Adkins v. Gillespie

• Decision Date: 21 October 1916
• Docket Number: (No. 7627.)
• Citation: Adkins v. Gillespie, 189 S.W. 275 (Tex. App. 1916)
• Parties: ADKINS et al. v. GILLESPIE.
• Court: Texas Court of Appeals

189 S.W. 275

ADKINS et al. v. GILLESPIE.

(No. 7627.)

Court of Civil Appeals of Texas. Dallas.

October 21, 1916.

Rehearing Denied November 18, 1916.

Error from Dallas County Court; T. A. Work, Judge.

Action by A. C. Gillespie against A. C. Adkins and others. Judgment for plaintiff, and defendants bring error. Affirmed.

K. R. Craig, of Dallas, for plaintiffs in error. Spence & Haven and W. J. Rutledge, Jr., all of Dallas, for defendant in error.

TALBOT, J.

We extract from the briefs of the parties the following statement of the nature and facts of the case: On the 18th day of May, 1914, plaintiffs in error A. C. Adkins and W. A. Polk entered into a written contract with defendant in error, A. C. Gillspie for the exchange of lands. Adkins and Polk were to convey to Gillespie lot No. 1 in block No. 3 of the Houston & Texas Central Railway Company's addition to the city of Dallas. In exchange Gillespie was to convey to Adkins and Polk another tract of land in the city of Dallas, a description of which is unnecessary. It was provided that each party should "within 10 days furnish to the other party an abstract of title down to date, showing a marketable title to the land put into the exchange," and that 30 days should be allowed for removing any objections which might be made by the other party. It was further provided that if the title to the land to be put in by either party should not be shown to be marketable, that the deal might be declared off by the other party. It was also stipulated that $400 should be deposited by each party as a forfeit for failure to comply with the contract, one half to be paid to B. T. Barry real estate department, as liquidated damages, and the other half to the other party. The money was deposited by both parties, $400 each, with Bryan T. Barry real estate department, composed of Bryan T. Barry, John T. Payne, and M. L. Moore. The abstract of the title of Adkins and Polk was examined for Gillespie by Coombes & McGuire, attorneys, and in an opinion delivered in writing to him certain defects in the title of Adkins and Polk were pointed out. These defects, which were set out in Gillespie's amended petition, were, in substance, that James N. Smith, to whom the land embracing this lot formerly belonged, devised by will all his property to his daughter, Sarah Francis Smith, from whom the Houston & Texas Central Railway Company afterwards purchased the land embracing this lot. The Houston & Texas Central Railway Company conveyed the lot in controversy to S. F. Needham. After this last-named conveyance, but before it was recorded, the heirs of the widow of James N. Smith recovered this lot from Houston & Texas Central Railway Company. The interests of some of the heirs of Mrs. Smith had passed to Houston & Texas Central Railway Company, but the interests of others had been conveyed and were outstanding in other persons, as follows: Louisa Hedges and E. A. Walker conveyed to Sarah A. Cole and W. P. Cole and G. A. Cole to John D. Cole; Minerva, Clara and Emma Wood to G. C. Cole; John C. Cole and Tennessee Brandenburg to N. J. Husted, who conveyed to G. C. Cole; and that "the children of Mrs. Harrell do not part with their interest therein." Gillespie alleged that the defects enumerated had been pointed out to Adkins and Polk, but they had not cured them. The opinion of Coombes & McGuire was furnished to Adkins and Polk, and the parties representing them in the proposed exchange. It is shown that at the expiration of 30 days from the date of the original opinion by Coombes & McGuire, a supplemental opinion was furnished by them to A. C. Gillespie, and this supplemental opinion called attention to the fact that nothing had been presented to the said Gillespie's attorneys curing the defects pointed out in the title, and up to the time this case was tried in the trial court no information other than that contained in the abstracts of title was ever presented to A. C. Gillespie. It appearing to Gillespie that Adkins and Polk would make no further showing curing the defects pointed out in the abstract, he notified them and Bryan T. Barry real estate department, the real estate agents connected with the proposed exchange, that he would not accept the title as shown by the abstracts, and that he demanded a refund to him of the $400 deposited by him as a forfeit for failure to comply with the contract. The $400 not having been returned to Gillespie, he, on the 20th day of April, 1915, brought this suit against Adkins and Polk and Barry, Payne, and Moore for the recovery of the same. Adkins and Polk filed an answer to Gillespie's original petition, denying generally Gillespie's allegation that the title was not marketable, and by way of cross-action, alleging compliance with the terms of the contract, Gillespie's refusal to perform the contract and praying for the recovery of the $400 deposited by Gillespie as a forfeit for his failure to so perform the contract.

By supplemental answer Adkins and Polk replied to the allegations of Gillespie's amended petition, setting out specific defects in their title, to the effect that: (1) The abstract showed that after the suit by the heirs of Mrs. Smith against Houston & Texas Central Railway Company, in which they recovered by the partition this lot among others, a suit for partition among themselves was brought by the heirs of Mrs. Smith, to which suit all the heirs named in Gillespie's petition were parties. That in this suit, after the decree ascertaining heirship and appointing commissioners, an agreement was entered into between the heirs and the Houston & Texas Central Railway Company by which there was an exchange of lots, the Houston & Texas Central Railway Company giving certain lots which had been set apart to it in the partition by the former suit, for certain other lots, including the one in controversy, which had been set apart to the heirs. That in accordance with this exchange the commissioners substituted the lots received from the Houston & Texas Central Railway Company for the lots released to it, and partitioned the whole among the heirs. That this exchange and substitution of lots was reported by the commissioners in their report of partition, and the partition as so made was approved by the court — district court of Dallas county — on December 14, 1883, and decree entered vesting title in the several distributors in accordance with such partition. The supplemental petition set out the lots received by the several heirs alleged by Gillespie to have claims against this lot, as follows: One share, which was one-twelfth of the whole, was set apart to the heirs of Mrs. L. E. Walker, among whom were Louisa Elizabeth Hedges and E. A. Walker, consisting of lots 2, 18, 19, and 20 in block 3, all of which were by the partition between heirs and Houston & Texas Central Railway Company set apart to the heirs; one share, one-twelfth, was decreed to the heirs of Calvin G. Cole, among whom were G. A. Cole, John C. Cole, Emily Wood, Minerva Clark (then Preston), and the children of Sarah Harrell. This share consisted of lots 6, 7, and 17 in block 18, which were set apart to the Smith heirs in the former suit, and lots 1, 2, and 3 in block 4, and lot 17 in block 3, acquired by the exchange referred to from Houston & Texas Central Railway Company; of this, lot 3 in block 4 was set apart to the children of Sarah Harrell as their share of the whole. Defendants further alleged that the purchase by Sarah A. Cole of the interests of Louisa Hedges and E. A. Walker, as well as the purchases by John D. Cole, of the interests of W. P. Cole and G. A. Cole, and the purchases by G. C. Cole of the interests of Minerva Clark and Emma Wood, were all made pending the partition suit between the heirs, and such purchasers were concluded by the judgment therein. That N. J. Husted purchased the interests of John C. Cole and Tennessee Brandenburg before the decree appointing commissioners for partition, but in his conveyance thereof to G. C. Cole, made after the partition, he identified such interests as the same lots set apart by the partition to the heirs of Calvin G. Cole, the ancestor of his vendors.

Adkins and Polk further alleged: That the abstract showed the absence of any assertion of claim by the Houston & Texas Central Railway Company to any of the lots formerly belonging to it, and which had, by the exchange referred to, been taken by the commissioners and partitioned among the heirs, and the acquiescence of all parties in the decree for such a long period of time, 30 years. That the judgment was conclusive of all the rights of all the parties. Or, if not conclusive as to the minors, the children of Sarah Harrell, it became so at the expiration of 2 years from the arrival of each of them at its majority. That the judgment had never been set aside or appealed from, and more than 2 years had expired since the date at which the youngest child of the Harrell minors, then living, arrived at its majority. They also pleaded that they and those under whom they claimed were and had been for more than 35 years in the actual possession and occupancy of the lot under claim of right adverse to all the world. That this fact was commonly and generally known in the community where said land was situated, and there were and still are many credible persons known to plaintiff who are cognizant of the fact and to whom plaintiff had been referred. That there is and can be no doubt nor dispute about that fact and none was suggested by plaintiff or his attorney.

The title to the property involved was originally in James N. Smith. He left a will, which was duly probated, bequeathing practically all his property, including the tract of land in which the lot in controversy is embraced, to his daughter, Sarah F. Smith, a daughter by a former marriage; with a life estate in a part of his property to his widow, with remainder over to said daughter. This daughter subsequently...