from Raines to Calloway, there was a misdescription of a portion of the land which Raines intended to convey. The evidence shows that previous to the execution of the deed, Raines had pointed out the land to Calloway. The land about which the parties contracted, was situated in a body, in Union parish, and in township Ho. nineteen.

By mistake, however, as is alleged by Raines, and as may well be inferred from the evidence, four of the tracts of land intended to be conveyed, amounting to four hundred and forty acres, were described in the deed as situated in township Ho. nine, instead of township Ho. nineteen. It is shown by the testimony of the register of the land office, that these four tracts of land in township Ho. nine, are public lands, which had never been entered at the time the witness testified. All the balance of the land described in the deed from Raines to Calloway, is situated in township Ho. nineteen.

In response to issues submitted to them, the jury found that there was a failure of title to six hundred and eighty-one acres of the land described in the deed from the plaintiff in error to the defendant in error.

I suppose that by this verdict the jury meant that the title to the four hundred and forty acres of land in township Ho. nine, was not in Raines at the time of the sale to Calloway; and also that he had failed to show any title in himself to the John Smith tract of forty acres; to the Obadiah Smith tract of eighty 67-100 acres; to the Orasha Squires tracts ©f eighty 46-100 acres, and to the John Palmer tract of eighty 45-100 acres. There is not a little confusion and some positive contradictions in the testimony.

The register of the land office, for instance, in one part of his testimony, says that the north-east quarter of the south-east quarter of

section twenty-two, in township No. nineteen, was entered by John Calloway, whereas, in an exemplification of the township, from the records of his office, this .tract of land is shown to have been entered by A. M. Raines, the defendant below; and the patent to Raines for this tract, was read in evidence, and the record contains an admission by the plaintiff below, that he received from Raines a good title to this and other tracts. It would be unprofitable, in this opinion, to comment at any great length upon the testimony, for it can only be fully understood by a careful examination of the transcript.

It is necessary, however, to remark, that the plaintiff below, Calloway, at the time of the purchase from Raines, was put in possession of the land intended to be conveyed by the deed; that his possession has never been disturbed either by adverse entry upon the land, or by suit to establish title to any part of it; and that upon the trial there was no evidence that any actual claim was made to any part of it by any of the persons in whom the plaintiff below alleged the outstanding titles to be, or by any other persons; but upon the contrary, the defendant below offered in evidence deeds or other evidences of title to himself for all (or nearly all) the lands pointed out by him to Calloway, and which he alleges was the land which both himself and Calloway understood to be conveyed by the deed.

The defendant below in his answers, points out the errors committed in writing the deed and proposes to correct them. The defendant below excepted to the plaintiff’s petition, that the same was insufficient in law, because it did not aver that the plaintiff had been disturbed or molested in the quiet and peaceful possession, enjoyment and use of the land described in the petition. This exception was overruled by the court below, and this ruling presents perhaps the most important question in the case.

In support of the ruling of the court, it is contended that by the law of Louisiana, the purchaser of land is deemed to bp evicted from the possession, whenever an outstanding title is shown in a third person, though there may be no actual claim of title, no adverse entry and no suit. An examination of the cases cited by the counsel on both sides of this case, satisfies us that the position above stated cannot be maintained.

Some of the earlier Louisiana cases went so far as to recognize this principle, but it has been repudiated in many later cases; and except in certain cases relating to mortgages, which are governed by certain provisions of the civil code of that State, the law of Louisiana, on the subject under discussion,, seems to be very nearly the same as our own. In the case of Rightor v.

Kohn and others, 16 Louisiana Rep., 501, Garland J. said, “ It has been long settled, that a vendee cannot refuse payment of the price, on the ground that other persons have titles to the land sold him, but who have not disturbed him.” In the case of Kemp v. Kemp, 2 Louisiana Rep., Judge Parker said, “Where a party resorts to his action of warranty, before a decision of a court of justice is made against him, he assumes and takes upon himself the burthen of proving that the land belongs to another, and is, in truth, acting against the title he holds under. He should therefore, make out a clear case.

The court cannot but feel that he may, peradventure, be setting up claims which those in whose name' the right is vested, would not think of asserting,” Numerous cases to the like effect, are to be found in the reports of the State of Louisiana; see the cases of Bessy v. Pintado and others, 3 Louisiana; Guidry v. Green, 1 Martin N. S.; Fulton’s heirs v. Griswold, 7 Martin, (old series) 223.

It is true that "by the law of Louisiana, it is not necessary in order to constitute an eviction, that the party should be actually dispossessed, If the purchaser should inherit the property, or should purchase it from the true owner, this, in contemplation of the law of Louisiana, would be an eviction. (Landry v.

Garnet, 1 Robinson, 362, and the authorities there cited.) In the present case, the evidence leads strongly to the conclusion that the defendant below has title (at least) to the greater portion of the land to which the plaintiff alleges there are outstanding titles; and we could not sustain the judgment of the court below without feeling that we were sustaining claims which those persons in whose names the • outstanding titles are alleged to be, will, in all probability, never assert.

We are of opinion, that the court below erred in overruling the exception of the defendant below to the plaintiff’s petition, in the particular here discussed. The defendant below alleged that the plaintiff was in possession of all the land which was understood by both parties to pass by the deed. He alleged that there were mistakes in the deed in the description of the land actually bargained, and he asked that those mistakes should be corrected.

To this extent, the defendant became the actor in the court below, and the court ought to' have inquired into the truth of his allegations, and upon proof of a misdescription of the land in the deed, the mistakes ought to have been corrected. There is one important particular in which the verdict of the jury does not appear (with any clearness) to be sustained or warranted by the testimony. The proof showed that in the contract of sale between Raines and Calloway, the land Conveyed by Raines was estimated to be worth ten thousand dollars in the aggregate; or at least this may be inferred from the proof.

The evidence also showed that there was great disproportion in the value of the different lots or parcels of land conveyed.

The jury found that there was a failure of title to six hundred and eighty-one acres, and they valued these six hundred and eighty-one acres at the average value of the whole amount of land conveyed, whereas, the true measure of damages, if there was in fact a failure of title to any portion of the land, would be the actual value of the particular lots or parcels to which there was a failure of title; to be ascertained by their relative value compared with the balance of the land, assuming the price agreed on by the parties as the value of the whole.

What is fatal to the judgment in this particular, is, that the verdict was a special one, and did not ascertain the particular tracts to which there was a failure of title, so that the evidence of value could be applied. The rule is well established, that a special verdict must find every fact necessary to show that the judgment is a proper one. The verdict cannot be aided by the general mass of the testimony. The judgment of the court below is reversed, and the cause remanded. Reversed and remanded.