Pringle v. Southern Bankers Life Ins. Co., 10428

• Decision Date: 07 November 1956
• Docket Number: No. 10428,10428
• Citation: 296 S.W.2d 347
• Parties: Howard D. PRINGLE et al., Appellants, v. SOUTHERN BANKERS LIFE INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 347

296 S.W.2d 347

Howard D. PRINGLE et al., Appellants, v. SOUTHERN BANKERS LIFE INSURANCE COMPANY, Appellee.

No. 10428.

Court of Civil Appeals of Texas, Austin.

Nov. 7, 1956.

Louis Scott Wilkerson, Austin, for appellants.

J. E. McLemore, Jr., Dallas, for appellee.

GRAY, Justice.

This is a venue case. Appellants filed this suit in Travis County against appellee, a resident of Dallas County, and alleged that appellee acting by and through its agent made false and material representations to them in Travis County in an effort to induce appellants to purchase debenture bonds from appellee. They alleged that in reliance upon and induced by the said false and material representations they contracted to purchase $6,500 face value of said bonds which contract of purchase was consummated by appellants executing and delivering to appellee their promissory note for $6,500 the payment of which was secured by a deed of trust lien on three parcels of land located in Travis County.

Appellants alleged that they discovered that the above mentioned material representations were false and that 'they have elected and do here elect to avoid, rescind and cancel the aforesaid contract and the aforesaid note and deed of trust.'

Appellants prayed for:

'Judgment of this court cancelling and holding for naught the aforesaid note and deed of trust executed by plaintiff Howard D. Pringle;

'Judgment of this court declaring and adjudicating that the defendant holds no claim of any kind or character against the above described property under or by virtue of the aforesaid note and deed of trust and declaring said instruments fully cancelled.'

Appellee filed its plea of privilege and prayed that the cause be transferred to Dallas County. The plea was controverted and upon a hearing before the court it was sustained. The trial court found:

'* * * that the land described in paragraph 2 of the plaintiffs' original petition is situated in Travis County, Texas, but concludes as a matter of law that the nature of the plaintiffs' suit is not within subdivision 14 of Article 1995, Revised Civil Statutes of Texas, 1925, as urged by the plaintiffs, and that the plaintiffs did not establish any other exception to the general rule expressed in said Article.'

Appellee has not filed a brief.

Appellants contend that the trial court erred in sustaining the plea of privilege because the suit is one to remove an incumbrance upon the title to land located in Travis County and that venue of the suit is governed by exception 14 of Article 1995, Vernon's Ann.Civ.St. This exception provides that 'Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land * * * must be brought in the county in which the land, or a part thereof, may lie.'

Proof of the nature of the suit 'is supplied by the plaintiff's petition, for it, as so often has been said, is 'the best and all-sufficient evidence of the nature of the action." Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302. Our statement of the pleadings supra is sufficient to show the nature of the suit and our quotation from the judgment of the trial court locates the land in Travis County.

Clearly the deed of trust lien is an incumbrance on the title to land in Travis County ...