Gates v. Coquat, 11807.

• Decision Date: 24 March 1948
• Docket Number: No. 11807.,11807.
• Citation: 210 S.W.2d 614
• Parties: GATES v. COQUAT.
• Court: Texas Court of Appeals

210 S.W.2d 614

GATES v. COQUAT.

No. 11807.

Court of Civil Appeals of Texas. San Antonio.

March 24, 1948.

Rehearing Denied April 21, 1948.

Appeal from District Court, 111th District, Webb County; James M. Williamson, Judge.

Action by A. E. Gates against Henderson Coquat to enforce promise to convey land. From an order sustaining a plea of privilege and changing venue to residence of defendant, plaintiff appeals.

Order affirmed.

Mann & Mandel, of Laredo, for appellant.

M. A. Childers, and John J. Cox, both of San Antonio, for appellee.

SMITH, Chief Justice.

This is an appeal from an order sustaining a plea of privilege and changing the venue of this case to Live Oak County, the residence of the defendant, Henderson Coquat. A. E. Gates, the plaintiff, has appealed.

The question presented is whether or not the petition stated a cause of action for the recovery of land under exception 14 of Article 1995, Vernon's Ann.Civ. Stats.

It has been held that the interest of the cestui que trust under a constructive trust is an equitable title upon which an action in trespass to try title may be maintained. Binford v. Snyder, 144 Tex. 134, 189 S.W.2d 471; Hall v. Miller Tex.Civ. App., 147 S.W.2d 266. On the other hand, a suit based upon an equitable right, such as a suit for reformation of a written instrument, or for specific performance of a contract, is not a suit for the recovery of land within the provisions of Exception 14. Garrison v. Stokes, Tex.Civ.App., 151 S.W. 898; Lockett v. Shaw, Tex.Civ.App., 106 S.W.2d 768. Also, it should be borne in mind that a constructive trust is a remedial device which is raised by an equity court so as to get at a wrongdoer. In the absence of a compelling equity, the court will not raise a constructive trust.

From appellant's petition in this case, it appears that Mrs. Francisca Q. Ortiz was the owner of the Apache Ranch in Webb County, containing some 23,000 acres. This ranch was for sale, and appellant, A. E. Gates, was interested in buying six surveys in the northern portion of the ranch — about 3,487 acres. Appellee, Henderson Coquat, wished to purchase the entire ranch. Coquat's agent, J. H. Compton, wrote a letter to Gates in which he suggested that Gates desist in his efforts to buy a part of the ranch, as the writer was "quite sure that the entire tract can be bought at a less figure than by division." This letter, an exhibit to the petition, further stated that if Gates did not attempt to compete, Coquat would convey to Gates the north part of the ranch in which he was interested, at the same price per acre that he Coquat, had to pay therefor. In this letter it was also said that "Mr. Coquat would want to work out with you (Gates) an oil lease."

The petition alleged that Gates relied upon this letter and ceased his efforts to purchase the north surveys of the ranch; that Coquat purchased all of the Apache Ranch from Mrs. Ortiz for eight dollars per acre; that Gates tendered the sum of $27,896 ($8 per acre), to Coquat for the north six surveys, but that said offer had been refused. The petition concluded as follows:

"That plaintiff hereby tenders into court the amount of $27,896.00, being the total amount of the purchase price of said land at $8.00 per acre as agreed on. Plaintiff also alleges that he will, in order to do complete equity herein, attempt to work out with defendant the oil lease mentioned in said Exhibit `A' and in this connection that he offered to do so at the time he demanded performance by defendant as above alleged.

"Wherefore plaintiff prays that defendant be cited to appear herein, and that on a hearing of the merits hereof defendant be ordered to perform said contract by conveying said 6 surveys by general warranty...