Porter v. Pittman

Court of Appeals of Texas

Porter v. Pittman

241 S.W. 717, 1922 Tex. App. LEXIS 914

CourtCourt of Appeals of Texas

DecidedMay 5, 1922

DocketNo. 2548.

StatusPublished

This text of 241 S.W. 717 (Porter v. Pittman) 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

Porter v. Pittman, 241 S.W. 717, 1922 Tex. App. LEXIS 914 (Tex. Ct. App. 1922).

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Opinion

WILLSON, C. J.

(after stating the facts-as above). As corrected and extended when resubmitted to appellee May 6, 1919, the abstract of title showed a “good and merchantable” title to 389 acres (including the 80 acres in question here) of the J. J. Biakemore survey to have been in Mary C. Porter April 6,. 1894. Appellants owned all the 369 acres not disposed of by Mary C. Porter to other parties and not disposed of by them. It did not appear from the abstract that either Mary C. Porter or appellants ever disposed of the 80 acres in question. Therefore, unless it appeared from the abstract that a cloud of some kind created after April 6, 1894, existed on appellants’ title to the 80 acres, and fur *719 ther appeared that their title was objected to on that ground in the copy of the opinion of appellee's attorney furnished to appellants, the judgment was not warranted.

[1, 2] If a cloud existed on the title of appellants shown by the abstract, it was because of a deed appearing therein, dated October 21, 1899, from Willis Robertson, E. L. Robertson, and J. F. Robertson and their -wives to W. O. Robertson. The deed purported to convey two-thirds of about 118 acres of the J. J. Blakemóre survey, and contained a recital that Mary C. Porter sold the 118 acres to Willis Robertson by a deed dated November 3, 1894. It could not-be certainly ■determined from the calls in the field notes in the deed where the 118 acres was located •with reference to the 80 acres in question here. As, therefore, the 118 acres might have included said 80 acres or a part of it, and as, if it did, the recital in the deed probably would have charged appellee with notice •of the fact, we think the presence of the deed in the abstract was a valid objection to the title in appellants, and if it appeared that their title was objected to on that ground in the copy of appellee’s attorney’s opinion furnished appellants, we would not regard the judgment as erroneous. But the title in appellants, shown by the abstract was not objected to on that ground, unless it should be said — and we think it ought not to be — that the part of the attorney’s opinion as follows constituted such an objection:

“Ninth. The description of this land as shown in practically all of the instruments in which they attempt to set it out by metes and bounds is-so indefinite that it is undesirable to accept it.”

It will be noted that the objection was to the description in the instruments purporting to convey the land covered by the contract between the parties, and not to the description in the Robertson deed, or other instruments which did not purport to convey it.

[3] The obligations of the parties under the contract were reciprocal. That on the part of appellants to furnish an abstract was not more binding than that on the part of appellee to state objections to the title, and that on the part of appellee to state objections was not more binding than that on the part of appellants to “cure” objections stated, if “valid.” But appellants were not bound to cure other than valid objections, though stated, and were not bound to cure valid objections not stated by appellee. Lieber v. Nicholson (Tex. Com. App.) 206 S. W. 512; Davenport v. Sparkman (Tex. Com. App.) 208 S. W. 658. Therefore the fact that the Robertson deed may have been a cloud on appellants’ title did not warrant the judgment rendered. If appellee regarded the deed as such a cloud, he should have so advised appellants. Had he done so, they might, as they had á right to by the terms of the contract, have shown that no part of the land covered by the contract was included in the description in that deed, or, if it was, they might in other ways have removed the objection to their title because of the deed.

On the case made by the record we think the judgment should have been in appellants’ favor instead of appellee’s. Therefore it will be reversed, and judgment will be here rendered, awarding appellants a recovery of the cashier’s check as liquidated damages they were entitled to for the breach of the contract by appellee.

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WILLSON, C. J.

(after stating the facts-as above). As corrected and extended when resubmitted to appellee May 6, 1919, the abstract of title showed a “good and merchantable” title to 389 acres (including the 80 acres in question here) of the J. J. Biakemore survey to have been in Mary C. Porter April 6,. 1894. Appellants owned all the 369 acres not disposed of by Mary C. Porter to other parties and not disposed of by them. It did not appear from the abstract that either Mary C. Porter or appellants ever disposed of the 80 acres in question. Therefore, unless it appeared from the abstract that a cloud of some kind created after April 6, 1894, existed on appellants’ title to the 80 acres, and fur *719 ther appeared that their title was objected to on that ground in the copy of the opinion of appellee's attorney furnished to appellants, the judgment was not warranted.

[1, 2] If a cloud existed on the title of appellants shown by the abstract, it was because of a deed appearing therein, dated October 21, 1899, from Willis Robertson, E. L. Robertson, and J. F. Robertson and their -wives to W. O. Robertson. The deed purported to convey two-thirds of about 118 acres of the J. J. Blakemóre survey, and contained a recital that Mary C. Porter sold the 118 acres to Willis Robertson by a deed dated November 3, 1894. It could not-be certainly ■determined from the calls in the field notes in the deed where the 118 acres was located •with reference to the 80 acres in question here. As, therefore, the 118 acres might have included said 80 acres or a part of it, and as, if it did, the recital in the deed probably would have charged appellee with notice •of the fact, we think the presence of the deed in the abstract was a valid objection to the title in appellants, and if it appeared that their title was objected to on that ground in the copy of appellee’s attorney’s opinion furnished appellants, we would not regard the judgment as erroneous. But the title in appellants, shown by the abstract was not objected to on that ground, unless it should be said — and we think it ought not to be — that the part of the attorney’s opinion as follows constituted such an objection:

“Ninth. The description of this land as shown in practically all of the instruments in which they attempt to set it out by metes and bounds is-so indefinite that it is undesirable to accept it.”

It will be noted that the objection was to the description in the instruments purporting to convey the land covered by the contract between the parties, and not to the description in the Robertson deed, or other instruments which did not purport to convey it.

[3] The obligations of the parties under the contract were reciprocal. That on the part of appellants to furnish an abstract was not more binding than that on the part of appellee to state objections to the title, and that on the part of appellee to state objections was not more binding than that on the part of appellants to “cure” objections stated, if “valid.” But appellants were not bound to cure other than valid objections, though stated, and were not bound to cure valid objections not stated by appellee. Lieber v. Nicholson (Tex. Com. App.) 206 S. W. 512; Davenport v. Sparkman (Tex. Com. App.) 208 S. W. 658. Therefore the fact that the Robertson deed may have been a cloud on appellants’ title did not warrant the judgment rendered. If appellee regarded the deed as such a cloud, he should have so advised appellants. Had he done so, they might, as they had á right to by the terms of the contract, have shown that no part of the land covered by the contract was included in the description in that deed, or, if it was, they might in other ways have removed the objection to their title because of the deed.

On the case made by the record we think the judgment should have been in appellants’ favor instead of appellee’s. Therefore it will be reversed, and judgment will be here rendered, awarding appellants a recovery of the cashier’s check as liquidated damages they were entitled to for the breach of the contract by appellee.

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241 S.W. 717, 1922 Tex. App. LEXIS 914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/porter-v-pittman-texapp-1922.

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