Day v. Townsend

• Decision Date: 01 March 1922
• Docket Number: (No. 284-3532.)
• Citation: 238 S.W. 213
• Court: Texas Supreme Court
• Parties: DAY et al. v. TOWNSEND et al.<SMALL><SUP>*</SUP></SMALL>

Page 213

238 S.W. 213

DAY et al. v. TOWNSEND et al.^*

(No. 284-3532.)

Commission of Appeals of Texas, Section B.

March 1, 1922.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by F. E. Day and others against F. W. Townsend and others. Judgment for the plaintiffs was reversed and remanded by the Court of Civil Appeals (224 S. W. 283), and the plaintiffs bring error. Judgment of the Court of Civil Appeals reversed, and that of the district court affirmed.

W. W. Moore, Beeman Strong, J. Y. Powell, and T. J. Arnold, all of Houston, and Jno. C. Kay, of Wichita Falls, for plaintiffs in error.

Conner & McRae, of Eastland, and J. M. Wagstaff, of Abilene, for defendants in error.

POWELL, J.

On the 14th day of February, 1918, W. L. Thornton and wife executed a certain oil and gas mining lease in favor of F. W. Townsend, who placed the same of record in the office of the registrar of deeds of Erath county, Tex., where the 110 acres of land covered by said lease was situated.

An oil boom struck this section in the summer of 1918, and especially at Desdemona. On September 3, 1918, the legal title to said lease was in Townsend, but an equitable interest therein was owned by S. W. Bishop and J. M. Higginbotham. On the date last aforesaid, F. E. Day entered into a verbal contract with the said Bishop, who was also an active attorney in the oil field in question, purchasing this 110-acre lease for a consideration of $100 per acre. After Bishop agreed to this sale, he obtained the consent of Townsend and Higginbotham thereto, and on the afternoon of the said 3d day of September, 1918, prepared an assignment, conveying the aforesaid lease to F. E. Day. Shortly after it was prepared, Bishop, accompanied by Day, went to the Farmers' State Bank & Trust Company of Gorman, Tex., and had a conversation with Day in the presence of W. M. Collie, cashier of said bank. This interview occurred late in the afternoon of that day, after banking hours. Bishop told Collie that Townsend would sign the conveyance the following morning. Thereupon he turned the assignment over to Collie, which reads as follows:

"Assignment of Oil and Gas Lease.

"Whereas, on the 14th day of February, 1918, a certain oil and gas mining lease was made and entered into by and between W. L. Thornton and wife, Della Thornton, leasor, and F. W. Townsend, lessee, covering the following described land in the county of Erath and the state of Texas, to wit: * * * Said lease being recorded in the office of the register of deeds in and for said county in book ____, page ____; and,

"Whereas, the said lease and all rights thereunder or incident thereto are now owned by F. W. Townsend:

"Now, therefore, for and in consideration of one dollar (and other good and valuable considerations), the receipt of which is hereby acknowledged, the undersigned, the present owner of the said lease and all right thereunder or incident thereto, do hereby bargain, sell, transfer, assign and convey unto F. E. Day all of his right, title and interest of the original lessee and present owner in and to said lease and rights thereunder in so far as it covers the above-described 110 acres of land, together with all personal property used or obtained in connection therewith to F. E. Day and his heirs, successors and assigns, subject, however to the conditions and stipulation in said lease contained.

"And for the same consideration, the undersigned for himself and his heirs, successors and representatives, do covenant with the said assignee, heirs, successors and assigns that he * * * the lawful owner of the said lease and rights and interest thereunder and of the personal property thereon or used in connection therewith; that the undersigned has good right and authority to sell and convey the same, and that said rights, interest and property are free and clear from all liens annd incumbrances, and that all rentals and royalties due and payable thereunder have been duly paid.

"In witness whereof, the undersigned owner and assignor has signed and sealed this instrument, this the 3d day of Sept. A. D. 1918.

                               "F. W. Townsend."
                

Whereupon Day turned over to Collie a draft reading as follows:

                              "Farmers' State Bank & Trust Co
                                     of Gorman, Texas
                                     "Gorman, Texas, Sept. 3, 1918
                

"Pay to the order of F. W. Townsend, $11,000.00, eleven thousand and no/100 dollars, with exchange.

                                      "F. E. Day
                

"To First State Bank, Eastland, Texas."

Upon the back of that draft, Day indorsed the following:

"To be paid upon approval of title by H. P. Brelsford, attorney.

                                        "F. E. Day."
                

The written instruments copied above speak for themselves. Townsend, as per the promise made by Bishop to Collie, had executed the assignment on the morning of September 4, 1918. The only question of fact in this case about which there can be any doubt is as to the length of time Day was to have in which to accept the assignment so left in escrow. Townsend and his associates all contend that Day was under contract to accept the assignment in 24 hours after the abstract of title to the property being conveyed had been delivered to him by Bishop. On the other hand, Day claimed he was to have 24 hours after he placed the abstract in the hands of his attorney in which to accept or reject the title. In this connection, all the witnesses admitted that if Day had produced the $11,000 by mid-afternoon of September 4, 1918, or within 24 hours of the time Bishop had given him the abstract in question, he would have been entitled to possession of the aforesaid assignment.

Attorney Brelsford was not available on September 4, but he was found on September 5. On the evening of the latter day, Day called up Cashier Collie, and accepted the title. On the morning of the following day, or on September 6, 1918, the First National Bank of Gorman tendered the money in question to Collie. The money was refused. Collie made this refusal for the stated reason that Townsend had instructed him not to deliver the assignment to Day at any time later than the afternoon of September 4. Thereupon, this suit originated in the district court of Eastland county, Texas—

"upon a petition filed by F. E. Day against F. W. Townsend, J. M. Higginbotham, S. W. Bishop, and the Farmers' State Bank & Trust Company of Gorman, Tex., as defendants, in which suit Frank Cullinan requested, was granted permission, and did file, a plea of intervention. The suit was for the custody and possession of a certain oil and gas lease, executed by W. L. Thornton and wife to F. W. Townsend, on the 14th day of February, 1918, covering 110 acres of land in Erath county, Tex., and for the custody and possession of an assignment of said lease, executed by the said Townsend to plaintiff, Day, on the 3d day of September, 1918, which said lease and the assignment thereof were alleged to be in the possession of the defendant bank in escrow, which said bank refused to deliver same to the plaintiff, Day, because of acts, words, and conduct to and with said bank by the defendants, Townsend, Bishop, and Higginbotham; said defendants making a pretended claim to the lease and assignment. Plaintiff prayed for delivery of said lease and assignment, and to divest defendants of their pretended claim or interest therein. Intervener, Cullinan, alleges purchase of the lease from plaintiff, Day, and asks judgment against all parties for said lease."

The defendants pleaded, as a defense, the statute of frauds, claiming that a deed placed in escrow was in violation thereof, in the absence of a separate contract in writing to convey an interest in land. They also defended on the ground that the assignment executed by Townsend to Day did not sufficiently describe the land covered by the lease to identify it, so as to comply with the statute of frauds. A general denial was pleaded by the defendants, as well as other matters of no material bearing upon the case.

The trial was had before a jury upon special issues, and upon the answers of the jury thereto the court entered judgment, decreeing the ownership and possession of the lease and assignment aforesaid to Cullinan and Day, and divesting out of Townsend, Bishop, and Higginbotham all interest or rights in either the lease or the assignment. The court further provided that the lease and assignment should be delivered to Cullinan and Day upon the payment by the latter of the $11,000, the agreed consideration for the execution of the assignment. The court amply protected Townsend and his associates in the payment of the sum of money aforesaid.

Townsend and his associates filed a motion for new trial, which was overruled by the district court. Thereupon they appealed to the Court of Civil Appeals at Fort Worth, where the case had a very unusual experience. Three different opinions were rendered by that court. On February 28, 1920, that court reversed the judgment of the trial court, and rendered judgment for Townsend and his associates. On April 17, 1920, upon motion by Day and Cullinan, that court granted a rehearing and affirmed the judgment of the district court. On May 29, 1920, that court, upon motion by Townsend and his associates, granted a rehearing, and reversed the judgment of the trial court, and remanded the cause to the latter court for another trial. All three of these opinions of the Court of Civil Appeals are published in 224 S. W. 283 et seq. After the case was reversed and remanded by the Court of Civil Appeals on May 29, 1920, Day and Cullinan filed another motion in that court for rehearing. It was overruled. Whereupon they filed application for writ of error in the Supreme Court. The writ was granted, and the cause is now before us for review and recommendation.

After all, this case is a very much simpler one than our preliminary statement of its history might indicate. It involved merely an ordinary sale...