Bowles v. Umberson

• Decision Date: 03 April 1907
• Citation: Bowles v. Umberson, 101 S.W. 842 (Tex. App. 1907)
• Parties: BOWLES et al. v. UMBERSON et al.
• Court: Texas Court of Appeals

101 S.W. 842

BOWLES et al. v. UMBERSON et al.

Court of Civil Appeals of Texas.

April 3, 1907.

Rehearing Denied May 1, 1907.

Appeal from District Court, Uvalde County; R. H. Burney, Judge.

Action by H. J. Bowles and others against J. E. Umberson and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

I. L. Martin, for appellants. G. B. Fenley, for appellees.

NEILL, J.

This suit was brought by appellants against J. E. Umberson and the Commercial National Bank of Uvalde to recover $500, deposited by Umberson in said bank and $10 expenses, for surveying the lands, in pursuance of a written agreement which is as follows:

"The State of Texas, County of Uvalde.

"This contract, made and entered into by and between Hy. J. Bowles and wife, S. A. Bowles, and J. W. Estes and wife, M. E. Estes, of Uvalde county, Texas, parties of the first part, and S. E. Umberson of Tom Green county, Texas, party of the second part, witnesseth: The parties of the first part, for and in consideration of the covenants and agreements hereinafter set forth, agree to sell and convey by warranty deed, and by these presents do sell, subject to the conditions hereinafter made, to the party of the second part, the following described real estate lying in Uvalde county, Texas, to wit, six hundred acres, more or less, being off of the west end of the land heretofore purchased by them from Dr. A. R. Bowman, the same being the western portions of surveys No. 72 and 1062, as described in one of said deeds from said Bowman dated December 1st, 1903, and the western portion of survey 573, G., C. & S. F. R. R. Co., and all of that part of survey No. 574, as described in a deed from the said Bowman dated December 31st, 1903. The parties of the first part agree to furnish a complete abstract of title to the said lands and to have the same surveyed so as to ascertain the exact number of acres to be conveyed; that said abstract of title to be furnished in ample time for the party of the second part to have same examined within thirty days from the date hereof, and if the said title is found to be good, then they agree to deed said land to the party of the second part as aforesaid. The party of the second part, in consideration of the premises hereby, deposits with the Commercial National Bank of Uvalde, Texas, the sum of five hundred dollars and the same is made a part of this contract to be held by said bank as a part thereof, pending the termination of this contract, and in the event the title to the aforesaid land is found upon examination to be good, and the party of the second part shall fail or refuse to consummate this deal and to pay the consideration hereafter named for said land, then the said five hundred dollars shall be forfeited to the parties of the first part, and shall be treated as liquidated damages for a breach of this contract, and the said bank is hereby authorized to pay the same to the parties of the first part, but if the said title is found to be bad upon examination, then the said five hundred dollars shall be returned to the party of the second part, by the said bank; it being further understood that if the said deal is consummated in accordance with this contract, all parties complying with this contract, then the said five hundred dollars shall be returned to the party of the second part, or applied as a part of the consideration for said land. The party of the second part agrees to pay as a consideration for said land upon delivery of the aforesaid deed and the possession of said land to him the sum of $11 per acre according to the number of acres ascertained by actual survey, and to pay said consideration as follows: $1,800 cash in hand, and the balance to be evidenced by four vendor's lien notes, in equal payments, due in one, two, three and four years, respectively, after date, and bearing 8 per cent. interest per annum from date until paid, and secured by a vendor's lien retained upon the lands conveyed; the said notes to be signed by the party of the second part. The said sale to be consummated within thirty days from the date hereof.

"Witness our hands this 22d day of March
                1906.               M. E. Estes
                            "Party of the First Part
                                   "J. W. Estes
                            "Party of the First Part
                                   "Hy. J. Bowles,
                                   "S. A. Bowles,
                            "Parties of the First Part.
                                   "S. E. Umberson,
                            "Party of the Second Part."
                

It was alleged in plaintiffs' petition that defendant, as stipulated in the agreement, deposited in the bank $500 to be held subject to its conditions and provisions; that plaintiffs furnished a complete abstract of their title in ample time for defendant to have it examined within 30 days from March 22, 1906; that they had the land accurately surveyed, and the number of acres ascertained; that said abstract of title was examined by defendants' attorney, who reported that he found no objection of any kind to plaintiffs' title to two of the surveys and pronounced it as to them good and sufficient, but as to the other survey (No. 1062, Gertrude Tarrin) "defendants' attorney does not say in his opinion that plaintiffs' title to the same is bad or insufficient and consequently not acceptable, but, in his said opinion, merely submits certain objections, denying their seriousness, and finally concluding his opinion by pronouncing the title to said Tarrin survey good, if the recitals in the instrument of writing in the chain of title, as shown by the abstract, are true, reporting to defendant Umberson in said...