Kinchen v. Austin

• Decision Date: 03 July 1915
• Docket Number: (No. 8235.)
• Citation: 179 S.W. 924
• Parties: KINCHEN v. AUSTIN et al.
• Court: Texas Court of Appeals

179 S.W. 924

KINCHEN v. AUSTIN et al.

(No. 8235.)

Court of Civil Appeals of Texas. Ft. Worth.

July 3, 1915.

Appeal from District Court, Tarrant County; J. W. Swayne, Judge.

Action by S. E. Austin against C. R. Kinchen and J. R. Blakney. Judgment for plaintiff, against defendant Kinchen and he appeals. Reversed and rendered.

Poulter & Johnson, of Ft. Worth, for appellant. Mays & Mays and Lattimore, Cummings, Doyle & Bouldin, all of Ft. Worth, for appellees.

DUNKLIN, J.

J. R. Blakney and L. R. Whitley executed a contract in writing by the terms of which the former agreed to sell, and the latter agreed to buy, a certain lot in the city of Ft. Worth. Whitley assigned his interest in the contract to A. G. Baldwin, who in turn assigned his interest in it to C. R. Kinchen, and Kinchen assigned all his interest in the contract to S. E. Austin.

The original contract, together with said assignments, is as follows:

"The State of Texas, County of Tarrant.

"Know all men by these presents:

"That I. J. R. Blakney, have this day bargained sold and conveyed to L. R. Whitley the following lot or parcel of land, to wit; Lot 31, in block 5, Goldsmith's subdivision of the W. P. Patillo's addition to Ft. Worth, Tarrant county, Texas.

"The said Whitley agrees to pay for said lot and premises the sum of $3,250.00 with interest thereon at the rate of 8 per cent. per annum from date until paid, said payment to be made upon the following terms: The said Whitley agrees to pay to the said Blakney the sum of $20.00 per month, said payment to be made on the first of each month, beginning with the first day of October, 1913.

"The said Blakney agrees with the said Whitley that whenever there shall be paid as much as one-fourth of the principal, to wit, $3,250.00, that he will then and there, at the request of the said Whitley, execute a general warranty deed to said premises conveying the same to the said Whitley or to whomsoever he should direct, clear of all liens and incumbrances.

"Should the said Whitley fail to make his monthly payments, as above agreed, he agrees to deliver up said premises, and this contract shall become void.

"October 1, 1913.

                               "[Signed] John R. Blakney
                                        "L. H. Whitley."
                

(On back indorsed as follows:)

"I hereby assign and convey to A. G. Baldwin all my right, title and interest in and to the foregoing contract. I am to remain in possession of the premises until March 1st, 1914, payments to be made to J. R. Sandige at the Westbrook Hotel, Ft. Worth, Texas.

                                          "L. H. Whitley
                

"State of Texas, County of Tarrant.

"Before me, C. B. Ambrose, a notary public in and for Tarrant county, Texas, on this day personally appeared L. H. Whitley, known to me to be the person whose name is subscribed to the foregoing instrument and assignment thereof and acknowledged to me that he executed the same for the purpose and consideration therein expressed.

"Given under my hand and seal of office this 5th day of February, A. D. 1914. [L. S.] C. B. Ambrose, Notary Public, Tarrant County, Texas.

"For and in consideration of the sum of $1,000.00. I hereby assign, transfer and convey all my right, title and interest in and to the within and foregoing contract and the property therein described unto C. R. Kinchen. Witness my hand at Ft. Worth, Texas, this 17th day of February, 1914. A. G. Baldwin. Witnesses: R. N. Dean.

"For and in consideration of $1,050.00 I hereby assign, transfer and convey to S. E. Austin, all my right, title and interest in and to the within and foregoing contract and the property therein described. Witness my hand at Ft. Worth, Texas, this the 15th day of May, 1914. C. R. Kinchen. Witness: W. E. Niel."

S. E. Austin instituted this suit against C. R. Kinchen and J. R. Blakney, alleging that under and by virtue of said contract Blakney contracted and became obligated to execute to plaintiff a warranty deed to the property described, free of all liens and incumbrances whenever as much as one-fourth of the purchase price of $3,250, or $812.50, had been paid to him, Blakney; that $240.50 had been paid to Blakney on said contract, leaving a balance of $572 of said $812.50, which balance, less the sum of $300, the amount of delinquent taxes due on the property, plaintiff had tendered to Blakney in connection with a demand for a deed from Blakney to said property free of all liens or incumbrances thereon, and that said tender and demand had been refused. In his pleadings, plaintiff made the same tender upon the same conditions, and prayed for judgment against Blakney for title to the property free of any lien for the balance of the purchase price which Whitley agreed to pay for the property. Plaintiff further alleged that, in consideration for the assignment of the contract to him, he paid to Kinchen the sum of $250, and conveyed to him another lot in Ft. Worth, known as lot 16, in block 83, on Lincoln avenue. According to further allegations in his petition, plaintiff was induced to make such purchase by certain false and fraudulent representations made to him by Kinchen which were pleaded as follows:

"That as soon as said plaintiff herein shall have paid under said contract the sum of one-fourth (1/4) of the said thirty-two hundred and fifty ($3,250.00) dollars, that the said J. R. Blakney would make, execute and deliver to this plaintiff a general warranty deed to said property free of any and all liens and incumbrances and that all this plaintiff would have to pay for said property would be the said sum of eight hundred twelve and 50/100 ($812.50) dollars to the owner of said contract, to wit, J. R. Blakney, and that said sum of two hundred and fifty ($250.00) dollars so paid by him together with the sum of eight hundred twelve and 50/100 ($812.50) dollars to be paid to the other party to said contract was all that said plaintiff herein would have to pay for said property."

Plaintiff's prayer for judgment was as follows:

"That he have judgment against all of the defendants forever quieting his title to the property in controversy upon payment of the said one-fourth of the $3,200.00 to the said J. R. Blakney; or in case the court should hold that such was not the meaning of the contract between the parties originally, to wit, L. H. Whitley and J. R. Blakney, and that there was fraud, accident or mistake in the statement of the matter to this plaintiff, by the defendant C. R. Kinchen as above alleged, then he prays that the deed made by him to the lot 16 in block 83, of North Ft. Worth, Tarrant county, Texas, situated on Lincoln avenue, be canceled, set aside and for naught held, and that the legal and equitable title to same be declared to be in this...