Drury v. Lehmann, 16423

• Decision Date: 28 May 1980
• Docket Number: No. 16423,16423
• Citation: 602 S.W.2d 314
• Parties: Bernard D. DRURY, Executor of the Estate of William E. Hunt, Deceased, Appellant, v. Arnold LEHMANN, Jr. et ux., Appellees.
• Court: Texas Court of Appeals

Page 314

602 S.W.2d 314

Bernard D. DRURY, Executor of the Estate of William E. Hunt Deceased, Appellant, v. Arnold LEHMANN, Jr. et ux., Appellees.

No. 16423.

Court of Civil Appeals of Texas, San Antonio.

May 28, 1980.

Scott S. Parker, Strauss, Jons & Parker, Kerrville, for appellant.

A. J. Saegert, Seguin, for appellees.

OPINION

MURRAY, Justice.

On October 12, 1971, William E. Hunt and wife, Pauline Usrey Hunt, conveyed certain real property located in Guadalupe County, Texas, to Arnold Lehmann, Jr., and wife, Elaine M. Lehmann, appellees, by general warranty deed. As part of the consideration for the sale a promissory note in the amount of $27,000 was given by the appellees to the Hunts. In addition, the appellees executed a deed of trust securing the $27,000 note as a second lien.

The promissory note provided that the unpaid balance would be canceled and the liens released at the death of the survivor of Hunt or his wife, if the appellees were not then in default. William E. Hunt died on March 1, 1979, his wife having predeceased him. The appellant is the executor of William Hunt's estate.

Subsequent to Hunt's death, the appellees requested that appellant execute a release to them of the liens securing the promissory note in accordance with the terms of the note. When the appellant refused to release the liens the appellees filed suit in Guadalupe County, Texas, to remove encumbrances and quiet title to the land. The appellant filed a plea of privilege to be sued in the county of his residence. In their controverting affidavit the appellees relied on exception 14 of Article 1995, Texas Revised Civil Statutes Annotated, as a basis for maintaining venue in Guadalupe County. After a hearing the court overruled the plea of privilege. From this order an appeal has been perfected.

In his only point of error the appellant argues that the appellees' cause of action is primarily a suit for specific performance of the alleged contractual obligations contained in the promissory note, rather than a suit to remove encumbrances or quiet title. Thus, it is contended that venue may not be maintained in Guadalupe County, Texas, under exception 14 of Article 1995. We disagree.

Exception 14 provides that a suit to remove encumbrances or quiet title to land must be brought in the county where the land is located. Tex.Rev.Civ.Stat.Ann. art. 1995, § 14 (Vernon 1964). In order to bring a case within the above provision a plaintiff had the burden of proving two...