Hurst v. Knight

• Decision Date: 21 February 1914
• Citation: 164 S.W. 1072
• Parties: HURST v. KNIGHT et al.
• Court: Texas Court of Appeals

164 S.W. 1072

HURST v. KNIGHT et al.

Court of Civil Appeals of Texas. Amarillo.

February 21, 1914.

Rehearing Denied March 28, 1914.

Appeal from District Court, Lubbock County; W. R. Spencer, Judge.

Action by Mary Hurst against L. A. Knight and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

R. A. Sowder, of Lubbock, and A. H. Mount, of Royse City, for appellant. Randolph & Randolph, of Plainview, and Synnott & Underwood, of Amarillo, for appellees.

HALL, J.

The appellant, Mary Hurst, filed this suit in the district court of Lubbock county, to recover a judgment against defendants, L. A. Knight, J. R. De Lay, and R. E. Burch, for the amount of three vendor's lien notes for $1,000 each and sought to foreclose the vendor's lien on a certain section of land in Lubbock county, patented to N. H. Mill. The petition alleges the execution and delivery of the deed by appellant, Mary Hurst, and by Anist Hurst and Guy Hurst, to R. E. Burch, who executed the three notes sued upon. It is further alleged that Burch had conveyed the land to the defendants Knight and De Lay, who assumed the payment of said notes. The defendants allege that in the original transaction Mary Hurst, Anist Hurst, and Guy Hurst were represented by G. E. Mayes as their duly authorized agent; that James R. De Lay represented himself and the defendant Burch and closed the deal in Burch's name, purchasing the land for both; that Mayes, the agent of plaintiff, and Guy Hurst, represented to De Lay that the land belonged to Mary Hurst and that she had a good and perfect title thereto, and that De Lay communicated these statements to Burch and also to Knight when he purchased Burch's undivided interest in the land; that defendants were not lawyers and did not examine the title, but had great confidence in Mayes and accepted in full faith the representations of Guy Hurst and Mayes that the title was perfect, and, relying thereon, paid part of the purchase price in cash and, still relying thereon, paid the first three notes as they became due; that after the payment of the first note they applied for a loan on the land, which was refused because the title to the property was not good; that after discovering these defects they called upon the plaintiff, Mary Hurst, to correct the defects in the title and offered to pay the remaining notes if she would remove the defects, and even proposed to pay two of the notes if she would agree to extend the third to a time when the defects could be remedied; that she refused to make any attempt to do so and refused to extend the notes.

The defects in the title are set out, in substance, as follows: (1) A deed of trust executed by Paris Cox to A. Pruitt, trustee, to secure Burns-Walker & Co. in the payment of a note for $286.68, dated August 13, 1886, due December 1, 1886, and recorded in Lubbock county, August 13, 1886; that no release of the lien is shown by the records of Lubbock county or has been made. (2) Deed from Paris Cox and wife to E. Z. Derbyshire, and a deed from Edmund Derbyshire and wife to Willets M. and Gurney G. Derbyshire, dated January 7, 1898. This instrument is signed "Derdyshire" and in the certificate of acknowledgment the name appears as "Derbyshire." (3) Deed from Gurney and Willets M. Derbyshire to C. E. Spath, dated January 16, 1902, conveying the premises in question and reserving the vendor's lien to secure the payment of five notes for $100 each, and a release executed by G. G. and W. M. Derbyshire to C. E. Spath, dated March 21, 1905, reciting the payment of four of the notes described in the deed and the release of the vendor's lien securing the payment of said notes. (4) Deed from Dude Hurst to Mary Hurst, Guy Hurst, and Anist Hurst, conveying a life interest to Mary Hurst, with remainder to Guy Hurst and Anist Hurst, for a consideration of $1,000 paid and the assumption of all debts of the grantor by Mary Hurst.

Deeds were introduced in evidence tending to show the defects complained of. The judgment of the court decreed the cancellation of the deeds and notes, and judgment is rendered in favor of James R. De Lay and L. A. Knight, against Mary Hurst, in the sum of $5,160, the amount paid upon the purchase price of the land, with 6 per cent. thereon from date of judgment, with a lien against the land to secure its payment. For some reason unexplained in the record, a nonsuit was taken by plaintiff as to the defendant Burch. The court has filed findings of fact and conclusions of law as follows:

"First. I find as a fact that the defendant R. E. Burch executed the notes herein sued on as a part consideration for the land described in plaintiff's petition, on June 24, A. D. 1909.

"Second. I find as a fact that Mary Hurst, Guy Hurst, and Anist Hurst, by deed dated June 24, 1909, conveyed the land described in plaintiff's petition, to R. E. Burch, and received as a part consideration therefor from said Burch the notes included in the first finding herein.

"Third. I find as a fact that James R. De Lay was in truth and in fact a joint owner with said R. E. Burch of an undivided one-half interest in said land described in plaintiff's petition, and that the said James R. De Lay paid one-half of the cash consideration named in said deed and has paid one-half of the amount of the three first notes and interest as set forth in plaintiff's petition.

"Fourth. I find as a fact that said notes last described in plaintiff's petition have not been paid.

"Fifth. I further find that the said R. E. Burch conveyed his one-half interest in said land to L. A. Knight, and that said Knight assumed the payment of the indebtedness due on the land, including the three notes herein sued on.

"Sixth. I find that the plaintiff employed A. H. Mount, who is a practicing attorney at law, to bring this suit against the defendants.

"Seventh. I find that George E. Mayes was the agent of the vendors, acting in the sale of the land of plaintiff, Anist Hurst, and Guy Hurst to R. E. Burch and James R. De Lay.

"Eighth. I find that the said George E. Mayes represented to James R. De Lay, one of the purchasers of the land here in controversy, that the plaintiff, Anist Hurst, and Guy Hurst had good title to said land in controversy.

"Ninth. I find that James R. De Lay was acting for himself and the said R. E. Burch in the purchase of said land in the transaction in which the notes sued on were given.

"Tenth. I find that the said James R. De Lay relied upon the representations made by said Mayes as the agent of plaintiff, Anist Hurst, and Guy Hurst, that they had good title to said land, and that said De Lay would not have closed the deal for same if he had not relied upon said representations.

"Eleventh. I find that said James R. De Lay repeated said representations to said R. E. Burch, prior to the closing of said deal, and that the said Burch acted on said representations, relying upon said De Lay as joint purchaser to close said deal.

"Twelfth. I find that James R. De Lay, prior to the purchase of the undivided interest of R. E. Burch by L. A. Knight, informed said L. A. Knight of the representations made by said Mayes as such agent, and that said Knight relied upon said representations being true and purchased said undivided interest.

"Thirteenth. I find that one of the then owners of said land, Guy Hurst, met the said James R. De Lay personally prior to the closing of said deal and represented that the title was absolutely good, and that the said Burch and said De Lay, also relying upon the representations made for himself and his co-owners, closed said deal and purchased said land and signed the notes herein sued upon.

"Fourteenth. I find that the said defendants, De Lay and Knight, had no actual notice of the defect in title to the land here in controversy until said notes were made known to them by Mr. Heard, the agent of C. W. Post, when he turned the said defendants' title down and refused to make a loan on the same.

"Fifteenth. I find that the deed of trust given by Paris Cox to A. Pruitt, trustee, to secure Burns-Walker & Co. in the payment of a note for $286.68, has not been released.

"Sixteenth. I find that the land was deeded to Edmund Z. Derbyshire, and that said Edmund Z. Derbyshire never conveyed the same as shown by the records; but I find on the record a deed from Edmund Z. Derdyshire to Willets M. Derbyshire and Gurney G. Derbyshire.

"Seventeenth. I find that only four of the five notes mentioned in the deed from G. G. Derbyshire and W. M. Derbyshire to C. E. Spath have been released, leaving five notes unreleased.

"Nineteenth. I find that the consideration in the deed from Dude Hurst to Mary Hurst is $1,000, cash, and the further consideration that the said Mary Hurst shall assume and pay the outstanding indebtedness of the said Dude Hurst of every kind and character whatever, which deed is dated September 25, 1907, and duly recorded in Lubbock county.

"Twentieth. I find that said outstanding indebtedness of the said Dude Hurst has never...