Lester v. Hutson
| Decision Date | 04 April 1914 |
| Docket Number | (No. 538.) |
| Citation | 167 S.W. 321 |
| Parties | LESTER v. HUTSON. |
| Court | Texas Court of Appeals |
Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.
Action by Mrs. Kathryn Hutson, administratrix with the will annexed of John Hutson, deceased, against L. T. Lester. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Reeder & Dooley and A. S. Rollins, all of Amarillo, and G. W. Barcus, of Weatherford, for appellant. Madden, Trulove & Kimbrough, of Amarillo, and Carl Gilliland, of Hereford, for appellee.
The appellee, Mrs. Kathryn Hutson, as administratrix with the will annexed of John Hutson, deceased, brought suit against appellant, L. T. Lester, in the district court of Deaf Smith county, Tex. It is alleged in the petition that both plaintiff and defendant reside in Randall county, Tex. The land described in the petition is situated partly in Randall county and partly in Deaf Smith county, giving the situation as to each tract; that Mrs. Kathryn Hutson is the widow of John Hutson, who died on the 14th day of January, 1911. She alleges: That on or about the 8th day of January 1907, L. T. Lester, for a valuable consideration then paid to him by John Hutson, executed and delivered to Hutson, then living but now deceased, a certain contract in writing as follows:
That by said contract Lester agreed and promised and became bound and obligated to convey to Hutson the lands therein described. That said conveyance was to be made upon the payment by the said Hutson to the said Lester of the sum of $8,106.67, with 8 per cent. interest and the payment of the balance due by said Lester on said sections with accrued interest and other expenses. That the balance due as referred to in said contract was the balance of the purchase money on said five sections which the Cedar Valley Land & Cattle Company had sold and conveyed to Lester on or about the 12th day of September, 1906, for the price of $24,320, of which plaintiff is informed and believes that Lester paid $8,106.67, and for the remainder gave his two promissory notes, each for $8,106.67, and that said two notes constituted the balance due referred to in the contract of January 8, 1907. That the stipulation in said contract that same should hold good until September 12, 1907, was not intended to be of the essence of said contract, and that after September 12, 1907, Hutson continued in possession and control and occupancy of said lands, claiming same as his own and made valuable improvements thereon. That he offered same for sale and made numerous efforts to sell same, and so continued down to the date of his death in the early part of 1911. That said Lester during the lifetime of Hutson did not at any time dispute the ownership of Hutson or his equities in said land, or claim that said contract was terminated or ended, but at all times recognized said contract as being in force, and from time to time waived the limitation of time mentioned in said contract, continued the same in force, and was recognizing said contract at and after the death of Hutson.
That some time either about September 12, 1907, or subsequent thereto, the exact date not being known to plaintiff, but well known to Lester, said Hutson and said Lester made a further contract and agreement as supplement to and modification of said contract of January 8, 1907, and in accordance with the understanding between them at that time, the exact terms of which, and whether written or oral, plaintiff does not know, but is informed and believes that said contract provided in substance that Lester should continue to hold the title to said land and that said Hutson and Lester would endeavor to sell said land; that, upon sales, Lester should make deeds and receive the proceeds and apply same to the discharge of his indebtedness on said two notes to the Cedar Valley Land & Cattle Company, and then reimburse himself the amount paid by him to said company as first payment on said land, being $8,106.67; and that when these amounts were paid, either from the sales of land or by payments made by Hutson, the lands remaining unsold were to belong to Hutson under the terms of said contract of January 8, 1907. That under this agreement Hutson continued in possession of said lands under claim of ownership, erected improvements thereon, offered same for sale, rented same for pasture purposes, and had full control thereof, and so continued, with the knowledge and consent of Lester as long as said Hutson lived, and was in possession and control of all of said lands remaining unsold at the time of his death. That during all of said times it was understood between Lester and Hutson that Lester held the title to said lands in trust for said Hutson. That pursuant to said understanding and agreement Lester sold to various parties the following portions of said land, to wit: The S. 1/2 of survey 15, in block K-14, Cert. 129, J. H. Gibson, Deaf Smith county, for the sum of $6,720, of which $3,520 was paid in cash and two notes for $1,600 each were given Lester, which he afterwards collected. The N. 1/2 of said section 15, for the sum of $6,080, of which $3,520 was paid in cash, the remainder represented by two promissory notes, each for $1,280 which Lester subsequently collected. The W. 1/2 of section 17, block K-14, Deaf Smith county, for $7,100, which was either paid in cash or part cash and part notes, which were afterwards collected by Lester. The remainder of said section 17, for the sum of $2,260, and which was paid in cash or part cash and part notes, which have since been collected by Lester. The S. 1/2 of survey No. 12, block 1, T. T. R. R. Co., Randall county, Tex., at and for the price of $5,120 cash. That the remainder of said land remained unsold and is still standing in the name of Lester, which title he holds in trust for the estate of Hutson. That the amounts realized from the sales mentioned, together with numerous and sundry payments that Hutson made from time to time, were more than sufficient to pay off the notes of said Cedar Valley Land & Cattle Company, and to more than repay said Lester for the amounts he had paid on said lands, and to pay him all interest due him under said contract of January, 1907, and leave the remaining 2½ sections of land that were unsold at the time of Hutson's death fully paid for and belonging to Hutson, but plaintiff alleges that Lester failed to apply all of the proceeds of said sales to the discharge of said indebtedness, but only a part was so applied. That if such proceeds be properly applied they will discharge all indebtedness against said 5 sections and leave said 2½ sections as the property of Hutson.
That in October, 1909, Lester was still recognizing the rights of Hutson under said contract, and caused a statement to be furnished to Hutson purporting to show the indebtedness against said land, etc., and at or about said time settlement between Lester and Hutson was attempted and a tentative agreement made for such settlement, but the particulars thereof are unknown to plaintiff, and for some reason said settlement was not consummated, but Hutson continued in possession of the unsold land and continued to exercise ownership over the same with Lester's knowledge. That again about August, 1910, another settlement was pending between Lester and Hutson with respect to said land, the details and particulars of which were unknown to plaintiff, which also failed of consummation. That afterwards Hutson continued in possession of said land. That since Hutson's death Lester has set up claim to said lands which constitutes a cloud on plaintiff's title, which interferes with the sale thereof and depreciates it in value.
That Lester had failed to apply the proceeds of the sales of said lands to the payment of all indebtedness to the Cedar Valley Land & Cattle Company, but only so applied a small portion thereof. That some time in the autumn of 1910 said company demanded payment of its notes. Said Lester was unable or unwilling to pay off said notes, and Hutson, seeing the necessity of having the notes paid, first endeavored himself, with Lester's consent, to borrow the necessary money; but, being unable to do so, Hutson finally agreed that Lester might borrow such money and place a mortgage on the land, and Lester did so, but made the notes and mortgages for amounts much greater than any balance due by him by said Hutson. Plaintiff says that it is claimed by defendant that at or about the time said mortgage was placed on said lands Hutson signed an acknowledgment of tenancy, to the effect that he was a tenant of Lester and occupied said lands as such. Plaintiff denies the execution of any such acknowledgment, but, if such was the case, Hutson only signed such acknowledgment because said Lester was unable to secure said loan without such an acknowledgment, and said acknowledgment was not intended to affect the rights of Hutson and Lester as between themselves.
Plaintiff's prayer is that she may...
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