Broussard v. Cartwright Realty Co., 5601.

• Decision Date: 27 March 1944
• Docket Number: No. 5601.,5601.
• Citation: Broussard v. Cartwright Realty Co., 179 S.W.2d 777 (Tex. App. 1944)
• Parties: BROUSSARD et al. v. L. CARTWRIGHT REALTY CO. et al.
• Court: Texas Court of Appeals

Page 777

179 S.W.2d 777

BROUSSARD et al. v. L. CARTWRIGHT REALTY CO. et al.

No. 5601.

Court of Civil Appeals of Texas. Amarillo.

March 27, 1944.

Rehearing Denied April 24, 1944.

Appeal from District Court, Jefferson County; W. S. Nichols, Judge.

Suit in trespass to try title by J. E. Broussard and others, Trustees of Broussard Trust, against L. Cartwright Realty Company and others, wherein additional defendants were impleaded and some of defendants filed cross-actions. In the alternative, the proceeding was a suit for partial breach of warranties against defendant L. Cartwright Realty Company and defendant William Seale. From a judgment in favor of all defendants and denying all cross-plaintiffs recovery on their cross-actions, the plaintiffs appeal.

Affirmed.

Lipscomb & Lipscomb, of Beaumont, for appellants.

Strong & Moore, of Beaumont, for appellee L. Cartwright Realty Company.

Charles T. Butler, Charles S. Pipkin, and W. G. Reeves, all of Beaumont, for appellees Guy A. Thompson and Beaumont, Sour Lake & Western R. Co.

W. A. Tatum and H. R. Clayton, both of Beaumont, for appellee City of Beaumont.

M. L. Lefler and W. O. Bowers, Jr., both of Beaumont, for appellees William Seale & Co. and William Seale.

PITTS, Chief Justice.

J. E. Broussard, C. E. Broussard and J. E. Broussard, Jr., Trustees of Broussard Trust, appellants, filed suit on June 28, 1940, in a trespass to try title suit against L. Cartwright Realty Company, a corporation, William Seale and Company, a corporation, William Seale, individually, the City of Beaumont, a municipal corporation, and numerous other defendants, who in turn impleaded still others, all of whom answered and some with cross-actions. In the alternative, it was a suit for partial breach of warranties against L. Cartwright Realty Company, usually referred to throughout the record as "Realty Company," and William Seale.

The City of Beaumont was made a defendant along with William Seale and William Seale and Company, appellants alleging that they were claiming and occupying adversely to them a part of the land in Lafayette Street and sued to recover damages for the closing of a part of the said street on which appellants' land abuts, to confirm appellants' title to a part of said street and for an easement on the remainder of said street and to enjoin further obstruction of the street frontage of appellants' land.

The case was tried before the court without a jury. Judgment was rendered on December 4, 1942, in favor of all the defendants as against appellants and denying all cross-plaintiffs recovery on their cross-actions as against the cross-defendants. Appellants perfected an appeal to the Court of Civil Appeals of the Ninth Supreme Judicial District at Beaumont and the Supreme Court transferred same to this court.

Appellants filed an amended petition on October 28, 1942, alleging that they were the owners of certain described tracts of land and that on June 1, 1939, they were dispossessed of certain described portions of the same by defendants and prayed for title and possession of the same. In the alternative, appellants alleged that L. Cartwright Realty Company on May 20, 1926, conveyed certain property fronting on Lafayette Street, it being a part of the D. Brown Survey and being a part of the same property described by appellants in their trespass to try title count, to William Seale for a consideration of $12,000, payable $3,000 in cash and by the execution of three vendor's lien notes of $3,000 each, payable respectively in 1, 2 and 3 years after date; that on or about May 19, 1927, the Realty Company transferred the three notes, aggregating $9,000, to J. E. Broussard, who later transferred the notes to appellants; that there were adverse claims of superior titles to a portion of the property described in the deed of conveyance from the Realty Company to William Seale and described in the notes against said property; that there was a deficiency in area of the property so described by reason of the adverse claims overlapping the said described property and a partial breach of warranty by the Realty Company and William Seale to the damage of appellants, who were likewise damaged because of the loss of street frontage and appellants alleged further that in the latter part of 1933 there was a conspiracy between the City of Beaumont, L. Cartwright Realty Company and William Seale to injure appellants by depriving them of a part of their street frontage by closing a part of Lafayette Street and prayed for injunctive relief against the City of Beaumont to restrain it from closing Lafayette Street, which was later made Fourth Street, or cutting off appellants' frontage on the said street.

L. Cartwright Realty Company answered with a general denial and disclaimed title to any property described in appellants' petition except certain lands north of the David Brown Survey and east of Lafayette Street and denied being a party to the alleged conspiracy. The Realty Company further alleged that the land conveyed by it on May 20, 1926, to William Seale, as described in appellants' petition, was conveyed by William Seale on June 3, 1927, to Harris-Seale Hardwood Company, which assumed the payments of the three vendor's lien notes transferred by the Realty Company to J. E. Broussard on May 19, 1927; that Harris-Seale Hardwood Company executed a renewal note to J. E. Broussard covering the said vendor's lien notes for $3,000 each, aggregating $9,000, and a new loan of $3,000, making a total of $12,000, which $12,000 note was transferred by J. E. Broussard to appellants on June 20, 1931, together with the vendor's lien, rights, equities and interest in the lands described; that thereafter, on September 25, 1931, appellants obtained judgment against Harris-Seale Hardwood Company in Cause No. 37372 in the District Court of Jefferson County for the title and possession of the land, it being the same land conveyed by L. Cartwright Realty Company to William Seale and by said suit and judgment elected to rescind the contract of sale of said land made by the Realty Company to William Seale and thereby extinguished all rights and liabilities under said contract of sale. The Realty Company attached to its pleadings and made a part thereof copies of appellants' pleadings and of the judgment filed in the said Jefferson County District Court case and pleaded an estoppel by reason of the said proceedings and judgment. The Realty Company also pleaded the 2, 3, 4, 5 and 10 years statutes of limitation in bar of recovery by appellants.

William Seale and Company and William Seale answered on November 5, 1942, with a general denial and a plea of 2, 3, 4, 5 and 10 years statutes of limitation and an estoppel because of the proceedings and judgment in Cause No. 37372, District Court of Jefferson County, wherein appellants obtained title to and possession of the land described in the deed and vendor's lien notes about which appellants complained. These parties alleged further that after appellants obtained title and possession to the land in question as described in the judgment in Cause No. 37372, they conveyed the same land by deed to William Seale on September 25, 1931, with full knowledge of the location, measurements and size of the said tract of land; that on October 1, 1931, William Seale gave appellants a deed of trust on the very same land which deed of trust was foreclosed by appellants on October 4, 1938, by a trustee's sale and they reacquired title to the said land and gave William Seale a release of any and all claims against him after he paid them $1,000 in cash, for all of which reasons appellants were estopped from any other claims against William Seale and William Seale and Company.

The City of Beaumont answered on November 9, 1942, with a number of exceptions, a general denial and said it was not guilty of the charges of conspiracy made by appellants. It alleged further that a part of Fourth Street was changed in 1934 to eliminate two right-angle turns, which change resulted in abandoning a part of old Fourth Street adjacent to appellants' property; that such change was regularly and lawfully made for the best interest of the general public; that appellants had knowledge of the change or by the exercise of reasonable diligence could have discovered the change since the new Fourth Street was paved in June, 1934, and had since been in use by the general public and prayed that the relief asked for by appellants be denied as a matter of law and due to laches.

Pleadings of other parties to the suit are not material to this appeal.

Appellants, by way of supplemental replies, excepted to and moved to strike pleas of estoppel filed by L. Cartwright Realty Company and William Seale and William Seale and Company and denied their allegations as well as the allegations filed by the City of Beaumont.

Appellants predicate the appeal on ten points of error to the effect that the trial court erred in overruling appellants' exceptions to L. Cartwright Realty Company's pleas of estoppel and limitation; that it erred in rendering judgment against appellants and for the Realty Company and William Seale on the question of warranties and for William Seale and William Seale and Company when the evidence showed they were estopped from claiming any of the land adversely to appellants; that it erred in refusing to render judgment for appellants to confirm their title to the West Half of Fourth Street where it was adjacent to appellants' property and for an easement to the East Half of the said street; that it erred in refusing appellants injunctive relief and that it erred in rendering judgment generally against appellants.

Our attention will be directed to those questions only that appellants raise in their brief since any questions not briefed, as required by Rule 418, Texas Rules of Civil Procedure, are waived. San Antonio Joint Stock Land Bank v. Malcher, Tex.Civ.App., 164 S.W.2d 197; ...