Sweet v. Berry
This text of 236 S.W. 531 (Sweet v. Berry) 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.
Opinion
HUFF, C. J.
The appellee, Berry, as plaintiff, brought this suit against A. O. Sweet and H. A. Crowley, as partners and owners of certain land, and M. V. Sanders, to recover a deposit made with Sanders of $500 upon a contract between Berry and Sweet & Crowley, dated October 28, 1920. It is alleged, in substance, that in pursuance to Abe contract appellee, Berry, placed the sum of $500 in the hands of Sanders as forfeit money, which was to be returned to appellee forthwith in the event the attorneys for Berry should disapprove of the title to certain lands described in the contract; that on or about December I, 1920, Sweet & Crowley delivered to the attorneys for appellee what purported to be complete abstracts of title to said lands, and that about December 12, 1920, the attorneys for appellee reported their disapproval of the *534 titles, which opinion and report contained divers and sundry objections to the title to all of the lands involved in the deed, and in particular condemning title to section 28, mainly on the ground that the title to said Sweet & Crowley was based upon a vendor’s lien foreclosure obtained on or- about October 14, 1919, in the case of Markey v. Cassle et al., No. 807 in the district court of Wheeler county, Tex.; that it appeared that one Elizabeth Cowan, widow of W. C. Cowan, deceased, who appeared to have a half interest in said section as community property of herself and deceased husband, and the minor Cowan children of said Elizabeth Cowan and deceased husband, who appeared to own the other half thereof by inheritance from their father, subject to the vendor’s lien declared upon in said suit, and one Green, who held a mortgage upon said section, and one Stafford, who appeared to claim some interest therein, were omitted as parties defendant in said foreclosure suit, and were not included in the decree entered therein and the sale thereunder, through which Sweet & Crowley derived title; that promptly thereafter ap-pellee, on or about December 13, 1920, redelivered the abstracts to Sweet & Crowley and advised them, as well as said Sanders, that the tide to said land had been condemned and the ground therefor,' and did then and there demand that appellants refund said sum of $500 earnest money there mentioned; that thereupon appellants stated that the objections to the title were based upon a misconception due to the fact that the abstracts which had been furnished plaintiff were incomplete, and that in reality all of the parties above named who were supposedly omitted as parties to the foreclosure suit were in fact made parties therein, and that the record showed everything in that respect to be regular, all of which would appear by perfecting the abstracts according to the representations of appellants, who claimed, moreover, that the various other criticisms made by attorneys of the title to the various tracts of land could be and would be satisfied in the amended abstracts, and requested ap-pellee that he allow them to have the abstracts perfected and resubmitted to appel-lee’s attorneys; -appellee assented thereto; afterwards appellants made additions to the abstracts, and on or about January 1, 1921, resubmitted same to the plaintiff’s attorneys, who proceeded to re-examine the title and found from the additions and amendments that said Elizabeth Cowan and her minor children and said Stafford and Green had in fact been made parties to said foreclosure suit, but said attorneys condemned the title on the ground that no guardian ad litem had been appointed to represent the minor children in said suit and judgment which was taken against them, and they were not represented by a guardian ad litem therein, and because no notice of the sale effected upon the foreclosure judgment was served upon the minor defendants nor upon defendant Green; that, having condemned the title to section 28 on said ground, the attorneys omitted further special mention of the numerous objections to the title of the various tracts, which were stated in the original opinion rendered by said attorneys, many of said original objections still being unremedied, which likewise rendered said title unacceptable. Promptly after the attorneys advised appellee they still condemned the title the ap-pellee, on or about January 6,1921, in person redelivered the abstracts and advised appellants that the title had been condemned and the grounds therefor, and did then and there again make demand upon all of the appellants that they would return or cause to be returned to him the sum of $500, and that subsequent demand for the return was also made on or about January 15, 1921, and on or about February 14, 1921. He prayed for judgment for the $500 against all the parties.
The appellants answered by general demurrer and numerous special exceptions and special answers, setting up that there was no time limit for a compliance with the contract, and that they had a reasonable time in which to cure any supposed errors, and that appellants were entitled to further time for such purpose; that the claimed objections made by the attorneys were arbitrary, captious, capricious, and unreasonable, and not based upon any real defects; that the objection raised regarding the omission to appoint a guardian ad litem was not tenable, because it would be presumed in favor of the judgment in question and the absence of a recital to the contrary that a guardian ad litem was appointed, and several other reasons why the objections were not tenable; that the right to insist upon a peremptory demand for a return of the purchase money or performance of the conditions with respect to abstracts and showing of title was waived by the action of the parties in delivering the abstract, and the duty to furnish the abstract was a continuing duty. Appellee further waived the time in granting further time for corrections and amendments and accepting the return of the abstract, as the parties did, for the purpose of securing corrections and amendments and in treating the contract as still in force. It was alleged also that, after the objections were made with respect to the failure to appoint a guardian ad litem for the minor heirs of W. F. Oowan in the suit above mentioned, appellants proposed to ap-pellee they would bring suit in the district court -of Wheeler county against said minors and have a guardian ad litem appointed and bar any supposed equity of redemption and that appellee did not object to the bringing of any such suit or at least by his action and conduct waived his right to object to the *535 same; that the suit was actually brought against the heirs at this March term, 1921, and that service was had upon the minors, and that a guardian ad litem was appointed and appeared in the cause, and the case called for trial, and the court adjudged that the plaintiif Markey was entitled to judgment divesting the title and possession out of the minors and fixing it in said Markey for the benefit of appellants, and thereupon all the objections with reference to the heirs of Cowan, deceased, were removed and cured, and that said suit and judgment constituted a cure thereof within a reasonable time. After alleging other facts and matters, they prayed for specific performance of the contract against appellee. The appellee also answered by supplemental petition, setting up that time was of the essence of the contract, and that he had cattle and was purchasing cattle and desired the land for pasturage by the 1st of January, in accordance with the terms of the contract, and that appellants knew of this fact, etc.
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HUFF, C. J.
The appellee, Berry, as plaintiff, brought this suit against A. O. Sweet and H. A. Crowley, as partners and owners of certain land, and M. V. Sanders, to recover a deposit made with Sanders of $500 upon a contract between Berry and Sweet & Crowley, dated October 28, 1920. It is alleged, in substance, that in pursuance to Abe contract appellee, Berry, placed the sum of $500 in the hands of Sanders as forfeit money, which was to be returned to appellee forthwith in the event the attorneys for Berry should disapprove of the title to certain lands described in the contract; that on or about December I, 1920, Sweet & Crowley delivered to the attorneys for appellee what purported to be complete abstracts of title to said lands, and that about December 12, 1920, the attorneys for appellee reported their disapproval of the *534 titles, which opinion and report contained divers and sundry objections to the title to all of the lands involved in the deed, and in particular condemning title to section 28, mainly on the ground that the title to said Sweet & Crowley was based upon a vendor’s lien foreclosure obtained on or- about October 14, 1919, in the case of Markey v. Cassle et al., No. 807 in the district court of Wheeler county, Tex.; that it appeared that one Elizabeth Cowan, widow of W. C. Cowan, deceased, who appeared to have a half interest in said section as community property of herself and deceased husband, and the minor Cowan children of said Elizabeth Cowan and deceased husband, who appeared to own the other half thereof by inheritance from their father, subject to the vendor’s lien declared upon in said suit, and one Green, who held a mortgage upon said section, and one Stafford, who appeared to claim some interest therein, were omitted as parties defendant in said foreclosure suit, and were not included in the decree entered therein and the sale thereunder, through which Sweet & Crowley derived title; that promptly thereafter ap-pellee, on or about December 13, 1920, redelivered the abstracts to Sweet & Crowley and advised them, as well as said Sanders, that the tide to said land had been condemned and the ground therefor,' and did then and there demand that appellants refund said sum of $500 earnest money there mentioned; that thereupon appellants stated that the objections to the title were based upon a misconception due to the fact that the abstracts which had been furnished plaintiff were incomplete, and that in reality all of the parties above named who were supposedly omitted as parties to the foreclosure suit were in fact made parties therein, and that the record showed everything in that respect to be regular, all of which would appear by perfecting the abstracts according to the representations of appellants, who claimed, moreover, that the various other criticisms made by attorneys of the title to the various tracts of land could be and would be satisfied in the amended abstracts, and requested ap-pellee that he allow them to have the abstracts perfected and resubmitted to appel-lee’s attorneys; -appellee assented thereto; afterwards appellants made additions to the abstracts, and on or about January 1, 1921, resubmitted same to the plaintiff’s attorneys, who proceeded to re-examine the title and found from the additions and amendments that said Elizabeth Cowan and her minor children and said Stafford and Green had in fact been made parties to said foreclosure suit, but said attorneys condemned the title on the ground that no guardian ad litem had been appointed to represent the minor children in said suit and judgment which was taken against them, and they were not represented by a guardian ad litem therein, and because no notice of the sale effected upon the foreclosure judgment was served upon the minor defendants nor upon defendant Green; that, having condemned the title to section 28 on said ground, the attorneys omitted further special mention of the numerous objections to the title of the various tracts, which were stated in the original opinion rendered by said attorneys, many of said original objections still being unremedied, which likewise rendered said title unacceptable. Promptly after the attorneys advised appellee they still condemned the title the ap-pellee, on or about January 6,1921, in person redelivered the abstracts and advised appellants that the title had been condemned and the grounds therefor, and did then and there again make demand upon all of the appellants that they would return or cause to be returned to him the sum of $500, and that subsequent demand for the return was also made on or about January 15, 1921, and on or about February 14, 1921. He prayed for judgment for the $500 against all the parties.
The appellants answered by general demurrer and numerous special exceptions and special answers, setting up that there was no time limit for a compliance with the contract, and that they had a reasonable time in which to cure any supposed errors, and that appellants were entitled to further time for such purpose; that the claimed objections made by the attorneys were arbitrary, captious, capricious, and unreasonable, and not based upon any real defects; that the objection raised regarding the omission to appoint a guardian ad litem was not tenable, because it would be presumed in favor of the judgment in question and the absence of a recital to the contrary that a guardian ad litem was appointed, and several other reasons why the objections were not tenable; that the right to insist upon a peremptory demand for a return of the purchase money or performance of the conditions with respect to abstracts and showing of title was waived by the action of the parties in delivering the abstract, and the duty to furnish the abstract was a continuing duty. Appellee further waived the time in granting further time for corrections and amendments and accepting the return of the abstract, as the parties did, for the purpose of securing corrections and amendments and in treating the contract as still in force. It was alleged also that, after the objections were made with respect to the failure to appoint a guardian ad litem for the minor heirs of W. F. Oowan in the suit above mentioned, appellants proposed to ap-pellee they would bring suit in the district court -of Wheeler county against said minors and have a guardian ad litem appointed and bar any supposed equity of redemption and that appellee did not object to the bringing of any such suit or at least by his action and conduct waived his right to object to the *535 same; that the suit was actually brought against the heirs at this March term, 1921, and that service was had upon the minors, and that a guardian ad litem was appointed and appeared in the cause, and the case called for trial, and the court adjudged that the plaintiif Markey was entitled to judgment divesting the title and possession out of the minors and fixing it in said Markey for the benefit of appellants, and thereupon all the objections with reference to the heirs of Cowan, deceased, were removed and cured, and that said suit and judgment constituted a cure thereof within a reasonable time. After alleging other facts and matters, they prayed for specific performance of the contract against appellee. The appellee also answered by supplemental petition, setting up that time was of the essence of the contract, and that he had cattle and was purchasing cattle and desired the land for pasturage by the 1st of January, in accordance with the terms of the contract, and that appellants knew of this fact, etc. They further allege that they did not waive the other objections to the other tracts of land included in the contract of sale. At the end of the introduction of the testimony the court instructed a verdict for the appellee, and judgment for the $500, with interest thereon, was entered, from which this appeal is prosecuted.
The contract upon which the suit is based is dated the 28th day of October, 1920, entered into between A. O. Sweet, of Collings-worth county, and H. A. Crowley, of Wheeler county, of the first part, and O. B. Berry of Potter county, of the second part. The first parties agree to sell to the second party all of section 28, block R. E., containing 640 acres, and all of the E. Vs of section No. 30, block R. E., containing 320 acres, and all of the N. B. % of section No. 29, in block R. E.,' containing 160 acres, and all of the N. W. % of section No. 24, in block R. E., containing 160 acres, aggregating 1,280 acres of land, for a consideration of $16,000, $650 to be paid in cash at the delivery of deed to N. E % of section 29 and the assumption of certain indebtedness thereon, and $2,600 cash on section No. 28, and the assumption of certain notes. The contract further stipulated:
“It is understood and agreed that the first parties are to pay the interest that has accrued on said notes up to the 15th day of December, 1920. The first parties are to pay all taxes on said land up to January 1, 1921. The second party places the sum of $500 in the hands of M. V. Sanders of Wheeler, Tex., as a forfeit that he will take said property and make the cash payment as herein mentioned on or before December 15, 1920, upon a condition that the title to said property is passed by the attorneys of the second party. The first parties execute their deed conveying said property to the second party, and place them in the hands of M. V. Sanders, of Wheeler, Tex., in escrow, with a copy of this contract, to be held until the final consummation of this deal. The first parties agree to furnish abstracts of title to the property being conveyed showing merchantable title thereto. Possession of said premises is to be given on or before January 1, 1921, together with the fence belonging to said land and pastures of the first parties and assignment of grass leases. This contract made and signed in duplicate this the 28th day of October, 1920. The abstracts are to be sent to Turner & Dooley at Amarillo, Tex., for examination.” Signed by the parties.
'The abstracts called for were submitted to appellee’s attorneys about December 1, 1920, and after being examined the first time they were forwarded by mail to Sanders at Wheeler, Tex., accompanied by copies of the opinion rendered on or about December 6th. A great many objections to each of the tracts of land were made. On survey 29 is pointed out, on page 18, a deed to all mineral rights from Holt to Ford. Page 19 contains an oil and gas lease on the same land, but this leaves the title to the oil and gas rights in Ford. To the E. % of section 30 one of the objections made was to—
“an instrument on page 1 of the fifth abstract as the name of the grantee, O. T. Carter, whereas on page 3 of this ahstract, in the suit of W. F. Cowan, the initials are given as C. F. Carter, and on page 4 in the judgment his initials are C. T. These should be compared again with the ■ abstract to see whether the record contains the same discrepancy. To the same effect is the citation in this suit shown in the sixth abstract, at page 1, as it contains both the" initials C. F. and C. T. in the body of the citation. The same error occurs on page 2 of the sixth abstract, where the name has the initials both ways again.
“(5) All mineral and gas rights in this land appear to have been sold by F. G. Ford to D. E. Holt on February 4, 1919, as shown on page 5 of the supplemental abstract and this title seems still to be in D. E. Holt. The abstract does not show that any reservation of the one-eighth royalty was made by Ford, but afterwards, on February 19, 1920, Holt makes a lease to Ford in the regular form, wherein he retains the one-eighth royalty. This leaves the one-eighth royalty in D. E. Holt, and thereafter Ford and wife conveyed this land to A. O. Sweet and H. A. Crowley, as shown on page 3 of the last supplemental abstract, retaining the vendor’s lien to secure five notes for $750 each and one for $1,050, bearing interest at the rate of 8 per cent, from date; other lands being conveyed in this deed. But bear in mind in this deed the oil and gas and mineral rights are expressly reserved to F. G. Ford.”
To the N. W. Vi of section 24 the following objections were made:
“On pages 25 and 26 of the original abstract will be found the Dundee judgment here-inbefore mentioned, and on page 28 will be found the sheriff’s deed, which purports to have been executed under said judgment. In *536 order to show good title under a foreclosure judgment and sheriff’s deed, the record should contain the judgment, the order of sale, and the return thereon and the sheriff’s deed. This abstract shows the first and last of these, but does not show the order of sale and return thereon. If the said order of sale and return thereon are not in fact of record in Wheeler county, they should be placed of record.
“(4) The land in question is subject to an oil and gas lease in the usual form, executed by P. C. Ford to A. B. Crowley, under date of April 14, 1920.”
To section 28 an objection was made:
“(18) On page 11 of the supplemental abstract appears a sheriff’s deed which purports to convey all the estate or title and interest which Cassle, Cole, and Hampton had in the property in question on the 14th day of October, 1919, or at any time thereafter. Neither of these defendants had any interest in the property on said date. The deed should convey the interest that they had on July 29, 1914, the date of the vendor’s lien notes on which this judgment was rendered.”
After the return of the abstracts to appellants and after correction they were again handed to Messrs. Turner & Dooley for examination, and on the 6th of January they gave the following opinion:
“Supplementing our opinion of December 6, 1920, relative to abstracts of title to survey 28 in block R. E., Wheeler county, Tex., beg to say that said abstract has been returned to us with another supplement thereto; and several of the irregularities which we mentioned in our former opinion have been corrected, but we are still unable to approve of this title, particularly for the following reasons: On page 9 of the second to the last supplemental abstract is shown a judgment in the case of Markey v. Cassle et al. In our former opinion we referred to this judgment and stated that apparently the only defendants in this suit were Cassle, Cole, and Hampton. However, the additional supplement that is now attached to the abstract shows that Mrs. Cowan, a widow, and her five minor children,, and one Stafford and W. R. and D. L. Green, were also defendants to said suit. The propriety of said D. L. Green being party to said suit was due to the fact that he held a mortgage lien against said section. The propriety of said Mrs. Cowan and children being parties to said suit was due to the fact that their deceased husband and' father, W. P. Cowan, had obtained and recorded a deed to said land during his lifetime and before said suit was filed, and had never conveyed his interest, so that his interest descended to his children, assuming that he left no will disposing of his property otherwise. But, while the said Mrs. Cowan and minor children and said D. L. Green were in fact made parties to said suit, contrary to our previous conclusion, still the situation is in little if any better shape for two reasons, viz.: (a) There is no showing that any guardian ad litem was appointed to represent these minor children, and judgment was simply taken against them by default, (b) Tbe sheriff’s return upon order of sale. issued under this judgment states that notices of the sale were sent to several named defendants, but is silent as to any notice being sent to these minor children or to said D. L. Green. We think that the two irregularities just mentioned are of such gravity as would almost surely subject said judgment to being reopened at the instance of such minors if they should elect to apply to the courts for that purpose and ask to redeem the land, and with the title in this condition we advise that it is subject to. such doubt and uncertainty that it would not be classed as a merchantable title. In this-connection we might mention that we have this day talked by long-distance telephone with-the attorney for the plaintiff in the above-mentioned suit of Markey v. Cassle et al., and said-attorney advised that he could not recall having had a guardian ad litem appointed for said minors, and was afraid he had likely overlooked that feature. So we think there can hardly be any doubt but what we are right in the conclusion that no guardian was appointed because said attorney fails to recollect any such appointment, and besides, if such appointment had been made, it should' appear of record, and the abstract shows no such appointment. Por the reasons above stated we-feel obliged to disapprove of the title to said land.”
By postscript:
“After the conclusion reached on the above title we thought it unnecessary to reeheck the abstracts on the other tracts which were included in your proposed deal.”
The facts show substantially that after the objections made to the title on December 6, 1920, Berry, Mr. Sweet, and Sanders met and had a conference with reference to the abstracts and objections, and that the appellants undertook to correct the abstracts ; that Sweet told Berry, according to Sweet’s testimony, that he .would exert himself to get the abstracts to suit his attorneys if it could be done, and that Berry said all right; that there was no time limit set in that conversation as to when he should have the objections cured or satisfied, but it was understood that he was to hurry up and get it done as soon as he could. Hater on he saw Berry as he was going to Wellington, and Berry wanted to know of him how they were getting along, and that he told Berry he thought they were getting along pretty good, and that Sanders had most of the work corrected and was working on the balance, and they talked some more on the subject on the way to Wellington. Berry said it looked like it was going to take until the 1st of January, and Sweet said it looked that way, but that he (Sweet) hoped to get it fixed up sooner, but said, “Give me a reasonable time; I will spend my money,” and Berry said, “That is fair enough;” that he' could-not ask anybody to be fairer than that. December 16, 1920, Berry wrote Mr-Sweet a letter stating that—
*537 “If the title can be made good, I am ready, willing, and want the land, but, if it is defective, I don’t want it, and will expect the earnest money returned to me.”
It seems that Mr. Sanders, or some one, had advised Sweet that the title was all right, and Mr. Berry in this letter told him that his attorneys assured him that Mr. Sanders was wrong, and on the 22d of December Sweet wrote to Berry, acknowledging the receipt of the letter, stating that—
“Mr. Sanders will have the abstracts ready some time next week, and me and him will be in Amarillo with the abstracts the latter part of the next week, and I think they will be in good shape.”
After the abstracts or corrected abstracts were examined by Turner & Dooley on the 6th day of January, the parties again met &t Shamrock and had a conference. Mr. Sweet’s testimony on that point was that Mr. Berry came over to Shamrock, and that he went with Berry to his room in the hotel, and claims that in the conversation Berry told him that Turner & Dooley said that abstract on section 28 could not be cured, and he replied, “You mean it can’t never be done?” and he says, “It might take 20 years,” and Sweet says, “I never heard tell of that before; surely there can be a way to cure it;” that he (Sweet) thought it was terrible time, and they talked about the matter, and Sweet says he insisted that Berry give him a little more time to work on the abstract, and that he offered to turn the land over to Berry the 1st of January without any money on it, and that all he asked was time to correct the abstract; that Berry replied that he did not know about it hardly; that he had to go ahead and get grass for his cattle; that he (Sweet) replied that he would be glad to turn it over to Berry that year for nothing if he did not clear it; that Berry replied that would be working a hardship on Sweet; and that he (Sweet) in a way deprecated Berry’s solicitude for him, and without claiming that any time further and nothing further was said with reference to Berry giving him any additional time. He said that he then told Berry he wanted to take the abstract to Wellington to Temple-ton and have him look it over. He said he would go to Wellington and see Templeton and bring him and try to talk to him (Berry), and that, when he got to Wellington, Tem-pleton was trying a ease, and he could not get Berry at Shamrock over the phone, and finally, when Berry got him over the phone, he told Berry that he would meet him (Berry) at Canadian on probably the 12th, but he was positive that they would meet there on Tuesday. Berry said he could not be sure that he could be there as he might have to be in Lubbock, but if he was not in Lubbock he would meet him in Canadian, and that was the extent of the conversation, and when the day for the Canadian meeting arrived there was a six-inch snow at Wellington. He did not think it hardly possible to go to Canadian, because he thought the further north the deeper the snow would be. The next he heard from Berry was January 12th, wherein Berry stated he had bought some grass and would not want Sweet’s place. Mr. Berry’s testimony shows that he went to Canadian, after his conversation with Sweet, and called for him at Mr. Willis’ office, and that Sweet was not in Canadian, and that he remained over until next morning, and that next morning or next day he procured a lease on other land to obtain grass for his cattle. The testimony in this case shows by Berry that he was procuring this land in part for pasturage for the cattle that he then owned and was buying and that he wanted the place January 1st for the grass. There were also some several sections leased by Sweet and Cowan which they were to assign to Berry upon the completion of the trade, and these lands were held for pasturage. On the 12th of January, 1921, Mr. Berry wrote to Sweet:
“I returned home yesterday from Canadian. I was there specially to meet you, and you said you would be there and see what arrangements we could make. It appears our deal has been a disappointment from the beginning. You wrote me some time ago that you and the attorney was coming to Amarillo and failed to come; then you phoned me to meet you in Wheeler and failed to show up. After seeing you on Friday in Shamrock you told me you would come back there and meet me Saturday and failed to come and then after getting you by phone you told me you would meet me in Canadian Tuesday and failed to meet me again. Now, had you kept your promise and tried as hard as I have we could possibly reach some agreement, but I could not wait any longer, as I had the cattle and had to make some arrangements so have leased the ranch, and will expect you to send me an order releasing the escrow money, as you have failed to deliver the title according to contract. Of course, I realize that is caused by mistake on the part of your attroneys, but that is not my fault, as the title you offer is not merchantable. If it had been the deal would have been closed and you would have gotten your money. Now, I will expect to receive the order in a short time.”
On the 13th of January Sweet wrote to Berry that he had been to great expense to close the deal and had made his arrangements, expecting to get the money.
“I -have offered and will still do most anything you require that is fair to let you have this land. Mr. Newt AYillis will correct these objections at the March term of the court to meet any objections, and I believe your attorneys will advise you he can remove this to their satisfaction.”
He again made an offer to turn over possession of the land, and that, if he did not *538 ■get the correction made at the March term, he would turn over the money. On the 15th of January Mr. Berry wrote:
“Received your letter to-day, and must confess I was disappointed in you again. As I wrote you before, I could not afford to be delayed in making my arrangements for grass land, and I had already leased a ranch. Had you met me at Shamrock or Canadian, we might of perhaps made another deal, for I had no desire to disappoint you, but did not care to be disappointed any further myself, and have leased a ranch, as I told you in my last letter, and have already -made payment and have contracts for three years. I consider the deal at a close and do not wish to be deprived of the use of the earnest money any longer. Now, I am going to insist that you be as fair with me as I have been with you, so please send me an order for the money by return mail to save any trouble and annoyance.”
On the 21st of January Sweet answered this letter, as follows:
“I have your favor in which you refuse to complete your deal with me and demand the release of your money. In view of the fact that I have offered to do everything that is fair with you, and after time for completion of the deal you did not call the deal off, but stated to me in both letters from yourself and your attorneys that you wanted the land if it could be cleared up in a reasonable time, and relying upon this new agreement, I went to the expense and trouble of having this objection removed. I do not feel that it is right to release this money. I am going to remove this objection and tender you this -land and have arrangements made to clear this up. You say if I had met you at Canadian and Wheeler that we might have agreed, and I will 'say that, had your promised me definitely that you would have been at those places, I would have met you if I had to walk, hut you said you might be at Lubbock and would not promise me definitely, and when it snowed dówii here I did not think best to go up there unless I had a definite assurance that you would be there. If you had told me you would have met me, I would have been there, regardless of wind or weather.”
The appellee, Berry, filed this suit shortly after receiving this letter for the return of the money. After this suit was filed a suit was filed in the name of John B. Markey against Winifred Cowan and others, the minor children of W. F. Cowan, setting up the fact of Markey holding the vendor’s lien notes against the land, and the fact that W. IT. Cowan had purchased the land, and that suit had previously been brought, and judgment obtained in that case foreclosing the lien against the parties and the Cowan children, which did not recite that an attorney ad litem had been appointed, and that an attorney ad litem had not been appointed, and asked for recovery of the land as against the children and adjudicating their right or equity • of redemption, etc. A guardian ad litem was appointed at the March term, 1921, and judgment was rendered divesting the children of any interest in the land and foreclosing their right of redemption in favor of Sweet and Crowley, for whom Markey had brought the suit. This judgment was-tendered to the appellee upon the trial of this case, which occurred at the March term, 1921, of the Wheeler county district court. At the same time they tendered a release or conveyance of D. L. Green’s right or equity in and to the land by virtue of a deed of trust that had been executed on the land to secure a debt due him and which had been pointed out as clouding the title in the opinion of the attorneys passing on the abstract.
The appellants’ first and second assignments assail the verdict and judgment as being wholly unsupported by the evidence and law and error in not instructing a verdict for appellants, because: (1) That time was not of the essence of the contract; (2> the appellee wholly failed to give a reasonable time for perfecting the title and to satisfy the objections; (3) that the evidence shows appellee had waived the right to reject the title by reason of the opinion of his attorney and had granted further time to cure defects; (4) the appellee, after making demand for the return of the money, entered into' negotiations to further perform the contract and extended the time within which appellant should furnish amended abstracts; (5) that appellee failed at any time to offer to perform on his part and to tender the balance of the purchase money and demand the deed.
The instant contract stipulates that Berry placed $500 in the hands of Sanders as a forfeit that he will take the property and make the cash payment on or before December 15, 1920, upon the condition the title to said property is passed by his attorneys. The vendors, the appellants, were to execute deeds conveying the land to vendee and place them in the hands of Sanders in escrow, with the contract, to be held until the final consummation of the deal. They agreed to furnish abstracts of title “showing merchantable title,” which were to be sent to appellants’ attorneys for examination. The possession of the premises to be given on or before January 1, 1921, together with the fences belonging to said land and pasture of appellants and an assignment of the grass lease.
“All that is necessary is that the plaintiff is able to make the stipulated title at the time when, by the terms of the agreement, or by the equities of the particular ease, he is required to make the conveyance to entitle himself to the consideration.” Andrew v. Babcock, 63 Conn. 109, 26 Atl. 715; Runnells v. Pruitt (Tex. Civ. App.) 204 S. W. 1017; Martin v. Roberts, 127 Iowa, 218, 102 N. W. 1126.
In the latter case the plaintiff entered into a contract with the defendant to convey ■certain land owned by him. Five hundred dollars of the purchase price was paid at the time. The plaintiff agreed to assume the payment of the mortgage then on the land and to pay the balance of the agreed price in cash on the 1st day of March, 1903, at which time defendant was to execute and deliver to the plaintiff a fee-simple title with full covenants of warranty. The contract also provided that the defendant should furnish an abstract showing good and sufficient title in him. The petition alleged these facts, and that defendants failed to furnish any abstract of title before the 4th day of April, 1903, or until after he had been notified of plaintiff’s election to rescind the contract. The demurrer avers that the balance of the purchase price of the land was due unconditionally on the 1st day of March, 1903, that time was of the essence of the contract, and that, plaintiff having failed to plead payment or tender of payment, he had forfeited the cash payment made and had no right of action. The court held on appeal:
“The demurrer should have been overruled. By the terms of the contract, the defendant was to furnish the vendee an abstract showing good and sufficient title; and, while no particular time' was fixed, the law requires that it be furnished in a reasonable time for examination before the contract is to be performed. It was a condition precedent, and the defendant was not entitled to the balance of the money due under the contract until he had complied therewith.”
That case also cites Primm v. Wise, 126 Iowa, 528, 102 N. W. 427, and Webb v. Handler, 127 Iowa, 269, 102 N. W. 1127, which sustain the above proposition.
Assignments 3 to 6, inclusive, will be considered together. These are to the effect that the trial court erred in refusing to give special issues requested by appellants, requiring the jury to find: (1) If appellee’s attorneys had reasonable grounds for believing the abstract did not show a merchantable title. (2) Were the objections merely capricious, unreasonable, and captious? (3) Did plaintiff reject defendants’ .offer to furnish title fraudulently to evade performance of his obligation? (4) An assignment is presented based upon the refusal to submit the third special issue asserting error because under the facts and circumstances the two suits against the Cowan children failed to show reasonable grounds to believe the minor children might seek to redeem the land.
Assignments 7 to 11, inclusive, urge error in refusing to submit special issues as to whether the appellee waived the defects in the title or extended the time in which to furnish the title, whether he waived the return of the purchase money, and whether the presenting of the judgment against the Cowan heirs at the trial was within a reasonable time. There was no issue presented in the evidence upon which the jury could have found appellee waived the defects as to the Cowan heirs’ interest. There might possibly have been an issue as to the oil lease, etc., in regard to waiver but we hardly think so. If the Cowan interest was a defect, appellee was justified in refusing to take the title, and the issue requested was therefore properly refused. As to extending the time to correct the abstract to show title, the only testimony justifying that submission would be the evidence relative to the conference between appellee and Sweet after December 6th, and before January 6th, in which Sweet in effect said he would exert himself to get abstracts to suit appellee’s attorneys and appellee, and that appellee said, “All right, go ahead and do it.” The evidence shows he did take time to correct the abstracts and presented them January 1st, which yet showed defects in the title. From this testimony the jury would not have been justified in finding that the appel-lee agreed to give the appellants any time to procure an outstanding title or to sue to clear up the title. All that was agreed to was to obtain an abstract showing a marketable title. When they presented the abstract as showing appellants’ title, it would seem that the time agreed upon had been fulfilled. Certainly there was no agreement to extend the time indefinitely. Clearly there wad no agreement after January 6th for further time. The parties sought to reach an understanding, but did not. If the ap *544 pellant Sweet had kept his appointment, which he made with appellee, an agreement might have been made, but this lacks much of making an agreement. These assignments will be overruled.
Assignments 12 to 16, inclusive, are based upon the action of the court in overruling a general and certain special exceptions to the petition. There was no error in overruling these exceptions.
Assignment 17 presents error in overruling special exception No. 5. This exception goes to the general averment that there were divers other defects pointed out in the abstract, but which were not specifically alleged. The exception called for a more specific allegation. This exception should have been sustained, but this does not show reversible error, and no injury is shown in overruling it, as the petition otherwise presented a cause of action in specifically alleging the defect with reference to the Cowan heirs as heretofore pointed out.
The eighteenth assignment of error is based on an exception to the generality of the allegation in the supplemental petition in answer to appellants’ cross-action for specific performance. There was no error in overruling this exception as pointed out in our discussion of the first and second assignments.
The twentieth assignment is overruled for the reasons given in considering assignments 1 and 2.
We believe the judgment should be affirmed.
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Cite This Page — Counsel Stack
236 S.W. 531, 1921 Tex. App. LEXIS 1304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sweet-v-berry-texapp-1921.