Naquin v. Texas Savings & Real Estate Inv. Ass'n.

• Citation: 67 S.W. 85
• Parties: NAQUIN et al. v. TEXAS SAVINGS & REAL ESTATE INV. ASS'N.
• Decision Date: 20 March 1902
• Court: Texas Supreme Court

Page 85

67 S.W. 85

NAQUIN et al. v. TEXAS SAVINGS & REAL ESTATE INV. ASS'N.

Supreme Court of Texas.

March 20, 1902.

Certified questions from court of civil appeals of First supreme judicial district.

Action by the Texas Savings & Real Estate Investment Association against M. L. Naquin and others. Judgment for plaintiff, and defendants bring error to the court of civil appeals, which certifies certain questions to the supreme court.

Hutcheson, Campbell & Hutcheson, for appellants. Ewing & Ring, for appellee.

BROWN, J.

The court of civil appeals for the First supreme judicial district has certified to this court the following statement and questions:

"In this cause now pending before us on writ of error, the questions hereinafter certified have arisen upon the following state of facts: On the 26th day of July, 1894, the defendant in error executed and delivered to plaintiff in error the following contract of sale of real estate: `The State of Texas, County of Harris. This memorandum of agreement, made this 26th day of July, 1894, between the Texas Savings & Real Estate Investment Association and M. L. Naquin, witnesseth: That said Texas Savings & Real Estate Investment Association hereby agrees, in consideration of $1.00 to it in hand paid, and the payment of the further sum of $1,600.00, with interest as hereinafter provided, in monthly installments of $20.00 per month, including interest, hereafter to convey to said M. L. Naquin, of Houston, Harris county, Texas, all that certain tract or parcel of land on the south side of Buffalo Bayou, in the city of Houston, Harris county, Texas, known and described as lot number six (6), in block number five (5), of the Texas Savings & Real Estate Investment Association second addition to the said city of Houston; said lot fronting fifty (50) feet on Jackson street, and running back for depth one hundred (100) feet between lines parallel with Drew avenue, together with all improvements situated thereon. Also agreeing that when one-fourth of said sum of $1,600.00, together with interest thereon at the rate of 10% per annum from date hereof, is paid, to execute and deliver to said M. L. Naquin a good and sufficient deed, retaining vendor's lien for balance of purchase money and interest thereon. Said monthly payments are represented by one hundred and twenty (120) promissory notes, of even date herewith, each for the sum of $20.00, with interest from maturity, the first of which notes is due and payable on the first day of August, 1894, and one on the first day of each and every month thereafter, until all shall have become due; it being understood and agreed that, should the said Naquin allow any three of said monthly payments represented by said notes as aforesaid to become due and remain unpaid at the same time, this agreement to convey said property shall become null and void, and all sums which shall have been paid by the said Naquin shall be forfeited to and in favor of said association without notice to the said Naquin. It is further agreed that the said Naquin shall keep the improvements on said property insured for the benefit of said association in the sum of not less than $500.00. All taxes for the year 1894 are to be paid by said association, and all taxes thereafter to be assumed and paid by said Naquin. Executed in duplicate. Accepted: M. L. Naquin. [Signed] Texas Savings & Real Estate Investment Association, by E. L. Dennis, President.' Naquin, the plaintiff in error, executed the 120 notes prescribed by the contract of sale, and entered into possession of the premises. He was a married man, and occupied the place as a home. There was a dwelling house on the lot at the date of the contract of sale, and this was insured in favor of the association for the sum of $800.00, the policy also disclosing the interest of Naquin, and the premiums were paid by the association and charged to Naquin. Fifty-three of the notes were paid by Naquin, the last one being paid about February, 1898, but no deed was demanded by Naquin and none was given, nor did the association exercise its right of rescission on account of Naquin's default. On May 21, 1899, the improvements were practically destroyed by fire. In the early part of August, 1899, Naquin, who was in default in the payment of three or four notes at the date of the fire, and who neither paid nor offered to pay any of the notes thereafter, had an interview with the president of the association, and demanded that the association take the insurance money which it collected, and give him the lot, stating that he wanted his equities out of it. This the officers of the association refused to do, and thereafter used $710.38 of the insurance money in restoring the house to its condition prior to the fire. When Naquin heard of the association's purpose to rebuild, he saw the proper officer of the concern, protested against the building of the house on the lot, stated that he did not want to rebuild on it, and insisted that the insurance money be credited on the debt. The association refused all these demands, and completed the restoration of the improvements some time in October, 1899. It had treated the premises as its own from the date of the interview, in which Naquin first demanded that the association take the insurance money and...