Hall v. Rawls

• Decision Date: 05 May 1943
• Docket Number: No. 8004.,8004.
• Citation: 171 S.W.2d 324
• Parties: HALL et al. v. RAWLS.
• Court: Texas Supreme Court

Page 324

171 S.W.2d 324

HALL et al. v. RAWLS.

No. 8004.

Supreme Court of Texas.

May 5, 1943.

Rehearing Denied June 2, 1943.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by Mrs. R. T. Rawls against H. D. Hall and others to acquire title and to recover possession of realty. Judgment for plaintiff was affirmed by the Court of Civil Appeals, 160 S.W.2d 1005, and defendants bring error.

Judgments of the Court of Civil Appeals and of the District Court reversed, and cause remanded to the District Court for new trial.

E. B. Pickett, Jr., Bradford Pickett, and Nolan D. Pickett, all of Liberty, for plaintiffs in error.

Horace D. Grogan, of Liberty, and Sears, Blades, Moore & Kennerly and Fred W. Moore, all of Houston, for defendant in error.

SMEDLEY, Commissioner.

This case, as decided by the Court of Civil Appeals and as presented here, turns upon a question as to burden of proof and the application of Article 2190 of the Revised Civil Statutes of 1925, as amended in 1931 (Acts Regular Session, 42nd Legislature, Ch. 78, p. 120, Vernon's Ann.Civ. St. art. 2190 note), which was in effect when the case was tried.

Mrs. Rawls sued petitioners Wisdom and Hall for the title and possession of a lot numbered 9 in Block 5 of the Edwards Subdivision of the town of Cleveland, alleging specially an oral agreement whereby Wisdom, to whom she had conveyed the lot, promised to reconvey it to her. The trial court's judgment in favor of Mrs. Rawls against petitioners Wisdom and Hall for the title and possession of the lot was affirmed by the Court of Civil Appeals. 160 S.W.2d 1005.

Mrs. Rawls, who owned Lot 9 on and before August 19, 1935, conveyed it on that day to Wisdom by general warranty deed for a recited consideration of $750 paid. On the same day Wisdom executed and delivered to Mrs. Rawls his promissory note for $1,150, due December 29, 1938. Mrs. Rawls alleged and obtained on the trial a jury finding that when the deed and note were executed and delivered it was agreed between her and Wisdom that he would place certain improvements on the lot, would accept the use of the premises to December 29, 1938, as reimbursement to him for the cost of the improvements and would on or before that date reconvey the property to Mrs. Rawls, she to surrender to him, at the time of the reconveyance, the promissory note for $1,150. It clearly appears from the evidence that the note for $1,150 was executed for the purpose of assuring Mrs. Rawls of the performance by Wisdom of his agreement to improve and reconvey the property to her.

There was a controversy between Mrs. Rawls and Wisdom as to the terms of the oral agreement, he contending that she promised to pay him the cost of the improvements to be placed on the lot and an additional $65 as compensation to him and that he agreed to reconvey the lot to her when she made those payments. Wisdom made the improvements and after Mrs. Rawls declined to pay him for them he sold and conveyed the lot to petitioner, Hall, who, according to a finding made by the jury, knew that Wisdom had promised to reconvey the property to Mrs. Rawls. Thereupon Mrs. Rawls, without the consent of Hall or Wisdom, took the possession of the lot and of the house that Wisdom had built on it.

Wisdom, as one of his defenses to the suit, alleged that there was a dispute between him and Mrs. Rawls with respect to the terms of the oral agreement made August 19, 1935, and the rights and obligations of the parties under the agreement, and that in order to settle and adjust the controversy he and Mrs. Rawls made and executed a written contract as follows:

"To Whom It May Concern:

"This Agreement made and entered into this 21st day of September, A. D. 1938, between Mrs. R. T. Rawls and F. Wisdom, that;

"Whereas, Mrs. R. T. Rawls holds a $750.00 note against the said F. Wisdom, and the said Mrs. R. T. Rawls has agreed to accept one certain lot, this day deeded to her, the said Mrs. R. T. Rawls, by the said F. Wisdom, and one 10 × 24 foot house, which is to be moved on the said lots at the expense of the said Wisdom, with two 12 × 12 foot rooms to be built on same, and one 6 × 12 porch, all to be at the expense of the said F. Wisdom, in payment for said moneys due on said note.

"Mrs. R. T. Rawls hereby agrees to deliver to said F. Wisdom the said note upon the completion of the above house, according to the above measurements. And further agrees to give F. Wisdom possession of the building known as the Pago Package Store, upon receipt of the said deed.

                                  "F. Wisdom
                                  "Mrs. R. T. Rawls"
                

Wisdom further alleged that contemporaneously with the execution of the written agreement he executed and delivered to Mrs. Rawls a general warranty deed conveying to her Lot 8 in Block 35 of the Whitmire Subdivision of the Edwards Addition to the Town of Liberty. The execution of the written contract and the execution and delivery of the deed were alleged as a full compromise and settlement of Mrs. Rawls' claims under the oral agreement of August 19, 1935.

Mrs. Rawls, in her supplemental petition, after a general denial, alleged that: "Said alleged settlement agreement was never consummated; that at the time of the execution of said agreement plead by defendants in their said answer as dated, September 21, 1938, plaintiff informed the defendant, Wisdom, that she wished to consult her attorney about the agreement and the deed; that on the day she received same from the said defendant Wisdom, she consulted her attorney, Mr. Love, of Cleveland, who advised her that the deed was no good and accordingly that very day she returned to Wisdom, advised him of the attorney's opinion and tendered the deed back to him, which he refused to accept."

She further alleged that: "There was no meeting of the minds between the said F. Wisdom and the said Mrs. Rawls with reference to said alleged settlement and the agreement was never concluded, it being merely an attempt at settlement on the part of the said defendant, which plaintiff promptly refused as hereinbefore set out."

The substance of these allegations is that the contract of settlement which Mrs. Rawls and Wisdom executed was not effective or was not binding upon her, because it was agreed at the time that the contract and deed were to be submitted to her attorney for his approval, in other words, that she executed the contract conditionally, that is, subject to approval by her attorney.

Mrs. Rawls in her testimony admitted that she and Wisdom executed the written contract and that he executed and delivered to her the deed conveying Lot 8, but her testimony tends to prove that she did not intend to be bound by the settlement and that it was understood and agreed that she...