Garrett v. Butler

• Decision Date: 20 March 1924
• Docket Number: (No. 1599.)
• Citation: 260 S.W. 1069
• Parties: GARRETT et al. v. BUTLER.
• Court: Texas Court of Appeals

260 S.W. 1069

GARRETT et al. v. BUTLER.

(No. 1599.)

Court of Civil Appeals of Texas. El Paso.

March 20, 1924.

Rehearing Denied April 10, 1924.

Second Rehearing Denied May 1, 1924.

Appeal from District Court, Eastland County; E. A. Hill, Judge.

Suit by J. E. Butler against N. M. Garrett and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Burket, Orr & McCarty, of Eastland, for appellants.

Scott, Brelsford, Funderburk & Ferrell, of Eastland, for appellee.

HIGGINS, J.

The appellee, Butler, brought this suit against the appellants, N. M. Garrett S. P. Seastrunk, Mrs. Birdie Goode and husband.

In his third amended original petition upon which the case was tried appellee sued appellants for the title and possession of a tract of land in Cameron county, Tex., which, it was alleged, appellee had conveyed by deed to appellants in exchange for land in Eastland county, Tex., in pursuance of an agreement that such lands were to be conveyed by each party to the other, free and clear of all liens and incumbrances, save and except a certain lien for $15,000 on the Eastland county property, which appellee was to assume, and certain small claims estimated at $1,000 which were to be adjusted by appellee, paying the same and taking a note of the appellants for the amount thereof.

Appellee predicated recovery on allegations to the effect that prior to the conveyance to him of the Eastland county property an attachment lien, in the sum of $4,680, had been run on said property, without his knowledge, but with the knowledge of appellants, under circumstances alleged to constitute fraud, and to entitle appellee to rescission.

Alternative to the claim of fraud, appellee alleged that the exchange of the lands was made under a mutual mistake of facts by all the parties, as to the existence of the attachment lien, which was material, and prayed for rescission and recovery of the land, cancellation of the deeds, etc., on that ground.

Appellee also sought recovery of damages, in the sum of $1,425.30, for the amounts he had paid in pursuance of the deal for the exchange of lands; $1,000 of such amount having been covered by notes of appellants to appellee, in that amount, as to which it was alleged that no right had been asserted, and the amount covered by same had been claimed as damages, the notes were tendered for surrender and cancellation.

The jury, upon peremptory instruction of the court, returned a verdict for appellee for the Cameron county land, for cancellation of the deed from appellee to appellants, and for damages in the sum of $1,000, and judgment was rendered for appellee in accordance therewith.

The record discloses that Butler lived in Dallas; Garrett and Seastrunk in Eastland. Mr. Cross of Eastland conducted the negotiations between the parties, acting as their joint agent in the exchange of the property. About December 20, 1920, the parties agreed to make the exchange, Butler to assume the payment of an indebtedness of $15,000 against the Eastland property, in favor of an insurance company, which was secured by deed of trust. On December 28th, an abstract of title to the Eastland property, dated December 27th, was delivered to Butler, which upon examination disclosed the property to be free of liens, except the one to be assumed. About December 30th, Butler telephoned Cross telling him the abstract was all right, and he would be out on January 10th to close. About this time or during the negotiations it was discovered that there were some claims against the Eastland property in the way of taxes, interest on the lien, etc., amounting to about $1,000, and the original agreement was modified whereby Butler was to pay these claims, taking the notes of Garrett and Seastrunk therefor, secured by a vendor's lien on the Cameron county land.

On January 4, 1921, Cross wrote Butler at Dallas, as follows:

"We have this day drawn the deeds in the Garrett-Seastrunk-Butler deal, and Messrs. Garrett and Seastrunk have executed their deed, which we are this day filing for record. We inclose you herewith a copy of this deed, this day filed for record.

"We are inclosing herewith a list of the accounts which you agree to assume and pay off, which is as follows: * * *

"You will please execute your deed conveying N. M. Garrett an undivided one-third interest in the land, and to Mrs. Birdie Goode an undivided two-thirds interest in same.

"You may prepare three notes covering the $1,000.00 which you assume as above outlined, payable in one, two, and three years from date, and send same to me, and I will have same executed by N. M. Garrett and Mrs. Birdie Goode.

Thanking you in advance for your usual prompt attention to this matter, I am,

                   "Yours very truly,         A. S. Cross."
                

"P. S. I had the deed filed for record in order that you would be sure of the deal, and that you could immediately send out checks to the above-named parties covering the $1,000.00. Please send your deeds and abstracts at the earliest possible moment, and oblige."

The deed to the Eastland property was dated January 4, 1921, and was filed for record the next day.

Upon receipt of the letter, Butler signed the deed conveying the Cameron county property, and on January 9th took same with him to Eastland. The next day he conferred with Garrett and Seastrunk, and, according to his testimony in response to his inquiry, was assured by them that no change had occurred in the title to the Eastland property since date of the abstract of title thereto, upon the faith of which assurance he delivered the deed to the Cameron county property, and accepted their vendor's lien notes for the $1,000, as agreed, and paid off the claims against the Eastland property.

On the 11th or 12th of the same month he was served with citation upon an amended petition in a suit which had been filed in the district court of Eastland county, cause No. 7493. Such suit was originally filed on December 30, 1920, by the American National Bank against Garrett and Seastrunk, to recover upon two notes aggregating the principal sum of about $4,600, with attorney's fees, and to foreclose an asserted equitable lien upon the Eastland property. The amended petition upon which plaintiff was served with citation was filed January 8, 1921. By the amendment Butler was made a party defendant. This amended petition was offered in evidence by the appellants. Pertinent portions thereof are as follows:

"Plaintiff would further show that heretofore, to wit, on the 30th day of December, 1920, it caused to be issued out of the district court of Eastland county a writ of attachment in said cause, and that, in accordance with said writ, the sheriff of Eastland county, Texas, did, on the 30th day of December, 1920, at 12:30 o'clock p. m., levy upon and take possession as the property of the defendants N. M. Garrett and S. P. Seastrunk, of all the following described real property situated in Eastland county, Texas, to wit: [Here follows description of the Eastland property conveyed to Butler.]

"That said sheriff's return was filed with the district clerk of Eastland county, on December 30, 1920, and that a certified copy of said writ of attachment, with the levy thereof, was filed with the county clerk of Eastland county, on the 30th of December, 1920, and has been duly recorded in the attachment records of Eastland county, volume 2, p. 15, here referred to and made a part hereof for all purposes.

"(8) That defendant J. E. Butler is asserting some right or interest in and to the above described premises by virtue of a deed executed by N. M. Garrett and S. P. Seastrunk, dated January 4, 1921, and filed for record with the county clerk of Eastland county on January 5, 1921, at 1:50 o'clock p. m. Plaintiff alleges that any interest or claim said J. E. Butler may have in and to said premises is inferior, and secondary to said attachment lien, and said equitable lien described, by virtue of plaintiff having furnished defendants Garrett and Seastrunk a portion of the purchase price of said premises."

The prayer as to Butler was that he be made party defendant, and for foreclosure against him of the attachment and equitable lien.

Butler testified that, upon being served with citation, he immediately attempted to get in touch with Garrett and Seastrunk, but found they had left Eastland on the 10th. He waited two days for them to return, and, they not doing so, he turned the matter over to his attorneys who filed the present suit on January 15, 1921, and answered for him in the attachment suit on February 4, 1921, by general demurrer and denial.

Appellee offered in evidence the judgment rendered May 16, 1921, in cause No. 7493, which recites:

"The court further finds that plaintiff has and is entitled to a valid and subsisting attachment lien on the hereinafter described property, by virtue of a writ of attachment levied thereon on the 30th day of December, 1920. The court further finds that plaintiff's attachment lien is superior to a warranty deed executed by defendants N. M. Garrett and S. P. Seastrunk, to defendant, J. E. Butler, said writ of attachment having been filed with the county clerk of Eastland county, for record prior to the filing of said deed from Garrett and Seastrunk to said Butler. The court further finds that said attachment lien should be foreclosed as prayed for,"

— and rendered judgment in favor of the American National Bank against Garrett and Seastrunk for the amount sued for upon the notes, with foreclosure of the attachment lien against all parties. With special reference to Butler the judgment provides:

"It is further ordered, adjudged, and decreed by the court that the attachment lien so secured by plaintiff herein is superior to any rights, title, or interest claimed by the defendant J. E. Butler in and to said premises, under and by virtue of said deed from defendants Garrett and...