Leonard v. King

• Decision Date: 07 March 1914
• Citation: 164 S.W. 1110
• Parties: LEONARD v. KING et al.
• Court: Texas Court of Appeals

164 S.W. 1110

LEONARD v. KING et al.

Court of Civil Appeals of Texas. Dallas.

March 7, 1914.

Rehearing Denied March 28, 1914.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Suit for specific performance by S. W. King, Jr., and others against Mrs. M. L. Leonard. From a decree for complainants, defendant appeals. Affirmed.

See, also, 135 S. W. 742.

N. G. Turney, W. L. Crawford, and J. C. Muse, all of Dallas, for appellant. Dabney & Townsend, M. D. Gano, and W. M. Coombes, all of Dallas, for appellees.

RAINEY, C. J.

This is a suit for specific performance of a contract of sale of a certain lot in the city of Dallas, brought by appellee S. W. King, Jr., against appellant, Mrs. M. L. Leonard. The trial court instructed a verdict for appellee, which was accordingly done, and judgment rendered for appellee.

On November 12, 1909, the following contract was entered into, to wit:

"The State of Texas, County of Dallas.

"This contract made and entered into this 12th day of November, 1909, by and between Mrs. M. L. Leonard, hereinafter styled seller (acting herein by herself) and J. S. Kendall, hereinafter styled purchaser, witnesseth:

"Seller hereby sells to purchaser and purchases from seller for the price of one hundred thousand ($100,000.00) dollars, and upon the terms and conditions hereinafter set out, the following described property, to wit: In the city and county of Dallas, state of Texas, being the two-story building and 50 by 100 feet on which it is situate at the southeast corner of Ervay and Commerce streets, fronting 50 feet on the south line of Commerce and 100 feet on the east line of Ervay street.

"1. Said purchase price is payable as follows: One thousand dollars paid by purchaser upon the execution of this contract, the receipt of which is hereby acknowledged; twenty-four thousand ($24,000) dollars to be paid by purchaser upon the execution and delivery of a general warranty deed, to said premises, and the remainder of said purchase price to be paid according to the following terms: In six notes, five in the sum of $5,000 each, due one, two, three, four and five years after date of deed, and one in the sum of $50,000, due six years after date of deed; said notes bearing interest at the rate of six per cent. per annum, interest payable semiannually. (Executed in duplicate; one copy to purchaser, one copy and deposit of $1,000 left with J. W. Thompson, according to terms of this contract.) Such deferred payments to be evidenced by vendor's lien notes executed by purchaser and secured by a vendor's lien expressly retained in said deed and by a deed of trust containing power of sale, together with the usual covenants as to default, taxes, insurance, etc., upon said property.

"2. Seller is to furnish purchaser an authentic abstract showing good title in seller to the property to be conveyed. Should said abstract not show good title in seller, seller is to have a reasonable time (not to exceed thirty days) in which to perfect said title. Should seller not be able to perfect said title within said time, then this contract is to be void and the purchase money paid at the time of the execution of this contract to be returned to purchaser. ($2,500 commission to be paid by seller to Hann & Kendall upon completion of this sale.)

"3. Purchaser agrees that should abstract show good title in the seller, purchaser shall within thirty days from delivery of said abstract pay the balance of the cash payment and execute the notes for the deferred payments and the deed of trust hereinabove provided for to secure the deferred payments, at which time seller shall deliver to purchaser a general warranty deed conveying to purchaser the said property in fee simple. Taxes for the year 1909 to be paid by seller.

"Witness our hands in duplicate this 12th day of November, A. D. 1909.

                  "[Signed]      M. L. Leonard, Seller
                                "J. S. Kendall, Purchaser
                

"Rec'd of S. W. King, Jr., the sum of one thousand dollars ($1,000) and the within contract is hereby transferred to him.

                                       "J. S. Kendall
                  "Accepted: S. W. King, Jr."
                

The assignment of said contract by Kendall to King was made on the same day that the contract was executed. On the following day, to wit, November 13, 1909, Mrs. Leonard executed a general warranty deed, conveying the property to King, and King executed the notes and deed of trust evidencing and securing the deferred payments, and the said deed, notes, and deed of trust, together with King's check for $24,000, were delivered to the American Exchange National Bank, with a joint letter as follows:

                                       "November 13, 1909
                

"American Exchange National Bank, City —Gentlemen: We herewith hand you deed from M. L. Leonard, a feme sole, to S. W. King, Jr., conveying 50×100 feet at the southeast corner of Commerce and Ervay streets, known as lot 4 in block 136 of Smith, Murphy & Martin's addition to the city of Dallas, Texas, for a consideration of $100,000, payable as follows: $25,000 in cash and six notes, five for the sum of $5,000 each, and one for the sum of $50,000, due and payable one, two, three, four, five and six years, respectively, after date, all bearing interest at the rate of six per cent. per annum, payable semiannually and secured by vendor's lien and deed of trust on said property. We also hand you herewith notes and deed of trust from S. W. King, Jr.; all of these papers, that is, deed, notes and deed of trust, are properly executed and acknowledged by the proper parties; we also hand you herewith S. W. King, Jr's., check for $24,000, payable to your order, being the balance of the cash payment to be made in this sale, Mrs. Leonard having $1,000 already as a deposit. It is understood that you are to hold deed, notes and deed of trust and check in escrow until abstract can be made and furnished Mr. King, and until Mr. King can have the title examined by his attorney, not to exceed time granted in hereinafter mentioned contract. Upon the approval of the title to the above-described property, you are to deliver to Mr. King the deed herewith, and to Mrs. Leonard the notes and deed of trust herewith, together with $24,000 cash, and the contract entered into between M. L. Leonard and J. S. Kendall and assigned by said Kendall to S. W. King, Jr., shall be carried out according to its terms and conditions.

                  "[Signed]             S. W. King, Jr
                                       "Mrs. M. L. Leonard
                

"You are hereby authorized to pay out of the cash received in the above transaction the sum of...