Foster v. Ross

• Decision Date: 01 December 1903
• Parties: FOSTER v. ROSS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

77 S.W. 990

FOSTER v. ROSS et al.^*

Court of Civil Appeals of Texas.

December 1, 1903.

Appeal from District Court, Harris County; W. P. Hamblen, Judge.

Two separate suits by Corra Bacon Foster against J. H. Burnett for breach of an alleged trust agreement, and for enforcement of the same, and by the latter against the former for breach of warranty of title. Pending the suits, which were consolidated and tried together, Burnett died, and his executors, J. O. and Ellen B. Ross, were made parties thereto. Judgments were rendered against the executors as to the breach of warranty, and in their favor as to the trust agreement, and plaintiff appeals. Affirmed.

Burke & Tarvis and James R. Masterson, for appellant. J. R. Burnett, Edgar Watkins, and Frank C. Jones, for appellees.

GILL. J.

In 1893 Corra Bacon Foster, the appellant, bought of J. H. Burnett (now deceased) a tract of about 3,500 acres of land in Harris county, known as "Pasadena." The agreed price was $60,000, and certain real estate in the city of Houston, belonging to appellant, and known as the "Brady Place," was accepted at a valuation of $18,000 as part payment. Burnett deeded Pasadena to appellant, taking vendor's lien notes for the balance due, and reserving the lien in the deed. Appellant conveyed to Burnett the Brady place, giving a warranty deed therefor. Appellant thereafter made sales of parts of the Pasadena tract, taking vendor's lien notes therefor aggregating between nine and ten thousand dollars. These notes were valueless as mere notes, but valuable because of the liens. They were turned over to Burnett in lieu of his original lien on the land they represented. The notes executed by appellant to Burnett for the purchase money of Pasadena became due, and she found she could not meet them. She approached Burnett, and asked for time and opportunity to sell the land and pay them; her idea being that the value of the land exceeded the balance due, as evidenced by the notes. Burnett consented to cancel the debt if appellant would pay $37,000 "in a few days." This she failed to do. Burnett thereafter sued upon the notes, foreclosed his lien, and bought in the land at foreclosure sale for $500, which sum he credited on the judgment. He had discovered that there existed against the land which he had received from appellant a mortgage for $3,250. This he found it necessary to pay off, with interest. This mere outline of the facts will be supplemented further on in this opinion as the questions presented may require.

Appellant brought this suit against Burnett, averring, in substance, that, prior to his foreclosure suit, Burnett had agreed to buy in the land at foreclosure sale in full satisfaction of his judgment, and deed same to her, or to some one named by her, in case she within a reasonable time should pay him $37,000 cash. She was to find a purchaser for the land for that sum or more, to whom he would make the deed upon payment of the stipulated amount. She averred that, in pursuance of this arrangement, Burnett foreclosed his lien and bought in the land; that, by force of the agreement, he took the title in trust for her; that thereafter, within a reasonable time, she found cash purchasers for a greater sum than the amount named in the agreement, but that Burnett refused to perform his agreement, repudiated the trust, and sold a large portion of the land for large sums to purchasers having no notice of the trust, to her great damage, for which she asks redress, and for the enforcement of the alleged trust against the unsold lands. The consideration averred for the alleged undertaking on the part of Burnett was an agreement on the part of appellant to accept service of the suit as brought in Galveston county, and make no resistance to the foreclosure. The controlling allegation with reference to the nature of Burnett's undertaking was to the effect that he should purchase the land at foreclosure sale, taking title to himself; that such purchase should be in full satisfaction of his judgment; and that in case she thereafter, within a reasonable time, paid him $37,000, or found a purchaser who would buy the lands on terms to her advantage, enabling her to pay the $37,000 and have something left to herself, Burnett should part with the land for that sum. The pleadings disclose no valid defense to Burnett's foreclosure suit, and the facts render it even more certain that she had none. Defendant answered by plea to the jurisdiction on the ground that by this suit plaintiff sought to set aside the judgment of another court. The pleas in bar were general denial, no consideration, the statute of frauds, and the statute of limitations of two and four years. Because of the mortgage on the Houston property, which Burnett found it necessary to discharge, he sued appellant on her warranty. This suit was by agreement consolidated with the suit above mentioned, and the two were tried together.

This, in general outline, is the nature of the litigation we are called on to review. The pleadings are unusually voluminous, covering nearly 50 pages of the record, but we believe a fuller statement of them unnecessary.

Pending the suits, Burnett died, and his executors were made parties. In appellant's suit,...