Rockhill Country Club Co. v. Nix

• Decision Date: 10 October 1917
• Docket Number: (No. 5888.)
• Citation: 198 S.W. 155
• Parties: ROCKHILL COUNTRY CLUB CO. v. NIX et al.
• Court: Texas Court of Appeals

198 S.W. 155

ROCKHILL COUNTRY CLUB CO. v. NIX et al.

(No. 5888.)

Court of Civil Appeals of Texas. San Antonio.

October 10, 1917.

On Motion for Rehearing, November 14, 1917.

Error from District Court, Bexar County; W. F. Ezell, Judge.

Suit by J. M. Nix against J. P. Withers and others. Judgment for plaintiff, and the Rockhill Country Club Company brings error. Affirmed.

Noah Allen, J. F. Carl, P. H. Swearingen, Jr., and G. G. Clifton, all of San Antonio, for plaintiff in error. Don A. Bliss, of San Antonio, for defendants in error.

MOURSUND, J.

This suit was instituted by J. M. Nix in the form of an action in trespass to try title, seeking to recover 753.5 acres of land from J. P. Withers, Tom Finucane and wife, Rock Hill Country Club Company, a corporation, hereinafter referred to as the company, and other parties, who disclaimed, and who need not be further mentioned. Nix sued out a writ of sequestration, which was levied upon the land, and he replevied the land. Withers and Finucane and wife answered by general exceptions and plea of not guilty.

The company filed a cross-action against Nix and one Blandin, Nix's tenant, alleging in substance that the land in controversy was part of a tract of 1,053.5 acres conveyed by Nix to Withers for $85,000, of which $15,000 was paid in cash and notes executed for the remainder; that all notes had been paid except two for $20,000 each, due respectively July 1, 1912, and 1913; that on or about August 15, 1913, Withers sold said land to the company for $150 per acre and was paid therefor $66,000, and said company took said land subject to the existing indebtedness against it of $40,000; that the company purchased the land for the purposes of its organization; and large sums of money were expended in the improvement thereof; that it would be inequitable to permit plaintiff to recover the land; that the company was ready and willing to pay and offered to pay, such sum as the court might find to be due to plaintiff as the balance of the purchase money for which plaintiff held and holds a vendor's lien against the same; that this defendant is not advised and informed as to the exact amount due. The company also sought to recover of Nix and Blandin damages on account of waste and the value of the use of the land.

Nix and Blandin denied the commission of any waste, and denied the right of the company to recover damages, or to redeem the land. They also specially pleaded the facts relating to the sale of the land to Withers by Nix and the conveyance thereof by deed expressly reserving the vendor's lien, and alleged that, upon the failure of Withers to pay the balance of the purchase money due, Nix, on November 20, 1912, filed suit against Withers for the balance due and for foreclosure of lien; that on March 2, 1914, an agreement of settlement of said suit was made, which was reduced to writing and executed by Nix and the company (which had purchased the land from Withers during the pendency of the suit), by the terms of which agreement Withers and the company were to execute deeds conveying to Nix the land in controversy, which deeds were to be deposited in escrow in the State Bank & Trust Company, to be ultimately delivered to Nix upon the failure of the company or Withers to pay said State Bank & Trust Company for the account of Nix on or before December 1, 1914, the sum of $48,077 with interest thereon at the rate of 8 per cent. per annum from the date of the agreement; that it was further stipulated that if the amount was paid by December 1, 1914, the deeds were to be returned to them and the notes held by Nix canceled and the lien released; that the amount had not been paid, although an extension had been granted by Nix to January 1, 1915, and thereupon, in accordance with the agreement, the State Bank & Trust Company delivered to Nix the said deeds and to Withers the notes duly canceled; and that, the company and Withers having refused to deliver to him possession of said land, Nix brought this suit and sued out writ of sequestration.

The company replied with a verified plea, in substance, that it never executed said agreement, but that the same was executed in its name by Withers without any authority from it.

In obedience to the instruction of the court, a verdict was returned that Nix recover of the company, Withers, and Finucane and wife the land in controversy, and that the company take nothing by reason of its cross-action. Judgment was entered in accordance with the verdict, from which the company alone prosecutes this writ of error.

The record fails to disclose any objections to the giving of the peremptory instruction, or that the charges requested by the company were tendered at the proper time and the refusal thereof excepted to. Owing to this condition of the record, the company is in no position to complain of the verdict and judgment, and, as all assignments relate to the sufficiency of the evidence to support the verdict and judgment, they must be overruled. This court has heretofore held, and is still of the opinion, that the giving or refusal of a peremptory instruction does not raise a question of fundamental error. Strong v. Harwell, 185 S. W. 676; McCall v. Roemer, 186 S. W. 409; Land v. Johnson, 189 S. W. 337; Pearce v. Knights & Ladies of Honor, 190 S. W. 1156.

As the Supreme Court has granted a writ of error because of conflict upon the question whether article 1971, R. S., as amended by Laws of 33d Leg. p. 113, applies to a peremptory instruction, and has not passed upon the question, we deem it proper to say that, if objections had been properly urged to the giving of the peremptory instruction, we would overrule the assignments of error, for we are of the opinion that the court was correct in his ruling.

The facts, briefly stated, are as follows: The 1,053.5-acre tract, of which the land in controversy is a portion, was conveyed by Nix to Withers on February 15, 1910, for $85,000, of which $15,000 was paid cash, and afterwards notes aggregating $30,000 were paid, and Nix, on August 22, 1911, released to Withers and Masterson, who had become interested with Withers, 300 acres lying nearest to the city of San Antonio; the vendor's lien expressly retained in the deed remaining in full force against the remaining 753.5 acres to secure the payment of two notes for $20,000 each, due on the 1st day of July, 1912 and 1913. These notes were not paid when due, and on November 20, 1912, Nix, who then owned the notes, sued Withers, and perhaps Masterson, to recover upon said notes and to foreclose the vendor's lien. On August 12, 1913, the charter of Rock Hill Country Club Company was filed in the office of the Secretary of State. On the same date, Withers conveyed to H. C. King, Jr., as trustee for said corporation, 3,019.09 acres of land, and on August 13, 1913, said King, joined by Withers, conveyed said 3,019.09 acres of land to the corporation. The 1,053.5-acre tract above referred to constituted a part of said 3,019.09 acres, and it was stipulated that the "741-acre tract," out of said 1,053.5-acre tract, covered by liens in favor of Nix, was conveyed subject to the lien, and the company was to hold Withers harmless with reference thereto. On March 2, 1914, an agreement was made in writing between Nix and Withers and the company, in settlement of...