Nolen v. Harding
| Decision Date | 29 October 1921 |
| Docket Number | (No. 9685.) |
| Citation | 235 S.W. 687 |
| Parties | NOLEN v. HARDING et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Stephens County.
Bill by J. C. Nolen against W. A. Harding and others. From an order granting a plea of privilege, plaintiff appeals. Reversed, and judgment rendered overruling plea.
Mackey & Ritchey, of Breckenridge, for appellant.
James G. Harrell, of Breckenridge, for appellees.
J. C. Nolen instituted this suit to cancel a deed executed by him to the mineral rights in 10 acres of land in Stephens county, and to quiet his title thereto, and to remove said deed as an incumbrance thereon. W. A. Harding, S. L. Gill, Clyde W. Stephenson, the Harding-Gill Company, a partnership land company composed of W. A. Harding and S. L. Gill, and the Raymondville State Bank were all made defendants to the suit, and in plaintiff's petition it was alleged that the Raymondville State Bank was a banking corporation organized under the laws of the state of Texas, with its principal office in Raymondville, Cameron county, Tex., and that all of the other defendants resided in that county. The defendants Harding, Gill, and the Raymondville State Bank all filed a joint plea of privilege to be sued in the county of Cameron. That plea of privilege was sustained, and the entire cause of action was ordered to be transferred to the district court of Cameron county. From that judgment plaintiff has appealed.
The cause of action set out in plaintiff's petition may be briefly stated as follows: The defendants W. A. Harding and S. L. Gill, composing the partnership firm of Harding-Gill Company, and the plaintiff, J. C. Nolen, entered into a written contract by the terms of which the Harding-Gill Company agreed to sell and convey to Nolen title to 236 acres of land situated in Hidalgo county, in consideration for which sale Nolen agreed to convey to the Harding-Gill Company a one-eighth of the mineral rights in 10 acres of land in Stephens county, which is the subject-matter of this suit, at an agreed valuation of $6,000, and to execute to the Harding-Gill Company seven vendor's lien notes, of the aggregate sum of $17,600. It was stipulated in the contract that the Harding-Gill Company would furnish to Nolen an abstract showing good title to the Hidalgo county land. Plaintiff alleged that it was never contemplated by the parties to the contract that he should execute and deliver his deed to the Stephens county land, and also execute the promissory notes which he bound himself to execute, until the other parties to the contract should furnish to him an abstract showing that good title was vested in them to the land in Hidalgo county, but that after the contract was executed, and before such showing of title had been made, plaintiff, at the earnest solicitation and request of W. A. Harding and S. L. Gill, composing the partnership firm of Harding-Gill Company and upon their assurance that they could and would deliver to plaintiff an abstract showing good record title to the land, and could and would convey such title to the plaintiff, plaintiff executed and delivered to W. A. Harding, for himself and Gill, his deed of conveyance and assignment to the mineral rights to the land in Stephens county, which he had contracted to execute, and at the same time executed and delivered the promissory notes which he had contracted to execute.
It was further alleged that thereafter plaintiff's attorney, who had been employed to examine and pass upon the title to the Hidalgo county land, examined the abstract of title thereto furnished by Harding and Gill, and discovered that the same did not show good title thereto in Harding-Gill Company, and so advised the plaintiff; that Harding and Gill had failed and refused to furnish any further showing or assurance of title to that land, and thereby had breached their contract with the plaintiff; that the notes so executed by Nolen had been transferred to the other defendants, who took the same with notice of the breach by Harding and Gill of their said contract. It was further alleged that plaintiff had never acknowledged before a notary the deed which he executed in favor of defendant Harding, although the same had been duly delivered; that after its execution and delivery, Harding left it with plaintiff's...
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