McCombs v. Abrams
| Decision Date | 08 February 1930 |
| Docket Number | No. 9300.,9300. |
| Citation | 28 S.W.2d 584 |
| Parties | McCOMBS et al. v. ABRAMS et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Brazoria County; M. S. Munson, Judge.
Suit by Melvorne J. McCombs and others against Harold J. Abrams and others. Judgment for defendants, and plaintiffs appeal.
Affirmed.
Henderson, Kidd & Henderson, of Cameron, Rucks & Enlow, of Angleton, John K. Freeman, of Cameron, John B. Atkinson, of Waco, and McCormick, Bromberg, Leftwich & Carrington, of Dallas, for appellants.
C. R. Wharton, W. H. Wilson, and E. J. Fountain, all of Houston, Louis J. Wilson, of Angleton, and Robert A. John, of Houston, for appellee Texas Co.
W. H. Wilson, of Houston, Louis J. Wilson, of Angleton, and Tom Scurry and Murphy W Townsend, both of Dallas, for appellees Abrams and others.
The undisputed evidence shows that on and for some time prior to the 23d day of December, 1897, up to the 19th day of July, 1904, at which time Florence McCombs died, Paul McCombs and Florence McCombs were husband and wife; that Florence McCombs left surviving her her husband, Paul McCombs, and three children, namely, Mora, who became the wife of Ben P. Atkinson, Helen, who became the wife of Charles Overton, and Melvorne, a son; that on the 23d day of December, 1897, the Land Mortgage Bank of Texas, through its agent of Tarrant county, Tex., by its contract with Paul McCombs, authorized McCombs to sell certain lands owned by it, estimated to be 1,700 acres, situated in Brazoria county, Tex., a part of the George Tennille league, at $6 per acre, McCombs to receive for his services any sum he might receive therefor over said $6 per acre. By the terms of such contract McCombs was to survey and subdivide the land into 40-acre tracts.
McCombs divided the land as he agreed to do, and inclosed the entire tract with a fence, which was paid for by the bank.
The contract mentioned was to expire at the end of one year. No sale was made under it. In 1901 McCombs had some arrangement with W. T. Humble, agent of the bank, to either sell the land or to buy it himself, and on the 2d day of January, 1900, Humble wrote McCombs that the bank would sell him the land, less two 50-acre tracts, which he described, for $6,000, to be paid $1,000 cash, $1,000 in three years, $1,000 in four years, and $3,000 in five years, all notes to bear 7 per cent. interest, provided the offer was accepted by February 2, 1900. McCombs did not purchase the land under the terms proposed by Humble. In February, 1900, McCombs saw Humble and Humble told him that, in order for him (McCombs) to be repaid for the work he had already done, for which he had received no remuneration, he (Humble) would place the legal title to the land in McCombs by deed, for a recited consideration of $1,000 as cash paid, which was not in fact paid, and the further consideration of $6,800 to be paid; so that under such arrangement McCombs might sell it to some one. Under such arrangement, on the 16th day of February, 1901, the Land Mortgage Bank, for a recited consideration of $7,800, $1,000 cash, and seven notes of McCombs, the first for $800 and the other six for $1,000 each, payable to the bank, respectively, on or before March 1, 1902, 1903, 1904, 1905, 1906, 1907, and 1908, the land involved was conveyed.
Thereafter McCombs tried to sell the land, but for a long time was unsuccessful and finally went to W. H. Abrams, for whom he worked, and told him of his option. He told him that the land at the price given him was a big bargain; that he thought the land was worth $10 per acre, and that he wanted Abrams to get the benefit of the bargain, and that if he would take the land at $6,800, as proposed, he (McCombs) would not ask Abrams to pay any part of the $1,000 recited in the option deed as a cash payment, as that was recited so that, in case McCombs might sell for $7,800, he would get something out of it for himself. Abrams told McCombs that he would not buy the land unless McCombs would join him in the purchase. McCombs told Abrams that he could not join him in the purchase, and Abrams told him that he (Abrams) would advance his half of the purchase price, and that McCombs could pay it back when he could. McCombs agreed to join in the purchase if Abrams would let him pay his part of the purchase money out of his salary. Abrams agreed to McCombs' proposition and had McCombs write him a letter embodying the terms of the agreement between them. At the time such agreement was had, the deed from the bank to McCombs had not been delivered, but was held by Humble for the bank. The letter written by McCombs to Abrams was as follows:
Abrams accepted McCombs' proposition and paid, by his check, the $800 note recited as a part consideration in the deed from the bank to McCombs, and the deed was delivered to McCombs by the bank.
By his deed bearing date as of February 16, 1901, McCombs conveyed a one-half of the land to Abrams. The deed recited the consideration as $400 cash and other valuable considerations, and also recited that such conveyance was subject to debts for the purchase money and all the conditions in the deed from the bank to McCombs.
The deed last mentioned was acknowledged before J. D. Crutcher, notary public.
In connection with the execution of the last-mentioned deed, McCombs prepared, signed, and delivered to Abrams the following instrument:
After Abrams had paid the $800-note executed by McCombs as the first payment on the land, which is recited in the deed from the bank to McCombs, McCombs repaid to Abrams one-half, or $400, of such sum, and this sum was all that was ever paid by McCombs of the purchase money for the land.
During the years 1905 and 1906 McCombs was practically a bankrupt, and his only income was his salary of $150 per month, and he had given up all hope of being able to make any further payments on the land notes, and he so told Abrams, and in a written statement of date March 1, 1906, the following appears:
"As McCombs has failed and is unable to pay any further part of his half of the purchase price of the land above described, except the first $400.00, he has on this, the 1st day of March, 1906, executed to W. H. Abrams a conveyance of all his interest in said land; and said Abrams has conveyed to said McCombs 100 acres of land, in full for the $400.00 he paid."
Complying with the conditions stated in the above instrument, McCombs by his deed of date March 1, 1906, conveyed the land in controversy to W. H. Abrams, and Abrams then reconveyed to McCombs 100 acres thereof.
One hundred acres of the original 1,700 acres had been lost to Tenille in a suit for which the bank credited the land notes with $400, and Abrams paid all the balance of the purchase money notes, except the $400 paid by McCombs.
Mrs. Florence McCombs, wife of Paul McCombs, as already stated, died on the 19th day of July, 1904. She left a will by which she devised to her three children, hereinbefore named, all of the estate of which she possessed at the time of her death. This will was probated under the supervision of J. D. Crutcher, attorney, on the 2d day of September, 1905, but no administrator or executor was appointed.
On the 16th day of January, 1906, Paul McCombs filed his application to be appointed administrator of the estate of Florence McCombs, with will annexed. Paul McCombs was duly appointed as such administrator on the 16th day of June, 1906, and he duly qualified as such, and J. D. Crutcher and two others were appointed appraisers.
Among the property pointed out by Paul McCombs to the court and the appraisers as the community estate of himself and his deceased wife, Florence, is the following:
100 acres of the George Tenille survey
in Brazoria County, valued at, ...... $400.00
42 acres in Aransas County,............ 200.00
And about ten acres in city lots in the
City of Rockport, Aransas County
valued at............................ 100.00
The inventory and appraisement as...
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