Covington v. Burke
| Decision Date | 10 March 1967 |
| Docket Number | No. 4139,4139 |
| Citation | 413 S.W.2d 158 |
| Parties | Jerry COVINGTON, Appellant, v. George C. BURKE, Appellee. . Eastland |
| Court | Texas Court of Appeals |
Garland Casebier, Midland, for appellant.
Key, Carr & Clark, Lubbock, Aubrey J. Fouts, Lubbock, for appellee .
George C. Burke recovered a judgment against Jerry Covington for damages growing out of a wrongful deed of trust foreclosure. Covington has appealed. Burke has a cross-point asserting the court erred in failing to render judgment in his behalf for $5,000.00 punitive damages awarded him by the jury.
Covington sold Burke seven small tracts of land in Reeves County for $1,755.00 These were small forty and eighty acre tracts. Burke executed a vendor's lien note for $1,170.00 payable at Midland, Texas, and a deed of trust which permitted the holder of the indebtedness, at his option, to declare the entire balance due if taxes on the property became delinquent.
The record conclusively shows that Burke was not delinquent in the payment of principal and interest at the time of foreclosure. The record shows, without dispute, that Burke permitted the taxes on the property to go delinquent on February 1, 1964. The total amount of the taxes amounted to about $27.00. Covington made the decision to foreclose his deed of trust lien on February 3rd because Burke had permitted the taxes to become delinquent. Covington did nothing to notify Burke that he had exercised his option and accelerated payment of the note, except to post notices. Covington purchased the property at the foreclosure sale for $1.00 per acre.
After the sale, Covington wrote a letter to one of Burke's lawyers and informed him of the following facts:
'5. Upon the consummation of said sale Mr. Burke and Mr. Etgen still owed $603.47 at 10% Interest under the terms of a note and Deed of Trust which they executed. This will advise my attorney, Frank C. Ashby, to proceed with suit for collection of said indebtedness.
6. By good and valid General Warranty Deed dated August 10, 1964, and properly recorded in the Deed Records, Reeves County, Texas, Jerry Covington passed title in good faith to all of the surface rights only to the seven tracts described in said Deed of Trust. In short, a good faith claimant of record now holds title to said land.
7. The Courthouse in Reeves County is located on Courthouse Square, Pecos, Texas.'
The record shows that after the foreclosure Covington conveyed the property to Della Corporation. When asked if Della Corporation still owned the property, Covington answered: 'They still own half of it.' Covington offered to resell the property to Burke for.$5,150.00.
The jury found that.$5,150.00 was the reasonable fair market value of the property on the date of the foreclosure; that Covington foreclosed with malice and that $5,000.00 should be assessed against Covington as punitive damages.
Appellant contends that he was authorized to accelerate payment of the note and foreclose because Burke permitted taxes on the property to become delinquent and he had no duty to notify...
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Umlic Vp LLC v. T & M Sales
...n.r.e.) (finding trial court erred in awarding exemplary damages in wrongful foreclosure action); Covington v. Burke, 413 S.W.2d 158, 160 (Tex.Civ.App.-Eastland 1967, writ ref'd n.r.e.) (finding no merit in a claim for exemplary damages on a finding of wrongful foreclosure). Appellant's twe......
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Whalen v. Etheridge
...Futch, 209 S.W.2d 1008 (Tex.Civ.App.--San Antonio 1948), affirmed 147 Tex. 253, 214 S.W.2d 614 (1948); Covington v. Burke, 413 S.W.2d 158 (Tex.Civ.App.--Eastland 1967, writ ref'd n.r.e.); Jernigan v. O'Brien, 303 S.W.2d 515 (Tex.Civ.App.--Austin 1957, no writ); Parker v. Mazur, 13 S.W.2d 17......
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Joy Corp. v. Nob Hill North Properties, Ltd.
...the mortgagor could lose his property at a trustee's sale of which he is unaware by actual notice. Covington v. Burke, 413 S.W.2d 158 (Tex.Civ.App.--Eastland 1967, writ ref'd n.r.e.). The exercise of an option to accelerate the entire balance of a debt is a harsh remedy. The courts in Texas......
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Chapa v. Herbster
...notify the maker in some way that he had exercised his option to mature the value of the note, citing Covington v. Burke, 413 S.W.2d 158 (Tex.Civ.App.--Eastland 1967, writ ref'd n.r.e.), and Jernigan v. O'Brien, 303 S.W.2d 515 (Tex.Civ.App.--Austin 1957, no writ). These and other cases reli......