Hudson v. Norwood

• Decision Date: 03 January 1941
• Docket Number: No. 2077.,2077.
• Citation: 147 S.W.2d 826
• Parties: HUDSON et al. v. NORWOOD.
• Court: Texas Court of Appeals

147 S.W.2d 826

HUDSON et al. v. NORWOOD.

No. 2077.

Court of Civil Appeals of Texas. Eastland.

January 3, 1941.

Rehearing Denied January 31, 1941.

Error from District Court, Cherokee County; C. E. Brazil, Judge.

Suit by J. C. Norwood against Nettie Hudson and others for title and possession to realty, and in trespass to try title. To review a judgment in favor of the plaintiff, Mrs. Nettie Hudson and others bring error.

Judgment affirmed.

Guinn & Guinn, of Rusk, for plaintiffs in error.

Norman, Stone & Norman, of Rusk, and Shook & Shook, of Dallas, for defendant in error.

LESLIE, Chief Justice.

The plaintiff, J. C. Norwood, filed this suit against Nettie Hudson and husband, James Monroe Hudson, Lucy Phillips and husband, Coy Phillips, for the title and possession of 140½ acres of land, part of the William Killion Survey, in Cherokee County, Texas. The 140½ acres is composed of three tracts: 5 acres acquired from J. F. Ward et al.; 91 acres acquired by C. K. (Knox) Norwood from W. Y. Ballew, and 54½ acres in what is known as the Brigman tract.

The plaintiff's second amended original petition was in trespass to try title, with counts pleading 3, 5, 10 and 25-year statutes of limitation. The defendant Nettie Hudson, by her second amended answer, answered by general demurrer plea of not guilty, disclaimer of all land lying east of a branch running north and south through the 140½ acres, a plea of 10-year limitation, and that the possession of the plaintiff's predecessor in title was not adverse to hers in that he (predecessor) had a homestead interest in the property and his possession was consistent with his interest and not adverse to her.

The defendants Coy Phillips and Lucy Phillips disclaimed all interest in the land. The defendant James Monroe Hudson was cited by publication as a nonresident. He did not appear or answer, but judgment was rendered against him for the plaintiff by default as to the title and possession of the 140½ acres, but no judgment for costs was taken against him.

The court entered a judgment in favor of the plaintiff on an instructed verdict. Mrs. Hudson appeals.

The plaintiff's title to the land was acquired from one who purchased same at an execution sale of the right, title and interest therein owned by C. K. (Knox) Norwood, a judgment debtor.

The litigation arises out of facts in substance as follows: W. H. (William Henry) Batten married Lucy Ballew October 17, 1870. Five children were born to that marriage: Sam Batten, John Batten, Tom Batten, Ruby Batten who married Allen T. Clark, and the defendant Nettie Batten Hudson. January 14, 1887, J. M. Brittain sold and conveyed by warranty deed to W. H. Batten 155 acres of land. The deed was a general warranty vendor's lien deed, and the entire purchase price of the land as recited in the deed was three vendor's lien notes for $200 each due, respectively, November 1, 1887, 1888, and 1889.

It is not made to appear that W. H. Batten, or his wife, ever paid any part of said notes, but without dispute, J. M. Brittain, the same vendor, immediately after the maturity of the last of said notes, resold the same land to Knox Norwood by general warranty deed, reciting the retention of a vendor's lien to secure the consideration, namely, Norwood's three vendor's lien notes, the first for $166 and the other two for $167 each, due, respectively November 1, 1890, 1891 and 1892. This deed to Norwood was dated January 1, 1890 and Norwood went into possession of the land and remained in possession thereof for about 40 years after the date of the deed.

Knox Norwood's first wife died August 21, 1886, and said W. H. Batten died May 11, 1888. Brittain's deed to said Norwood was dated January 1, 1890 and he married Mrs. Batten, the widow of W. H. Batten, and the mother of Mrs. Nettie Hudson, on May 25, 1892. As an unmarried man Norwood acquired the deed from Brittain about two and one half years prior to his marriage to Mrs Batten, with whom he lived until her death June 29, 1922. He had no children by either wife and he died October 6, 1930.

In substance, the plaintiff's theory of the case is that where a vendor makes a deed to land and the purchaser does not pay the consideration but executes notes therefor and a vendor's lien is retained in the deed to secure the purchase price evidenced by the notes, the vendor has the superior title and until the contract is executed or performed on the part of the purchaser by paying the purchase money or discharging the debt, the purchaser or those in privity with him has no title against the vendor or those who stand in his right. Stated with reference to the testimony in this case, it is the plaintiff's contention that the defendant Mrs. Hudson stands in privity with W. H. Batten, vendee, who, as a consideration, executed the first series of vendor's lien notes to Brittain, and failed to acquire legal title to the property by the payment of the same. On the other hand, the plaintiff asserts that he derives his title (by purchase at execution sale) directly from the original vendor, the common source, J. M. Brittain.

On failure of W. H. Batten to pay the three vendor's lien notes given as a consideration for the land, said Brittain had three remedies: (1) He could have sued for the purchase price and foreclosed his lien; (2) he had a right to sell the land and convey the title to another, thus disaffirming the contract, and (3) he had a right to bring an action in trespass to try title against the vendee, or others in privity with him. Simpkins, Equity, p. 238. He seems to have elected the second remedy.

The vendor, Brittain, in retaining a vendor's lien consequently retained the superior title to the land. Stated differently, the original vendee Batten had nothing but an executory contract for title until consideration was paid. Under such circumstances the vendor's right to rescind or disaffirm the original contract is well recognized. Bunn v. City of Laredo, Tex. Com.App., 245 S.W. 426; Barker v. Temple Lumber Co., 120 Tex. 244, 37 S.W.2d 721, 722; Toler v. King, Tex.Civ.App., 11 S.W.2d 360; Evans v. Ashe, 50 Tex. Civ.App. 54, 108 S.W. 398, 1190; Kennedy v. Embry, 72 Tex. 387, 10 S.W. 88; Scott & Carmody v. Canon, Tex.Com.App., 240 S.W. 304; Graham v. West, Tex.Civ. App., 26 S.W. 920; Sherring v. Augustus, 11 Tex.Civ.App. 194, 32 S.W. 450, 451, and other authorities hereinafter cited. In this last opinion by Judge Williams, it is said: "A conveyance of the land to another than the original vendee is an exercise of this right, and, if made when the vendor is entitled to rescind, has the effect to defeat even the right of the first vendee to redeem."

In Barker v. Temple Lumber Co., supra [120 Tex. 244, 37 S.W.2d 722], it was held: "The conveyance from Bennett to Damon was executory. Damon could only perfect his title to the land by paying the purchase-money notes in accordance with the terms of his agreement. Upon his failure to do so, Bennett had the right to rescind the sale and convey the property to others. Likewise Rogers held no title to this property except one conditioned upon the discharge of the obligation for the purchase-money notes. Farmers' Loan Co. v. Beckley, 93 Tex. 267, 54 S.W. 1027; Hale v. Baker & Rice, 60 Tex. 217."

The operation of the above principle of law is not affected by the death of the original vendee. In other words, the vendor's superior title remains unaffected by the vendee's death. Herman v. Gieseke, Tex.Civ.App., 33 S.W. 1006, 1009; Curran v. Texas Land & Mortgage Co., 24 Tex.Civ.App., 499, 60 S.W. 466, writ refused; New England Loan & Trust Co. v. Willis, 19 Tex.Civ.App. 128, 47 S.W. 389, writ refused; Jackson v. Ivory, Tex. Civ.App., 30 S.W. 716; Toullerton v. Mahncke, 11 Tex.Civ.App. 148, 32 S.W. 238; Robertson's Adm'x v. Paul, 16 Tex. 472; Rogers' Heirs v. Watson, 81 Tex. 400, 17 S.W. 29; McKinley v. Keath, 24 Tex.Civ.App. 570, 59 S.W. 813; Head v. Moore, Tex.Civ.App., 232 S.W. 362.

From the Herman case, supra , we take the following holding in an opinion by Judge Williams: "The fact that one of the heirs was a minor, and others married women, added nothing to their rights under the contract. They succeeded to such rights as Mrs. Gieseke had, and to no others. By her death, Link's obligations and rights were not increased or diminished. Estes v. Browning, supra [11 Tex. 237, 60 Am.Dec. 238]; Pom.Spec.Perf. § 620; Fry, Spec.Perf. § 620; Walker v. Douglas, 70 Ill. [445], 446. The heirs were not bound by their mother's contract, but, if they desired to acquire title to the land, they could only do so by complying with the conditions upon which such acquisition depended."

See, also, Young v. Harbin Citrus Groves, Tex.Civ.App., 130 S.W.2d 896, writ refused; Bothwell v. Farmers' & Merchants' State Bank & Trust Co., Tex. Civ.App., 50 S.W.2d 846, affirmed 125 Tex. 488, 82 S.W.2d 945, 84 S.W.2d 229.

In the opinion in Head v. Moore, Tex. Civ.App., 232 S.W. 362, 364, answering the contention that the title did not pass by the subsequent deed because the notes (to secure which the vendor's lien was retained in the original deed) were barred by four-year limitation, the court said: "The answer to the first objection is that appellant never acquired the legal title to the land from Asher, unless he affirmatively pleads and proves, and the burden is upon him, that he paid the consideration." (Italics ours.)

To the same effect is the opinion in Evans v. Ashe, and Scott & Carmody v. Canon, supra.

What has been said in effect disposes of the respective contentions of appellant and appellee as they are based upon the Brittain deeds of January 14, 1887 and January 1, 1890. From the facts detailed and others not necessary to recite, it conclusively appears that neither W. H. Batten, nor his heirs, ever acquired the legal title to said property. Obviously, Brittain disaffirmed the original contract to convey the property to Batten by his (Brittain's) subsequent...