Foster v. Bullard, 11997

• Decision Date: 13 June 1973
• Docket Number: No. 11997,11997
• Citation: 496 S.W.2d 724
• Parties: Edwin E. FOSTER, Appellant, v. W. H. BULLARD et al., Appellees.
• Court: Texas Court of Appeals

Page 724

496 S.W.2d 724

Edwin E. FOSTER, Appellant, v. W. H. BULLARD et al., Appellees.

No. 11997.

Court of Civil Appeals of Texas,

Austin.

June 13, 1973.

Rehearing Denied July 11, 1973.

Joe A. Osborn, Kendall, Randle, Finch & Osborn, Austin, for appellant.

J. P. Darrouzet, Sneed, Vine, Wilkerson & Selman, Verne D. J. Philips, Austin, for appellees.

O'QUINN, Justice.

Edwin E. Foster, the appellant, brought this suit to enforce the terms of a first refusal option agreement, made with W. H. Bullard to purchase fifty acres of land out of the James Standifer Survey west of Austin near Barton Creek.

Foster sued Bullard individually and Casa Monte Company, which Bullard and his wife owned and by which entity title was held, and also sued Mutual Savings Institution, to whom Bullard sold the land, as well as the Capital National Bank in Austin, in its capacity as Independent Executor and Trustee under the will of Helen G. Bullard, deceased, who while living was the wife of Bullard.

The defendants filed motions for summary judgment, which the trial court granted and, by judgment entered June 21, 1972, decreed that Foster take nothing by his suit.

The principal issue on appeal is whether the trial court by implication correctly held that description of the fifty acres in the option contract was insufficient under provisions of the Texas statute of frauds, Business and Commerce Code, sec. 26.01 (Acts 1967, 60th Leg., vol. 2, p. 2343, ch. 785 sec. 1; V.T.C.A., Bus. & C . sec. 26.01).

We will reverse the judgment of the trial court and remand the cause for trial.

The record on appeal contains extended stipulations of the parties, four oral depositions, interrogatories, and affidavits and exhibits which the trial court considered in connection with the motion for summary judgment.

Bullard and his wife, as owners of all the stock of Casa Monte Company, a corporation, owned Casa Monte Ranch, consisting of several contiguous tracts of land in Travis County and containing about 2,460 acres. Bullard, as president of the corporation, acted for the company in all transactions with Appellant Foster and in all matters leading to and culminating in sale of the ranch of Mutual Savings Institution.

Title to the parcels of land involved in this suit was gained through a deed, dated January 30, 1953, describing 197.3 acres in two tracts, this acreage being the most southerly part of Casa Monte Ranch. One of the grantors was David L. Tisinger, Trustee, and the instrument for convenience will be called sometimes the 'Tisinger deed.' The 'First Tract' was described in the deed as containing 117.3 acres, out of the Eanes and Fessenden Surveys with metes and bounds set out. The 'Second Tract' was described as containing eighty acres, more or less, located within the James Standifer Survey No. 100, with metes and bounds set out. The two tracts were contiguous, the 'Second Tract' of eighty acres being the most southerly part of the 197.3 acres conveyed by the Tisinger deed.

Bullard, acting for Casa Monte Company, entered into a contract on March 1, 1967, with Appellant Foster for the sale to Foster of thirty acres out of the Second Tract described in the Tisinger deed, and granting to Foster a first refusal right to buy the additional fifty acres 'immediately north of . . . (the 30-acre tract) to the extent of a total of 80 acres, being the above 30 acres and an additional 50 acres.'

The material portions of the contract are quoted:

'1. Seller hereby agrees to sell to purchaser, and purchaser agrees to purchase from seller the following described property:

Thirty (30) acres of land out of the Casa Monte Ranch in Travis County, Texas, said land to be bounded on the East by the West boundary line of the present W. A. Foster property, on the South by the South boundary of Casa Monte Ranch on the creek bluff above Barton Creek, on the West by the West boundary line of the 197.3 acre tract of Case Monte Company, and the North boundary line to be established by competent survey to include 30 acres of land; said North boundary to be at right angles to the W. A . Foster boundary.

'2. * * *

'3. Seller agrees to pay for survey as above described to be prepared by Billy F. Priest, Licensed Surveyor.

'4. * * *

'5. * * *

'6. Seller agrees to give the right of rejection of additional land immediately North of the land above described to the extent of a total of 80 acres, being the above 30 acres and an additional 50 acres. If seller has a bona fide offer to dispose of such additional land, he shall be obligated to offer the additional acreage to purchaser for a period of ten (10) days at a price consistent with the other offer, but not less than $750.00 per acre.'

The 'W. A. Foster property' mentioned in the contract referred to a tract adjoining Casa Monte Ranch on the east, owned by Appellant Foster's son.

Pursuant to paragraph 3 of the contract, Bullard engaged B. F. Priest, a licensed surveyor, in April of 1967 to make the survey. Bullard supplied Priest with a copy of the Tisinger deed of January 1953 for the 197.3 acre parcel and instructed Priest to survey the eighty acres ('Second Tract' in the deed) and to 'cut off 30 acres from the south end.' Following instructions, Priest surveyed the eighty acres described in the Tisinger deed, which Priest found to contain 77.96 acres. Priest located and established a line that would cut off thirty acres from the south end and set pipes for markings at the northwest and northeast corners of the thirty-acre tract.

The southern boundary of the eighty-acre tract was along bluffs above Barton Creek, and the south corners were established from locations made previously by Marlton O. Metcalfe, Travis County Surveyor, for Appellant Foster in connection with his acquisition in 1956 of a tract of 99.8 acres in the Rozier Survey No. 77, adjoining the eighty-acres on the east. The southern boundary of the eighty acres, along the bluffs above Barton Creek, was affirmed in July of 1967 in a boundary deed between Casa Monte and the owners of the Taylor Gaines ranch adjoining the eighty-acre tract on its south. After acquiring the 99.8 acres in the Rozier Survey, Appellant Foster sold the west 50.46 acres of the tract, through the Veterans' Land Board to his son W. A. Foster, and this tract is referred to in the contract set out above as adjoining the Bullard property on the east. Priest testified by deposition that the west boundary of the eighty-acre tract ('Second Tract' in the Tisinger deed), from the northwest corner of the thirty acres Priest cut off to the northwest corner of the eighty acres, followed an old fence and that it was the only fence he found in the area.

The line drawing inserted here, which is diagrammatic and not made to scale, illustrates the arrangement and relation of the several tracts under discussion. The 'First Tract' (117.3 acres) and the 'Second Tract' (80 acres) comprize 197.3 acres described and conveyed in the Tisinger deed of 1953 to First Austin Realty Corporation, an entity owned or controlled by Bullard and through which Casa Monte later acquired title. The 'Second Tract', described in the Tisinger deed as 'containing 80 acres of land, more or less,' is bisected by a dash line to illustrate the thirty acres Bullard sold to appellant, cut out by Priest at Bullard's behest from the south end of the 'eighty acres.'

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The deed by which Appellant Foster acquired the thirty-acre tract was dated May 24, 1967, although the sale was not closed until July 21, 1967. This conveyance described the thirty acres as follows:

'30.00 acres of land, Being a portion of that certain 80.00 acre tract of land out of the James Standifer Survey No. 100 in Travis County, Texas, which was Conveyed to First Austin Realty Corporation by deed of record in Volume 1317 at Page 134, Deed Records, Travis County Texas, And described as Second Tract in said deed, which tract of land containing 30.00 acres is more particularly described by metes and bounds as follows:

BEGINNING at an iron pipe Set in the East line as fenced of the Said First Austin Realty Corporation tract, and from which iron pipe a Concrete monument found at the northwest corner of the John P. Rozier Survey No. 77 in the east line of the James Standifer Survey No. 100, bears N. 29 deg. 29 E 381.20 feet; N 29 deg. 25 E 444.45 feet; N 29 deg. 30 E 280.70 feet, and N. 13 deg. 29 E 5.90 feet;

THENCE With the fence, S. 29 deg. 29 W 202.14 feet and S. 29 deg. 26 W 648.07 feet to a corner fence post on top of the high bluff on the north bank of Barton Creek;

THENCE N. 50 deg. 20 W, at 5.40 feet pass an iron stake, in all a distance of 1968.70 feet to an iron pipe in a rock mound on top of the high bluff on the north bank of Barton Creek, and on the west bank of a canyon;

THENCE With an old fence N. 32 deg 58 E 489.66 feet to a point;

THENCE With the fence N. 30 deg. 54 E. 16.54 feet to an Iron pipe in a rock mound Set;

THENCE S. 60 deg. 25 E. 1907.03 feet to the point of BEGINNING. As surveyed by B. F. Priest, Reg. Public Surveyor on April 25, 1967.' (Emphasis added)

In connection with the closing of the sale to Foster of the thirty acres the parties made an additional agreement, dated July 20, 1967, reaffirming Foster's first refusal purchase right, initially made March 1, 1967, to 'the 50 acres immediately north of the 30 acres conveyed . . .' This agreement identified the contracting parties as they appeared in the deed to the thirty acres and restated the option agreement in the language quoted:

'This agreement made and entered into this 20th day of July, 1967 by and between Casa Monte Company, a Texas corporation, of Austin, Travis County, Texas, Grantor, and Edwin E. Foster, of Travis County, Texas, Grantee, in a certain warranty deed dated May 24, 1967, conveying 30 acres out of the James Standifer Survey No. 100 in Travis Volume ---Page ---Deed Records of Travis...