Roberts v. Armstrong

• Decision Date: 03 April 1919
• Docket Number: (No. 7656.)
• Citation: 212 S.W. 227
• Parties: ROBERTS et al. v. ARMSTRONG.
• Court: Texas Court of Appeals

212 S.W. 227

ROBERTS et al. v. ARMSTRONG.

(No. 7656.)

Court of Civil Appeals of Texas. Galveston.

April 3, 1919.

Rehearing Denied May 8, 1919.

Appeal from District Court, Wharton County; Sam'l J. Styles, Judge.

Suit by R. A. Armstrong against B. C. Roberts and another, executors. Judgment for plaintiff, and defendants appeal. Affirmed.

Hall & Barclay and Kelley & Hawes, all of Wharton, for appellants.

Gaines & Corbett, of Bay City, for appellee.

LANE, J.

This suit was originally brought by R. A. Armstrong against G. C. Gifford, deceased, to recover the sum of $2,835.90, alleged to be due for services rendered by him in procuring a purchaser for certain lands of Gifford. While the suit was pending, Gifford died, and the executors of his will, Annie Gifford and B. C. Roberts, were made parties.

The suit was based on a contract between appellee, Armstrong, and Gifford, deceased, dated February 21, 1913, by which appellee, in consideration of $1,000, was given an option on 531 acres of land owned by Gifford, situated in Wharton county, until the 1st day of August, 1913, at $60 per acre. The contract provided that the consideration should be one-fifth in cash and the balance in one, two, three, and four years, and appellee was given the right to sell the land on or before August 1, 1913, on the same terms of his option, and Gifford agreed to make a deed to the vendee. It was also provided that if appellee sold the land for more than $60 an acre the profit should go to him, but that he should take a proportionate amount of the notes to have a lien secondary to those taken by Gifford. To pay the $1,000 cash to be paid for the option, appellee was to convey to Gifford nearly 4 acres of land in the town of Wharton.

Afterwards, on August 9, 1913, some dispute having arisen as to whom the rents of the 531 acres should belong, another contract was drawn, providing that possession of the land should not be given until January 1, 1914, and that the land in Wharton should be reconveyed to appellee, and it was further provided:

"And whether said deed be made to said Armstrong, or to some other person at his direction, the right of said Armstrong shall exist to claim said rents and crops, and to sue for and recover the same in his own name, provided he, or the vendee, or both, were entitled to a deed under said contract which would have passed the rents and crops, and as if a deed had been executed thereunder, in accordance with the terms of said contract, and the right of said Gifford to claim and retain said rents and crops shall exist if such right existed under said contract, without regard to the language of the deed now to be made to the said Armstrong or his order, or the terms stipulated in said deed."

It is provided in the last contract that the changes as to the interest not beginning until January 1, 1914, or other matters therein, should in no way affect the rights of the parties under the original contract as to rents and crops, but that their rights should rest strictly on the terms of the original contract.

This is the second appeal of this case. Upon the first trial judgment was rendered for the executors, Annie Gifford and B. C. Roberts. On appeal to the Court of Civil Appeals for the Fourth District, at San Antonio, in an opinion by Chief Justice Fly, reported in 196 S. W. 723, that judgment was, on the 6th day of June, 1917, reversed. In that opinion, after stating the nature of the case and result of trial, it is said:

"When there is no agreement to the contrary, the rents and crops from land that has been purchased passed with the deed to the land. Porter v. Sweeney, 61 Tex. 213; Hearne v. Lewis, 78 Tex. 276, 14 S. W. 572. There was no deed made until August 15, 1913, when the land was conveyed to G. A. Harrison by G. C. Gifford. That deed was made in pursuance of the contract of August 9, 1913, between appellant and Gifford, in which it was agreed that a deed would be made in which rents would not be mentioned, and that no interest would be charged on the notes until January 1, 1914, at which time possession was to be given the vendee. It was also provided that the status of the rents should be as fixed by the contract of February 21, 1913. It follows that the making of the deed did not, under the terms of the contract, affect the rents, and the rights of the parties remain as they were fixed by the original contract.

"With these preliminary matters settled, the only issue in this case is: Did the making of the contract carry with it the obligation upon the part of the owner of the land, when he made the deed, to convey the crops then growing upon the land, but which were not in existence when the contract was executed? In other words, would specific performance of the contract involve the duty to convey the crops with the land? Upon the answer to that question depends the decision of this case.

"When a deed is given, and the vendor remains in possession of the premises, he is treated as is the mortgagee in possession of mortgaged property, and will be held liable to the vendee for the rents and profits of the property. The reason for this rule in the case of a mortgage is that the title still remains in the mortgagor, and he is entitled to the usufruct of the land, and in the case of the vendor the title has passed from him to the vendee and he is entitled to the rents and profits. Mortgage Co. v. Gill, 8 Tex. Civ. App. 358, 27 S. W. 835; Devlin, Real Estate, par. 862c; Siemers v. Hunt, 28 Tex. Civ. App. 44, 65 S. W. 62, 66 S. W. 115; Hotel Co. v. Gammon, 41 Tex. Civ. App. 1, 91 S. W. 337.

"Under the terms of the original contract, appellant had the right to a deed for the land at any time that he complied with the terms of the contract, and that deed would be a clear-cut conveyance of the land, without any reservation, except what might arise from the contract. Under the plain unequivocal language of that contract, nothing could be reserved in connection with the land, except the vendor's lien to secure the purchase-money notes, and that arises only by implication. The evidence establishes beyond question that a purchaser was found before August 1, 1913, who was ready, willing, and able to comply with the terms of the contract. This fact was recognized by G. C. Gifford, who was ready and willing to give the deed, as he had contracted to do, if he could reserve the crops growing on the land. No such reservation had been made in the contract, and the execution of the deed will date back to the date of the contract. No doubt appellee would have been authorized to have severed the crops from the land at any time before, but when he did not do this he was compelled under the terms of the contract to execute a deed to the land which would embrace everything attached to the soil and all unpaid rents, that were not due at the time when the deed was executed or should have been executed. Devlin on Real Estate, par. 862a; Keesee v. Sloan, 69 Miss. 369, 11 South. 631; Allen v. Hall, 66 Neb. 84, 92 N. W. 171; Scott v. Sloan, 72 Kan. 545, 84...