Bridges v. Continental Southland Savings & Loan Ass'n

• Decision Date: 30 September 1935
• Docket Number: No. 4469.,4469.
• Citation: 86 S.W.2d 659
• Parties: BRIDGES et ux. v. CONTINENTAL SOUTHLAND SAVINGS & LOAN ASS'N.
• Court: Texas Court of Appeals

86 S.W.2d 659

BRIDGES et ux. v. CONTINENTAL SOUTHLAND SAVINGS & LOAN ASS'N.

No. 4469.

Court of Civil Appeals of Texas. Amarillo.

September 30, 1935.

Rehearing Denied October 21, 1935.

Appeal from District Court, Potter County; W. E. Gee, Judge.

Suit by the Continental Southland Savings & Loan Association against R. H. Bridges, W. L. Bridges, and others. W. L. Bridges was dismissed from the case without prejudice. From an adverse judgment, R. H. Bridges and wife appeal.

Judgment corrected and, as so corrected, affirmed.

F. A. Cooper, of Amarillo, for appellants.

R. A. Wilson, of Amarillo, for appellee.

HALL, Chief Justice.

The loan association instituted this suit in trespass to try title to recover lot No. 16 of the H. H. Wallace subdivision of block No. 222 of the Plemons addition to the city of Amarillo, in Potter county, Tex. R. H. Bridges and wife, Nancy Bridges, were made defendants, and W. L. Bridges was joined as a defendant upon allegation that he was claiming some right, title, or interest in and to the premises involved in the suit. Plaintiff failed to get service upon W. L. Bridges, and he was dismissed from the case without prejudice.

Upon a trial to the court, without a jury, judgment was rendered in favor of the loan association, from which this appeal is prosecuted.

It was stipulated that R. H. Bridges and wife, Nancy Bridges, constituted the common source of title. As evidence of title, the plaintiff introduced a promissory note executed by R. H. Bridges and wife, Nancy Bridges, to plaintiff, dated February 17, 1928, in the principal sum of $2,453.53, payable when twenty-five shares of the capital stock of said association should reach a value equivalent to the amount of the loan; also a deed of trust from R. H. Bridges and wife to Ralph Beaton, trustee, conveying the above-described property to secure the payment of said note. The deed of trust contained the usual power of sale. Plaintiff next introduced a certified copy of the amended charter of the loan association from the secretary of state's office; also a trustee's deed from Beaton, as trustee, to the loan association, dated September 6, 1932, reciting the sale and conveying the property to plaintiff; next a warranty deed from defendants, R. H. Bridges and wife, Nancy Bridges, to plaintiff was introduced, dated September 5, 1932, and conveying to plaintiff the property described in plaintiff's petition. The deed from R. H. Bridges and wife, conveying the property to the loan association in fee simple, antedates the filing of the suit.

The only defense sought to be asserted by defendants was an executory contract of sale whereby the loan association agreed, upon certain conditions precedent, to sell the property to W. L. Bridges for a consideration expressed in the contract. It is conceded that the contract of sale is executory, and contains these recitals: "It is agreed and understood that purchaser has until February 1, 1934 to consummate the purchase of this property in accordance with the terms hereinbelow described, it being expressly agreed and understood that if the purchase is not consummated on or before February 1, 1934 that the deposit consisting of the following described stock be forfeited and applied in payment of rents on this property from September 1, 1933 to February 1, 1934, said stock consisting of Metropolitan Building & Loan Association certificate No. 1829 in the amount of $318.75; Continental Southland Savings & Loan Association certificate No. 2208 for $71.25 and reserve participation in the sum of $75.00. * * * If this contract is not consummated on February 1, 1934, as above provided, the stock above described shall be forfeited as liquidated damages and as the agreed rental value of said premises, and this contract shall become null and void and of no force and effect, and in addition thereto purchaser agrees to immediately surrender possession of said premises."

The original petition in this case was filed June 28, 1934. No evidence was introduced to show that the executory contract of sale made with W. L. Bridges had ever been consummated.

Defendants also offered in evidence a writing executed by the assistant cashier of plaintiff, acknowledging the receipt of certain...