Doss v. Honeycutt

• Decision Date: 28 July 1966
• Docket Number: No. 4513,4513
• Citation: 406 S.W.2d 504
• Parties: James T. DOSS et ux., Appellants, v. M. I. HONEYCUTT, Appellee. . Waco
• Court: Texas Court of Appeals

Page 504

406 S.W.2d 504

James T. DOSS et ux., Appellants, v. M. I. HONEYCUTT, Appellee.

No. 4513.

Court of Civil Appeals of Texas Waco.

July 28, 1966.

Rehearing Denied Sept. 22, 1966.

Luna & Vaughan, Kenneth Vaughan, Dallas, for appellants.

Harless, Bailey & Youngblood, Bill W. Bailey, Dallas, for appellee.

OPINION

WILSON, Justice.

This action is in trespass to try title by Honeycutt against Doss, who answered by the statutory plea of not guilty, and a prayer for cancellation of a contract of sale note and deed of trust on the ground plaintiff had represented the land described was not encumbered by a vendor's lien. There was also a cross-action in trespass to try title and a count seeking cancellation, alleging Doss had paid more than the amount required by the contract of sale, and that Honeycutt had attempted foreclosure of the deed of trust on six lots before the note was due. The jury returned a negative answer to an issue inquiring whether Honeycutt had represented the title was unencumbered. This finding is not attacked. The remainder of the verdict concerned damages for rental values. Honeycutt obtained judgment for title and possession of the property . We affirm in part, and in part reverse and render judgment.

Doss, in the conclusion to his brief, summarizes his contentions: (1) Honeycutt's foreclosure under the deed of trust was premature, and (2) a $6000 note he executed should be cancelled.

The initial points are that appellants' motion for instructed verdict should have been granted because the deed of trust lien was foreclosed before the note was due, and when there was no default; because no demand for payment or notice of acceleration was given; and that pendente lite there had been foreclosure of a lien on apartment property securing a previous indebtedness.

By the contract of sale Doss agreed to purchase the apartment property for $44,500, of which $3000 was paid in cash. The balance of $41,500 was payable in monthly installments of $297.33 beginning August 1, 1961. It was agreed further that when Doss had paid to Honeycutt '$5,500 principal on the balance owing, which said sum would make a balance owing seller in the sum of $36,000', the apartment property would be conveyed by deed and a title policy furnished. Doss also agreed to 'assign' to Honeycutt a note 'secured by' six lots, 'not as a sale of the note, but as 'Additional Collateral' put up by the purchaser to secure the indebtedness owed the seller.' (There was no 'assignment', and the parties offer no explanation of the provision).

Doss executed at the same time a $6000 note payable on or before June 21, 1967, secured by deed of trust on the six lots providing for accelerated maturity at holder's option, in case of default in payment of the indebtedness, without demand, presentment or notice. It required Doss to pay taxes on the six lots.

Doss also agreed to pay 'the total sum of at least $6,000 on the unpaid indebtedness on or before six years from' July 1, 1961, at which time it was stipulated Honeycutt would 'release the note on the six lots'. The latter agreement, it was recited, 'does not operate against the usual monthly payments'.

The six lots were conveyed to Honeycutt by trustee's deed reciting sale under power in the deed of trust held on January 5, 1965. It was stipulated Doss was the common source of title to the apartment property and the six lots.

On December 15, 1964 Honeycutt notified Doss by letter that since he was in default of monthly payments under the contract of sale the contract would be declared forfeited in ten days. On February 1, 1965 Doss was notified by Honeycutt that the contract was 'declared forfeited.' It was established without controversy that Doss defaulted in the monthly payments required by the...