Gillian v. Day
| Decision Date | 23 March 1944 |
| Docket Number | No. 11619.,11619. |
| Citation | 179 S.W.2d 575 |
| Parties | GILLIAN et al. v. DAY. |
| Court | Texas Court of Appeals |
Appeal from District Court, Harris County; Phil D. Woodruff, Judge.
Action in trespass to try title by Richard C. Gillian and wife against W. C. Day, in which defendant filed a cross-action. From a judgment for defendant, plaintiffs appeal.
Affirmed.
See, also, 181 S.W.2d 327.
Dick Young and P. Harvey, both of Houston, for appellants.
Albert J. DeLange, Frank A. Stamper, and Robert P. Beman, Jr., all of Houston, for appellee.
This action in trespass to try title was instituted by appellants, Richard C. Gillian and his wife, Eva Gillian, for the recovery from appellee, W. C. Day, of the title and possession of Lots Nos. 28 and 29, Block 209, in Houston Heights Addition to the City of Houston.
Appellee answered by a general denial, a plea of not guilty, various pleas of limitation, improvements in good faith, and taxes paid. By cross-action in trespass to try title he sought recovery of the title and possession of the lots in controversy.
Appellants answered appellee's cross-action by pleas of general denial and not guilty and by plea that they held the lots in controversy under a contract of purchase from O. M. Carter, the common source of title. They specially pled the ten-year statute of limitations and by trial amendment tendered the balance due, if any, on the purchase price of said property.
At the conclusion of all the evidence the court granted appellee's motion for an instructed verdict and rendered judgment that appellants take nothing by their suit and that appellee recover the title and possession of the lots in controversy on his cross-action.
By contract dated February 17, 1919, Richard C. Gillian and his wife entered into a contract with O. M. Carter to purchase the lots in controversy for the agreed price of $460, of which sum $5 was paid in cash and the balance, with 8% interest, was to be paid in 120 monthly installments of $5.50 each, one installment being due and payable each month thereafter until the purchase price, with interest, was fully paid. The contract provided that Gillian should take immediate possession of the property and that the vendor would convey said lots to him by general warranty deed when the purchase price was fully paid. It provided that the vendor should pay all taxes thereafter levied against the property and that past-due installments of the purchase price and taxes paid by the vendor should bear interest at the rate of 10% per annum.
The contract provided that:
Appellant, Richard C. Gillian, took possession of the purchased lots immedately after the execution of said contract, built a small house, and made other improvements thereon, and occupied the property as a home until about 1935 when he rented it to one Albert Turner, who occupied and paid rental thereon to Gillian until April, 1942.
Appellant Gillian introduced in evidence on the trial of the case numerous receipts showing payments on the purchase price of said property up to November, 1941. Appellee introduced in evidence the ledger sheets from the O. M. Carter office which were identified by the accountant and office manager under whom they were made. These ledger sheets showed all payments on said lots for which Gillian held receipts and the dates in which the payment were made. They showed a balance due by Gillian on the purchase price of said lots of $49.81, principal, $6.55 interest, and $208.64 in taxes that had been paid by O. M. Carter and his agents on said property for which they had not been reimbursed. This amount was exclusive of interest on the amount of taxes paid.
By amended pleadings appellants alleged that they had made full payment of the purchase price for said lots under the terms of their purchase-money contract. They did not plead, however, any lost receipts or any additional amounts other than the amounts for which they held receipts. On the trial they offered evidence to prove payments of indefinite amounts to unidentified parties who were not shown to have had authority to collect the payments alleged to have been made. The court, we think, properly excluded this evidence. The record shows that numerous letters were written to Gillian by the O. M. Carter office demanding that he pay the balance due on the purchase price of said lots and that in a letter written September 5, 1941, he was told that no other payments would be accepted unless the full balance due on the purchase price for said lots was made. Thereafter Gillian offered to make several payments but no payment was tendered of the full amount shown by the record to have been due, prior to the filing of this suit.
By deed dated April 6, 1942, Carroll M. Carter, who held the record title to the lots in controversy under O. M....
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