Blomstrom v. Wells

• Decision Date: 01 March 1922
• Docket Number: (No. 6707.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 239 S.W. 227
• Parties: BLOMSTROM et al. v. WELLS.
• Court: Texas Court of Appeals

239 S.W. 227

BLOMSTROM et al. v. WELLS.

(No. 6707.)^*

Court of Civil Appeals of Texas. San Antonio.

March 1, 1922.

Rehearing Denied March 29, 1922.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Action by George A. Wells against C. J. Blomstrom and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Boone, Pope & Savage, of Corpus Christi, for appellants.

J. D. Todd, of Corpus Christi, and T. O. Woldert, of Houston, for appellee.

COBBS, J.

Appellee sued to recover from appellants the sum of $1,000, deposited in the City National Bank of Corpus Christi as earnest money upon a contract to purchase a tract of land from C. J. Blomstrom, one of the appellants.

It was alleged: That Blomstrom was to furnish a merchantable title, apparent upon the abstract, subject to the approval of the attorneys for appellee, which agreement Blomstrom failed to comply with. That the said money which had been deposited by appellee in the bank as custodian was paid to appellant Garrett who refused to return it to appellee. That the abstract furnished was not in compliance with the contract, nor did it show a merchantable title, but at most a mere limitation title which appellee's attorney in good faith rejected.

The answer of appellant Blomstrom consisted of general denial, pleas of limitation, and specially averred a compliance with the contract, averring that the abstract was furnished and the deed and title were accepted by the bank, and the money paid over to him as liquidated damages when appellee declined to accept the title appellant Blomstrom tendered, in all respects as having complied with the terms of the agreement. In the alternative also pleaded he had furnished an abstract showing a merchantable title as agreed, which his attorney examined and at first made no specific objections to, nor pointed out any defects, but, subsequently, upon appellant's specific demand, did point out certain objections, but gave appellants no opportunity to remedy. That the abstract was made by appellee's attorney and accepted by appellee's attorney, who admitted it showed a limitation title, so appellee was estopped by such admission to assert the title was not merchantable, and by cross-action prayed for the recovery of the $1,000. Garrett and City National Bank adopted the answer of appellant as their own.

The case was tried by the court without a jury, and after hearing the case the court rendered judgment in favor of appellee against all the defendants for the sum of $1,449 with 6 per cent. interest per annum from the date of the judgment. At the request of appellants the court made and filed conclusions of fact and conclusions of law.

There are a number of assignments challenging the court's conclusions from the facts and his conclusions of law, all of which we will consider, but not in the order presented.

The first one we will take up is as to whether under the testimony introduced in connection with the court's findings, the abstract furnished on its face a merchantable title.

It will be noted that the contract calls for a "merchantable title." Maupin on Marketable Title to Real Estate, the book above all others devoted to that one subject, nowhere writes on the subject of "merchantable title." Turning to Words and Phrases Judicially Defined, First and Second Series, it, like Maupin, treats of and well defines "marketable title to lands," and "good and marketable title." It, unlike Maupin, because it proposes to define legal terms, does define "merchantable," "good and merchantable cattle," "merchantable order," "merchantable quality," and other like terms, always applying "merchantable title" to personal property, which accounts, no doubt, for the fact that Mr. Maupin does not use that word as applicable to land titles, because he is treating solely of title to lands. However, we do find those terms used in some of the decisions synonymously, and as the parties here seem to treat the agreement as providing for a marketable title to land, though designated "merchantable title," we feel compelled, however, as we view the different terms, to call it "marketable title," as we believe they so understood it.

There are two prominent grounds presented in the agreement of the parties; that is, was a limitation title to be taken and considered as a merchantable title within the terms of the contract, and was that limitation title to be apparent from the abstract itself, or to be further supported by oral proof? The attorney admitted a title was shown by limitation, but that it did not appear from the abstract itself, and as to it he declined to accept the title because it was not a marketable title.

Examining many of the chains of transfer, to which objection has been made because of defective acknowledgments, it will be noted that the Legislature has passed many curative acts on the subject and actuated by a commendable desire to cure defectively acknowledged instruments that had been on record for years, where no adverse claim was asserted during that period of time, such instruments were made admissible in evidence notwithstanding they were defectively acknowledged and recorded though would not otherwise be admissible in evidence. Such statute was held valid in George E. Downs, Plaintiff in Error, v. E. A. Blount et al., Defendants in Error, 170 Fed. 15, 95 C. C. A. 289. See 31 L. R. A. (N. S.) p. 1076 and notes cited. The Supreme Court of the United States in that case refused an application for writ of certiorari, thereby approving the ruling of the Circuit Court of Appeals. While this case being one of first impression in the construction of that new statute in the federal court, our own Supreme Court not having construed that statute, an effort was made to pass one up to our Supreme Court, in a race of diligence, and when it did get there Judge Williams, in Holland v. Votaw, 103 Tex. 535, 131 S. W. 406, speaking for the court, did not take issue with Downs v. Blount; but his refusal of the writ is rather by avoidance.

However, in the foregoing expressions in regard to the effect of conveyances cured by the Act of April 23, 1907 (Laws 1907, c. 165), amending article 2312 of the Revised Statutes, the legislation above referred to, it is not to be understood that the writer of this is attempting to commit his associates to his views, for it may be called dictum as not really necessary to the disposition of this case. The Supreme Court, however, speaking through Judge Williams, did hold that such instruments may be, in the proper case, used in evidence. It was never contended for a moment that the Legislature by its acts would or could destroy vested rights or those of third parties. Eliminating the rights of third parties, the Legislature has the same power to enact laws retrospectively as it did have to legislate prospectively. Morris & Cummins v. State ex rel. Gussett, 62 Tex. 729. It had the right to prescribe what was requisite to a valid acknowledgment. Such instruments would be, however, admissible in evidence before the court, is likewise the holding in Holland v. Votaw, supra. This holding, however, it is not necessary to dispose of in this case, because the objections to defective acknowledgments constituted only a part of the numerous objections that require evidence aliunde the record to sustain limitation title. Independent of the evidence aliunde, the abstract required to sustain a limitation title should show a merchantable title.

In the case of Hughes v. Adams, 55 Tex. Civ. App. 197, 119 S. W. 134, cited by appellants, Judge Reese is very properly defining "merchantable" as he is applying it to logs and logging, personal property. In this case it was stated that the words "merchantable title" meant "their general warranty deed," whereupon they were answered by appellant that their general warranty was all they wanted, and the court said appellant was bound to accept the general warranty deed of appellee and if tendered and refused were not compelled to do more. In defining "merchantable title," Judge Reese refers to Maupin on Marketable Title, 673, Words and Phrases, First and Second Series, and Roberts & Corley v. McFadden, 32 Tex. Civ. App. 47, 74 S. W. 105. In neither of those cases is the words "marketable title" used. Let us, however, use the words "marketable title," for that is what is meant, in the discussion, and state the proposition conversely: When is a limitation title a marketable title? Surely, under our statute, a limitation title is as good as the best when established, for adverse possession for the requisite time "shall be held to have full title precluding all claims." R. S. art. 5679; Burton's Heirs v. Carroll, 96 Tex. 320, 72 S. W. 581. As we understand it, from this admission of Mr....