Hogan v. Price, 6782

• Decision Date: 30 December 1954
• Docket Number: No. 6782,6782
• Citation: 274 S.W.2d 745
• Parties: Laura B. HOGAN et al., Appellants, v. Alphonso PRICE et al., Appellees.
• Court: Texas Court of Appeals

Page 745

274 S.W.2d 745

Laura B. HOGAN et al., Appellants, v. Alphonso PRICE et al., Appellees.

No. 6782.

Court of Civil Appeals of Texas, Texarkana.

Dec. 30, 1954.

Rehearing Denied Jan. 27, 1955.

Hardy Moore, Paris, for appellants.

Frank D. Wear, Paris, for appellees.

WILLIAMS, Justice.

A deed executed by J. E. Hogan, the common source of title, dated November 27, 1943, forthwith recorded in the Lamar County deed records, purports to convey in fee simple with general warranty of title to appellee Alphonso Price and wife, Tussie, 'a part of Block 3 in the Kinzie A. Pickard addition to the City of Paris, Texas, as shown on the plat of said addition in deed book S, Vol. 2, page 592, Lamar County Deed Records.

'Beginning at a stake in the E.B. line of Pickard Street. 100 feet North of the N.W. corner of Lot 1, Block 3 of said Pickard original addition to the City of Paris, same being the N.W. corner of a lot this day deeded to me by Alf A. Edwards. Thence East 210 feet, a stake in the W.B. line of High Street. Thence North with the W.B. line of High Street 50 feet a stake. Thence West 210 feet a stake in the E.B. line of Pickard Street. Thence South with the E.B. line of Pickard Street 50 feet to the place of beginning. Being the same property described in deed from H. B. Biard and wife to J. E. Hogan on February 2, 1934, recorded in Vol. 221, Page 449, Deed Records of Lamar County, Texas.' The metes and bounds calls in both deeds are identical. The deed recites a $700 cash consideration then paid.

Shortly after receipt of the deed, the Prices moved into the house situated on the East side of the tract where they resided until July, 1946, when according to the testimony of A. H. Jones he purchased from the Prices a part of the tract and moved into the house that the Prices had occupied. This deed into Jones was not introduced in evidence. We will assume that this parcel so acquired from the Prices was 50 X 128 as testified to by Jones, and was the East 128 feet of the 200-foot parcel. If so, this would leave 82 feet remaining on the West end on which some sort of house or dewelling was situated.

On December 12, 1947, the same J. E. Hogan executed and delivered an instrument to A. H. Jones which on its face appears to be a deed of conveyance to the latter, the plaintiff below, of a parcel of land described in the deed as follows: 'All that certain tract or parcel of lots three and four in block three Pickard Addition to the City of Paris as shown by plat of said Addition as surveyed, platted and of record in the Lamar County Records.' This record purports to convey the fee simple title with general warranty of title and recites a total consideration of $950 paid and secured to be paid by A. H. Jones as follows: $100 cash and a vendor's lien note for $850 payable in monthly installments of $20 each. It does not appear that this deed was ever filed for record. Jones had paid a total of $365 on this purchase at time of trial. Hogan died testate in December 1948. His estate was fully solvent. Laura B. Hogan, his widow, and Martha Jo Cass, his only child, were his sole heirs and devisees. Tussie Price died in June or July, 1949, leaving Alphonso Price as her sole heir at law. The plat of the Kinzie A. Pickard Addition is not in evidence.

Price and his wife although proud of their native State of Texas, yielded to the call to go to the Northwest and in the latter part of July, 1946, migrated to the State of Oregon, where, all agreed with pride, that she became the first colored school teacher to be selected for the public schools of that state. The early days of Alphonso's activities will not be detailed for it is sufficient to state that after many trials and errors he finally succeeded in reaching the position of a Pullman porter. Upon the death of Tussie, his wife, in June or July, 1949, he accompanied her body back to Lamar County for burial. It was upon this trip, according to Jones' testimony, that Alphonso 'raised sand' with him about renting and collecting rents off the house situated on the West end of the strip, and at this time 'ousted and booted' Jones out and he (Price) took control of it and had collected the rents since then. In describing this event which occurred July 1, 1949, Jones testified: 'He says, 'Well, that's my place.' Well, it made me mad and I didn't have a whole lot to say; anyway, I was tired and hungry, so I says, 'Well, that's all right.' He said, 'If you ever want it, I will sell it to you,' just like that.

'Q. So when he said it was his place you said, 'That's all right with you?' A. Well, if it was his place, it was his place. I told him, 'I have got the deed.' He says, 'I have got one, too. I have been paying taxes on it.'

'Q. And so you just let him have it. A. I couldn't help myself after the man called down there and told me he had taken possession of it and everything, I couldn't help myself.'

Litigants agreed that Hogan bore the reputation of being an astute business man, well acquainted with property values. Upon learning that the dictionary defines 'astute' to mean shrewd, subtle or crafty, we are in accord. The description of the land conveyed in his deed to the Prices as hereinabove set out is certain and yields to no claim of ambiguity or uncertainty. The description of the tract in his deed into Jones leaves empty hands. The evidence does not disclose when or where Price and wife obtained an abstract to the original 50 X 200-foot tract but the title to the whole was examined by an attorney at the time Jones purchased from Price and wife in 1946. The title at that time was approved before the sale by the Prices to Jones was consummated. Some evidence introduced is to the effect that Price expressed some surprise when this lawyer told Price that his deed from Hogan covered more than 128 feet and he could sell that much to Jones. Some...