291 S.W. 650 | Tex. App. | 1927
Lead Opinion
P. J. Small, administrator of the W. L. Tate estate, answered, alleging that W. L. Tate had executed and delivered a deed to the property to S. V. Tate, and that S. V. Tate had executed and delivered a deed to the bank; that by reason thereof the bank was entitled to all of the equity of the W. L. Tate estate in and to the property, and prayed that the bank recover and thereby relieve the W. L. Tate estate from any liability on its warranty.
The bank, by a supplemental petition, admitted the execution of the contract of sale between W. L. Tate and Bland, and ratified same, but specifically denied that the $7,000 had been paid, and asked for a judgment against Bland for said amount, together with 6 per cent. interest from the date same was to be paid under the terms of the contract.
The cause was submitted to a jury, and, based on its answers and additional findings by the court, judgment was rendered denying the bank any recovery, and quieting the title of Bland and wife to the property, and canceling the debt of $7,000, and in effect holding that Bland had completely paid for the property.
The undisputed facts in the record show that W. L. Tate owned the property in controversy, and on November 15, 1918, he and his wife executed a general warranty deed to S. V. Tate, reciting $1,000 paid and subject to a lien of $800. This deed was by W. L. Tate filed for record and duly recorded January 5, 1920, and, after being recorded, was returned to and kept by him until his death in March, 1922. On November 18, 1921, W. L. Tate and J. C. Bland entered into a written contract, under the terms of which Tate agreed to convey the land to Bland in consideration of $10,000, $3,000 to be paid in cash, $5,000 on or before December 15, 1921, $1,000 by February 1, 1922, and $1,000 by March 1, 1922. Upon the payment of said sums W. L. Tate agreed to execute to Bland a warranty deed to the property, and in addition Bland agreed to make improvements on the property by building a 22-room addition to the hotel. The contract provided that, if Bland failed to carry out its terms, he would forfeit all money paid by him. The record further shows that, beginning with September, 1919, J. C. Bland rented the property from W. L. Tate and continued to occupy same as a tenant until the time of his purchase in November, 1921. The record further shows that Bland did build the addition to the hotel and make permanent improvements on the property at a cost of $10,000. The record further shows that, at the time Bland rented the property from W. L. *652 Tate, as well as at the time when he made the contract of purchase, S. V. Tate told him that he (S. V. Tate) had no interest in the property, but that it belonged entirely to his brother, W. L. Tate. On January 3, 1925, S. V. Tate conveyed the land to the bank for a recited consideration of $2,000 paid.
In addition to the above facts, the jury found, in response to special issues, that the bank officials, at the time S. V. Tate made his deed to it, knew he had told Bland he had no interest therein, and that Bland had bought on the strength thereof, and found that W. L. Tate did not make a selection of any specified leases that were owned jointly by him and J. C. Bland in full settlement and satisfaction of the $7,000 deferred payments, and found that, after W. L. Tate died, J. C. Bland claimed to own a full one-half interest in the oil and gas leases which were standing in the name of W. L. Tate, and found that W. L. Tate did cancel the indebtedness of $7,000 against the property involved in the suit. The bank and Bland each filed a motion asking the court to render judgment in their favor, based on the answers of the jury.
The bank contends that the jury's finding that W. L. Tate canceled the indebtedness of $7,000 against the property is wholly without support in the evidence, and further contends that, if there is any support in the evidence sustaining said issue, that the answer thereto is in direct conflict with, and contradictory to, the finding of the jury that W. L. Tate did not make a selection of any specified oil leases owned jointly by himself and Bland in full settlement and satisfaction of the $7,000 deferred payments. The only testimony offered by Bland as to how he paid the $7,000 deferred payments was on the theory that Tate had agreed to accept $7,000 worth of the oil leases and cancel the indebtedness. The testimony with reference to the transaction between W. L. Tate and Bland was by J. C. Levens. Under the most favorable construction to be placed on his testimony, it appears that there were about 10.000 acres of land on which J. C. Bland and W. L. Tate held mineral leases, all of them standing in the name of W. L. Tate, but owned jointly by himself and Bland; that Bland desired to sell a portion thereof in order to obtain money with which to pay W. L. Tate the remaining $7,000; that Tate agreed to accept part of Bland's leases in full satisfaction thereof, and in consideration therefor agreed to cancel the indebtedness and execute to Bland a clear deed to the hotel property; that in pursuance thereof W. L. Tate was to get the lot and block number of the hotel property, and Levens, an attorney, was to prepare a deed from Tate to Bland. The lot and block number were never furnished Levens, and shortly thereafter Tate was taken suddenly ill and died. No deed was executed by Bland to Tate for the mineral leases, and no release or deed was executed by Tate to Bland for the hotel property, and, as above stated, the jury found that Tate never selected any specific leases owned jointly by himself and Bland in full settlement and satisfaction of the $7,000. Under the most favorable aspect of the testimony, the contract between Bland and W. L. Tate was executory, and it does not appear that Bland executed any deed to Tate or that Tate selected any acreage, or that there was any agreement with reference to the amount of acreage that Bland was to convey to Tate in satisfaction of the $7,000 note. The record shows that Tate never executed a deed to Bland, and it appears from the evidence that neither of the parties did any act with reference to the carrying out of the executory contract.
We do not think the evidence is sufficient to sustain the jury's finding that W. L. Tate canceled the indebtedness of $7,000 which Bland owed him on the property. It is a well-recognized principle of law that the owner of mineral rights has an interest in the land, and that to convey same it must be by an instrument in writing, properly executed and delivered. Gardner v. Sittig (Tex.Com.App.)
Defendant in error Bland in his answer offered to pay any portion of the unpaid purchase money on the property which the court might find was still unpaid. The trial court apparently rendered judgment in favor of defendants in error on the theory that Bland had paid to W. L. Tate the entire indebtedness. Under our holding above, the court was in error in rendering judgment on this theory. Defendants in error contend that, if the court was in error in rendering a judgment on the theory of payment, nevertheless the judgment should be affirmed because the record shows that the deed from W. L. Tate to S. V. Tate was never delivered, and that therefore S. V. Tate had no title to convey to the bank, and that, since the bank had *653
knowledge thereof, it cannot complain because it has no interest in or to the property in controversy. The question as to what constitutes delivery of a deed is a question of law, but as to whether there is in fact a delivery is a question usually for the jury to determine. Henry v. Phillips,
Because we do not think the evidence justified the findings of the jury that the debt has been canceled, and because we think the court was not justified in rendering a judgment quieting defendants in error's title as against said $7,000 unpaid purchase money, the judgment of the trial court is reversed, and the cause remanded.
Addendum
Not being able to agree with my associates, I hereby file the following dissenting opinion:
This cause was instituted by plaintiff the First State Bank of Wortham, Tex., on the 14th day of February, 1925, being a suit in trespass to try title, against defendants, J. C. Bland and wife, Mrs. J. C. Bland, to recover certain real property in the town of Wortham, known as the Commercial Hotel, said pleading being in the usual form of trespass to try title, alleging that plaintiff was the owner of said property on January 3, 1925, and was on said date dispossessed by defendants, etc. On July 6, 1925, plaintiff bank filed a first supplemental petition, pleading the common source, through whom it and defendants were claiming title, to be W. L. Tate. Plaintiff also filed additional supplemental petitions, to which reference will hereinafter be made. Defendants filed an answer, containing a general demurrer, general denial, and plea of not guilty; also a cross-bill in which they sought affirmative relief. Defendants also interpleaded S. V. Tate, the vendor of plaintiff bank, and also P. J. Small, as administrator of the estate of W. L. Tate, deceased, alleged to be the remote vendor of plaintiff bank, and the vendor of defendants; also certain special pleas, setting out their source and claim of title.
The case was tried before a jury, and, in response to special issues submitted to them, the jury found as follows:
"(1) The defendant J. C. Bland, before entering into negotiations for the purchase of the hotel property in question, did see S. V. Tate at Saginaw, Tex., with a view of purchasing same.
"(2) S. V. Tate did tell J. C. Bland that he did not own the property in question, and did refer said Bland to W. L. Tate as the owner thereof, if he wished to purchase, before the execution of the contract of purchase and sale between W. L. Tate and J. C. Bland.
"(3) That such statement of S. V. Tate did induce J. C. Bland to enter into the contract of sale with W. L. Tate for the purchase of the property in question.
"(4) That the vice president of the First State Bank of Wortham, or other officer of said bank, did know before it received the deed from S. V. Tate that said S. V. Tate had made said representations to said J. C. Bland, and that said J. C. Bland was induced thereby to enter into the contract of sale and purchase with said W. L. Tate.
"(5) That W. L. Tate did not make a selection of certain specified leases owned jointly by himself and J. C. Bland, in full settlement and satisfaction of the $7,000 deferred payment for the hotel property provided for in the contract of sale entered into between said W. L. Tate and J. C. Bland for the purchase of said property."
"(7) The defendant J. C. Bland did build the 22-room addition to said hotel, and the garage, and make the other improvements specified in the contract of sale within the time specified in said contract. *654
"(8) The total of all of the improvements placed on the premises in question by J. C. Bland is $10.000."
In response to plaintiff's requested special issue given by the court, the jury found:
"After the death of W. L. Tate, J. C. Bland did assert and claim to own a full one-half interest in the oil and gas leases which stood in the name of W. L. Tate, which said W. L. Tate admitted were owned one-half by said J. C. Bland and one-half by W. L. Tate."
In response to special issue requested by defendants and given by the court, the jury found:
"W. L. Tate did cancel the indebtedness of $7,000 against the property involved in this Suit."
On said findings of the jury and such additional findings by the court as the evidence warranted, the court entered judgment for the defendants. The statement of the case as made in the majority opinion is substantially correct and will not be repeated here.
It is thought the findings of the jury to the first, second, third, and fourth special issues were sufficient to require judgment to be rendered, not only against S. V. Tate, but also against the plaintiff bank, provided there is evidence to sustain the finding in response to the fourth special issue, to the effect that said bank had notice at the time it received its deed from S. V. Tate of the representations by S. V. Tate to J. C. Bland to the effect that the hotel property belonged to W. L. Tate. The contract of sale from W. L. Tate to J. C. Bland was dated November 18, 1921, and filed for record in the deed records of Freestone county on May 15, 1922. The deed from S. V. Tate to plaintiff bank was not made until January 3, 1925, so said bank at the time it received its deed had constructive notice of all the terms of said contract of sale. Again, defendants Bland and wife, since the date of said contract of purchase, have occupied said property, claiming it as their own, and said property is situated only a block or two from the office of said bank. Plaintiff bank knew of their possession of said property at the time it received its deed. The open, exclusive, and visible possession of the property in controversy by defendants Bland and wife was constructive notice to the plaintiff bank of all the rights by which said parties held said property. Watkins et al. v. Edwards et al.,
23 Tex. 443 ; Newman v. Phalen et al. (Tex.Civ.App.)214 S.W. 958 ; Cox et al. v. Kearby (Tex.Civ.App.)175 S.W. 734 . But in the trial of the former case of S. V. Tate v. J. C. Bland, filed in 1922 to recover the same property involved here, and in which case a nonsuit was taken, the same facts were involved as are here involved, and the vice-president of plaintiff bank was a witness and was present during said trial. I think the finding of the jury to the fourth special issue is fully sustained by the evidence, and that plaintiff bank had not only constructive notice of all the rights by which defendants claimed to own said property, but also actual notice of all such rights, and that said bank's right of recovery was no better than S. V. Tate's rights would be if he was seeking such relief. The evidence, some of which is copied in the majority opinion, is ample to show that S. V. Tate repeatedly told J. C. Bland that he (S. V. Tate) had no interest in said property, but that it belonged to W. L. Tate. S. V. Tate knew of the sale to J. C. Bland, knew that Bland paid W. L. Tate $3,000 cash on said property, knew that Bland was expending some $10,000 for improvements on same, knew that Bland and wife were occupying it, claiming it, and improving it under their purchase from W. L. Tate. S. V. Tate never paid any taxes on it, never claimed any interest in it, nor attempted to exercise any control over it until after W. L. Tate's death. In 1922, S. V. Tate brought a suit against J. C. Bland and wife to recover the same property, but before the trial was concluded took a nonsuit, without testifying in said cause, and he did not testify in this cause — in fact, he has never testified that he owned any interest in said property. The record is conclusive that J. C. Bland relied upon the statements by S. V. Tate to the effect that he (S. V. Tate) owned no interest in said property, but that W. L. Tate did own same, and Bland was thereby induced to buy said property and pay $3,000 on the purchase price and to expend $10,000 for improvements, and the jury found that the bank knew, before it received the deed from S. V. Tate on January 3, 1925, that S. V. Tate had made said representations to J. C. Bland, and that J. C. Bland was induced thereby to enter into the contract of sale and purchase with W. L. Tate. The findings of the jury to the first four special issues are amply sustained by the evidence, and effectively estopped the bank from the right of recovery, and required the rendition of judgment denying the right of plaintiff bank to recover said property, and the trial court was correct in so holding. It is also true, if said bank had no notice, it could acquire no interest as an innocent purchaser, because it paid nothing of value but took a deed from S. V. Tate in settlement of a preexisting debt it held against W. L. Tate, deceased. McKamey v. Thorp,61 Tex. 648 ; Spurlock v. Sullivan,36 Tex. 511 ; Steffian et al. v. Milmo Nat. Bank,69 Tex. 513 ,6 S.W. 823 .
It is thought clearly the plaintiff bank failed to show any right of recovery of any interest, either legal or equitable, in the property in controversy, and, as far as the plaintiff bank and S. V. Tate, who disclaimed any interest, are concerned, in any view of the case, the judgment awarding the property to Bland and wife is correct and should be affirmed.
Under other assignments the plaintiff bank complains of the failure of the trial court to *655 instruct in its favor for the recovery of $7,000 and accrued interest, same being the amount of deferred payments on the property claimed by plaintiff to be unpaid; and under other assignments plaintiff bank contends it was entitled to judgment for said $7,000 on the findings of the jury. The record shows defendant J. C. Bland and W. L. Tate owned jointly and in equal interests certain oil and gas leases on about 10,000 acres of land in Freestone county, but title to same was in the name of W. L. Tate alone. This fact is established by an instrument in writing and not denied by any one. The evidence without dispute shows that W. L. Tate and J. C. Bland entered into an agreement by the terms of which J. C. Bland sold to W. L. Tate an interest of $7,000 in his (Bland's) one-half interest in said leases, in consideration of which W. L. Tate canceled or agreed to cancel the deferred payment of $7,000 against the hotel property, by reason of which, as contended by defendants, Bland became entitled to a deed conveying a clear title to said property to him. The record discloses further without dispute that W. L. Tate recognized Bland's right to such deed, and employed an attorney to prepare such deed, and said attorney did prepare such deed, but that W. L. Tate died suddenly without executing the same. There was evidence, and the jury so found, that J. C. Bland, after the death of W. L. Tate, claimed a half interest in said leases. While this evidence was proper to be considered, yet it was not sufficient to enable the court to say, as a matter of law, that said agreement between W. L. Tate and J. C. Bland was not made. The jury found that W. L. Tate did cancel said $7,000 against the hotel property, which was also an implied finding that said agreement was made. If this finding of the jury be construed to mean that W. L. Tate marked some instrument of writing, evidencing said indebtedness, "Canceled," then such finding is without evidence to support it, but, if said finding be construed to mean that W. L. Tate agreed to consider and did consider and treat said indebtedness as satisfied, then it is supported by the evidence. There was no written instrument evidencing said indebtedness except the contract of sale and purchase, and of course the parties would not be expected to cancel it. Under the contract of purchase, Bland was not entitled to a deed conveying the hotel property to him until he had paid all the purchase money. It seems the parties understood the whole matter would be settled between them, title to all the leases already being in W. L. Tate, by W. L. Tate executing a deed, reciting a cash consideration, conveying said hotel property to J. C. Bland, and to consummate the transaction, W. L. Tate instructed his attorney to prepare such deed, and said attorney did so, but W. L. Tate died suddenly without executing same. The jury found that W. L. Tate did not make a selection of certain specified leases owned jointly by him and J. C. Bland in full settlement of the $7,000 of deferred payment for the hotel property, and found further that J. C. Bland, after the death of W. L. Tate, did assert and claim to own a full one-half interest in said leases, and the plaintiff bank claims that on these two findings it was entitled to judgment for the $7,000 and accrued interest.
As shown by the record, the agreement between W. L. Tate and J. C. Bland was that W. L. Tate would cancel the $7,000 against the hotel property in consideration that he (W. L. Tate) be allowed to retain and become the owner of leases out of J. C. Bland's one-half interest of the value of $7,000; said leases to be of W. L. Tate's own selection. This agreement does not indicate that the selection of the leases by W. L. Tate was a condition precedent to the cancellation of said indebtedness. The parties evidently did not so understand. W. L. Tate during his lifetime had his right to select said leases, and after his death the same right vested in his legal representatives. This finding of the jury that W. L. Tate did not make selection of said leases, I think, was an immaterial finding, and was not determinative of any issue in the case. The other finding, to the effect that, after the death of W. L. Tate, J. C. Bland claimed a half interest in said leases, was purely and only evidentiary in its nature, proper to be considered by the court or jury in passing upon the controlling issues, but not determinative of any controlling issue in the case.
The bank pleaded the statute of frauds, and contends, if W. L. Tate did cancel said $7,000 indebtedness, as found by the jury, or agreed to treat same as settled, as the undisputed evidence shows, that such agreement was ineffectual because the $7,000 interest in the oil leases, being an interest in real estate, was not conveyed in writing by Bland to W. L. Tate. There are several reasons why it is thought there is no merit in this contention. The statute of frauds is not applicable. If W. L. Tate, in pursuance to the agreement he had made with Bland, had selected the leases, as he had the right to do, and Bland had refused to convey same to him, and Tate had filed suit against Bland for the recovery of said leases, then Bland could, by pleading the statute, have defeated a recovery, but would have been bound to restore what he had received; in other words, pay the $7,000 indebtedness. Ray v. Young,
It is thought that the evidence was sufficient to support the finding of the jury to the effect that the $7,000 indebtedness was canceled by W. L. Tate, in the sense and only sense it could have been canceled by him, to wit, a verbal agreement or relinquishment, and that this court should not disturb said finding; but, if said finding is not supported by the evidence, or if said verbal relinquishment was not sufficient to extinguish said indebtedness, still the plaintiff bank was not entitled to recover said $7,000. The bank's suit was one in trespass to try title to the hotel property. The appellant bank in its pleading admitted the execution of the written contract of sale from W. L. Tate to J. C. Bland, and pleaded in the alternative that, if it was not entitled to recover the property on its petition of trespass to try title, then that J. C. Bland was still owing $7,000 of unpaid purchase money which was due and unpaid, and, the "bank having acquired and now being the owner of all right, title, and interest in said property, including the right to collect said purchase money, is entitled to judgment for said sum of money." Again the bank pleads in its third supplemental petition:
"This plaintiff again offers to accept from the defendants payment of the $7,000 called for in the written contract of purchase under which defendants claim * * * and to execute to defendants on said payment a deed to said property," etc.
The bank's right to recover the $7,000 is, under its own pleadings, made dependent upon its right to recover the property, and, if the bank was estopped to recover any interest in the property, it necessarily follows it could have no right to recover the $7,000 or any interest therein. The contract of sale from W. L. Tate to J. C. Bland was executory, and the legal title to the property remained in W. L. Tate until the purchase money was paid. If the $7,000 balance of the purchase money was not settled during the lifetime of W. L. Tate by the lease transaction, then on his death the beneficial interest in said executory contract vested in his legal representatives and was subject to administration for the payment of his debts. The adminstrator of the estate of W. L. Tate in his pleading asked that the bank be permitted to recover said property, but in the alternative prayed that the bank be permitted to recover said $7,000. There is no evidence in the record that would tend to show any right in the bank to such recovery. The adminstrator could not, by pleading or otherwise, short of an order of the probate court, confer such right. The plaintiff bank having failed to show any interest, either legal or equitable, in said property, it necessarily follows, in the absence of evidence showing some other right, that plaintiff bank could not be interested in the $7,000 purchase money alleged to be unpaid. If said $7,000 was not paid, and if same was not properly assigned or transferred by W. L. Tate, or his administrator in obedience to an order of the probate court, then the right of recovery of same was in said administrator. Neither S. V. Tate nor the administrator of W. L. Tate, deceased, has by pleading or evidence sought to recover the $7,000. Neither has in any way attempted to show any right to such recovery, nor by assignment or otherwise challenged the correctness of the judgment of the trial court in so far as their rights are involved. The bank, having no interest in said $7,000, has no grounds for complaint.
The writer is of the opinion the judgment of the trial court should be affirmed.
Addendum
Defendant in error's second motion is to dismiss this cause because of an insufficient writ of error bond. They contend that P. J. Small as administrator of the estate of W. L. Tate, deceased, was adversely interested to the First State Bank of Wortham, and is therefore a necessary party as a defendant in error. The petition for writ of error shows that P. J. Small, as administrator of the W. L. Tate estate, joins in and is one of the plaintiffs in error in this cause, joining with the First State Bank of Wortham, and it was not therefore necessary for him to be made a defendant in error. They further contend that the bond does not describe the bank as being a corporation and does not in any way indicate or show that it is a corporation. All of the pleadings filed in the case, as well as the petition for a writ of error, describe the bank as a corporation. We do not think there is any merit in this contention, and said motion is overruled.
Defendants in error's third motion is to dismiss the writ of error because of insufficient service of the writ of error citation. There are some minor irregularities shown in the sheriff's return on the writ of error citation as served on the defendants in error. The defendants in error have, however, appeared in this court and filed briefs, and have thereby waived any defects in said writ of error service. It therefore becomes unnecessary for us to, and we do not, pass on the questions raised by said motion.
Addendum
The affidavits further show that the statement of facts had for a number of days been in the district clerk's office, waiting for the approval of the court, and that the court had been requested a number of times to approve same, and had constantly promised that he would do so. The affidavits show that the court, at the time he did sign and approve the statement of facts, and at the time the same was filed by the clerk, thought it was being filed within the time which the court had granted for the filing thereof.
We think this showing is sufficient, under article 2245 of the Revised Statutes, to authorize us to permit said statement of facts to be filed as a part of the record. The motion for rehearing is therefore granted, and defendants in error's motion to strike out the statement of facts is overruled, and the opinion heretofore filed by us is withdrawn. *658
