Booty v. O'Connor

• Decision Date: 22 November 1928
• Docket Number: (No. 9175.)
• Citation: 13 S.W.2d 220
• Parties: BOOTY et al. v. O'CONNOR et al.
• Court: Texas Court of Appeals

13 S.W.2d 220

BOOTY et al. v. O'CONNOR et al.

(No. 9175.)

Court of Civil Appeals of Texas. Galveston.

November 22, 1928.

Rehearing Denied January 24, 1929.

Appeal from District Court, Jackson County; John M. Green, Judge.

Suit by William J. O'Connor and others against Gertrude Booty, individually and as administratrix of the estate of E. F. Booty, deceased, and guardian of his minor heirs, and others, in which R. E. Brooks intervened after his dismissal from the suit, and certain other defendants were dismissed. From a judgment for plaintiffs against the remaining defendants and intervener, such defendants and intervener appeal. Affirmed.

John T. Vance and Rose & Sample, all of Edna, and Morris, Sewell & Morris and R. H. Ward, all of Houston, for appellants.

J. T. Linebaugh, of Victoria, and H. W. Wallace, of Cuero, for appellees.

PLEASANTS, C. J.

This suit was brought by appellees on September 3, 1924, to recover from appellants the title and possession of a tract of 213.1 acres of land, a part of the Valentine Garcia grant, in Jackson county. The defendants in the suit were the administratrix and heirs of E. F. Booty, deceased, and R. E. Brooks, C. W. Boyce, Manuel Zambrano, and Saturnina Nanes.

The administratrix and heirs of E. F. Booty answered on October 2, 1924, by general demurrer, general denial, and plea of not guilty, and special plea of limitation against the right of plaintiffs to recover title to the land as the holders of the superior title reserved by the vendors of E. F. Booty to secure the payment of vendor's lien notes executed by him as part compensation for the land. These defendants further pleaded:

"That E. F. Booty, deceased, from whom these defendants inherit title, bought the land in controversy in the year 1912, paying a large part of the consideration in cash, and did, after his purchase, put said land, or a large part thereof, in cultivation at great expense to himself, and did, after said purchase, make further payments on said land, and paid the interest on said part of the purchase money as remained unpaid, from time to time until his death, and renewed said indebtedness with plaintiffs from time to time, contracting to pay a higher rate of interest than was stipulated in the original deed of conveyance to him, and made numerous and valuable improvements on said land after the purchase by him; that plaintiffs have, at all times, known of said payments, expense, and outlay by said E. F. Booty on said land, but nevertheless never at any time asserted or gave notice to said E. F. Booty, or the defendants, that they had or claimed in any manner title to said land, but, on the contrary, plaintiffs have always, at all times, insisted on and relied on their right to collect the debts they hold against said land, recognizing said E. F. Booty and these defendants as the owners thereof and frequently, from time to time, made demand on said E. F. Booty, and on these defendants, for payment of said debts, have never tendered to these defendants deed to said land, have no sufficient or any title thereto, and never before filing this suit gave these defendants notice of an intention to rescind, and have thus, by their agreements and actions, waived their right, if any they ever had, to rescind the contract of purchase of said land, and are now estopped to assert superior title to said land, if any they ever had as against these defendants; that it would now be inequitable and unjust to these defendants, after a large part of the purchase money on said land has been paid, and valuable improvements made thereon, and other large disbursements made on said land, as set forth above, to extinguish these defendants' rights, equities, and title to said lands in the manner as attempted by the plaintiffs in this suit. Wherefore these defendants pray that plaintiffs take nothing by their suit, and that defendants go hence without day and recover of the plaintiffs all costs in this behalf expended."

They further pleaded in the alternative that, if it be found that plaintiffs have a superior title because of unpaid purchase money due upon the land, that after ascertaining and fixing the amount so due the defendants be decreed a reasonable time to pay said amount, and redeem the land.

The defendant R. E. Brooks answered on September 23, 1924, by general demurrer, general denial, and plea of not guilty, and by special plea setting up the purchase by him from plaintiffs, or their ancestor, of a note for $4,500 secured by a vendor's lien upon the land, and averring the facts in connection with said transaction as an estoppel and waiver of plaintiffs' right against this defendant to recover the land upon their superior vendor's lien title.

By amended answer, filed by this defendant on September 27, 1927, his special defenses are fully pleaded as follows:

"This defendant, further answering said petition, avers that plaintiffs have no title to the tract of land sued for in this case, save and except that E. F. Booty, deceased, in his lifetime purchased the tract of land mentioned and described in plaintiffs' petition from the owner thereof, giving in part consideration therefor certain vendor's lien promissory notes and original and substituting deed of trust to secure said purchase-money notes, the said plaintiffs having acquired said vendor's lien notes, and along with the acquisition of same the superior title remaining in said land by virtue of said purchase-money notes, with reservation of the vendor's lien as aforesaid to secure the same; that plaintiffs have no other title to said land upon which to maintain this their action of trespass to try title for the recovery of same. This defendant further avers that on the 20th day of January, A. D. 1920, plaintiffs loaned to E. F. Booty the sum of ($4,500.00) forty-five hundred dollars, and as evidence of the same he received from the said E. F. Booty his promissory note for that amount for said sum of $4,500.00 due and payable on the 20th day of December, 1920; that to secure the payment of said promissory note the defendant executed his deed of trust, not only on said tract of land set forth and described in this suit, but also upon other tracts of land set forth and described in the cause pending in this court between the same parties and numbered on the docket of this court 1746, 1747, 1748, 1749, 1750, 1751, 1752, and 1976; that in the said deed of trust it is expressly stipulated that the lien created in said deed of trust constitutes second lien or mortgage upon all said property aforesaid, and was secondary and subordinate to the prior liens which plaintiffs held for the purchase money upon other said tracts of land.

"That on the 21st day of September, A. D. 1921, the said plaintiffs for a full and valuable consideration transferred, assigned, and delivered to this defendant the said $4,500.00 note and the lien of said deed of trust securing the same, and in said deed of assignment to this defendant it is expressly stipulated and provided that the lien securing said $4,500.00 note upon said tracts of land aforesaid was in all things secondary and subordinate to the liens of the plaintiffs which were prior thereto. That plaintiffs are now seeking in this suit in the form of action in trespass to try title to rescind the contract of sale by which the said Booty purchased said tract of land from the owner thereof, and to recover this tract of land in this action of trespass to try title upon the ground that the said Booty made default in the payment of said vendor's lien notes executed by him in payment of the purchase money of said tract of land and by this method and scheme the said plaintiffs are endeavoring to impair, if not to utterly destroy, this defendant's said lien upon said land, notwithstanding the same was secondary and subordinate to the said liens of said plaintiffs. This defendant further avers that plaintiffs by reason of their acts and conduct, and by the assignment of said $4,500.00 note and the deed of trust lien to secure the same, is estopped from rescinding the contract of purchase of said lands aforesaid by the said Booty and recovering said land in this action in trespass to try title.

"This defendant further says that by the acts and conduct of said plaintiffs, all of which will be introduced in evidence on the trial of this cause under this defendant's plea of not guilty, and by reason of this transfer of said second mortgage lien upon said land to secure said $4,500.00 note the said plaintiffs are not only estopped from rescinding the contract of purchase of said land by said Booty from the owner thereof, but the same so far as this defendant is concerned have always and still do constitute an election upon the part of plaintiffs to rely entirely and alone upon his remedy for foreclosure of his prior lien upon said property, which clearly estopped the said plaintiffs from maintaining this action of trespass to try title. This defendant states that it would be inequitable and unjust to permit plaintiffs to rescind said contract of purchase of said land and to recover said land in this action as against this defendant.

"This defendant suggests that under such circumstances plaintiffs should not be permitted to maintain this action of trespass to try title as against this defendant, but as to this defendant he have judgment rendered herein in his favor against plaintiffs, adjudicating and determining that said plaintiffs have no right to rescind said contract of purchase of said land by the said Booty, and recover said tract of land in this action, but that this court will hold that so far as defendant is concerned that plaintiffs' only remedy is the remedy of the foreclosure of the said liens in the proper court having jurisdiction thereof.

"This defendant avers that the said E. F. Booty departed this life on the 30th day of June, A. D. 1922, in the county of Jackson and state of Texas, and that he died...