Hardin v. Abbey

• Decision Date: 22 November 1881
• Docket Number: Case No. 1095.
• Citation: 57 Tex. 582
• Parties: NANCY B. HARDIN v. NANCY L. ABBEY ET AL.
• Court: Texas Supreme Court

57 Tex. 582

NANCY B. HARDIN

v.NANCY L. ABBEY ET AL.

Case No. 1095.

Supreme Court of Texas.

Nov. 22, 1881.

APPEAL from Kaufman. Tried below before the Hon. Green J. Clark.

Suit in September, 1880, by Mrs. N. L. Abbey, joined by some of the heirs of her deceased husband, against R. E. Hardin, E. P. Anderson and others, seeking to recover one thousand three hundred and sixty-eight acres of land, or in the alternative, specific performance of an agreement to convey three hundred and sixty-eight acres of the one thousand three hundred and sixty-eight. The petition sets out a power of attorney from Mrs. Abbey to Jack Davis, dated April 17, 1875, empowering him “to bargain, sell and convey on such terms and conditions as he may deem proper and to my interest and behoof, all my right, title, interest and claim whatsoever in and to one thousand three hundred and sixty-eight acres of land,” the land in controversy; also empowering him “to pay off my debt or debts reduced to judgment in the district court of Hood county, whether the same is against me as administratrix of the estate of said J. W. Abbey, or against me individually.” It alleges that on May 20, 1875, Davis, pretending to act under said power, undertook to convey to E. P. Anderson, the agent and attorney of R. E. Hardin, the entire one thousand three hundred and sixty-eight acres, the consideration being the satisfaction of a judgment of the district court of Hood county against Mrs. Abbey, administratrix, and the obligation of Anderson to reconvey to Mrs. Abbey and Davis “three hundred and sixty-eight or four hundred and sixty-eight acres” of the one thousand three hundred and sixty-eight, “said amount to be determined by the quality of the land;” also that Mrs. Abbey owned whatever interest Davis acquired under this obligation; that at the time of the execution of this power of attorney, Mrs. Abbey was the owner of one-half of the one thousand three hundred and sixty-eight acres, and her co-plaintiffs were the owners of one-fourth; and that, subsequent to the date and delivery of said power, Mrs. Abbey became the owner of the other one-fourth. It denies that the power of attorney authorized Davis “to sell, barter and convey the whole or any part of said land,” and alleges the failure of Anderson and the other defendants to comply with the obligation to reconvey, and that the consideration of the conveyance by Davis had failed. In a separate count there were general averments of ownership and ouster as in trespass to try title. The prayer was “for judgment for the restitution of said tract of land, and that said premises and agreements made, executed and delivered by E. P. Anderson to Jack Davis and N. L. Abbey as aforesaid may be specifically performed, and for their damages, costs of suit, and for all such other and further relief as they may be entitled to in law and equity.”

The special answer of defendant contained the allegation that the judgment recovered by R. E. Hardin in the district court of Hood county was for a community debt of Abbey and wife, and that the land conveyed was property of the community; that Anderson, Hardin's attorney, and Davis, Mrs. Abbey's attorney, settled the judgment by the conveyance of the one thousand three hundred and sixty-eight acres to Anderson, who subsequently conveyed by deed duly recorded one thousand of the one thousand three hundred and sixty-eight acres to Hardin. It denied any knowledge of Anderson's obligation to reconvey three hundred and sixty-eight acres, and set up the laches of plaintiff as against their claim for specific performance. Gray, one of the defendants, and Nash, an intervenor, claimed three hundred and sixty-eight acres of the land as innocent purchasers from Anderson.

The evidence was that the judgment in Hood county was on a note signed by J. W. Abbey, and that the one thousand three hundred and sixty-eight acres of land was the community property of J. W. Abbey and wife, Nancy L. Abbey. The deed from Davis to Anderson recites that it is made “in consideration of a judgment in the district court of Hood county, satisfied against N. L. Abbey, administratrix of the estate of J. W. Abbey, deceased, and for the further consideration of two hundred acres of land conveyed by E. P. Anderson to N. L. Abbey.” The evidence of Anderson and of Davis shows that the two hundred acres referred to was a part of the three hundred and sixty-eight or four hundred and sixty-eight acres to be reconveyed, and the specification of the quantity in that way is explained by Davis thus: that if Mrs. Abbey was willing to take land of less than the average of the entire tract, the reconveyance was to be of four hundred and sixty-eight acres, otherwise of three hundred and sixty-eight. The deed from Anderson to Hardin conveyed a specific one thousand acres of the one thousand three hundred and sixty-eight acre tract; was made March 8, 1877, and recorded in December, 1877. Anderson testified that Davis was to procure the deed to him to be signed by all the heirs of Abbey, but did not do so. That the quality of the land was not as represented. For these and other reasons he did not reconvey the three hundred and sixty-eight acres, but felt authorized to sell it. Much of the evidence is omitted, as not bearing on the questions noticed in the opinion.

Before the trial the death of Hardin was suggested, and his widow, being also the executrix of his will, joined by his heirs, became parties defendant.

The court trying the case without a jury, rendered judgment for plaintiffs against Mrs. Hardin, Anderson, and the heirs of Hardin, for the one thousand acres of land conveyed to Hardin by Anderson; and in favor of Gray and Nash for the three hundred and sixty-eight acres purchased by them of Anderson. From this judgment Mrs. Hardin appealed.

Grubbs & Morrow, for appellant??

Smith & Word, for appellees.

I. Nancy B. Hardin having failed to insist upon her demurrer in the lower court, this court will treat it as waived. Nancy B. Hardin filed a general demurrer only to plaintiffs' petition. No action of the lower court was had upon this. Rules of Supreme Court, 26; Mims v. Mitchell, 1 Tex., 443;Jones v. Black, Id., 527; Sayles' Practice, § 473.

II. Plaintiffs' first amended original petition presented a cause of action entitling them to the relief sought and obtained. The first count in plaintiffs' petition set forth defendant's title to the land, and at the same time attacked it. It also set out the contract sought to be enforced. The second count was in the usual form of a petition in suits of trespass to try title. Each count contained all necessary allegations to render it complete within itself, and each presented a good cause of action. The object sought was alternative relief. The prayer was both special and general. Rules of Supreme Court, 24, 25, 26 and 27; Atchison v. Hutchison, 51 Tex., 232;28 Tex., 107;37 Tex., 85; Id., 233; Rules of Supreme Court, 4; 46 Tex., 421;45 Tex., 440; Id., 415; 22 Tex., 626;44 Tex., 649;29 Tex., 360;52 Tex., 266.

III. Plaintiffs being ignorant of the disposition made of the land by Jack Davis, cannot be said to have ratified the same, and cannot be charged with laches in repudiating his unauthorized acts in reference thereto. Plaintiff N. L. Abbey knew nothing of the disposition made of the land by Jack Davis until a short time before the institution of this suit. The other plaintiffs refused to join in the execution of the power of attorney, and knew nothing of its being executed by N. L. Abbey. The deed from Jack Davis to N. L. Abbey was executed but a few days before the institution of this suit, and was intended to prevent the necessity of his being made a party to the same. Nancy B. Hardin is in no condition to claim that she is an innocent purchaser. Commercial Bank v. Jones, 18 Tex., 811;Vincent v. Rather, 31 Tex., 77;Reese v. Medlock, 27 Tex., 120;Smith v. Sublett, 28 Tex., 163; Story on Agency, § 78.

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