Gambrell v. Tatum
| Decision Date | 16 February 1921 |
| Docket Number | (No. 1753.) |
| Citation | 228 S.W. 287 |
| Parties | GAMBRELL et al. v. TATUM. |
| Court | Texas Court of Appeals |
Appeal from District Court, Swisher County; R. C. Joiner, Judge.
Suit by E. P. Tatum against W. E. Gambrell and others. From judgment overruling defendants' plea of privilege defendants appeal. Affirmed.
Dickson & Newton, of Seymour, and Williams & Martin, of Plainview, for appellants.
Culton & Taylor and Jordan & Zimmermann, all of Tulia, for appellee.
On the 20th day of September, 1920, appellee Tatum and appellant Gambrell entered into a written contract, by the terms of which Tatum sold a section of land in Swisher county, Tex., to appellant, for a consideration of $33,000, payable $13,000 cash upon delivery to Gambrell of an abstract of title, showing good merchantable title, together with general warranty vendor's lien deed, signed by Tatum and wife, conveying title to Gambrell. Gambrell was to assume payment of eight vendor's lien notes for $2,500 each. Tatum was to furnish an abstract within 10 days from date, and send it to the First National Bank of Seymour, Tex., to be examined by Gambrell's attorney. He was to have 10 days for examination, and in event of any defect Tatum was to have 30 days further time to cure the same. "Party of the second part (Gambrell) has this day paid the sum of $1,000.00 on said cash payment, which said sum shall be deposited in the First National Bank of Tulia, Texas, in escrow, together with a copy of this contract, and on final consummation of this deal applied on said cash payment, but in the event party of the first part (Tatum) should fail or refuse to comply with his part of this contract, said money shall be returned to the party of the second part, without waiver of any other rights or remedies he may have in law or in equity, under this contract." Tatum bound himself, at his own cost and expense, to finish breaking the balance of the stubble land; that he would give immediate possession of the premises upon final consummation of the deal. In addition to the land he so contracted to sell all the row crop thereon, free of all incumbrance, and also to sell a McCormick header binder. Appellee brought this suit against Gambrell, alleging his residence to be Baylor county, Tex., and against the First National Bank of Tulia, a corporation having its principal office and place of business in Swisher county, Tex.
Appellee set out the contract in his petition, alleging he had complied therewith by furnishing the abstract and deed called for in the contract and within the time stipulated; that he tendered the deed and offered delivery of immediate possession of the land, and demanded that Gambrell accept the deed and pay him the balance of the cash consideration, $13,000, together with the $1,000 cash in escrow in said bank, but that Gambrell refused to accept the deed, and refused to pay the cash consideration or any part thereof, and instructed the bank to return the $1,000 to him and the bank, though appellee is entitled to the money so deposited, failed and refused to pay the sum over to appellee upon demand being made therefor; that by virtue of the law appellee is entitled to a vendor's lien on the land for payment of the cash consideration. Appellee also sues for labor and work, in breaking and sowing wheat on the place, at the request of Gambrell, and for cutting and heading the row crop on the place and for the price of the header binder, in the total sum of $837. He prays for specific performance of the contract; that he have judgment for the sum of $13,000 cash payment and for the sum of $837, for work, etc., and for interest; that he have judgment against both defendants for the $1,000 on deposit with the bank, and that when paid the same be credited upon the cash payment for the land, and for a foreclosure of the vendor's lien therefor upon the land, feed, etc. The appellant Gambrell filed his plea of privilege to be sued in Baylor county, the place of his residence, negativing any exception to such right, authorizing suit in Swisher county. The appellee filed his controverting affidavit, admitting Gambrell's residence to be in Baylor county, but alleges that under subdivision 4 of article 1830, R. C. S., the suit was properly filed in Swisher county, in that one of the defendants', the First National Bank of Tulia's, place of business was Tulia, Swisher county, the place where the suit was filed; that the $1,000 was deposited with the bank as payment on said land, and was to be applied on the cash consideration on the consummation of the deal, and that the bank refused to turn over the money to appellee, appellee alleging that said sum was sued for as part of the consideration in the trade; that the court had jurisdiction under exception 5 of said article, in that it shows necessarily that a material part thereof was to be performed in Swisher county; that the $1,000 was to be paid therein, and that such sum was then in the bank under the terms of the contract, and, further, that cutting, the feed, etc., was in Swisher county; that exception contained in subdivision 12 of the article authorizes suit in the county where the land is situated upon which a mortgage or other lien is sought to be foreclosed; that this exception applies, as this was a suit to foreclose an equitable lien in appellee's favor in the county where the land is situated, growing out of the fact that the land was sold to Gambrell by appellee, which Gambrell had failed and refused to pay for, according to the terms of the contract. The appellant Gambrell excepted to the affidavit controverting the plea to the jurisdiction.
We do not believe it necessary to set out the exceptions, as they are general in their nature, to each of the grounds relied on by appellee. The trial court heard evidence on the plea and the controverting affidavit. The facts show the residences of the respective parties were as stated in the pleadings. The contract sued on was offered in evidence. It was shown the contract was made in Swisher county, and that a copy thereof, with $1,000, was deposited in the bank, on the date of its execution, and was then in the bank; that the bank refused to turn over the money to appellee upon demand, and that Gambrell notified the bank to return the money to him, and instructed it not to pay the same to appellee, There appears to be no complaint in this court at this time that appellee failed to comply with the conditions imposed on him by the contract, or rather that the evidence does not show such fact. The facts before the trial court simply show that the attorney for Gambrell disapproved of the title as furnished by the abstract. The appellee specifically alleged the objections which the attorney had made to the abstract, and endeavored to show that the title was such as called for by the contract. We have not gone into the question as to whether there was a compliance shown by the evidence on the part of appellee, as no issue thereon is made in this court by assignment or otherwise. The court rendered judgment overruling the plea of privilege, from which judgment this appeal is prosecuted.
The appellants advance the propositions: (1) That the bank was not a necessary or proper party to the suit, and therefore that subdivision 4 of article 1830 has no application; (2) that subdivision 5 of the article has no application, because the contract in writing does not show the contract was to be performed in Swisher county; (3) subdivision 12 is inapplicable because the facts pleaded show affirmatively ownership of the land in appellee, and fail to show an express or implied lien which appellee could foreclose.
The bank in the case being the depositary of $1,000 of the purchase money held by it in escrow, which the appellee Tatum asserts under the contract should be turned over to him, presents the question whether the bank was a necessary or proper party to the action declared upon. Specific performance by a vendor is maintainable though the relief actually obtained by him is usually only the recovery of the purchase price. Pomeroy's Equity Jurisp. vol. 5, § 2169; Clifton v. Charles, 53 Tex. Civ. App. 448, 116 S. W. 120. By the terms of the contract declared on the bank retained part of the purchase price, which was to be paid on the cash consideration provided for in the contract. This sum is in controversy, and is a part of the cause of action of which the bank as a stakeholder is trustee, and as such is interested in the subject-matter. Subdivison 4, art. 1830, R. C. S., in authorizing a suit in the county of the residence of one of the defendants, contemplates a real defendant, and...
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