*1 512 judgment valid, judgment decreeing declaring the court the contract to be destroyed binding, upon plain subsisting plaintiffs in effect contract 105.4acres to the executed, -originally convey and tiffs to This the deed as it was the 41.7 acres. conten tion cannot created in its stead a “reformed” with be sustained for reason only therein; stated; included and rule of last acres law above and for the the 41.7 thereby pur to further reason which reformed deed plaintiffs’ conformed that the contract does not port allegations original- plaintiffs binding the land as to to be a contract convey ly conveyed; acres, recites, issue of intended to be thus the 41.7 substance have con effect, plaintiffs fraud was and defendant eliminated became that whereas veyed judgment. mentioned, entitled to the 41.7 -acres the deed plaintiffs good themselves to have bind agree appellant are not able to We perfect title, and to furnish an abstract argument that flects re sound. The record grantee showing It title. will be acres, the 105.4 the decree noted that the refer terms the contract are to, pro referred entered court before conveyance able ready -made, the executed deed al merits, ceeding trial entered on the any agreement and not to upon upon defendant’s and not her disclaimer conveyance. Hence, future with the executed prayer for disclaimer is not reformation. A canceled, provisions of the contract plea, an answer or but it is an defense admis binding plaintiffs good to show title and fur plaintiff’s rights, Wilbarger sion of Tull v. an nish abstract thereof to the defendant (Tex. App.) County S.W.(2d)316; Civ. 36 Appellant would be moot and without base. judgment thereon would not have the ef injured could not be for want of an abstract finding establishing anything fect of the showing good title to a has The defendant’s favor. of a effect disclaimer been canceled. upon is that it is admission the record of right plaintiff to recover title Appellant also contends that the court land covered the disclaimer and the de overruling objec erred the defendant’s nial of the assertions of title to testimony tions to the oral of Mrs. Moselle Carter-Kelley Havard v. defendant. Nichols, her plaintiffs, witness for and to all of (Tex. App.) 922; C o. 162 W. Civ. S. Lbr. article Civ. testimony, wherein she testified she 1925; (Tex. R. S. v. Smith Wood present and heard the trade and saw App.) Snyder 583; Compton 229 S. W. v. plaintiffs transaction between and C. R. Han (Tex. App.) 73; Civ. 29 W. Busk Man S. v. ; being appellant sen it that this the contention of the App. 621, ghum, 14 W. Tex. Civ. 37 S. testimony was inadmissible since the Wilbarger (Tex. County App.) Tull v. Civ. 36 terms of the trade had been reduced to writ Utility Corp’n S.W.(2d) 316; Investors’ v. ing, testimony and the was in conflict with S.W.(2d)175; 774; Challacombe Herring Civ. 39 written terms of the contract. This as Swain, v. 19 W. signment cannot be sustained for the reason Hitchler, App. 689, Scanlan S. W. 762. Tex. Civ. 48 parole applica evidence rule is not pleaded when fraud ble in the execution of 117,p. the contract. 20 Tex. § Jur. defendant, 170. plaintiff, It and not the Dodge concluded disclaimer. appellant assignments, The has made other Richardson, Tex. 8 S. carefully of which considered; we have finding presented, they -but no error entering re-’ action of the court in The spectfully judgment overruled. on the defendant’s dis claimer as to the 105.4acres did not “reform” judgment The of the trial court affirmed. purging the deed in the sense the transac fraud, any. judgment tion of its if did purport, not fect sense so nor was the ef thereof, “regenerated” to create a new or deed, vitiating cleansed of the effect of fraud. Fraud, exist, when found to relates back to BOOKHOUT et al. v. McGEORGE. inception of the whole matter with which No. 11507. parties, it vitiates § connected as between the entire transaction. Tex. Jux-. Appeals Court of Civil of Texas. Dallas. 7, p. and the authorities there cited. The Sept. 30, 1933. defendant’s dis as to
claimer the 105.4acres could not be held Rehearing 25, 1933. Denied Nov. precluded plaintiffs’ rights to have to be assign heard the issues fraud. isment overruled. appears to be the contention further appellant notwithstanding the cancel lation of the defendant was entitled
K13 alleged It is claimed further (common under a deed from Robert Davis source), February dated junior March This deed is claim, mineral deeds under which Thompson, Read, & Bates and Lowrance *3 being prior filing rec- executed for to the Dallas, Harris, Knight, for Baker & ord from Davis second mineral deed plaintiffs in error. 26, May (recorded to Bookhout and Holifield Wilson, 1923), appellee protection inno- Prentice claims and Marion S. Church purchaser Dallas, for error. cent the value one-half both of for defendant oil, minerals, lands, gas which in said by appellants. claim is denied LOONEY, Justice. Appellants prayed their title be de- that oil, gas, Claiming to be the owners superior by appellee; creed to those asserted acres under minerals in and and other of ½ that the instruments which he claims under Tex., appellants county, Gregg land in removed, be canceled and as clouds from ap- McGeorge, against Percy brought this suit oil, gas, their in and and minerals cloud, remove, pellee, from as a to cancel land; alternative, and, under said in the that title, which instruments under certain their they given prayed be the relief for toas one- appellee claims. oil, gas, minerals, in half the event man) com- (a is the colored Davis Robert the court titled that not en- should decide are being appellants source; claim of mon based Davis each recover whole. by deeds, executed mineral two appellee general The answer of includes a Holifield, A. S. J. Bookhout J. four-year pleas guilty, limi- denial and of not oil, conveying in the interest one-half tation, laches, demand, pur- stale innocent lands; gas, minerals and other chaser, appellants and further that are esr 26, July 1921, 20, July recorded first dated usury topped plead foreclo- or to void the 18, August 1921, and 1921; the second dated thereunder, sure and trustee’s that deed J. May 26, interest J. 1923. recorded Bookhout, Davis, they claim, Robert estopped under whom deceased, J. held R. now plead usury in of the avoidance partner, Mrs. Bookhout, brother and foreclosure and deed thereunder. Mary Bookhout, widow, and Ross Frances Prances and John pleadings is, This statement in our of the Bookhout, minor children opinion, purpose. sufficient deceased; were A. Holifield these and engaged Percy McGeorge was in the loan plaintiffs below. Dallas, m at business and became interested title, specially pleaded their circumstances, following the land under the separate chains length three out at set during is, Davis, source, Robert common title; first appellee asserted under which McGeorge April, 1921,applied to the month of for being Mort- Farm from the Oklahoma deed receipt land, and, pending a loan on said Company, gage a trustee’s deed McGeorge title, an abstract of of advance about the induced company recorded dated March cash, revealing without $600 power 1921, of the made virtue March of the Mort- existence Farm Oklahoma April of trust dated a second deed of sale in gage Company loan or the foreclosure and May 6, 1919, executed thereunder, Archie the existence of the source) (common Andrew Davis Robert Kingkáde, receipt abstract, Blount how- deed. On trustee, securing an indebtedness ever, existence of these instruments Mortgage Company. The the Oklahoma acting revealed, thereupon, advice under the appellants foreclo- is that this contention sure acquired co.unsel, the three con- void, are thereunder made the deed fee-simple veyances under which he asserts given to secure trust deed was because lands, Okla- said a deed from usury; further and was tainted with debt Mortgage Company homa Farm the trustee’s made alleged because trustee’s sale void therefor, paying sale, $986 sub- appellee’s advertised; properly sec- lien, sequently paid amounting off the first an instrument exe- is under of title ond chain cuted $2,900 interest, obtained (common source) Davis Robert Blount, from and a deed from Archie February (colored) dated Blount Archie all without notice fact not disclosed February 24, for record filed by the record.. length lat- at will set out This instrument jury, and, The case was tried to appellants is that er. The contention evidence, having conclusion of the overruled title, mortgage being passed instrument and verdict, appellee’s motion for a directed improper further that record issues, special court submitted case on notary’s im- was not certificate findings evidence, their ren seal, pressed was not construc- hence appellee, dered favor1 of It will these be observed tive notice. appeal was taken. which prior executed and recorded instruments were assigned Appellee error on the refusal two mineral un- cross to the execution deeds favor, in his verdict der claim. direct a
g applicable
among
propositions,
contends
other
the statute invoked is not
alleged
appellants’
by appellants.
barred the
action was
cause of action
cause
asserted
(ar-
four-year
limitation
under the
ticle
statute
propositions
urged
The other
“Every
5529).
ac-
statute reads:
This
assignments
under his cross
also substan-
estate,
recovery
than
of real
tion other
for the
tially presented
counterpropositions
pre-
for which no limitation is otherwise
will be discussed when reached.
years
scribed,
brought
shall be
within four
Appellants insist that
the loan
Okla-
right
bring
shall
after
nest
Mortgage Company
homa Farm
have accrued and not afterward.”
usurious,
pro-
Davis was
that the foreclosure
uniformly
that ceedings
trust,
Our courts have
held
under the
second
se-
recovery
curing
interest,
alleged
whether
suit is
usurious
plead
depend upon
were,
form of the
thereunder,
does
and the trustee’s deed made
*4
ings,
are,
passed
the nature
the title'assert
of
and
void and
no title.
above,
As
title concede,however,
ed.
shown
claimed
that, if
was
foreclosure
the
minerals, superior
to
asserted
they
valid,
have no title.
appellee,
sought to
and
have the instruments
Appellee’s
if
contention
even
under
from
which he held removed as clouds
originally
that,
usurious,
the loan rea
title,
their
to
and
title
that their
be decreed
dealings
parties,
son of certain
the
between
superior
by appellee.
be
While the suit is not in
to
title
the
asserted
usury,
purged
of
it
that Davis became
statutory
form
the
sale,
him,
to avoid the foreclosure and
trespass
complete
try title, yet
of
to
title asserted
the
hence,
appellants,
who
under
claim
Recognizing this
within itself.
estopped.
inquire
are also
So we
first
will
nature,
urged
ap
be its
defenses
origin usurious,
loan
in
whether the
propriate to such an action.
whether,
and,
so,
if
cir
the
and
facts
ap
by appellee
only
The statute
cumstances,
invoked
Robert
Davis was
plicable
plaintiff
cancel,
a
re
where
usury
seeks to
of
in
raise the issue
foreclosure
avoidance of the
form, or set aside an instrument that stands
and
trustee’s deed
the loan
way
recovery
in the
of a
in an
tres
estopped,
action of
company,
lants,
appel
thereunder, for if
pass
try title,
applicable
an
and
subsequent
title under
who claim
legal
action to remove clouds from a
title. him,
estopped. Key
Wharf &
are also
West
McCampbell
App.
Durst,
In
v.
Tex.
Porter,
15
Civ.
Coal
v.
63 Fla.
58 So.
Co.
522,
uation,
315, 320, involving
40 S.
sit
173;
Petteway,
W.
a similar
1914A,
Powell v.
Ann. Cas.
69 Fla.
sue
owned
tain
present
the court said: “The
action
So. 230. The
on
is
67
facts
the
by appellees’
is classed
counsel
to re
as one
usury
of
are these: In
1919
land,
legal
move a
of
cloud from
controversy subject
title to
in
land
to cer
the
they
possession;
which
are in
their
outstanding
notes,
conten
vendor’s lion
se
and
being
tion
that the deeds under
Mortgage
which defend cured
the Oklahoma
Farm
voi'd,
day by day
ant holds are
but that
question,
princi
Company
in
loan
in
the
the
upon appellees’
giving
title,
cast
shadow
$3,400,
pal
up
sum of
take
the
vendor’s
continuing
action,
to a
rise
cause of
to which
same,
notes,
gave
.
lien
and
secure
two trust
apply.
the statute of
may
limitations does not
land,
prin
deeds on the
the first to secure the
conceded,
purposes
be
the
of
cipal, $3,400, and interest
the rate of
at
7
case, that,
cent,
proposition
if their
annum,
per
per
bonds,
as to the char
nine
evidenced
sound,
acter
the two
maturing
January
of
titles is
succeeding
1st,
the conclu
on each
one
cent,
follow,
sion
per
contended for
would
and
with 10
interest"
after ma
thereon
Indeed,
turity,
maturity
action
it
providing
the
would not be barred.
for accelerated
may
contended,
that,
property by
be
if the
as and sale of
titles were
the
the trustee under
admitted
powers given
deed,
in
there would be no
trust
limitation
the
directed
petition
not, formally,
proceeds
paid
by.
suit.
the
While the
such
of
sale be
out
trespass
try title,
not,
charges,
“First,
in
one
terms,
and
costs
trustee as follows:
does
recovery
expenses
executing
trust,
puts
ask for
of
includ
prays
attorney’s
titles,
judgment
ing
fees; Second,
issue the two
for a
trustee’s
money
sums
which would have all
force
and all
conclusive
debt
due or to be
trespass
try
hereunder,
agreed,
except;
come due
interest
give
already
possession,
priority
may
to
have.
tiffs
as-said
trustee
deter
which,
If,
plain
therefore,
up by
;
deed,
the title set
mine”
the second
trust
question
mkde,
were one
which such
an action
secured the
maintained,
might
payable
installments,,
$452.50,
this suit
be
could be
well
sum of
in six
recovery
January
lands,
maturing
considered one for the
on each
1st after its date
being
January
possession,
(January 1, 1920,
including
no
there
adverse
to and
there
cent,
effect, 1,
per
per
1925),
representing
be
limitation.”
v.
would
see
To
3
interest
same
106, 112,
Stafford,
principal,
that,
providing
Stafford
96
Tex.
70
if
annum
App.)
payment
S.
Smith Olivarri
in
v.
Civ.
made
default be
235, 238;
Settegast (Tex. debtedness,
S. W.
Carl
or
inter
or
the notes
238, 242;
due,
performance
Com.
237 S. W.
Thomason
est thereon when
any
or
McIntyre,
agreement
stipulation,
113 Tex.
254 W.
315. We
or condition
hold
option
investment,
deed,
necessity
said
at
first trust
tlien
bad
and to avoid the
notes,
legal
foreclosure,
the of
owner and holder of
a formal
the
the
to facilitate
disposition
handling
property,
become
shall at once
whole amount thereof
due
request
company
Davis,
payable,
procured
de-
at
before
day
legal
holder,
(in
his
owner and
trustee
fault
were
deeds
fact
trust
convey-
successors, etc.,
notice,
“first,
premises
executed),
after
sell the
shall
execution
sale,
etc.,
apply
proceeds
Skipper,
the com-
ance of
land to B.
A.
Gregg
payment
pany’s
representative
Longview,
of a-Il
ex
costs
sale, including
county, Tex.,
penses
legal
reasonable trus
for the
of said
who held the
convey-
second,
payment
fee;
company.
in
tee’s
loan
benefit of the
This
secured,”
hereby
warranty
general
While there
etc.
dat-
debtedness
form
ance
controversy
point,
April 26,
we are
“In
some
con-
ed
recites
opinion,
evidence,
$3,700
paid
find from the
sideration of
sum of
me
paid
Skipper
deed of trust
the second
as fol-
amount secured
secured
B. A.
represented part
on the loan.
interest
the notes
$1.00
lows:
cash
Oo.
due the Oklahoma
Oklahoma
excerpts
These
reveal
each trust
having
City,
Skipper
Oklahoma.”
accelerating provision, under
contains
which unearned
company,
loan
his connection with the
ended
per
interest,
in excess of
warranty
conveyed
H.
cent,
money
per
annum from the time
Miller,
representative
H.
pany,
another
com-
exacted, hence,
used,
is con
could have been
having charge
the East
loans in
*5
as
the rule announced
demned
usurious under
territory,
for the
held title
who also
Texas
Shropshire
by
Supreme
Com
in
Court
our
conveyance
company.
is
This
benefit of the
Co.,
400, 30 S.
Credit
merce Farm
W.(2d)
30, 1920, and
fol-
dated March
contains the
282,
S.W.(2d) 11, 13,
R.
84 A. L.
lowing
“$1.00
recital
to consideration:
1269,
language
in
as follows: “The contract
receipt
paid
in hand
the
of which
cash
pay
validity from
fact that
the
derives
assumption
hereby acknowledged, and the
promised compensation, which
ment of the
outstanding
of
homa Farm
indebtedness due the Okla-
the
highest allowable conventional
exceeded the
City,
Mortgage
of
Oo. Oklahoma
contingent
interest,
on
elec
creditor’s
was
the
Oklahoma,” concluding
“But it
as follows:
compensation.
tion
such
excessive
demand
agreed
stipulated
expressly
the
that
stipulates
more
The
the contract
for
fact that
against
above
the
vendor’s lien
described
ments until the above
retained'
contingency
than the law
on
interest
involving
allows
improve-
premises
property,
principal
in
no'risk of
and lawful
notes and all
described
you
the
treat
terest condemns
the
contract. Once
fully paid according to
thereon
interest
obligating
debt
clause
the
acceleration
reading,
tenor,
when
their
effect and
face
pay
permissible
more than
conven
ors to
tional
For rea-
absolute.”
deed shall become
stipulating
interest,
for a
instead of
disclosed,
company
sons
the
concluded
invalidity
penalty,
of
is in
the
the contract
the land sold under a formal foreclosure
have
This results
rule declared
the
evitable.
deed,
of
and to
Miller
the trust
that end had
Appeals
by
in
of
words
New York Court
the
reconvey
Davis, so,
the land
provide
interest,
to Robert
on
for the
as follows: ‘If the contract
February 5, 1921, a
time
the
short
before
payment
events,
the loan with
at
of
(on
1921),
usurious,
enough
trustee’s sale March
H. Miller
H.
it is
it
if in
render
special
conveyed
by
interest,
provide
land to Robert Davis
legal
the
for
addition
the
warranty
upon
following
upon
interest,
the
recited
payment
con-
of excessive
the
“For and in consideration of the
contingency.
stipulation
sideration:
A
for a
even
chance
by
($1.00)
paid
beyond
interest,
illegal.’
advantage
legal
sum one
Davis,
dollar to
of
me
of
receipt
hereby
Launy,
the
ac-
had
the loan
reached
conclusion that
was mal
was a settle-
company;
(N. S.) 672,
Supreme
loan
alone could L.
ment with the
he
R. A.
Court held
vice,
usury, purge
acceptance,
part
waive
the contract of
holder
estop
incumbrance,
claiming
promise
pur-
later of an
himself and those
insisting
payment,
him
afterwards
chaser
under
of the land
to assume its
upon usury
principal
title derived latter
avoidance
became
hold-
debtor to the
act,
unequivocal
er,
obligation
the trust deed. His
of his vendor was in
conveying
Skipper
surety;
for
the land to
in trust
nature
essary
suming payment
of a
it was
nec-
company,
purging
notify
party
for
the effect of
as-
holder
original
usury,
effect,
acceptance
contract
said
of his
company
property
undertaking,
agreement
satis
and that
as-
—“Take
my
you
payment
do sume
faction
indebtedness
could not
be revoked
con-
you
reconveyance
Any transaction,
with it as
wish.”
tract
rescission
be
be-
creditor,
status,
tween
tween the
Miller
debtor
that results
vendor and
In this
vendee.
debt,
conveyance Davis,
cancellation or settlement óf a usurious
must be
executed
who
expressly assumed,
given
purging
the effect of
as consideration for the
the balance due the
usury.
Cyc. 1006,
payment
following perti conveyance,
In 39
company
“Where,
original
nent doctrine is
loan
announced:
on his
indebtedness
company,
agreed
whole or a
to the
for the
that a vendor’s
consideration
accepts
per-
grantor
lien be
retained
land to secure
obligation.
notes,
Thus,
cancellation his own usurious
formance of his
tirely
an en-
he will
Miller,
right
be deemed to have waived his
com
new untainted contract with
again
plain
usury,
principal
the title to the
con Davis
became the
debtor
veyed
usury.”
company,
opinion,
will
loan
in our
be unaffected
Also the
he
Cyc.
subsequent
him,
1002; Michigan Loan, etc.,
claiming
see
those
Co.
Cahill,
up
orig-
usury
253 Mich.
235 N.
74 L. are
to set
A.
R.
1183. But
there is also another view inal loan contract
avoidance of
fore-
facts, leading
conclusion
that es- closure and trustee’s deed thereunder.
toppel
rely
exists.
was entitled to
general
doctrine on this
is an-
upon what the record disclosed
the time
*6
L., p. 288, 89,
in 27
nounced
R. C.
follows:
§
purchase.
conveyance by
of his
It showed a
purchase price
part
a
“A
assumes
who
of the
vendee
asi
Skipper
Davis
a
to
for
recited consideration
pay mortgage
agrees
and
a
$3,700
paid
of
to be
and secured as follows:
sold,
asserting
property
from
“Subject to the
due the
notes
Oklahoma
thereby
obligation secured
is usurious.
the
This is
to
title of the vendee
Having purchased
Co.” etc.
particularly
promise
true where the
subject
property
outstanding
to this
lien in
pay
in the deed.
whole
is included
debtedness, Skipper
impliedly obligated
upon
conveyance
rests
pay
to
on the
and was
to attack
loan
mortgage,
and
of the
the continued existence
usury.
ground
Doctrine to this ef
part
incumbrance,
He
a
it.
as an
cannot
forms
91, pp. 289,
fect is
announced
27 K. C. L. §
permitted
under
both
be
to claim
290,
generally
as follows: “It is
held
one
upon
deed;
against
insist
and
buys
who
land
existing
to an
mort
benefit,
repudiate
efficacy
and
its
confer a
gage, and who therefore obtains an abate
qualified;
a
a
it is
affirm
with which
burden
'
purchase price equal
ment of
'
to the
reject part.”
part
a
mortgage,
amount due on the
cannot attack
mortgage
ground
usury.
on
Appellants
Under
make the further contention
circumstances,
position,
prin
these
on
his
under the trust deed was void
ciple,
respect
is considered
properly
to be in no
dif because notices thereof were not
ferent from
vendor
in
posted'.
bearing upon
what it would have been
his
The facts
this issue
specified
Strickland,
counted out in
Riley
cash the sum
are these:
substitute trus
mortgage,
placed
tee,
testified,
contradiction,
it in
hands as
his
without
that he
messenger,
mortgagee
pay
his
personally posted
with direction to
it to
a
of the sale at the
notice
discharge
mortgage
the
or
Gregg county
ample
time,
courthouse of
lien;
Kilgore
this is true whether there was and mailed one notice to
and one to
express promise
pay
an
not, Gladewater,
terms
being
Gregg
or
both
towns in
coun
promise
implied
as a
ty,
will
respective
be
under such con
with instructions to the
ad
(impliedly
ditions.” In
to
obligated
post
public
this status
place
dressee to
the notice in a
pay
outstanding
town;
notes held
in said
copy
loan
that later he received a
company), Skipper conveyed the land to Mil of the notice from each addressee with a re
ler,
expressly
payment
who
stating
assumed
in-
turn thereon
the notices had
cumbrance,
agreed
properly posted
the retention
of the been
and in
In
time. Walker
property
Taylor (Tex.
vendor’s lien on the
App.)
(writ
secure
v.
denied)
Civ.