Nicholson v. Lieber

• Decision Date: 22 January 1913
• Citation: Nicholson v. Lieber, 153 S.W. 641 (Tex. App. 1913)
• Parties: NICHOLSON et al. v. LIEBER.
• Court: Texas Court of Appeals

153 S.W. 641

NICHOLSON et al. v. LIEBER.

Court of Civil Appeals of Texas. San Antonio.

January 22, 1913.

On Motion for Rehearing, February 19, 1913.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by J. H. Lieber against B. F. Nicholson and others. From a judgment for plaintiff for a specified sum and for defendants for a specified sum, defendants appeal. Reversed and rendered in part, and affirmed in part.

Jno. M. Rowland and R. P. Ingrum, both of San Antonio, for appellants. Swearingen & Tayloe, of San Antonio, for appellee.

TALIAFERRO, J.

This suit was filed by Jas. H. Lieber to recover from B. F. Nicholson, W. J. Sames, and J. R. Moore earnest money paid upon a contract to sell real estate, and certain other sums of money claimed to have become due to the plaintiff by reason of the contracts between the parties covering said sale. The original contract of sale was dated March 1, 1910. It recited the receipt of $500 and the agreement to pay $250 on or before March 20, 1910. The further portion of the contract material to this case reads as follows: "Grantors are to furnish abstract of title brought down to date as soon as possible, and grantee is to have thirty days from date of delivery for examination of said abstract. It any defects in title are found, same are to be pointed out to grantors by grantee, or his attorney, and grantors are to have a reasonable time to cure said defects. If this cannot be done and good title furnished, the above-mentioned $500.00 is to be returned to grantee and the said payment of $250.00 to be made March 20th if already paid, is to be returned and this contract be of no further force or effect. But if good title is furnished, and grantee fails or refuses to go forward with closing the deal as in all conditions fully set forth, the $500.00 earnest money this day paid and the $250.00 payment to be made March 20, 1910 is to be forfeited as and for liquidated damages."

At the time this contract was made, certain improvements upon the property were being erected, the plans and specifications for which Lieber had inspected and approved. A portion of the improvement was to be paid for by the defendant and the balance by the plaintiff. Although the defendants were by the contract required to "watch after" the construction of the improvements, plaintiff Lieber, at least in part, directed the affairs and had practical possession and control thereof until May 26, 1910, the day upon which the trade was finally repudiated by him. Between March 1 and May 26, 1910, Lieber Bros., a firm of plumbers and electricians, of which firm plaintiff was a member, did certain work and supplied certain plumbing and electrical accessories to the building aggregating $526.70. Of this sum they claimed $195 was done under the original contract with Fincham, and was allowed to Lieber upon this contract for the building, and the balance was work and material necessary in the proper construction of the building. Plaintiff claimed that this was done with the consent and approval of the defendants, and they attempted by filing affidavits and accounts to make same a Mechanic's and Supply Man's Lien on the property. The account was assigned to plaintiff Lieber, and was included in this action. On March 9, 1910, the defendants delivered to plaintiff an abstract of title, which was placed by plaintiff with his attorneys for examination. On April 1, 1910, the local lodge of the Woodmen of the World proposed to plaintiff, Lieber, to rent a portion of the house then in course of construction. To meet the proposed tenant's requirements, it was necessary to alter the plans and specifications, and make certain additions thereto. These changes it was ascertained would cost $620 additional. Plaintiff, Lieber, executed the lease to the Woodmen of the World, and also made with the contractor an agreement to make the necessary alterations and additions to the plans and specifications, and the defendants were requested by him to express their agreement to said lease and changes of plans. This they did by a supplemental contract with plaintiff embodying this new condition, which said contract contains the following language: "It is, however, distinctly understood and agreed that, in order to place the premises above described in a condition acceptable to the said lodge, it has become necessary for the said James H. Lieber to enter into a contract for the erection of certain improvements at an agreed expense of $620.00, with the contractor, C. T. Fincham, and it is understood that should, upon examination of the abstract of title, it be found that the title to said property failed, or was not such as provided for in said contract of purchase, and on such account said purchase not be consummated, then, in such event, the said Nicholson, Sames and Moore agree to pay said expense of $620.00; but should the said James H. Lieber make failure or default in complying with the terms and conditions of said purchase contract, and thereby surrender and forfeit the earnest money of $750.00 on said contract, it is further distinctly understood and agreed that the said James H. Lieber shall be liable unto the said Nicholson, Sames, and Moore for an additional $320.00 as liquidated damages by reason of such default."

On April 8, 1910, plaintiff, Lieber, requested defendants to grant him one month additional time in which to present his objections to the title. This request was refused, and on April 9th, 31 days after the abstract was received by him, plaintiff, Lieber, wrote and delivered to defendants the following letter: "San Antonio, Texas, April 9, 1910. Mr. B. F. Nicholson, San Antonio, Texas—Dear Sir: Reference abstract for the property which is under contract of purchase between you and your associates and myself, being lot No. 5, new city block No. 122, on N. Flores street, San Antonio, Texas, beg to quote from letter of our attorneys with reference to title as follows: `There is a vendor's lien note for about $4,200.00 in favor of Mary E. Jones, which has been transferred by written instrument to D. K. Furnish, guardian. This note has also been transferred by the guardian, D. K. Furnish, to Mr. Collat. There is no record showing that Mr. Furnish is the guardian of the minor, and there is no record of his authority either to buy the note for the minor, or to sell it. These records should be put in the abstract. Furthermore the lien is still in existence, according to the records as shown by the abstract, and is still a live lien against the property. In addition to this, Mr. Collat has a recorded deed of trust in his favor for $9,000.00, which has not been released. I presume the $4,200.00 note was absorbed as a part of the $9,000.00 loan, but the record does not show this. The $4,200.00 note should be released, or an instrument put of record showing that it was absorbed by the $9,000.00 loan.' Kindly give these matters attention at your convenience and furnish me with the necessary papers in conformity with the above recommendations. Respectfully, Jas. H. Lieber." At the time this letter was written the plaintiff was fully advised that, because of certain lapses in the record title, defendants had only a title by limitation, and he had also been advised by his attorneys that the limitation title, as such, was good. The defects in the title pointed out by this letter were promptly cured by the defendants. The plaintiff continued in possession of the property directing the work thereon until May 26, 1910, when he positively declined to accept the property and delivered to the defendants a letter received by him from his attorneys, which is as follows: "San Antonio, Texas, May 26, 1910. Mr. J. H. Lieber, City—Dear Sir: We examined abstract No. 12,059, to lot in city block 122, on North Flores street, San Antonio, Texas, made by Texas Title Co., said abstract containing pages numbered 1 to 44; also the supplement brought down to the 7th day of March, 1910, by the San Antonio Abstract Company, their supplement being numbered 1934/2143, containing pages numbered 45 to 66, inclusive. We find that Mr. Nicholson's title does not connect with the sovereignty of the soil. We find further that the power of attorney given by Bettie Morris to Sol A. Morris did not authorize Sol A. Morris to mortgage her interest in the property. The abstract shows that her interest was sold under the mortgage made by Sol A. Morris under that power of attorney for her. As the power of attorney gave no such authority, the title, so far as her interest is concerned, failed. We find the entire title subject to a deed of trust in favor of M. L. Collat, M. W. Terrell being trustee. From recitals in several of the instruments, as well as statements made to us, and according to our general information, this property has been in the possession of Messrs. Nicholson et al. and their grantors for over fifty years, under claim of ownership, and we believe beyond question, their possession of the property cannot be interfered with by any adverse claimants. However, according to the decisions of our Court of Appeals, a title by limitation, which this is, cannot be construed as a good title, or a record title, and a prospective purchaser could not be required to accept a limitation title. In view of the decisions of the Court of Appeals, which have been concurred in by our Supreme Court, we feel it our duty to make this statement, notwithstanding we believe that Messrs. Nicholson et al., are the actual owners of the property, and that when you acquire it from them you could hold it against the world. It is your privilege to waive the objection to a limitation title, or to reject the title. In our former letter about this abstract, we mentioned three other objections or omissions, which the abstract has been amended to show and completely heal. Very truly yours, Swearingen & Tayloe."

The case was tried by the court without a jury, and judgment...