Opinion
No. 4411.
November 17, 1933. Rehearing Denied November 30, 1933.
Appeal from District Court, Upshur County; Walter G. Russell, Judge.
Suit by Thomas Wells and his wife against I. M. Burroughs and another. Judgment for defendants, and plaintiffs appeal.
Affirmed.
The appellants, husband and wife, sued 1. M. Burroughs, individually, and W. D. Glasscock, operating as the Idaho Oil Company, for the cancellation of a deed conveying one acre of land to I. M. Burroughs, and to recover the value of oil taken from the land. The facts constituting the fraud were alleged to be: "Burroughs assured and represented to plaintiffs as a fact that he intended to erect a gin on said land and did not intend to and would not use said land for any other purpose, and so represented to plaintiffs in order to induce them to convey said acre to him. Plaintiffs believed said representations to be true and relying thereon were induced to and did convey said one acre to said Burroughs. * * * That said representations were false and used to induce the plaintiffs to sell to him the land. Plaintiffs allege to be true that said Burroughs did not intend to erect a gin on said acre and did not intend to do so when he so represented he did intend to do so and he has violated his agreement in every particular and has intended to and has used said land for other purposes and has not reconveyed it to plaintiffs. * * * That plaintiffs would not have conveyed the land had they known the representation to be false."
After hearing the evidence the court peremptorily instructed the jury to return a verdict for defendants, and in keeping with the verdict a judgment was entered that the plaintiffs take nothing by their suit. It is urged on appeal that there was error in giving the peremptory instruction. The evidence in behalf of the plaintiffs goes to show, in substance, that the plaintiffs owned and occupied as homestead ninety-one acres of land of the G. W. Hooper survey in Upshur county. That in May of 1928 the defendant I. M. Burroughs offered to purchase an acre out of the tract, lying north and not far from the residence of plaintiffs, and near a branch of running water. That the defendant represented that he wanted the acre of land upon which to erect and operate a gin, and that he intended putting a gin on it. That by reason of such representation the plaintiffs were induced to sell the land. That plaintiffs would not have sold the acre of land but for the purpose of a gin, and upon the representation that it would be erected thereon and the land used therefor. That the price of $50 cash was agreed upon and paid as consideration for the land. That the defendant shortly after the agreed sale in 1928 moved to the premises a boiler and some ginning machinery, and glade clay and logs for building purposes. But it was affirmatively shown that he went no further than stated toward the erection of the gin on the land. The proof shows conclusively that defendant went no further in efforts at building a gin on the acre of land and "let the logs lay there until they rotted" and the machinery lay out on the ground. All of the preparation mentioned to build the gin, as well as the abandonment of efforts to build same, occurred "a good long while" before the execution of the deed. As plaintiff testified: "All of it was done before he ever got the deed." Afterwards, on May 24, 1930, about two years after the agreement of purchase and sale in May, 1928, the plaintiffs executed to the defendant I. M. Burroughs a general warranty deed absolutely conveying in fee simple the acre of land, reciting the consideration to be $50 cash paid. The deed was duly registered January 20, 1931. It is not claimed that the recited consideration is not true and correct. The deed does not contain a covenant of use or clause of defeasance or of reverter. The plaintiff testified:
"Q. Isn't is a fact that he (the Justice of the Peace and Notary Public who prepared the deed and took acknowledgment) read it to you? A. He read it to me, wife and me.
"Q. Then after he had read it to you, he had you to sign it? A. Yes, Sir."
The present suit was filed in August, 1932.
T. H. Briggs and Frank Strangways, both of Gilmer, for appellants.
C. E. Florence, of Gilmer, Edwin M. Fulton, of Palestine, and G. L. Florence, of Gilmer, for appellees.
In view of the evidence in the case, considered in the most favorable light to the plaintiffs, it cannot be held that there was error in giving the peremptory instruction to the jury. The issues arising became matters of pure law and not of fact for the jury. (1) The evidence wholly fails to show that any covenant of use or stipulation of defeasance or reverter was omitted from the deed by mistake, accident, or fraud. And the deed having been read to plaintiffs, they could not claim they were ignorant or mistaken as to the contents thereof. Parker v. Schrimsher (Tex.Civ.App.) 172 S.W. 165; 7 Tex.Jur. § 31, p. 933. All contracts prior to the execution of the deed are presumed to have been merged in the deed, which expresses all the agreements of the parties. Harper v. Town Improvement Co. (Tex.Com.App.) 228 S.W. 188; Eldora Oil Co. v. Thompson (Tex.Com.App.) 244 S.W. 505. Hence the plaintiffs would be presumed to have absolutely conveyed the land just as the deed declares. (2) If the representations and promises to erect a gin were made for the purpose of defrauding and deceiving and without any intention at the time made of performing same, yet the plaintiffs lost the remedy of rescission by acts constituting a waiver. 7 Tex.Jur. § 37, p. 943; § 39, p. 947; § 24, p. 921. The evidence affirmatively shows without dispute that the deed was not executed and delivered for two years after the making of the contract of sale in May, 1928, and during which time to the actual knowledge of the plaintiffs the defendant Burroughs had wholly failed to erect and operate a gin on the land and had abandoned efforts toward the construction of the gin commenced thereon in the summer of 1928, and had erected and was operating a gin on other land near Mrs. O'Byrne. (3) If the promise and representation to erect a gin on the land was, as seemingly appears, truly made in good faith at the time of the contract of purchase and sale in May, 1928, and the defendant, subsequently, as conclusively appears, changed his mind and failed or refused to perform the promises before the execution and delivery of the deed, then such conduct would not constitute fraud in legal acceptation such as would justify the cancellation of the deed. Selari v. Selari (Tex.Civ.App.) 124 S.W. 997. The evidence affirmatively shows, and without dispute, that the defendant, after the agreement of purchase and sale of date May, 1928, actually moved on the land ginning machinery and logs and glade clay for building, evidencing the fixed intention at that time to in fact build a gin. In that affirmative and undisputed evidence there appears prima facie a lack of any present intention at the time of the representation and promise of evading performance and cheating plaintiffs.
Assignments of error are predicated upon certain bills of exception appearing in the record which are not signed by the trial judge, but in that situation this court is not authorized to consider the same. The other assignments do not present reversible error.
The judgment is affirmed.