Avant v. Broun

• Citation: 91 S.W.2d 426
• Decision Date: 07 February 1936
• Docket Number: No. 2877.,2877.
• Parties: AVANT et al. v. BROUN et al.
• Court: Court of Appeals of Texas

Page 426

91 S.W.2d 426

AVANT et al. v. BROUN et al.

No. 2877.

Court of Civil Appeals of Texas. Beaumont.

February 7, 1936.

Rehearing Denied February 19, 1936.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Action by P. L. Avant and others against E. Conway Broun and others. Judgment for defendants, and plaintiffs appeal.

Affirmed.

J. T. Kitching, of Beaumont, for appellants.

E. L. Nall, Geo. Weller, and Oliver J. Todd, all of Beaumont, for appellees.

O'QUINN, Justice.

This is an equitable action in the nature of a bill of review filed by appellant Avant in the Sixtieth district court of Jefferson county February 2, 1934, to set aside a judgment rendered in said court in cause No. 39357 on January 2, 1933, styled Texas National Securities Company v. E. Conway Broun et al., wherein Texas National Securities Company was plaintiff and P. L. Avant, his wife, Odie May Avant, E. Conway Broun, W. B. Landes, the Texas National Bank, and the Kirby Lumber Company were defendants. Cause No. 39357, in which the judgment sought to be set aside was rendered, was a suit in trespass to try title to 43 lots in what is known as the College Terrace addition to the city of Beaumont. Judgment was for plaintiff therein, Texas National Securities Company, against E. Conway Broun, Kirby Lumber Company, P. L. Avant and his wife, Mrs. P. L. Avant (Odie May Avant), W. B. Landes, and the Texas National Bank, for the title and possession of all of said lots.

As before stated, the judgment in cause No. 39357, the suit in trespass to try title, was rendered January 2, 1933. The instant suit to set aside that judgment was filed February 2, 1934, thirteen months after its rendition. In view of the conclusions we have reached, we shall make but brief statement of the facts as disclosed by the pleadings. On November 6, 1928, H. F. Walker and wife sold ten acres of land to E. Conway Broun for a recited consideration of $5,000 in cash and three promissory vendor lien notes: No. 1 for $2,250, payable one year after date; No. 2 for $5,000, payable two years after date; and No. 3, for $7,000, payable three years after date, each bearing 7 per cent. interest from date and retaining a vendor's lien on the property to secure the payment of the purchase money. Broun subdivided the ten acres into lots and blocks, and it was known as the College Terrace addition to the city of Beaumont. Walker and wife assigned the three notes and the liens securing the payment of same to the Texas National Securities Company before either of them fell due. Broun and Texas National Securities Company entered into a written agreement that, upon the payment of the amount set opposite (in a list or schedule of the lots) each particular lot, the Texas National Securities Company would release the vendor's lien as to said lot, and the amount paid would be credited on the notes. November 5, 1930, Broun sold lot 39 to W. D. Hail for a consideration of $10 cash and a vendor's lien note for $3,665, bearing 8 per cent. interest, and payable in monthly installments of $40 per month beginning January 5, 1931. February 16, 1931, Hail sold the lot to appellant P. L. Avant and wife for a consideration of $43 cash and their assuming the payment of the note to Broun. Appellant and his wife took possession of said lot and made a number of monthly payments. November 5, 1931, appellant and wife moved off of said property (in fact out of Jefferson county), and at said time made Broun their agent and representative to take charge of said property, rent same, and collect the rents and apply same on the Hail note, and also constituted Broun their agent to sell the property, and, for the purpose of hastening a conveyance of the property to any purchaser found by Broun, they executed a deed to the property to one C. Burton Jones so that he could at once make direct conveyance to Broun's purchaser, but the deed to Jones was not delivered, nor intended to be delivered, to him, as he was not in fact purchasing the property, and the deed was for the only purpose of permitting quick conveyance to a purchaser secured by Broun.

On August 1, 1932, all the notes executed by Broun to Walker for the land, and by Walker and wife assigned and transferred to the Texas National Securities Company, appellee, having matured and none of them having been paid, said Securities Company filed suit No. 39357 in the Sixtieth district court of Jefferson county against P. L. Avant (appellant), his wife, Odie May Avant, E. Conway Broun, W. B. Landes, Texas National Bank, and Kirby Lumber Company, in trespass to try title and to recover the title and possession of the said 43 lots. January 2, 1933, judgment was rendered against said defendants for the title and possession of all of the lots. No motion for a new trial or any exception to the judgment or notice of appeal was taken or made by any of the defendants. The judgment recited due service upon all of the defendants, and that all of the defendants, except W. B. Landes, who filed a disclaimer, failed to appear and answer, and judgment was rendered against all of them as before stated.

February 2, 1934, thirteen months after the judgment was rendered, appellant filed this suit for bill of review, alleging that he was not served with citation in the trespass to try title suit, No. 39357, and that, if he had been, he would have appeared and answered and would have tendered the sum of $350 in payment of lot 39, that being the sum set opposite to it in the agreed schedule providing for release of the lien in the agreement between Broun and the Texas National Securities Company, the plaintiff in said suit No. 39357, and thus have protected his rights in and to said lot. He did not allege that he would have also tendered the sum of $2,444.80, that being the balance due on the vendor lien note for $3,665, Hail to Broun note, payment of which he (appellant) had assumed.

The defendant, appellee, Texas National Securities Company, answered by general demurrer and numerous special exceptions, general denial, and special defenses which we do not deem it necessary to mention.

When the cause was reached for trial, all parties announced ready, and then came on to be heard the defendant's general demurrer and special exceptions, and, after same were heard and considered, the court sustained the general demurrer and all of the special exceptions, to which action of the court appellant excepted, and, refusing to further amend, the suit was dismissed. This appeal is from that order.

We think the judgment must be affirmed for the...