Neuhaus v. Kain
| Decision Date | 31 August 1977 |
| Docket Number | No. 1164,1164 |
| Citation | 557 S.W.2d 125 |
| Parties | W. Oscar NEUHAUS, Trustee, Appellant, v. Douglas KAIN et al., Appellees. |
| Court | Texas Court of Appeals |
This is a suit for specific performance of a contract for the conveyance of approximately 852 acres of land. The subject matter of this suit was first before this Court in an appeal from a summary judgment that was signed on August 29, 1973. See Kain v. Neuhaus, 515 S.W.2d 45 (Tex.Civ.App. Corpus Christi, 1974, no writ), where the judgment of the trial court was reversed, and the cause was remanded for trial on the merits.
Following the remand, trial before a jury commenced on March 15, 1976. Based on jury findings which were favorable to Douglas Kain, et al., defendants, a take nothing judgment was signed on May 26, 1976. The judgment does not identify each individual defendant by name, but simply refers to all defendants as "the Defendants, DOUGLAS KAIN, ET AL." W. Oscar Neuhaus, Trustee, plaintiff, has duly perfected an appeal from that judgment.
The Kain family, defendant-appellees, were the owners of undivided interests in varying proportions of certain tracts of land in Matagorda County, Texas. A contract of sale covering the land, hereinafter sometimes called "Earnest Money Contract" and sometimes referred to as "contract," was entered into by and between the members of the Kain family, as sellers, and W. Oscar Neuhaus, Trustee, as purchaser. The contract, among other provisions, contained an express provision to the effect that each seller who signed the same would reserve unto himself, his heirs and assigns, in the deed that was to be subsequently executed, an undivided one-half of his present interest in the minerals on, in and under the land. No mention was made therein that the sellers would also retain the right to negotiate future leases for mineral development of all minerals on, in and under the land. The contract, when presented to the defendants for signature, had already been signed by plaintiff.
On December 2, 1971, Barnet B. Skelton, Plaintiff's attorney, personally delivered the contract to Douglas Kain. After some discussion, hereinafter detailed, and after some interlineations were made at the insistence of Douglas Kain which are not questioned in this appeal, the contract was signed by Douglas Kain. Thereafter, the contract was signed by the other members of the Kain family.
Skelton, by letter dated February 23, 1972, advised the sellers that the purchaser was ready to close the transaction. Accordingly, and in conformity with the terms of the contract, cashiers' checks aggregating $56,000.00, the cash down payment, and the several vendors' lien notes for the balance of the purchase price were executed and tendered the defendants, together with a general warranty deed with vendors' lien retained, wherein there was reserved unto sellers, their heirs and assigns, forever, an undivided one-half (1/2) of their present interest in the minerals on, in, and under the subject land, together with 100% of the royalty then being paid from certain mineral leases covering part of the land involved.
All of the sellers, except Bobby M. Blanchard, refused to execute the deed or to accept the cashiers' checks and vendors' lien notes because the deed did not expressly reserve unto them the leasing rights of all the minerals on, in and under the subject land. Bobby M. Blanchard signed the deed on February 28, 1972. Plaintiff filed suit on April 20, 1972 against all of the sellers, except Bobby M. Blanchard, for specific performance of the contract.
Thomas Kain, Jr., by deed dated February 8, 1972, conveyed a portion of his interest in the subject land to Thomas Patrick Kain, Bernice Kain Dodd, Mamie Kain Littlejohn, Marie Ainsworth Stephenson, Macie Ainsworth Kain, and Virginia Kain Grisham. All of the grantees in the deed had actual notice of the existing contract of sale.
The defendants named in plaintiff's original petition were: Douglas Kain and wife, Grace Landrum Kain; George Kain and wife, Annie Shelby Kain; Margarite Kain Berglund; Inez Kain Swagerty; Thomas Kain, Jr. and wife, Macie Kain; Barney Earl Boudreaux and wife, Patsy Boudreaux; Roger Blanchard; Hugh Patrick Blanchard; Lawrence Drew Kain; Barbara Rehak; Thomas Patrick Kain; Bernice Kain Dodd; Mamie Kain Littlejohn; Virginia Kain Grisham; Marie Ainsworth Marks; and Doris Ainsworth Stephenson.
After suit and lis pendens notice had been filed, the defendant Margarite Kain Berglund conveyed her undivided interest in the land in question to Conrad Berglund, Jr., Elizabeth Berglund Mathis, Kenneth Leo Berglund, Billy Penrod Berglund, and George Thomas Berglund, who were substituted as parties defendant in her stead. Also, during the same period of time, Annie Shelby Kain (wife of George Kain) died, and Carol Pool, George E. Kain and Georgie Brueggan were made parties defendant upon suggestion of her death.
All persons who were named as defendants in plaintiffs' original petition plus those persons who became substituted defendants by reason of the conveyance by Margarite Kain Berglund and of the death of Annie Shelby Kain were defendants in the trial court, and are appellees in the appeal now before this Court.
The judgment as to Roger Blanchard, Hugh Patrick Blanchard, Marie Ainsworth Marks and Doris Ainsworth Stephenson must be reversed and rendered for plaintiff. Summary judgment was rendered against them on August 29, 1973. They did not perfect an appeal from that judgment, and their attempt to appeal therefrom was dismissed by this Court. See Kain v. Neuhaus, supra. Consequently, the summary judgment heretofore rendered as to them became final, and the fact that they continue to assert an interest in the subject matter of this litigation up to and including the filing of appellees' brief and the submission of this cause now before this Court in the instant appeal is of no consequence. Plaintiff's point No. 46 is sustained.
The defense urged by defendants to the action brought against them by plaintiff was fraud. They alleged in substance: 1) on December 2, 1971, the contract which is sought to be enforced was brought to the home of Douglas Kain "by the plaintiff's attorney and representative, Barnet B. Skelton," who "represented to Douglas Kain and wife, Grace Landrum Kain, that the Kain family would be allowed to retain the right to negotiate the mineral interest under the land" covered by the contract, and that a provision to that effect "would be inserted into the Earnest Money Contract upon return to Houston by the said Barnet B. Skelton"; 2) such a provision was not thereafter inserted into the contract; 3) Douglas Kain and wife, Grace Landrum Kain, relied "upon the express representation of the said Barnet B. Skelton," signed the contract, and except for such express representation would not have signed it; 4) "thereafter, the said Douglas Kain used his influence as head of the Kain family" to persuade George Kain and wife, Annie Shelby Kain, Thomas Kain, Jr., and wife, Macie Ainsworth Kain, Margarite Kain Berglund, and Inez Kain Swagerty to sign the contract; 5) Barbara Rehak signed the contract "on the express representation of the said Barnet B. Skelton that the elder Kains needed the money, that not to sign the contract would deprive them of the use of the money in the later years of the lives of the elder Kains"; she relied on such statements, and "had it not been for said false and fraudulent representation she would not have signed the Earnest Money Contract"; 6) Skelton represented to Patsy Boudreaux and Barney Boudreaux that the purchasers "were running hot and cold on the deal, that if all owners did not sign, the deal would not be consummated, and it looked to him as though the elder Kains needed the money, that it was almost impossible to partition the land and very expensive, and that 'he would hate to have this on his conscience' "; because of such representations, Patsy and Barney Boudreaux signed the contract, and except for such representations would not have signed it. Defendants further alleged generally that their signatures to the contract were fraudulently obtained "in that the statements and representations made by Barnet B. Skelton as an attorney and representative of the plaintiff were made to the defendants to induce them to sign the earnest money contract . . . and except for said expressed representations made by the plaintiff's attorney and representative, Barnet B. Skelton, the Kain family would not have signed the Earnest Money Contract, that they relied on said representations," which "have not been consummated by the plaintiff."
The jury found, in their answers to Special Issues 1 and 2, that plaintiff, at all material times, was ready, willing and able to perform his obligations under the contract, and that he "timely tendered performance" thereunder. Those jury findings are not questioned by defendants in this appeal.
Special Issues 3 to 12 read:
"SPECIAL ISSUE NO. 3
Do you find from a preponderance of the evidence that Barnet B. Skelton represented to Douglas Kain that the earnest money contract would be changed so as to retain to the Kains the right to negotiate the minerals?
Answer 'We do' or 'We do not.'
ANSWER: We do
If you have answered Special Issue No. 3 'We do', and only in that event, then answer:
SPECIAL ISSUE NO. 4
Do you find from a preponderance of the evidence that Barnet B. Skelton made such representation to induce Douglas Kain to sign the earnest money contract when he (Skelton) had no present intention of performing in the future on such representation?
Answer 'W...
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