Payne v. Baldock
| Decision Date | 17 February 1956 |
| Docket Number | No. 3221,3221 |
| Citation | 287 S.W.2d 507 |
| Parties | C. M. PAYNE et ux., Appellants, v. Hester Wallis BALDOCK et al., Appellees. |
| Court | Texas Court of Appeals |
Sentell & Rosser, Snyder, for appellants.
Mike R. Mason, Odessa, for appellees.
Hester Wallis Baldock joined pro forma by her husband, Olen E. Baldock, and Myrill Davis brought this suit against C. M. Payne and wife, Ann Payne. Plaintiffs sought judgment rescinding and cancelling two contracts covering two city lots in Block 2 of Payne Addition to the City of Snyder, Scurry County, Texas, and to recover from defendants $1,661.38 principal and interest alleged to have been paid by plaintiffs on Lot 1 and $1,711.16 principal and interest alleged to have been paid on Lot 2, and the value of the improvements placed thereon, less the alleged rental value of the property during the time it was used by plaintiffs. It was alleged that the two contracts for deeds covering Lots 1 and 2, were dated September 23, 1949, and September 24, 1949, respectively, and both contracts provided that plaintiffs were to receive warranty deeds to the lots and no restrictions of any nature were mentioned; that although plaintiffs made all payments provided in the contract on Lot 2, defendants failed and refused to give plaintiffs a deed without restrictions, as provided in the contract, but, during August of 1952, tendered instead a deed which contained numerous restrictions concerning the use and enjoyment of said Lot 2; that plaintiffs refused to accept the tendered deed because it was not in compliance with the contract. Plaintiffs alleged that they were still insisting that defendants deliver to them warranty deeds to the described lots without restrictions as provided by the contracts between the parties, but after they had fully paid for Lot 2 and had paid $1,661.38 principal and interest on Lot 1 and only $163.00 remained unpaid thereon, plaintiffs first learned upon advice of their attorney that it was impossible for defendants C. M. Payne and Ann Payne to perform their contracts because of restrictions contained in warranty deeds of records previously executed by defendants covering other lots in the same addition; that when plaintiffs discovered it was impossible for defendants to perform their contracts, they notified defendants that they had rescinded the contracts and demanded return of the $1,661.38 paid on Lot 1 and the $1,711.16 paid on Lot 2, together with $1,055, the alleged value of improvements placed by plaintiffs on the said lots, less the value of plaintiffs use and occupation of the two lots while in their possession.
Defendants alleged among other things that plaintiffs were advised and had knowledge of the restrictions and restrictive covenants affecting the two city lots prior to the time of making any of the monthly payments provided for in the contracts; that, notwithstanding such knowledge, plaintiffs retained possession of the lots and continued to make payments thereon; that such continued possession and payments by plaintiffs constituted a ratification of the contracts. Defendants further alleged that after they had notified and informed plaintiffs of the restrictions affecting the lots in question they offered to refund all payments plaintiffs had made thereon and to cancel all obligations under the contracts but that plaintiffs refused the offer, retained possession of the land and continued to make payments under the contracts. Defendants urged that such action constituted a waiver of any right that plaintiffs had to rescind the contracts.
The case was tried before a jury and based upon its findings judgment was entered against defendants and in favor of plaintiffs for the amount paid to defendants together with the value of improvements plaintiffs had placed thereon, less the rental value of the lots as found by the jury. Defendants have brought this appeal.
The contracts under which defendants C. M. Payne and wife became obligated to sell the two city lots to plaintiffs and execute warranty deeds covering each of the lots upon payment of all the consideration provided were made by their agent, W. L. Leland. The contracts did not mention any restrictive covenants affecting the use of the land. All parties now concede that defendants were unable to give deeds to these lots without restrictions because they had theretofore given deeds covering other lots in the same addition which contained restrictions. Plaintiffs had no knowledge of these restrictions at the time they entered into the contracts here under consideration. But there is evidence to the effect that Mrs. Baldock acquired knowledge of these restrictions shortly after the date of the contracts. It was found by the jury in answer to Special Issue No. 6 that after Mrs. Baldock learned of the restrictions Mr. Payne offered to rescind the contracts and return the money paid by plaintiffs. The effect of the answer of the jury to Special Issue No. 6 is to find that Mrs. Baldock did learn of the restrictions and, after she acquired such knowledge, Mr. Payne offered to rescind the contracts and refund all payments. These findings do not specify the date that Mrs. Baldock learned of the restrictions or the date that Mr. Payne offered to rescind the contracts and return the payments made but the evidence supporting such findings indicates, as shown by the testimony of Mrs. Baldock, herself, that Mr. Payne told her within three or four days after the date of the first contract that 'there were restrictions'. It is undisputed that Mrs. Baldock did not rescind the contracts at that time and that thereafter she or her agent made improvements on the lots and made payments on both lots until Lot 2 was fully paid for in April of 1952. In August of 1952 defendants executed and delivered to Mrs. Baldock a deed to Lot 2 which contained restrictions concerning the use and enjoyment of the lot. Although the evidence shows that Mrs. Baldock was dissatisfied with this deed and discussed the matter with her attorney, it is conclusively shown that the deed was not returned to the defendants. After the delivery of the deed covering Lot 2 to Mrs. Baldock agents for the plaintiffs continued to make payments on Lot 1 for four months, including the payment for December 1952. On January 12, 1953, Mrs. Baldock wrote a letter to the Paynes stating that she was going to sell both lots and inquired if d...
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