Hollifield v. Landrum

• Decision Date: 14 January 1903
• Citation: Hollifield v. Landrum, 71 S.W. 979, 31 Tex. Civ. App. 187 (Tex. App. 1903)
• Parties: HOLLIFIELD v. LANDRUM et al.
• Court: Texas Court of Appeals

71 S.W. 979

HOLLIFIELD v.LANDRUM et al.

Court of Civil Appeals of Texas.

January 14, 1903.

Appeal from district court, Jefferson county; J. D. Martin, Judge.

Action by J. P. Landrum and others against C. B. Hollifield.From a judgment in favor of plaintiffs, defendant appeals.Reversed.

Hazlewood & Gordon and P. A. Dowlen, for appellant.A. D. Lipscomb, for appellees.

On Motion for Rehearing.

GILL, J.

This was a suit by the appellees for damages against the appellant, growing out of an alleged breach of contract for the sale of 150 acres of land.The basis of the action was the following instrument, styled "Earnest Receipt": "$825.00.Beaumont, Texas, April 27, 1901.Received of C. B. Hollifield the sum of eight hundred and twenty-five ($825.00) dollars, as part payment of the purchase money on the following described property, to wit: 150 acres out of the northwest corner of the L. Hildebrandt survey, lying on the east of G. W. Payne tract, together with all the improvements thereon, which property I have this day sold to C. B. Hollifield, his heirs and assigns, for the full sum of eight thousand two hundred and fifty ($8,250.00) dollars cash.Upon payment of cash part of purchase money ($8,250.00), including the amount herein receipted for, I agree to convey, or caused to be conveyed, by good and sufficient warranty deed to the above-described property.If the title to said property is not good, and cannot be made good within two days from the delivery of the abstract, then the $825.00 herein receipted for shall be returned to the said C. B. Hollifield, his heirs and assigns.But if the title is good, and said property is not taken within two days from delivery of the abstract, then the $825.00 herein receipted for shall be forfeited to Bright & Co. and the vendor, equally, as liquidated damages, and this receipt shall be null and void, and all parties herein named released.In the event the title to said property is defective, two days shall be allowed to the vendor to perfect the same, and I bind myself to use my best efforts to perfect the title to said property within that time.J. P. Landrum, by Bright & Co., Agents."On the said 27th of April the defendant, Hollifield, delivered to the plaintiffsBright & Co. the following draft: "$825.00.Beaumont, Texas, April 27, 1901.Pay to the order of Bright & Co. eight hundred and twenty-five ($825.00) dollars.C. B. Hollifield.To Brook Smith & Co., Brownwood, Texas."Beaumont National Bank and Brook Smith & Co. were partiesdefendant, but the plaintiffs dismissed their case as to them, and proceeded against Hollifield, seeking to recover the liquidated damages named in said earnest receipt.The defendant Hollifield filed a general denial and plea of not guilty, and also set up by special answer that he was induced to enter into said contract by the false and fraudulent representations of the plaintiffs as to the character and location of the land, and also alleged certain defects in the title tendered him by the plaintiffs, and that said defects were not cured within the time specified in the contract; that time was the essence of the contract; that said earnest receipt was deposited with the Beaumont National Bank, together with said draft, to be held by it pending defendant's investigation of the character and location of the land, and pending the examination of the title by defendant's attorney; that, contrary to the agreement, the defendant bank and plaintiffs caused said draft to be sent to Brook Smith & Co., for collection, after defendant had refused to take said title on account of said misrepresentation, and on account of the plaintiffs failing and refusing to tender a good record title, as specified in said earnest receipt, and as promised by the plaintiffs.And he asked judgment against said bank and the plaintiffs for damages on account of injury to his credit in having said draft presented for collection, and its payment protested.A trial resulted in verdict and judgment for the plaintiffs for the amount of the draft.From this judgment, C. B. Hollifield has appealed.

At a former day of this term, we affirmed the judgment without written opinion.Upon a thorough reconsideration of the case on motion for rehearing, we have concluded the judgment should be reversed, and the cause remanded, for errors committed at the trial; and this renders it necessary for us to dispose of such assignments as present questions likely to arise upon another trial.

On the 27th of April, 1901, the instrument above set out, and styled, for convenience, "Earnest Receipt," was executed by Bright & Co. as agents of J. P. Landrum.Thereupon, on the same day, appellant executed and delivered to them the draft for $825 in pursuance of the agreement.At that time Hollifield had never seen the land, and did not know either its character or location.He and another witness testified: That appellant stated he wished to purchase high prairie land, free of timber and marshes, and with mounds thereon, which were supposed to indicate the presence of oil or gas.That Bright & Co. represented the land to be of that character, with 30 or 40 acres in a good state of cultivation, and that the tract was situated within two miles of a railroad station called "Landrum."That upon these representations he was induced to enter into the contract of purchase, and, believing them to be true, executed and delivered the draft, and assented to the terms of purchase.That it was understood and agreed, in connection with these representations, that, if the land was not found to be as represented, the contract of sale should be annulled.Thereafter, on the same day, appellant, with said witness, went out to see the land, and learned that it was about five miles from Landrum station; and they both testify that it was not prairie land, but timbered; that it had sloughs and marshes upon it, and had but a few acres in cultivation; and that in no respect was it as represented.That upon his return on the same day he advised both Landrum and his agents of his discoveries, and told them he would not accept the land, and, upon their insistence, referred them to his attorney.Appellees prepared an abstract of title to the land, and on the 29th of April delivered it to P. A. Dowlen, appellant's attorney, for inspection.On May 1st, Dowlen returned the abstract to appellees' attorneys, noting such defects as he considered material.The abstract showed: (1) Patent from the state of Texas to Levi Hildebrandt to 320 acres, which included the land in question, of date May 7, 1852; (2) deed from O. L. Hildebrandt to A. J. Ward, of date March 8, 1864; (3) deed from A. J. Ward to G. Landrum, dated June 1, 1866, reciting cash consideration of $320, and note for $300, with no express retention of the vendor's lien.To this, appellant's attorney interposed five objections, as follows: (1) No conveyance appears in the abstract to show title in O. L. Hildebrandt; (2) in Ward's deed to Landrum the acknowledgment is defective; (3) part of the consideration was secured by vendor's lien note, and no release appears; (4) the certificate of acknowledgment of Gabriel Landrum, as shown on the fourth page, is defective; (5) there is nothing to show title in J. P. Landrum.These objections were handed appellees on May 1st.The first was sought to be cured by affidavits showing that Levi Hildebrandt and O. L. Hildebrandt were one and the same person.The second objection was shown to be untenable.The third objection was without merit, as the note for the purchase money had been due for about 25 years, and it was shown by G. Landrum that it had been discharged.The certificate mentioned in the fourth objection does not affect any of the land in controversy.The fifth objection, that the abstract showed no conveyance from G. Landrum to J. P. Landrum, was valid; but, within two days from the time the objections were made, Landrum procured a deed from his father, G. Landrum, and had same duly recorded, and tendered a deed to appellant.There is evidence to the effect that appellant declined to complete the purchase, both on account of the state of the title, and because of the alleged misrepresentations set out above.J. P. Landrum claimed and offered to prove that the land was a parol gift from his father, G. Landrum, to him, prior to the date of the contract of sale, but this evidence was excluded on objection of appellant.It was shown by the testimony of G. Landrum that he had lived upon the land, holding it as his own, and adversely to the claims of all others, since 1866,—the date of his deed from Ward,—with the exception of the two years next preceding the trial, and that his title had never been disputed.This witness also stated that the land was wood land, with a prairie marsh and one or two sloughs on it.He also testified to the payment of the Ward purchase-money note.It was shown, without dispute, that Levi or O. L. Hildebrandt lived upon the land as his home prior to the sale to Ward; that his wife died in 1861; that when she died he moved to west Texas; that by his deceased wife he had two children, who were married prior to the death of his wife, and who now live in west Texas.The record does not disclose whether...