Kennedy v. Embry

• Decision Date: 27 November 1888
• Citation: 10 S.W. 88
• Parties: KENNEDY <I>v.</I> EMBRY <I>et al.</I>
• Court: Texas Supreme Court

10 S.W. 88

KENNEDY

v. EMBRY et al.

Supreme Court of Texas.

November 27, 1888.

Commissioners' decision. Appeal from district court, Tarrant county; J. Y. HOGSETT, Special Judge.

Trespass to try title brought by Oliver S. Kennedy against A. R. Embry and W. C. Parker and wife. Plaintiff appeals.

N. G. Shelley, for appellant. A. W. De Berry, for appellees.

ACKER, J.

J. P. Smith owned block 16, in Tucker's addition to the city of Fort Worth, and on the 2d of July, 1878, conveyed it by warranty deed to W. C. Dismukes, for the consideration of $250, no part of which was paid, but notes were given therefor in three payments, maturing at one, two, and three years. To secure the payment of these notes Dismukes executed to Smith a mortgage on the land. The deed and mortgage were filed for record on the 5th day of July, 1878. Dismukes left the state some time in the year 1879 or 1880, and had not returned at the time of the trial. He never took possession of the land, never paid Smith any part of the purchase money therefor, and never paid any taxes thereon. On January 27, 1882, Smith conveyed the land by warranty deed to appellees W. C. Parker and wife, and the deed was filed for record the same day. Appellee Embry was in possession as tenant of Parker and wife. Smith paid taxes on the land up to the time he sold to Parker and wife. On June 1, 1883, Dismukes conveyed the land to appellant for the consideration of $10 in cash and Kennedy's assumption to pay Smith the purchase money notes given by Dismukes. Appellant tendered to Smith the amount due on the Dismukes notes, and all taxes he had paid since conveyance to Dismukes, which was not accepted. At the time of the trial the land was of the value of $2,000. Appellant brought this suit, September 4, 1885, in the ordinary form of trespass to try title. Appellees answered by the plea of not guilty. The trial was by the court without a jury, and judgment rendered in favor of appellees. Appellant proved the conveyances by Smith to Dismukes, and by Dismukes to him, and by Smith to Parker and wife. Appellees then proved, over objection of appellant, the execution and non-payment of the notes and mortgage by Dismukes to Smith, and the payment of taxes by Smith, whereupon appellant offered to file with the papers of the cause his written tender of amount due on the Dismukes notes, and of the amount paid by Smith for taxes on the land, and consent that judgment might be rendered against him for said amounts, and in his favor for the land, which offer was refused by the court on objection of appellees. Under numerous assignments of error it is contended that, upon tendering the purchase money and interest due by Dismukes, together with the amount paid by Smith for taxes, appellant was entitled to specific performance of the contract made by Smith and Dismukes; that the conveyance by Smith to Parker and wife, having been made without notice to Dismukes of Smith's intention to rescind,...