Mecom v. Gallagher

• Citation: 192 S.W.2d 804
• Decision Date: 31 January 1946
• Docket Number: No. 2664.,2664.
• Parties: MECOM v. GALLAGHER et al.
• Court: Court of Appeals of Texas

192 S.W.2d 804

MECOM v. GALLAGHER et al.

No. 2664.

Court of Civil Appeals of Texas. Tenth District. Waco.

January 31, 1946.

Rehearing Denied March 7, 1946.

Appeal from District Court, Zapata County; R. D. Wright, Judge.

Suit by H. Mecom against D. O. Gallagher and another to recover real property and to quiet title. From an order sustaining pleas of privilege filed by defendants to be sued in the county of their residence, plaintiff appeals.

Reversed and judgment rendered overruling the pleas of privilege.

Neel, King & Rachal, F. J. Flores, and Nat B. King, all of Laredo, and C. M. Gaines, of San Antonio, for appellant.

W. R. Blackshear and Gordon Gibson, both of Laredo, for appellees.

HALE, Justice.

This is an appeal from an order sustaining two pleas of privilege. The suit out of which the venue proceedings arose was instituted on May 29, 1945 by appellant against appellees, D. O. Gallagher and Maurice Alexander, in Zapata County. It involved 4,563 acres of land alleged to be situated in that county. Each appellee duly filed his plea in proper form asserting his privilege to be sued in the county of his residence. Appellant seasonably filed and presented his controverting affidavit to both pleas wherein he asserted under oath that the allegations in his original petition were true, making such petition in its entirety a part thereof, and alleged that the suit is for the recovery of lands and to quiet the title to lands within the meaning of Exception 14, Art. 1995 of Vernon's Tex.Civ. Stats. Upon a hearing of the issues thus joined appellant introduced in evidence his original petition and his controverting affidavit. It was agreed that the land described in the petition was situated in Zapata County and that each appellee resided in Webb County. Thereupon, the court entered an order sustaining each plea of privilege and transferring the cause to Webb County for trial on its merits.

Appellant says the judgment should be reversed and here rendered because his suit is an action for the recovery of lands and to quiet the title thereto within the purview and meaning of Exception 14 of the venue statute. On the other hand, appellees say the judgment should be affirmed because the suit against them is an action for the specific performance of a contract to convey lands and hence does not come within the meaning of the alleged exception.

If appellant's petition, when properly construed, only evidences an action for the specific performance of a contract to convey lands, as distinguished from an action for the recovery of lands or to quiet title thereto, then his suit would not come within the meaning of Subd. 14, Art. 1995 of Vernon's Tex.Civ.Stats. Hearst v. Kuykendall, 16 Tex. 327; Miller v. Rusk, 17 Tex. 170, Caven v. Hill, 83 Tex. 73, 18 S. W. 323; Texas Farm Mortg. Co. v. Starkey, Tex.Civ.App. 25 S.W.2d 229.

Contrarily, if the dominant purpose of the suit, as evidenced by the petition, is to recover the lands in controversy and to quiet the title thereto, then venue for a trial of the cause on its merits was and is properly laid in Zapata County. Pena v. Sling, 135 Tex. 200, 140 S.W.2d 441, 128 A.L.R. 1223; Wood v. Tandy, Tex.Civ. App., 299 S.W. 282; Elder v. Miller, Tex. Civ.App., 116 S.W.2d 1171; Humble Oil & Ref. Co. v. Monroe, Tex.Civ.App., 129 S.W.2d 454.

In order to determine the nature of the suit it is necessary to ascertain from the petition the extent and character of recovery, if any, to which appellant may be lawfully entitled under his allegations of fact and prayer for relief.

Appellant alleged in his petition that on the 14th day of November, 1940 he entered into a written contract with fourteen persons known as the Gutierrez heirs (hereafter referred to as owners) whereby the owners leased to him the 4,563 acres of land in Zapata County. He also alleged that the written contract was filed for record on November 26, 1940 in the office of the County Clerk of Zapata County and was duly recorded in Vol. 45, p. 286 of the Zapata County deed records. He attached a copy of the contract to his petition as an exhibit and made the same a part thereof for all purposes. The contract provided that the owners, for a cash consideration of $4,000 to them paid, thereby leased the land therein described to appellant as tenant for a period of five years. Paragraph 7 of the contract reads as follows: "Should the undersigned Owners, or any of the undersigned Owners, decide to sell said leased premises, or a portion thereof, or their interests in said premises, they agree to give tenant written notice of their desire to sell, which notice shall state consideration and terms upon which they are willing to sell, and name of purchaser, and the tenant herein shall have the preference right to purchase such land or interest therein for the consideration and upon the terms at which undersigned Owners may be willing to sell to a third person or persons. However, Tenant must within thirty days advise such Owner or...