Farrow v. Sims, 15312

• Decision Date: 12 July 1957
• Docket Number: No. 15312,15312
• Citation: 311 S.W.2d 473
• Parties: C. FARROW, Appellant, v. John SIMS et al., Appellees.
• Court: Texas Court of Appeals

Page 473

311 S.W.2d 473

C. FARROW, Appellant, v.John SIMS et al., Appellees.

No. 15312.

Court of Civil Appeals of Texas, Dallas.

July 12, 1957.

Rehearing Denied Sept. 27, 1957.

On Second Motion for Rehearing Jan. 10, 1958.

Further Rehearing Denied March 21, 1958.

Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Jr., and Wm. Andress, Jr., Dallas, for appellant.

Grady Niblo and Austin S. Dodd, Dallas, for appellees.

DIXON, Chief Justice.

This is a trespass to try title suit, brought in two counts.After trial before the court without a jury judgment was rendered in favor of plaintiffs on both counts.AppellantC. Farrow was the defendant in both counts.As the partiesplaintiff and the land involved were not the same in the two counts, we deem it advisable to discuss the counts separately.

First Count

In the first count appelleeJohn Sims and wife Eula Sims filed a statutory trespass to try title suit against appellantC Farrow for title and possession of a lot 59' by 186', being a part of BlockNo. 2642 of the City of Dallas, Texas.The answer of appellant Farrow was a plea of not guilty.

The evidence establishes that appellees claim title by virtue of a written contract of sale executed by E. A. Stallings, then the owner of the property; and that appellant claims title by virtue of a deed to him later executed by Cora P. Stallings, individually and as independent executrix of the will of E. A. Stallings, deceased.Thus E. A. Stallings is shown to be the common source of title.

Appellant's deed included numerous tracts of land for which appellant paid Cora P. Stallings about $30,000.The lot in controversy was one of the tracts of land described in the deed.

The record discloses that on July 23, 1948 a written contract was executed by Dr. E. A. Stallings as seller and appelleesJohn Sims and Eula Sims as purchasers for the sale and purchase of the lot in controversy.The contract is too long to copy here in full, but we quote material parts:

'The purchase price is $1250.00, payable as follows: $250.00 Cash * * * and the execution by the purchasers of one vendor's lien note in the sum of One Thousand Dollars, payable to E. A. Stallings, or order, due in monthly installments of $25.00 each, including 6 per cent interest payable monthly, the first installment to be due one month after date of deed and one installment thereof due on or before the like day of each month thereafter until paid.

'The said executed note to be secured by Vendor's Lien and Deed to Trust with power of sale and with the usual covenants as to taxes, insurance, and default.

'Seller agrees to furnish Title Policy by Stewart Title Co. to said property, which shall be conveyed free and clear of any and all encumbrances except those named herein.

'Seller agrees, when title objections have been cured, to deliver a good and sufficient General Warranty Deed properly conveying said property to said Purchaser, and Purchaser agrees, when said Deed is presented, to pay the balance of the cash payment and execute the note and Deed of Trust herein provided for.Should the Purchaser fail to consummate this contract as specified for any reason, except title defects, Seller shall have the right to retain said cash deposit as liquidated damages for the breach of this contract, and shall pay to Agent therefrom the usual commission, or, Seller may enforce specific performance of this contract.'(Emphasis ours.)

The contract of sale was not recorded.

The trial court's findings of fact, which find support in the evidence, are here quoted in part:

'(4)E. A. Stallings did not furnish deed or title policy nor was the vendor's lien note executed.The Sims went into immediate possession, paid the $250.00 cash and installments of $25.00 a month beginning August 23, 1948 and continuing with the exception of four months through April 25, 1951.Two other payments of $25.00 were made on August 10, 1951 and October 10, 1951.A total of $1,050.00 including the $250.00 cash payment, was paid on the purchase price of the lot.(5)Dr. E. A. Stallings died August 8, 1951 and on September 7, 1951Mrs. Cora P. Stallings, widow of Dr. Stallings, qualified as independent executrix of his estate.(6) No demand was ever made by Dr. Stallings or Mrs. Stallings on Eula and John Sims for payment of the balance due under the contract of July 23, 1948 nor did either give any notice of intention to rescind the contract.(7) On September 12, 1952Cora P. Stallings, as independent executrix of the estate of E. A. Stallings, conveyed the property described in paragraph 3 to C. Farrow, said lot being included with other property, said deed being filed for record September 19, 1952.(8) At the time of the conveyance on September 12, 1952 to C. Farrow the said Farrow was permitted to deduct the sum of $1250.00 from the purchase price to take care of disputes with various parties as to their rights in the property conveyed.The nature of the disputed rights were (was) not fully known either to Mrs. Stallings or C. Farrow.(9) From date of contract July 23, 1948 until January 2, 1954 John and Eula Sims and the other plaintiffs with the permission of John and Eula Sims remained in possession and used the property described in paragraph 3.Two small houses, one 10 X 12 feet, the other 6 X 6 feet, were placed on the lot, as well as an iron pot for washing clothes and clothes line.At various times there was a garden and chickens, hogs, a cow and mule were kept on the lot.* * * (11) On January 9, 1954C. Farrow entered upon both of said lots, moved the two small houses on the lot described in paragraph 3 off of said lot, cut down several trees and lowered the elevation by about three feet of the east one foot of the lot described in paragraph 10.'

We quote also from the court's conclusions:

'(1) Eula and John Sims acquired an equitable title in the property described in paragraph 3, which equitable title they had on January 2, 1954.(2) Eula and John Sims had a right to possession of the property described in paragraph 3 on January 2, 1954.(3)C. Farrow accepted the deed to property described in paragraph 3 with notice of claims of John and Eula Sims.(4)Mrs. E. A. Stallings, executrix, having made no demand for payment nor given no notice of rescission, had no right to rescind the contract of July 23, 1948.(5) Eula and John Sims are entitled to recover title and possession of the property described in paragraph 3.'

In his first point on appeal appellant Farrow says that the contract between E. A. Stallings and appellees John and Eula Sims was purely executory, unacknowledged and unrecorded; that appellees had defaulted in the payment of the purchase price; and that they had executed neither the note nor the deed of trust called for, nor did they ever request or receive a deed to the property from E. A. Stallings; consequently, says appellant, appellees do not have sufficient title, equitable or otherwise, to maintain an action in trespass to try title against Farrow, a purchaser and grantee in a deed from the record titleholder.

In support of his contention appellant cites us the cases of Barker v. Temple Lumber Co., 120 Tex. 244, 37 S.W.2d 721, andGillian v. Day, Tex.Civ.App., 179 S.W.2d 575.In these and other cited cases it is held in effect that the purchaser of property under an executory contract of sale can only perfect his title to the land purchased by paying the purchase price in accordance with his agreement and that, upon his failure to do so, the vendor, having retained superior title, has the right to rescind the sale and convey the property to another.In such case the rescission is held to be binding on the defaulting purchaser named in the contract to the extent that he cannot successfully maintain an action in trespass to try title against those claiming under the original vendor.

We do not disagree with the holdings in the cases cited by appellant, but we are of the opinion that the holdings are inapplicable here for the following reasons:

(1) In the instant case the vendor himself, not the vendee, is in default.The written contract expressly obligated the vendor to deliver a warranty deed and a title policy to appellees upon their making the cash payment of $250.Appellees made the cash payment, but the vendor never executed and delivered to them a warranty deed to a title policy.The first monthly installment of $25 was not to become due until one month 'after date of deed.'There is nothing in the record to show that appellees refused to execute the $1,000 installment note and deed of trust--in fact there is nothing in the record to show that they were ever asked to do so.Nevertheless appellees made more than thirty of the monthly payments.

(2) There is evidence in the record that appellees tried to make additional payments.Appellees had moved to California, but testified they came to Dallas two or three times a year to visit their mother and sisters.On one occasion appelleeEula Sims and one of her sisters went to Terrell, Texas to see Dr. Stallings about the property, but he was too ill to be interviewed.He died about a week afterward.Eula Sims made one payment after his death and testified that she tried to make others, but the attorney representing the estate told her that the estate's files were in such a confused state that he couldn't find where appellees had any claim to the property.

(3) So far as the record shows, neither E. A. Stallings nor Cora P. Stallings, individually and as independent executrix, prior to the execution of the deed to appellantC. Farrow, made any demand on appellees for payment, or gave them any notice of rescission, or claimed the $250 cash payment was being retained as liquidated damages, or ever challenged appellees' possession of the property.

The circumstances above set out, which find support in the evidence, are sufficient to uphold the trial court's conclusion of law that Cora P....