Hill v. Provine

• Decision Date: 13 March 1924
• Docket Number: (No. 1573.)
• Citation: 260 S.W. 681
• Parties: HILL et al. v. PROVINE et al.
• Court: Texas Court of Appeals

260 S.W. 681

HILL et al. v. PROVINE et al.

(No. 1573.)

Court of Civil Appeals of Texas. El Paso.

March 13, 1924.

Rehearing Denied April 10, 1924.

Appeal from District Court, Culberson County; W. D. Howe, Judge.

Action by J. F. Provine and others against C. S. Hill and J. D. Campbell. Judgment for plaintiffs, and defendants appeal. Affirmed.

Burges & Burges, of El Paso, for appellants.

Lea, McGrady, Thomason & Edwards, of El Paso, for appellees.

HIGGINS, J.

The appellees J. F. Provine, W. D. Garren, and J. C. Hunter brought this suit against the appellants C. S. Hill and J. D. Campbell, to recover upon the latter's promissory note dated May 8, 1920, in the sum of $2,549.06, to the order of Hunter. Upon the back of the note is an indorsement by Hunter that it belonged to Provine, Garren, and himself, each owning a one-third interest.

The defendants answered, in substance, as follows: That on May 8, 1920, Hunter executed and delivered to defendants a conveyance of an oil and gas lease upon certain lands in consideration of the payment of $679.88 in cash and the execution of the note sued upon; that at the time Hunter orally and in writing represented to them that said land was free and clear of incumbrances and liens, but in fact same was incumbered by lien in favor of the state to secure purchase money in the sum of $3,758.08, and further incumbered by a vendor's lien in the sum of $9,326 in favor of W. C. Thompson upon purchase-money notes executed by R. L. Gray under whom Hunter deraigned title; that at the time they had no knowledge of these outstanding liens, and in purchasing they relied upon the said representations; that by reason of such liens the lease was of no value and unmarketable, wherefore the consideration for the note had failed; that they had offered to rescind but Hunter refused.

It was also alleged that at the time the assignment and note was executed Hunter agreed to give defendants a number of copies of his opinion upon the title to aid them in disposing of the lease, and Hunter unreasonably delayed furnishing such opinion until the following September, when the demand for oil and gas leases in that section had ceased and the lease had become worthless, wherefore the consideration for the note had failed.

By a trial amendment defendants also set up that at the time the lease was conveyed to them the plaintiff Provine was county clerk of Culberson county, where the land is situate, and was jointly interested as an owner of the lease with Hunter; that Hunter's acknowledgment to the conveyance was taken by Provine, wherefore the record of the conveyance was illegal and void, and they had been deprived of their right to have their title properly recorded, wherefore they were entitled to rescind.

Plaintiffs filed a supplemental petition meeting the defendants' answer. Its contents need not be stated, as no point is made respecting its sufficiency to meet the issues in the case.

Upon the issues made respecting Hunter's promise to furnish an opinion upon the title, the court made this finding:

"Upon the date of said assignment made by Hunter to defendants, to wit, May 8, 1920, but after the same had been delivered and the note and other consideration therefor delivered and the trade between the parties concluded, the plaintiff Hunter, in order to aid defendants in selling their oil and gas rights which they had secured through such assignment, promised to write out an opinion upon the title to said land and oil and gas lease, as the same appeared in the abstract of title, and to furnish several copies thereof to defendants as soon as he could conveniently do so, and he was to make no charge therefor. The said Hunter did later write out such opinion and furnish defendants several copies thereof; but he did not send the same to defendants until the first part of September, 1920, and his delay in not sooner furnishing such opinion I find from the evidence to have been an unreasonable delay and attributable to negligence upon his part. However, the evidence does not show that the defendants were on that account prevented from making any sales or assignments which they might otherwise have done, and it does not appear that the defendants were in fact damaged by the failure of said Hunter to act more promptly in said matter, except that by the time the opinions were received there was no further demand for that character of lease."

This finding shows that the agreement of Hunter constituted no part of the consideration for the note sued upon; that it was a collateral and subsequent agreement, made without consideration and for the accommodation of the defendants. Under such circumstances Hunter's failure to comply therewith affords no defense to the note.

The conveyance by Hunter to appellants provides:

"And for the same consideration, the undersigned for himself and his heirs, successors, and representatives does covenant with the said assignees, their heirs, successors, or assigns, that he is the lawful owner of the said lease and rights and interests thereunder and of the personal property thereon or used in connection therewith; that the undersigned has good right and authority to sell and convey the same, and that said rights, interest, and property are free and clear from all liens and incumbrances, and that all rentals and royalties due and payable thereunder have been duly paid."

Appellants complain of the admission of the testimony of Hunter, Provine, and the witness Neill, that at and before the execution by Hunter of the conveyance he advised appellants of the outstanding liens upon the land in favor of the state and Thomson. The ground of the objection to the evidence was that it undertook to vary and contradict by parol the warranty contained in the conveyance.

Such evidence was not admissible for the purpose of defeating any liability upon the covenant, but it was clearly so in rebuttal of the issue of fraud presented by appellants' pleadings and evidence. Biggs v. Doak, 259 S. W. 665, recently decided by this court.

Passing to that phase of the case relating to the liability of Hunter upon the covenant against incumbrances and appellants' rights thereunder, we are not altogether sure of the nature of the right asserted and relief sought by appellants; that is, to say, whether they seek to rescind because of an alleged breach of the covenant arising out of the existence of liens, or to set up a failure of consideration or a counterclaim in set-off. But under the facts shown they are not entitled to relief upon either view.

The conveyance by Hunter was an executed one. In the case of an executed conveyance, the remedy for mere breach of covenant, unaccompanied by equitable grounds for rescission, is not the equitable one of rescission, but is at law for damages, and in a proper case may be set up in bar of a recovery...