*1 ux., Petitioners, Eugene C. et JONES al., KELLEY,
Jared L. et Sr.
Respondents.
No. B-9739.
Supreme Court of Texas.
March April
Rehearing Denied
SPEARS, Justice. for specific performance This is a suit to L. Buyers, real estate. Jared Olga Kelley and the Texas Veterans Board, sellers, brought against suit Jones, Jones and Della Mae for Eugene performance of two earnest specific of land for the sale of a tract in jury, County. was to Shelby Trial its was en- upon findings, judgment based per- Kelleys decreeing specific tered for the court, however, grant- formance. trial motion Joneses’ for portion ed that the verdict notwithstanding de- judgment attorney’s recovery of Kelleys nying affirmed appeals The court of fees. civil court. judgment the trial applications in Both have filed attacks application this court. Joneses’ specific perform- requiring judgment complains of Kelleys’application ance. The appeals of civil failure of the court claim was of their presentment hold that attorney’s fees made, entitling to the them by jury. found the court of judgment We reform the recovery by for the appeals civil in the amount fees Kelleys attorney’s In all other re- by the jury. determined judgment is affirmed. spects (1) whether are presented: Three issues consummating the sale documents the four may be construed subject property of the contract; (2) whether the together as one in the of the contained to- if are construed four documents statute of satisfy the gether is sufficient to Ann. 26.- frauds, § Tex.Bus. & Com.Code (3) presentment 01(b)(4); and whether as a mat- Kelleys’claim was established jury’s to the entitling Kelleys ter of law attorney’s fees. award of tract of acre a 116 The Joneses owned McPherson, & Provost, Doyle Umphrey, listed the They Shelby County.1 in Arthur, Rienstra, peti- M. Port Steven agency estate for sale with a real tioners. was to be price purchase specifying Kelley, Mr. Associates, L. He- paid Bernard either “cash G.I.”. Hebinck & Texas Veter- veteran, binck, Houston, secured the aid for respondents. acreage jury by thought nor over the originally found to contain actual 1. The land was acres, jury the trial court. reformation contract but was determined dispute over the contain 116 acres. There is no Wag- W. out of the W. purchasing “91.55 Acres ans Land Board assist him cooperated The Joneses with and D. G. Green property. Survey A-796 staff arrangements financing A-263, Tex- County, Shelby Survey acre, with the Veterans Land Board. per of $400 a consideration as” for $5,493, payment awith cash to sell the entire Their Deed Note and make "[pjurchaser *3 ear- 127.55 acre tract and consisted two the bal- for in favor of Seller” Trust Joneses contracts between the money nest purchase price. ance of the Kelleys, and the Veterans Land Board the Sale, and the and Contract for Application to “[sjeller that provides contract This of the ear- Joneses’ affidavit. Under one Sur- survey by certified furnish current contracts, agreed money nest contract “[tjhis further that veyor,” and by the assignable the contract was that Ac with 36 conjunction in to be closed Land Board which Kelleys to Veterans 03147.” Bd contract # Vet Land Joneses’ would take title to acres of the and Contract “Application its The Board property in name for cash. Program,” Land Veterans’ Sale—Texas to the Kel- would then resell that 36 acres that, to the with reference providing Vet- leys provisions under the the Texas tract, hereto "shall attach acre Jones Act, art. 5421m Tex.Rev.Civ. erans Land refer- above description of the field note the re- The Joneses would sell Stat.Ann. ” property enced .... acres, mainder of the direct- property, of Seller—Veterans “Affidavit plus for a note exe- ly Kelleys to the cash Jones wherein of Texas” Land Board note to be secured Kelleys, cuted sellers they that were the aver 91 acres. a Deed Trust lien on the tract, that such described 36 acre title or any The Joneses would not retain I that of 127.55 acres part “is a di- security interest the land May 1970 on Balsimo purchased from C. to the Land Board. rectly Veterans $10,000.00 for a total consideration grantees were the in both description surveyor field note .... A Jones- money earnest contracts which the being fur- easement of an access agreed convey they es to the entire tract nished.” County owned in to the Shelby portions The relevant the documents agree- upon their Kelleys, relying may be summarized as follows: $6,181.40 Joneses, expended ment with the money 1. An earnest contract wherein fees, fees payments, and escrow survey agrees Kelley, Jones to sell to for the sum Board. Veterans Land to the payments acre, cash, premises per $400 couple later refused The Jones as property “[l]ying described September On property. Texas, County of situated in the State of Land Veterans sent a letter Shelby, and described follows:” not would that advising them Board Wagstaff W. “36 acres out of the W. The Veterans sale. through with the go County, Tex- Survey, Shelby A-796 in to the Jones- replied, by letter Land Board as.” through go es, Kelleys intended to that acknowledged This that contract Further, an uncontroverted with the sale. application pur- has “[p]urchaser made ap- conversation telephone of a transcript through Board chase Texas Veteran Land Kelley and Mrs. the record between pears in assigned # 03147.” and has been repeatedly Kelley which Mrs. Mr. Jones in “[sjeller to provides This also contract go of her determination Jones told Mr. by registered survey current Sur- furnish the sale. through with by Veteran veyor required description contend that The Joneses Board.” money con- acreage in the earnest wherein 2. An earnest contract frauds, the statute satisfy not tracts does premis- sell to agrees Jones 26.01(b)(4). Ann. & Com.Code § Tex.Bus. es described as: Specifically, they argue that there pension were two establishment of trust and retire- separate involved, and distinct conveyances ment plan for member banks’ employees. and neither the 36 acre tract to be conveyed The acquire trustee was to life insurance on to the Veterans Land Board nor the re- each participant from participating bank maining acreage sufficiently were describ- funds. Life Southern issued individual life It conceded, however, ed. if the policies insurance employee. each together documents are construed as one Southern Life that it had not vio- asserted adequate contract there is an any lated group insurance law because indi- property.2 If the transaction consisted policies vidual been had issued. This court of two separate transactions, held policies, that the insurance the trust description is as to inadequate both tracts agreement, and the between and the transaction fails. Great and the Bankers Associa- Southern tion together. must be construed We stat- We hold that the four instruments *4 ed: “All of the instruments were a neces- may be together construed and thus the transaction, sary part of same the without description satisfies statute the of frauds. any one of which the transaction was not general The rule that separate is instru complete.” present In suit the the transac- or ments contracts executed at the same tion is the entire the sale of tract. Without time, for the purpose, same and in the financing the Veterans Land Board re- course of the same transaction are to be contracts, ferred to of in the the sale the instrument, considered as one and are to be complete. entire tract would not be read and together. construed Miles v. Mar tin, 336, 62, 159 (1959); Tex. 321 S.W.2d Thomason, 65 ,In supra, separate Veal v. oil Thomason, 341, 159 Veal v. Tex. 138 gas covering S.W.2d and were a leases involved 472, 475 (1942); Braniff Inv. Co. v. group Robert of tracts of contiguous by land owned son, 124 Tex. 81 (1935); S.W.2d the in severalty. various lessors Each in- Noel, v. Libby (Tex.Civ. S.W.2d strument recitals that showing contained App. Paso e.). writ ref’d n. r. the execution of similar leases other by — El contemplated lessors by parties, was the The courts have construed contracts and and the several were held to consti- leases together instruments in various situations all just though tute but one contract of in order to par- ascertain the intent of the signed the the same piece lessors had ties. Several indicate decisions that instru- paper. ments may together be construed or treated as one though contract even they Although admitting are not that documents the between the same parties. transaction, See Miles v. part were executed as of one Martin, supra. In Board Insurance purpose Com- the Joneses that the in exe- argue missioners v. Co., Great Life cuting Southern Ins. the documents was not the same. 150 Tex. 803 (1951), Texas The a distinction in the urge that Bankers Association entered into a trust while acre tract to be sold for cash was agreement with Houston Bank and remaining acreage, Trust as to the Joneses the Company. agreement provided The for the inter- security were to retain substantial a During argument, yes, oral I counsel for the concede that law Jones- the is transaction — that that acknowledged es being my that if the four instruments all the land that clients transaction, proper- were construed Shelby County yes, you as one owned in deter- can — ty description legally you the entire tract was talking mine from what that land are sufficient: total, you distinguish about but still cannot any what one of these instruments refers you agree JUDGE: Would that the court and I correct, still contend .... which 36 or which appeals say of civil they was or would incorrect, remainder —where it is. And terms were in their conclusion that different; you simply simply property the sales are can tell it’s where the is and what single No, property its face not a I con- is contract. from examination of all four you “yes, point say, instruments cede reach that with the field notes attached? you once farm,” yes, COUNSEL: I that if it’s one to sell the whole concede take contract absolutely point. their initial conclusion —that this is one are correct on that Martin, property or is stated to be owner property. est in the In Miles principle proved be and it supra, we said that the constru- single answering a grantor only owns a “device for ing together was is identified with description, the land ascertaining giving effect to the inten- certainty.” Id. at 569. In Pick reasonable applied tion of the and cannot be 207, 223 148 Tex. S.W.2d 222 Bishop, ett regard and without to the reali- arbitrarily the sufficien (1949), question concerned p. of the Id. 321 at ties situation.” S.W.2d contained a cy property memoran body memorandum. Looking transaction complete at the property “my dum describes the land it was clear intent both the Joneses hereof.” opposite on the side described that the execution of the an inad of memo contained reverse side pur was for primary four documents court held that description. This equate subject pose conveying property all the land,” “my “my property,” such as phrases by was listed property me,” it is are sufficient when “owned agent real estate as one tract and party evidence that the shown extrinsic purchase the entire Kelleys intended answering only one tract of owns Financing through tract. the Veterans holding by this explained We description. only achieving Land Board was a means of stating: objective. The Veterans Land Board ownership The stated Kelley, vet only aiding interested in *5 description of which in a matter itself eran, purchase in his of and property the identification the leads to the certain not in of its own. The any acquisition description the with- brings and property Joneses and Mr. executed the Veter Kelley writing the of the rule that in the terms ans Land at the Joneses’ Board documents itself, by refer- furnish within must daughter’s Both the home Sheldon. the writing, to some other extrinsic ence refer the earnest Veter particular by which the means or data four ans Land Board. execution of be identified conveyed may to be land only documents this instance was at 224. certainty. Id. with reasonable singular accomplishing means of the and jury the undisputed It primary purpose conveying the Joneses’ the intended sell found that the Joneses entire tract to the evidence 116 acre tract which the entire the Joneses owned that the four was all the land Since we have determined shows affidavit to the Joneses’ Shelby County. In together documents be must construed Board, four one the the Veterans Land one contract we need to determine whether transaction, consummating this documents property contained in these they were the own Joneses recited that four documents satisfies the statute from deed conveyed by the property ers of frauds. and to Jones and the metes Balsimo C. conveyance For a or contract sale is in property description of bounds of the statute of requirements meet There direct evidence evidence. frauds, must, de it insofar as the 36 acres to be chose the actually concerned, within itself scription is furnish Board. Land conveyed to the Veterans writings byor reference to other identified Harmon, real estate Both and existence, or data then in the means in outlin aided agent, testified that Jones to be particular which the the 36 acres pen marker ing yellow with a certainty. may specific be identified with plat on a at the easements placing and 538, Shotwell, Morrow 477 539 S.W.2d of the Veterans signing time Fisher, 53, (Tex.1972); Wilson v. 144 Tex. plat 1,1977. This May Board documents 150, (1945). 188 152 S.W.2d within of the 36 acres showing the location containing (Tex. 116 tract and larger 567 acre Reagan, In Kmiec v. 556 S.W.2d acres, of the 36 and distance 1977), grant- calls for course this court stated: “[w]hen 100
is in clearly easily performance. evidence and locates to tender The statute fur- complete .exact 36 acres referred to. A ther that it provides is to “be con- liberally survey promote underlying accurate of the 36 acres with strued to its purposes.” changes minor and field notes was made a purpose requirement 8, week May later on 1977 and was sent in for presentation of a claim is to allow the attached to the Veterans Land Board Con- person against op whom it is asserted an Application, document No. 3 portunity pay days a claim within 30 mentioned, signed above. As the Joneses after have the claim notice of without this document all the along with others. incurring obligation attorney’s an fees. Thus, larger it is clear the from 36 acres No particular presentment form of is re tract was sufficiently plat located quired. Fidelity Huff v. Union Life Ins. time signing. before the at the Co., 158 Tex. S.W.2d When the instruments are to- construed Smith, (1958); Hudson v. gether, the description proper- of the entire (Tex.Civ.App. writ ref’d — Houston ty to be conveyed is sufficient to satisfy e.). n. r. Further, statute of frauds. the reformation Various forms of have been presentment involved, being the number of acres sup- support held to be sufficient to an award of ported by jury finding, proper. In Huff attorney’s fees under art. 2226. There was no mutual mistake as to the Co., Fidelity supra, Union Life Ins. both subject identity property, only in the oral and written were held to be demands acreage. Gammage, sufficient. In Welch v. We turn now to the third issue in (Tex.Civ.App. S.W.2d — Austin volved in this attorney’s fees. The 1977, e.), writ ref’d n. r. held that court case— court appeals of civil held that the Kelleys request response for admission and its plead did not or point any evidence of in which the admitted he refused to party presentment. Kelleys’ Third Amended presentment. pay a claim were sufficient as Petition specifically pleads: “plaintiffs Kel Finally, King Optical v. Auto. Data Pro *6 ley made demand on defendants to convey 213, etc., (Tex.Civ. 217 cessing, 542 S.W.2d the property subject made the of this law 1976, e.), n. r. App. writ ref’d — Waco suit filing more than 30 days preceding for request payment court held that an oral action, of this but said land was not con presentment requirement met the of art. ” Thus, veyed .... pleadings there were to 2226. support the jury’s attorney’s award of fees. Veterans by The letter sent question
We turn now to the con and the tran Land Board to the Joneses cerning presentment of the contract claim. conversation be script telephone 2226, Tex.Rev.Civ.Stat.Ann., Article Jones establish Kelley tween Mrs. and Mr. amended in provides for the law. Mr. Jones recovery presentment as a matter of letter, of a reasonable and the attorney’s amount as fees admitted he received the costs, addition to one’s claim and for the telephone contents of the letter and the successful a suit founded Dur prosecution transcript were never controverted. necessary a written contract.3 A Mrs. requisite ing telephone conversation Kelleys for the were recovery attorney’s very fees is the made it clear that the presentment through claim and were insisting go of the contract to the sale that the opposing party contacting attorney.4 and the failure of that an party process Well, sir, Kelley: anyway amendatory pro- Mrs. 2 of act we are not Section the 1979 going anyone vides that the act is remedial in character and to sell that land to else when apply pending is re- desparately intended to to all actions we so it ourselves. want for gardless of the time of institution of the suit. going you, Now I am to tell we have contact- Tex.Gen.Laws, 1979 2§ ch. at 718. lawyer hearing you from ed a will be him. facts The Land Board is notified following excerpt 4. The is an from the tran- script telephone conversation: charged by person to be (2) signed ap- civil judgment of the court of The or by promise or with the attorney’s is for peals reformed to sign for to lawfully authorized someone by jury, fees the amount found him. as reformed is affirmed. applies (b) (a) of this section Subsection to CAMPBELL, J., in Dissenting opinion by GREENHILL, J.,C. and POPE and
which
real es-
sale of
for the
(4) a contract
BARROW,JJ., join.
tate;
Justice,
CAMPBELL,
dissenting.
writing must
This Court has held
itself,
reference
by
or
I dissent.
within
furnish
writing, the means
existing
some other
of this case
a classic exam-
facts
are
to be
particular
which the
by
data
of Frauds
ple of what
the Statute
with reasonable
be identified
conveyed may
problem
prevent.
intended
Dauley,
Inc. v.
Enterprises,
certainty. U. S.
descrip-
whether the cumulative
Williams v. Elli-
(Tex.1976);
is invalid for uncertainty description. In Texas, Appellee. The STATE of Pfeiffer v. Lindsay, 66 Tex. S.W. No. 63437. (1886), this following Court held the de- scription to be insufficient: Texas, Court of Appeals Criminal “[F]ifty survey, acres of the J. M. Moss En Banc. abstract No. situated near the town
of Burlington, in Montague county, Sept. Tex- as.” 29, On Rehearing April contract, money second the earnest contract between the Joneses and the Kel-
leys, described the land to be
the Kelleys as follows:
“91.55 Wagstaff acres out of the W. W. A-796
survey and D. G. survey Green
A-263 in Shelby County, Texas.”
This contract is for the same lacking reason
as the 36 acre Additionally, contract.
91.55 acre tract surveys, Wag- lies in two Green,
staff and and the 36 acre tract was Wagstaff
to be taken from only survey.
As evidenced by the two earnest
contracts, the and Kelleys contract-
ed for two separate conveyances. There is
no way go to determine which 36 acres will portion
to the VLB without lien or to which
the Joneses are to retain their lien. These highly significant
factors are to the VLB application
and to the The VLB Joneses. provide contract of sale that if the 36 public
acres does not abut on a road the provide
seller will a usable easement to a
public attempted road. The
show that the 36 acres have been at was to abutting
the back side of the farm and not However, public
on a road. no attempt
made to of the ease-
ment. Whether the land on which the
Joneses were to retain a lien abutted on a
public road and whether the land was to be
encumbered with an easement would be
decisive to them.
The four instruments fail to suf-
ficient with the comply Stat-
ute of Frauds.
GREENHILL, J., and POPE and C. BAR-
ROW, JJ., join dissenting opinion. in this