Burwell v. Sollock

• Decision Date: 06 November 1895
• Parties: BURWELL et al. v. SOLLOCK et al.
• Court: Texas Court of Appeals

32 S.W. 844

BURWELL et al. v. SOLLOCK et al.

Court of Civil Appeals of Texas.

November 6, 1895.

Appeal from district court, La Salle county; M. F. Lowe, Judge.

Action by G. W. Sollock and another against H. A. Burwell and others to rescind a contract for the sale of land. From a judgment annulling the contract, and offsetting the rents against the value of the improvements, defendants appeal. Modified.

E. R. Lane, for appellants. Lewy & Sehorn, for appellees.

Conclusions of Fact.

JAMES, C. J.

The following contract was entered into on June 27, 1891:

"State of Texas, County of La Salle. This contract and agreement, made and entered into this 27th day of June, 1891, by and between Mrs. H. A. Burwell, of the county of La Salle, and state of Texas, party of the first part, and Geo. Sollock and M. J. Jones, of the county of Medina, state of Texas, parties of the second part, witnesseth: That the party of the first part hereby agrees to sell, and make good and sufficient title to, all the land contained in surveys Nos. 575 and 576, Geo. T. & T. P. R. R. Co., original grantee, and No. 577, G. C. & S. F. R. R. Co., original grantee, all situated in La Salle county, Texas, and now owned and possessed by the party of the first part, at the value of ($4.00) four dollars per acre, by actual survey of the premises herein mentioned, and on the terms hereinafter stipulated and agreed to by the said parties of the first and second part herein. And the said parties of the second part hereby agree and bind themselves, their heirs, executors, and administrators, to and with the said party of the first part, to pay to the said first-named party the sum of ($4.00) four dollars per acre for all the land contained in said surveys above mentioned, said payments to be made as follows, to wit: Five hundred ($500.00) dollars to be paid on or before January 1, 1892, and the balance to be paid in six equal installments, one of which is to become due on the 1st day of January, 1893, 1894, 1895, 1896, 1897, and 1898, respectively. The amount of each of said installments of the unpaid purchase price of the land to be conveyed is to be determined by the actual number of acres contained in said surveys, above mentioned, at the rate of ($4.00) four dollars per acre therefor, after deducting the amount of the first payment of ($500.00) five hundred dollars; and said installments, and each of them, are to be evidenced by vendor lien notes of the parties of the second part on the lands to be conveyed, and to bear interest at the rate of 8% from date until paid. And the parties of the second part further agree to deposit with the said party of the first part, as an earnest of the contemplated trade, and to bind the same, duly indorsed, and made payable to the order of the first-named party, a certain promissory note of H. W. Flynt, to amount of $333 33/100, dated ____, payable January 1, 1892, to M. J. Jones, one of the parties of the second part herein; and they, and each of them, further agree to and with the said party of the first part that, upon the failure upon their part to comply with the terms of this contract, on or before the 1st day of January, 1892, that they are to forfeit said note, so placed and deposited to bind the trade, as aforesaid, and that the same is to become the property of the party of the first part herein, and that she is to have full power and authority to negotiate, transfer, or convey the same, in the event of such failure on the parties of the second part, as she deem proper, but not before said 1st day of January, 1892. And the party of the first part, for herself, her heirs, and executors, and administrators, hereby further agrees and binds herself, to and with the said parties of the second part, that if she fail to make good and sufficient conveyance and title to the parties of the second part of the lands herein mentioned, and in the time prescribed by the terms of this contract, except unavoidably restrained and prevented from so doing, to return said note, so held on deposit, and to pay to the parties of the second part a sum of money equal to said note, to wit, $333 33/100. Witness our hands at Cotulla, the day and year first above written.

                         "Mrs. H. A. Burwell
                          "Party of the First Part
                         "G. W. Sollock
                                his
                         "W. J. X Jones
                               mark
                          "Parties of the Second Part."
                

We find that the $500 cash payment was made, and Mrs. H. A. Burwell did not perform the agreement on her part at the time specified (January 1, 1892), because unavoidably prevented from being able to give a good title in respect to one of the surveys (survey 576), a school section, for which application for purchase had been made. We find from plaintiff Sollock's testimony that in April, 1892, he told her that he would wait for her to get this patent until after the May term of the district court, and, about three or...