Gaines v. Dillard

Court of Appeals of Texas

Gaines v. Dillard

545 S.W.2d 845, 1976 Tex. App. LEXIS 3437

CourtCourt of Appeals of Texas

DecidedDecember 10, 1976

DocketNo. 17741

StatusPublished

This text of 545 S.W.2d 845 (Gaines v. Dillard) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gaines v. Dillard, 545 S.W.2d 845, 1976 Tex. App. LEXIS 3437 (Tex. Ct. App. 1976).

Pincite

Opinion

, OPINION

PER CURIAM.

The plaintiff, F. C. Gaines, Jr., sued the defendant, A. R. Dillard, Jr., to recover $104,221.65 that Gaines had deposited with Dillard as earnest money under a contract for the sale of a ranch in Clay County, Texas. Gaines was the buyer in the contract and Dillard was the seller. Plaintiff’s suit was based on the contention that Dillard, as seller, failed to tender a merchantable title to the lands involved to Gaines, as purchaser, and that for that reason Gaines was entitled to get his earnest money back.

The case was tried non jury. It resulted in the trial court rendering judgment that plaintiff take nothing by his suit. This appeal is brought by the plaintiff from that decree. Findings of fact and conclusions of law were requested by both parties and the trial court adopted as its own the findings of fact and conclusions of law that the defendant had filed in the court papers and requested that the court make.

The plaintiff jointly argues his points of error one through eight, inclusive. We here state the substance of those points.

Point of error No. 1 was that the trial court erred in denying plaintiff a recovery because he became entitled to his earnest money back, since the undisputed evidence [847]*847showed that the seller failed to furnish in response to requirements 4 and 5 of plaintiff’s title opinion the curative matter there requested which was necessary in order for the seller to comply with the sales contract by which seller was obligated to furnish buyer a merchantable title.

Point No. 2 was: the court erred in making its finding of fact No. 2 stating “ ‘that within 30 days from the submission of the title opinion to Dillard, he furnished to plaintiff curative matter in connection with requirements 4 and 5 of the opinion’ ” because there is no evidence to support it and the finding is contrary to the undisputed evidence.

Point No. 3 was: the court erred in basing its judgment on finding of fact No. 2 referred to in point No. 2 because the undisputed evidence shows that the curative matter submitted by Dillard to plaintiff was inadequate to cure the objections contained in paragraphs 4 and 5 of the title opinion and that such curative matter did not render the title merchantable.

Point No. 4 was: the trial court erred in making and filing its finding No. 18 stating that “ ‘The title data, including abstracts of title and curative matter, submitted by Dillard to Gaines and then examined by Gaines’ attorneys, contain no evidence of an avulsive change of the Big Wichita River where the same bounds the subject property,’ ” because it is undisputed that the title data showed a change, but did not show whether it was the result of avulsion or accretion. Prior to this suit defendant presented no evidence of any kind to plaintiff’s lawyer that would show the cause of the change in the river boundary. For that reason the title was not merchantable according to the title evidence submitted.

Point No. 5 was: the court erred in making and filing its findings of fact Nos. 19 and 20, stating (19) “ ‘that at no time material to this suit has there occurred an avul-sive change in the Big Wichita River where the same bounds the subject lands,’ ” and (20) “ ‘that any such changes as have occurred in the Big Wichita River where the same bounds the subject lands have been the result of . accretion,’ ” because those findings are insufficient to support the judgment rendered. Even if the evidence offered during this trial was sufficient to justify the court’s finding that the change resulted from accretion instead of from avulsion, there was no competent evidence offered during the trial to show that defense counsel submitted any such evidence to the plaintiff prior to the filing of this suit. In that state of the record the plaintiff’s title opinion requirements 4 and 5 remain unsatisfied and the title was not shown to be merchantable.

Point No. 6 was: the court erred in making and filing its findings Nos. 19 and 20 that are quoted in its 5th point for the added reason that a finding in this case by the court that the changes in the river were the result of .accretion instead of avulsion would not make the defendant’s title merchantable, because the court’s findings and judgment based thereon would not be binding on the owners of the opposite side of the river whose title has been affected by the change in the river.

Point No. 7 was: the court erred in making and filing its findings of fact Nos. 34 and 35 reading as follows: “‘(34) That Plaintiff failed to perform under the contract of sale,’ ” and “ ‘(35) That such failure was not due to any unsatisfied title requirement which prevented the defendant’s title from being merchantable.’ ”

Point No. 8 was: the court erred in making and filing its findings of fact Nos. 34 and 35 for the further reason that to the extent such findings involve the facts of this case, the same are contrary to the undisputed evidence.

The undisputed evidence showed that on March 15, 1974 the plaintiff, Gaines, and Jerry Michener contracted in writing with the defendant, Dillard, to buy from Dillard a 3206.82 acre ranch located in Clay County, Texas, known as the Edrington Ranch, for a price of $1,042,216.50. The contracts required the buyers to put up with the seller $104,221.65 as earnest money. Gaines later bought Michener’s interest in the contract. [848]*848The sales contract contained, among others, the following provisions:

“Seller shall within 30 days from the date hereof deliver to Purchaser abstracts of title complete to date.

“Purchaser shall have 60 days from the date that abstracts are made available in which to examine title to the same and to deliver to Seller title requirements. If title is approved or if there are no title requirements, closing shall be had forthwith. If title requirements are made, Seller shall have 30 days from submission of the title opinion in which to obtain and furnish curative matter. If within such period Seller does not cure said title objections, Seller shall notify Purchaser in writing of his inability or refusal to do so, in which event Purchaser shall have 10 days from receipt of such notice in which either to accept such title as Seller has or reject the title, in which latter event this contract shall terminate and the earnest money shall be refunded, but if title is accepted or title requirements cured, closing shall be had forthwith.

“Should Purchaser fail to perform hereunder except for reason of an unsatisfied title requirement which prevents Seller’s title from being merchantable, Seller shall retain the earnest money as liquidated damages and not as penalty.”

The parties stipulated that the abstracts referred to in the contract were delivered by seller to buyer on April 12, 1974, and that on June 8, 1974, the plaintiff’s attorneys, Kilgore & Kilgore, delivered their title opinion to the defendant, Dillard. Paragraphs 4 and 5 of that title opinion and the requirements listed under each are as follows:

“4. The patent to the S. L. Palmer Survey was issued on February 27, 1973, although the patent recites that it was issued pursuant to the application of S. L. Palmer, filed in the General Land Office on December 27, 1881. The field notes contained in the foregoing patent have as the northwest boundary thereof the Big Wichita River as such river is presently situated.

Free access — add to your briefcase to read the full text and ask questions with AI