Edgar v. Bartek

Decision Date29 March 1974
Docket NumberNo. 849,849
Citation507 S.W.2d 831
PartiesNola Mae EDGAR, Appellant, v. William J. BARTEK, Jr., et ux., Appellees.
CourtTexas Court of Appeals

Jack Haney, Huntsville, for appellant.

Armond G. Schwartz, Hallettsville, for appellees.

OPINION

BISSETT, Justice.

This is a venue case. William J. Bartek, Jr. and wife, Irene E. Bartek, filed suit in the District Court of DeWitt County, Texas, against Nola Mae Edgar, a widow (the surviving wife and heir at law of Marvin Edgar, Deceased), wherein they prayed that cloud from title be removed from two tracts of land, one situated in DeWitt County and the other in Jackson County. Defendant filed a plea of privilege to be sued in Walker County, where she resided. Plaintiffs, in their controverting plea, invoked Subdivision 14, 1 Article 1995, Vernon's Ann.Civ.St.

Hearing was before the court without a jury. The plea of privilege was overruled insofar as the cause of action with respect to the DeWitt County land is concerned and was sustained as to the Jackson County land. Defendant has perfected an appeal to this Court from that part of the judgment which overruled her plea of privilege. Plaintiffs did not perfect an appeal as to that part of the judgment which sustained the plea of privilege. We affirm the judgment insofar as the Jackson County land is concerned, and reverse the judgment as to the DeWitt County land. The parties will be referred to as plaintiffs and defendant, as they were in the trial court.

The question to be decided by this Court is whether the suit is for specific performance of an executory contract for the sale of land, or whether it is one to recover equitable title to land or to remove cloud from title to land. We hold that the suit is for specific performance of a contract for the sale of land.

Findings of fact and conclusions of law were neither requested of nor filed by the trial court. No one filed a motion for new trial.

Plaintiff must satisfy two requirements in order to bring a case within the provisions of Subdivision 14: first, the nature of the suit must come within the terms of the exception; second, the land must be situated in the county where suit is filed. Dossey v. Oehler, 359 S.W.2d 624 (Tex.Civ.App.--Eastland 1962, writ ref'd n.r.e .); Stewart v. Whitworth,453 S.W.2d 875 (Tex.Civ.App.--Houston 1st Dist. 1970, writ dism'd). The first requirement must be determined from the plaintiff's petition, and the second must be determined from the evidence. Fannin Bank v. Johnson, 432 S.W.2d 138 (Tex.Civ.App.--Houston 1st Dist. 1968, writ dism'd).

The controverting affidavit did not contain any factual allegations relied upon by plaintiffs to sustain venue, the only reference being to the original petition. Therefore, the only facts alleged are those contained in the original petition.

Plaintiffs alleged in their original petition that defendant and her husband (who was deceased at the time the petition was filed), under a written contract of sale, executed in October, 1971, agreed to sell and convey certain lands in DeWitt County to them for the total sum of $7,327.45, to be paid as follows: 1) the execution and delivery by plaintiffs to defendant (and her husband) of their promissory note in the sum of $3,000.00, to be paid by plaintiffs in monthly installments of $50.00 each; and 2) $4,327.45, being the unpaid balance on a note then due and owing by defendant (and her husband) to Cuero Federal Savings Association, to be paid by plaintiffs to defendant (and her husband) in the monthly installments demanded by the noteholder. The monthly payment required by Cuero Federal was alleged to be $73.00, which included principal and interest on the note, insurance and taxes. Under the contract, attached to and made a part of the petition, defendant (and her husband) agreed to pay to Cuero Federal all sums required by it 'for payment of principal, interest, insurance and taxes'. Upon the full and final payment of all sums agreed to be paid, defendant (and her husband) were obligated by the contract to convey the DeWitt County land to plaintiffs by general warranty deed .

The petition also contained allegations that 'among the insurance policies was a mortgagor's life policy paying the balance due on such note to Cuero Federal' on the death of Marvin Edgar, that plaintiffs paid the premium on said policy as required by the contract, that Marvin Edgar died, and that the Cuero Federal note was fully paid. Plaintiffs next alleged that they called upon defendant 'to furnish a release to such premises and have from time to time tendered her the balance due on the $3,000.00 note and requested a release on such property called for under this contract and secured under the $3,000.00 note', but that defendant refused to deliver such 'release'.

Defendant, in addition to filing a plea of privilege, also filed a general denial and a cross-action, wherein she sought specific performance of the contract by asking that plaintiffs be required to pay to her the outstanding balance due under the contract of sale. Plaintiffs then filed a pleading denominated 'plaintiffs' first supplemental petition' in answer to the cross-action, wherein they, too, asked for specific performance of the contract by requiring defendant to execute and deliver to them a deed to the DeWitt County land.

It was stipulated that defendant was a resident of Walker County at the time suit was filed, and that the lands involved in the suit are located in DeWitt County and in Jackson County, but that such lands are not contiguous. The district clerk testified that 'twenty-four hundred (dollars) something' had been paid by plaintiffs into the registry of the court for the benefit of defendant. Plaintiffs introduced their original petition and their first supplemental petition into evidence. Defendant offered her plea of privilege into evidence. No other evidence appears in the record.

Plaintiffs, in their second counterpoint, contend that the defendant waived her plea of privilege by filing her cross-action seeking affirmative relief before hearing on the plea of privilege was held. This contention cannot be sustained. While the record shows that the cross-action was filed before there was a hearing on the plea of privilege, the test as to whether defendant waived her plea of privilege is not whether she filed her cross-action before hearing on the plea, but whether she invoked action of the court on the cross-action prior to insisting that her plea of privilege be heard. Here, defendant timely insisted on a hearing on her plea of privilege, and did not invoke action on the cross-action in advance of a hearing on the plea. The cross-action and the issues raised by it were never submitted to the trial court for determination or decision prior to the hearing on the plea of privilege. The mere filing of the cross-action, even though the privilege of venue is not expressly saved in the plea (as is the case here), does not constitute a waiver of the right to be sued in the county of one's residence. O'Neal v. Texas Bank & Trust Company of Sweetwater, 118 Tex. 133, 11 S.W.2d 791 (1929); Thompson v. O'Donohoe,482 S.W.2d 711 (Tex.Civ.App.--Waco 1972, n.w.h.); Geary, Hamilton, Brice & Lewis v. Coastal Transport Co., 399 S.W.2d 878 (Tex.Civ.App.--Dallas 1966, n.w.h.); Panther Oil & Grease Mfg. Co. v. Anderson, 138 S.W.2d 561 (Tex.Civ.App.--San Antonio 1940, n.w.h.). Moreover, plaintiffs did not plead or urge waiver of any kind in the trial court by pleading, exception, objection or otherwise. The cross-action was not introduced in evidence to establish waiver. The assertion that defendant waived her plea of privilege is made for the first time on appeal. We hold that defendant, under the circumstances shown by the record, did not waive her plea of privilege.

We now consider whether or not the trial court erred in overruling defendant's plea of privilege with regard to the DeWitt County land. It was stipulated that the land covered by the contract was located in DeWitt County. In determining venue, it remains for this Court to determine the nature of the suit solely from the facts alleged in plaintiff's petition, the rights asserted, and the relief sought. Renwar Oil Corporation v. Lancaster, 154 Tex. 311, 276 S.W.2d 774 (1955); Shellberg v. Shellberg, 428 S.W.2d 117 (Tex.Civ.App.--Fort Worth 1968, writ dism'd).

The ultimate or dominant purpose of the suit determines whether or not a suit falls under Subdivision 14. Morgan v. Box, 449 S.W.2d 499 (Tex.Civ.App.--Dallas 1969, n.w.h.); Texaco, Inc. v. Gideon, 366 S.W.2d 628 (Tex.Civ.App.--Austin 1963, n.w.h.); Wagner v. Pulliam, 361 S.W.2d 470 (Tex.Civ.App.--Eastland 1962, n.w.h.). The nature of plaintiff's action is not determined by the language in the prayer of the petition; the prayer has no bearing on the question of whether the petition shows an action under the provisions of Subdivision 14. Lake v. Reid, 252 S.W.2d 978 (Tex.Civ.App.--Texarkana 1952, n.w.h.); Allison v. Yarborough, 228 S.W.2d 930 (Tex.Civ.App.--Amarillo 1950, n.w.h.).

The law is well settled in this State that a suit for specific performance of a contract of sale and purchase of land is not within Subdivision 14 of Article 1995. Smith v. Hall, 147 Tex. 634, 219 S.W.2d 441 (1949); Madeley v. Oualline, 449 S.W.2d 352 (Tex.Civ.App.--Beaumont 1969, n.w.h.). A suit to establish title, i.e., one for specific performance, is not within Subdivision 14. Smith v. Hall, supra; Harwood v. Hunt, 473 S.W.2d 287 (Tex.Civ.App.--Beaumont 1971, n.w.h.). A suit for the recovery of land must aver either a legal or equitable title in the plaintiff. W. B. Johnson Drilling Co. v. Lacy, 336 S.W.2d 230 (Tex.Civ.App.--Eastland 1960, n.w.h.); O'Quinn v. Dunagan, 227 S.W.2d 366 (Tex.Civ.App.--El Paso 1949, n.w.h.).

Our Supreme Court has held that there is a marked difference between an equitable right and an equitable title with...

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