O'Herin v. Neal

• Decision Date: 01 December 1932
• Docket Number: No. 4273.,4273.
• Citation: O'Herin v. Neal, 56 S.W.2d 1105 (Tex. App. 1932)
• Parties: O'HERIN v. NEAL et ux.
• Court: Texas Court of Appeals

56 S.W.2d 1105

O'HERIN v. NEAL et ux.

No. 4273.

Court of Civil Appeals of Texas. Texarkana.

December 1, 1932.

Rehearing Denied December 15, 1932.

Appeal from District Court, Gregg County; Reuben A. Hall, Judge.

Suit by H. T. Neal and wife against P. T. O'Herin, wherein the defendant filed a cross-action. From a judgment in favor of the plaintiffs, the defendant appeals.

Affirmed.

On the 26th day of February, 1931, appellant, P. T. O'Herin, filed for recordation among the deed records of Gregg county, Tex., a purported contract, written and signed with pencil upon a small piece of yellow paper, wherein O'Herin agreed to pay H. T. Neal $750 for one-fourth interest in royalty, and appellee H. T. Neal agreed to deliver for that amount of money a royalty deed for "one-fourth interest in the 41½ acres lying northeast of Kilgore, Texas, and joining the West Daniel land." The instrument bore no acknowledgment, but was attached to an affidavit made by appellant to the effect that he purchased from H. T. Neal "one-fourth the royalty undivided in and to 41½ acres of land belonging to H. T. Neal, situated in Mary Van Winkle Survey northeast of the town of Kilgore in Gregg County, Texas, and adjoining the West Daniel land," that he had in due time offered to perform his contract and pay the stipulated purchase price, but that Neal had refused to carry out the contract, and the public was warned of affiant's rights in the property.

This cause was instituted by appellees H. T. Neal and wife, Melissa Neal, to remove cloud from title to 41½ acres of land on the Mary Van Winkle survey in Gregg county, described by metes and bounds in plaintiff's petition. They alleged that the penciled contract with O'Herin was void, because, among other reasons including fraud, "no property is described in said contract, and said contract is void for want of description," but that the recordation of said contract along with the affidavit accompanying it cast a cloud upon the title to their property, and prayed that it be removed.

Appellant answered by general denial and exceptions and cross-action over against appellees alleging the contested instrument to be a bona fide contract, made in good faith, valid in every respect, and prayed for specific performance.

The case was tried before a jury, and at the conclusion of the testimony the trial court refused to permit the introduction of the contract in evidence, and instructed a verdict for appellees.

Campbell, Lee, Taylor & Leak, of Longview, for appellant.

George Prendergast, of Marshall, and Edwin Lacy, of Longview, for appellees.

BLALOCK, Chief Justice (after stating the case as above).

Appellant presents as grounds for reversal the action of the court in holding the contract inadequate and insufficient to form the basis of an action for specific...