Coffman v. Brannen

• Decision Date: 01 June 1932
• Docket Number: No. 3831.,3831.
• Citation: 50 S.W.2d 913
• Parties: COFFMAN v. BRANNEN et al.
• Court: Texas Court of Appeals

Page 913

50 S.W.2d 913

COFFMAN v.BRANNEN et al.

No. 3831.

Court of Civil Appeals of Texas. Amarillo.

June 1, 1932.

Appeal from District Court, Bailey County; Charles Clements, Judge.

Suit by J. E. Brannen against T. W. Coffman and others, wherein named defendant filed a cross-action against plaintiff and another.Judgment for plaintiff, and named defendant appeals.

Affirmed.

W. W. Kirk and C. D. Russell, both of Plainview, for appellant.

T. Wade Potter and E. S. Rowe, both of Littlefield, and Bledsoe, Crenshaw & Dupree, of Lubbock, for appellees.

HALL, C. J.

The appellee Brannen owned the Motley county school lands situated in Bailey county, Tex., subject to an incumbrance for part of the purchase money due Motley county.On August 31, 1922, he sold the land to T. W. Coffman, who, as part consideration therefor, executed ten purchase-money notes in the sum of $736.58 each, payable to Brannen on or before January 1, 1924 to 1933, respectively.The interest rate was 6 per cent. with the usual accelerating clause and provision for 10 per cent. attorneys' fees.A vendor's lien was expressly retained upon the land to secure the payment of the notes.November 26, 1925, Coffman and wife procured the Federal Land Bank of Houston to take up and extend, with other indebtedness which they had failed to pay, notes Nos. 3 and 4 and a part of note No. 5 of the series above mentioned, and executed a deed of trust upon all of the land to secure their indebtedness to the land bank.On the same date Brannen transferred the notes so extended to the bank and agreed that the balance of his indebtedness should be postponed to said notes so transferred and become a second lien.Coffman having defaulted in two semi-annual installments, Brannen paid the amounts thereof to the bank, and on January 7, 1931, said bank transferred and assigned to Brannen all of its rights, liens, and equities in and to the land, and on January 12, 1931, E. S. Rowe was duly appointed as substitute trustee under the provision of the trust deed to sell the land in satisfaction of the two installments so paid by Brannen.NotesNos. 6, 7, and 8, which matured January 1, 1929, 1930, and 1931, were past due and unpaid, as well as the interest installments on all the notes due January 1, 1931.The remaining notes were all declared to be due.

On March 20, 1931, Brannen filed this suit, the first count of his petition being a formal action of trespass to try title to all of the lands which he had sold Coffman.The second count of the petition sets up the facts hereinbefore alleged and the further allegation that he had paid taxes due upon the land in the sum of $675.76.He prayed for the recovery of his debt and foreclosure of his liens.

The appellant, Coffman, answered by a plea of not guilty, general denial, claim of homestead upon 200 acres of the land, admitted the execution of the notes sued upon, and alleged that he had procured from the Federal Land Bank a loan in the sum of $9,300, part of which had been applied to the payment of notes Nos. 3, 4, and $180 of note No. 5, belonging to appellee, and the balance applied to the payment of purchase money due on the land to Motley county.He admitted the execution and delivery of the trust deed to the Federal Land Bank, and his failure to pay the interest installments due January 1 1930 and 1931.He further set up the transfer of the interest installments to appellee by the bank after his default in the payment of the interest; that about January 1, 1931, the trustee named in the deed of trust had appointed E. S. Rowe of Lamb county as substitute trustee; that appellee had requested Rowe to advertise and sell the land in satisfaction of the interest installments; that the substitute trustee did advertise, and on February 3, 1931, sold the land under the deed of trust.Coffman further alleged that he had requested Rowe, as provided by the deed of trust, to sell the excess land before selling the 200 acres which he claimed as a homestead; that Rowe offered the excess land first, for which appellee bid the sum of $6,000; that Rowe then offered the homestead for sale over appellant's objections, which was bought by appellee for the sum of $5,000; that no memorandum in writing, as required by the statute of frauds, was made of either sale; that thereafter appellee Brannen had the substitute trustee Rowe to again advertise the property for sale in satisfaction of said two interest installments, which Rowe did, and on March 3, 1931, Rowe again sold the excess land to appellee for the sum of $250 and the homestead for $250, and executed trustee's deeds conveying said land to appellee.Appellant prayed that appellee take nothing by his suit, and that the five vendor's lien notes, together with the deed conveying the homestead, be cancelled.

By second supplemental petition, the appellee alleged that, if any sale took place as alleged by Coffman on February 3, 1931, the sale was of real estate and an interest therein, and that the offer for said property and the bid, if any, were verbal, that the acceptance of said bid was verbal, and that no written memorandum of the sale was made by any one, nor did appellee authorize any written memorandum thereof to be made, and therefore the sale was in violation of the statute of frauds and void.He further alleged in the alternative that on February 3, 1931, when the first sale was made by the trustee, appellant requested appellee and the trustee to give him an extension of time for thirty days and he would pay all additional cost of advertising; that it was finally agreed that the sale would be considered a nullity and no attempt would be made to consummate it, but the said Coffman would be given thirty days additional time, which was done, and Coffman was permitted to remain in possession of the premises and made efforts to sell the same, listing it with real estate agents, and never at any time claimed to appellee that the alleged sale of February 3d was binding or effective, and by reason thereof appellant is estopped to seek to enforce the terms of the alleged sale of February 3, 1931; that at the end of said thirty days the land...