Burleson v. Earnest

• Decision Date: 16 June 1941
• Docket Number: No. 5315.,5315.
• Citation: 153 S.W.2d 869
• Parties: BURLESON v. EARNEST et al.
• Court: Texas Court of Appeals

153 S.W.2d 869

BURLESON v. EARNEST et al.

No. 5315.

Court of Civil Appeals of Texas. Amarillo.

June 16, 1941.

Rehearing Denied September 8, 1941.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Terry County; Louis B. Reed, Judge.

Suit by Joe Earnest, on behalf of and in the name of Fannie C. Earnest, against R. C. Burleson, Andrew Sims, L. G. Stone, and the First National Bank of Fort Worth for the recovery of certain realty and for the cancellation of deeds, wherein R. C. Burleson filed a cross-action for damages for malicious prosecution of the suit and the filing of lis pendens, and wherein the First National Bank of Fort Worth filed an answer in the nature of a cross-action. From an adverse judgment, R. C. Burleson appeals.

Judgment affirmed.

E. L. Klett, of Lubbock, and Joe J. McGowan, of Brownsfield, for appellant.

Bean, Evans & Bean, of Lubbock, and Joe Earnest, of Colorado City, for appellees.

STOKES, Justice.

On the 21st of September, 1934, Judge C. H. Earnest, a resident of Mitchell County, executed a deed conveying to L. G. Stone of Terry County, section No. 135, in Block D-11, in the latter county, for a consideration of $640 cash and three vendor's lien notes, the first two in the sum of $750 each and the third note in the sum of $860, due one, two and three years after date. On the 14th of September, 1934, Judge Earnest and his wife, the appellee herein, conveyed to Andrew Sims section No. 57, in Block D-14, in Terry County, for a consideration of $2,560, of which amount $640 was to be paid in cash and the balance evidenced by three vendor's lien notes in the sum of $640 each, due one, two and three years after date. On October 5, 1934, Judge Earnest sent these deeds, with the notes, to the Brownfield State Bank with instructions to deliver the deeds to the grantees upon payment of the cash consideration called for therein and the execution by them respectively of the vendor's lien notes, after which the bank was authorized to pay appellant, R. C. Burleson, the total sum of $278 as commission for making the sales and remit the balance of the cash payments, together with the executed notes, to the grantor. At the time of this transaction, the First National Bank of Fort Worth held a lien on the land to secure the payment of an indebtedness owing to it by Judge Earnest and in the letter transmitting the deeds and note to the bank at Brownfield Judge Earnest also enclosed a release that he had procured from the Fort Worth bank releasing the indebtedness as to the two sections of land here involved. The deeds, notes and release were received by the bank at Brownfield and the transaction closed on October 22, 1934, when the bank immediately returned the balance of the cash consideration, together with the executed notes, to Judge Earnest and he, in turn, remitted the cash which he had received in the transaction, together with the executed notes, to the First National Bank of Fort Worth, the cash to be credited on his indebtedness and the notes to be held by the Fort Worth bank as collateral, taking the place of the lien which it had theretofore held against the land.

On February 16, 1935, Judge Earnest died, leaving a will in which he bequeathed all of his property to his wife, the appellee herein. For sometime before his death, Joe Earnest, his son, had been a student and teacher in Columbia University of New York City but, upon the death of his father, Joe returned and assumed the responsibility of assisting his mother in the management of the estate. On October 1, 1935, Joe Earnest, by letter, inquired of appellant about the Sims and Stone notes, stating that he was in receipt of a letter from the First National Bank of Fort Worth in which he was informed that the first of each of the two series of notes was past due and unpaid, and seeking information as to whether or not Sims and Stone had forwarded remittances to the bank, and inquiring as to the addresses of the makers of the notes. Appellant replied to the inquiry by letter of October 5, 1935, in which he informed Joe Earnest that he, Burleson, advanced to Sims and Stone the money with which they had consummated their purchase of the lands and that, on account of the fact that their crops had not turned out as well as they expected, appellant "had to go on and buy the land from them" to protect himself. In this letter he also stated that he had written the Fort Worth bank that he could pay all that was due by November 1st and would pay the entire balance represented by the notes by January 1st. On January 6, 1936, after receiving appellant's letter of October 5, 1935, appellee, Mrs. Fannie C. Earnest, accompanied by her son, Joe, went to Brownfield and made an investigation of the matter, which included an examination of the deed records of Terry County, from which they learned that on October 22, 1934, the day upon which the sales of the land to Stone and Sims were completed by the bank's delivery of the deeds to the grantees, Sims and Stone had conveyed the land to appellant. The record shows that Joe Earnest continued his investigation of the matter until July 31, 1936, and then, on behalf of his mother, and in her name as plaintiff, he filed this suit against appellant Burleson and Andrew Sims, L. G. Stone and the First National Bank of Fort Worth. The original petition is not brought up in the record but in her second amended original petition filed September 11, 1939, upon which the case was tried, appellee alleged that appellant was the agent of her husband, C. H. Earnest, deceased, and represented him in the sales of the two sections of land. She set out the details concerning the sales and alleged that Stone and Sims were not bona fide purchasers of the land but that they were acting as dummy purchasers for and on behalf of appellant. She alleged that in truth and in fact appellant, while acting as the agent of her deceased husband, had, through the device of having the lands conveyed to Sims and Stone, become the purchaser thereof in fraud of the rights of her deceased husband, and prayed for a recovery of the lands and cancellation of the deeds executed by C. H. Earnest to Sims and Stone and the deeds executed by them to appellant.

In her petition appellee alleged appellant had been paid $278 as commission for making the sales and that, while in possession thereof, and holding the title thereto, appellant had executed to the Uscan Oil Company an oil and gas lease on section No. 57, for which he had received a cash consideration of $1,280. In her petition appellee offered to do equity and tendered all amounts that had been received by her or her husband as part of the purchase price of the two sections of land, after deducting therefrom the amounts received by appellant as commission and as consideration for the oil and gas lease.

Appellant answered by the general issue and specially alleged that after discovering the alleged wrongs and injuries set forth in her petition, appellee had waited and delayed an unreasonable length of time before notifying appellant of her disaffirmance and rescission of the sales whereby the entire transaction had been affirmed and acquiesced in by her, by reason of which she was not entitled to recover the land. He also included a cross-action for damages for malicious prosecution of the suit and the filing of lis pendens.

On July 29, 1940, the First National Bank of Fort Worth filed an answer in the nature of a cross-action against appellee, Fannie C. Earnest and appellant, in which it set up the second and third notes of the series executed by L. G. Stone, all of the other notes having been paid, and asked for a personal judgment against appellee and foreclosure of its lien against both appellee and appellant. No personal judgment was sought against appellant because in the deed which Stone executed to him appellant took the land subject to the indebtedness and did not assume its payment. Joe Earnest acted as attorney for the bank in filing the cross-action and signed the same as such.

The case was tried September 2, 1940, and submitted to a jury upon special issues. In answer to the questions propounded to them, the jury found that at the time C. H. Earnest placed the deed to Stone in the Brownfield State Bank it was not the intention of appellant to become the owner of the property described therein, which was section No. 135, but that he had such intention when the bank delivered the deed to Stone. That appellant did intend to become the owner of section No. 57 at the time C. H. Earnest placed the Sims deed in the bank, and that he had such intention when the Sims deed was delivered and the transaction closed. They found that the value of the use and occupancy of section No. 135, known as the Stone section, during the time appellant had possession thereof, was $1,024, and that the value of the use and occupancy of section No. 57, known as the Sims section, during the time appellant had possession thereof, was $160. In answer to the seventh and last special issue the jury found that neither the plaintiff nor her agent, Joe Earnest, had failed for an unreasonable length of time to disaffirm the sales of the land after they learned of the purchase thereof by appellant.

Based upon the verdict of the jury the court entered judgment in favor of appellee for the title and possession of the two sections of land and for cancellation of the deeds from C. H. Earnest to Stone and Sims, together with their deeds to appellant. It was further ordered and decreed that appellee pay into the registry of the court for the benefit of appellant the sum of $1,280, being the amount paid as cash and upon some of the notes by appellant for the two sections of land, less the amounts received by him from the oil and gas lease and the commission paid him for making the sales and the amount found by the jury as the reasonable value of the use and occupancy of the lands. Appellant's motion for a new...