Pachter v. Woodman, B-6013

Citation547 S.W.2d 954
Decision Date16 February 1977
Docket NumberNo. B-6013,B-6013
PartiesBernard PACHTER, Petitioner, v. L. L. WOODMAN, Sr., et al., Respondents.
CourtSupreme Court of Texas

Geary, Stahl, Koons, Rohde & Spencer, Gerald P. Urbach, Mark C. Clements and Steven F. Bright, Dallas, Jack Ware, Uvalde, for petitioner.

Jackson, Walker, Winstead, Cantwell & Miller, M. Douglas Adkins, Charles F. Schwab, Jr., Dallas, Ralph J. Graham, Corpus Christi, for respondents.

SAM D. JOHNSON, Justice.

This is a suit brought by the legal owner of a tract of land, Bernard Pachter, to set aside a sale of that land made under the power in a deed of trust. The defendants were L. L. Woodman, Sr. and L. L. Woodman, Jr. as the holders of the deed of trust who foreclosed, Gary Roberts as the substitute trustee, and D. Harold Byrd and Warren Wagner, Inc. as the purchasers at a foreclosure sale. Claiming an interest in the land, Plus Two Cattle Company, Inc. and the National Bank of Commerce of Dallas intervened. D. Harold Byrd and Warren Wagner, Inc. moved for a summary judgment and the trial court granted the motion. The court of civil appeals affirmed. 534 S.W.2d 940. We reverse and remand to the trial court.

The following summary of events is derived from the pleadings, the motions, the affidavits, and the sworn or certified copies of papers and documents filed in this case. The property in issue consists of approximately 1,017 acres of land located in Zavala County, Texas. In 1963 the Franklin Life Insurance Company conveyed this property to the Woodmans and the Woodmans executed a first lien deed of trust note in the sum of $100,000. In 1966 the Woodmans conveyed this tract to Byrd Farms, Inc. Byrd Farms executed a second lien deed of trust and note in the sum of $290,000. This conveyance was made subject to the lien held by Franklin Life Insurance Company. Subsequently, in 1968, L. L. Woodman, Jr. purportedly assigned and transferred to L. L. Woodman, Sr. all of his interest in the note executed by Byrd Farms. In 1970 Byrd Farms conveyed the tract to D. Harold Byrd.

On March 4, 1971 D. Harold Byrd conveyed the tract to Pachter for a total consideration of $435,000, which included $5,500 for an irrigation motor located on the land. A $50,000 down payment was made. This conveyance, by warranty deed, was made subject to the first deed of trust lien held by Franklin Life Insurance Company with an outstanding balance of $65,000, the second deed of trust lien held by Woodman, Sr. with an outstanding balance of $235,495.74, and a third deed of trust lien executed on March 4, 1971 by Pachter to Byrd in the sum of $73,699.86. 1

In December 1972 Pachter conveyed the equitable title to the tract to Charles F. Schwab by means of a contract of sale, which was subsequently assigned to Plus Two Cattle Company, Inc. on or about January 1, 1973. Plus Two Cattle Company, Inc. pledged its rights in the contract of sale to the National Bank of Commerce of Dallas in June 1974.

The deed conveying the property from Byrd to Pachter was properly recorded. However, the tax roll of the Uvalde Consolidated Independent School District continued to show D. H. Byrd as owner. In February 1973 the tax assessor for the School District reported to Franklin Life Insurance Company that the 1972 school taxes on the tract were delinquent. Almost one year later, on February 7, 1974, Franklin Life Insurance Company wrote the following letter to the tax assessor:

"On February 26, 1973, you reported the 1972 School Taxes delinquent on the property described in the enclosed legal description. Since that time, we have written to the owner several times requesting evidence that these taxes have since been paid. However, we have not yet received proof of payment.

"We would appreciate your advising us if these taxes have been paid. . . . We would also appreciate your advising us if the 1973 School Taxes have been paid."

The tax assessor replied as follows:

"This land is still on our roll under the name of D. H. Byrd. There has been no deed change. The following are the taxes due:

". . . .d i

"$4,634.71."

The amount reported by the tax assessor included accrued penalties and interest. In his affidavit Schwab asserts that the copy Plus Two Cattle Company, Inc. received of the above reply by the tax assessor was the first notice it had of delinquent taxes.

L. L. Woodman, Sr. elected to exercise his option to accelerate the note because of the failure to comply with the deed of trust provision requiring the payment of the taxes before the accrual of penalties and interest. He instructed his attorney to prepare a letter to be sent to Pachter's attorney, Plus Two Cattle Company, Inc., and Schwab notifying them of his acceleration of the total amount due because of the failure to pay taxes. The letter prepared by Woodman, Sr.'s attorney and dated February 25, 1974 stated:

". . . L. L. Woodman, Sr., has elected to exercise his option to accelerate all remaining payments due and owing on and under such note and that accordingly all sums due and owing on and under such note are immediately due and payable to him. . . ."

This letter was postmarked February 27, 1974.

Plus Two Cattle Company, Inc. sent a check dated February 27, 1974 to the tax assessor in the amount which the tax assessor had indicated was due, $4,634.71. According to the affidavit of a deputy tax assessor-collector, Fleacie Coleman, this check was received by the tax assessor on March 1, 1974. Jack L. Fox, the attorney for Pachter, recites in his affidavit that the letter from Woodman, Sr. to him was received on March 4 or 5, 1974. By letter dated March 4, 1974, the tax assessor advised Franklin Life Insurance Company and Schwab of an error in the tax statement in the February letter; the amount was deficient by $679.44. A check for this sum was received from Plus Two Cattle Company, Inc. by the tax assessor by March 22, 1974.

Following communication between Pachter's attorney and Woodman, Sr.'s attorney, a letter dated March 29, 1974 was sent by Woodman, Sr.'s attorney to Pachter's attorney which provided that Woodman, Sr. would delay foreclosure for thirty days. The delay was granted in order to give Pachter an opportunity to conclude a sale of the land and to use the proceeds to pay Woodman, Sr. Negotiations between the two attorneys continued after the expiration of thirty days and included discussions of an increase in the interest rate on the note from six percent to nine percent. Pachter's amended original petition, which was verified, alleged Woodman, Sr.'s attorney represented to Pachter's attorney during several of these discussions that he would "personally notify (Pachter's) Attorney if and when the Defendants posted notices of said trustee's sale; (and) that (Woodman, Sr.'s) Attorney totally failed to comply with this agreement all to the detriment and damage of (Pachter)."

Eventually, on November 5, 1974, the land was sold at foreclosure sale for $198,222. The date of this sale was over eight months after the letter relative to the election to accelerate was...

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8 cases
  • Cagle v. Carlson
    • United States
    • Arizona Court of Appeals
    • 29 Enero 1985
    ...v. Kyle, Inc., 589 S.W.2d 501 (Tex.Civ.App.1979); Pachter v. Woodman, 534 S.W.2d 940 (Tex.Civ.App.1976), rev'd on other grounds, 547 S.W.2d 954 (1977). Appellants' responses to the tender issue are that principles of res judicata, or more properly, claim preclusion, bar this issue; that an ......
  • Bank One, Texas, N.A. v. Stewart
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    • Texas Court of Appeals
    • 29 Enero 1998
    ...v. Woodman, 534 S.W.2d 940, 946 (Tex.Civ.App.--Tyler 1976) (holding to seek equity, one must do equity), reversed on other grounds, 547 S.W.2d 954 (Tex.1977). Arguably, the relationship of LRI and Trendmaker on the Midland Note is an equitable consideration that might obviate the need for t......
  • Lido Intern., Inc. v. Lambeth
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    ...proceeding, Lambeth had the burden of showing that notice of the sale was given as required by law or was not required. Pachter v. Woodman, 547 S.W.2d 954 (Tex.1977). There is no contention here that Ghanei had actual notice of the proposed sale. Cf. Hausmann v. Texas Sav. & Loan Ass'n, 585......
  • Fireman's Fund Ins. Co. of Texas v. Jackson Hill Marina, Inc.
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    ...Marina had satisfied its debt to Bank. See Pachter v. Woodman, 534 S.W.2d 940 (Tex.Civ.App.--Tyler 1976), rev'd on other grounds, 547 S.W.2d 954 (Tex.1977); W. Mike Baggett, Texas Foreclosure Law and Practice § 3.89 (1984). There is no evidence in the record, however, that Marina attempted ......
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