Rutherford v. Nichols, 2962
| Decision Date | 14 November 1952 |
| Docket Number | No. 2962,2962 |
| Parties | RUTHERFORD v. NICHOLS. |
| Court | Texas Court of Appeals |
Archer Bryant & Overshiner, Abilene, for appellant.
Reid & Reid, Abilene, for appellee.
This is a suit by Mrs. Johnnie Rutherford, guardian of the estate of Mrs. H. E. Oliver, against C. B. Nichols, to recover the $1,400 cash consideration recited in a deed executed by Mrs. Oliver in favor of Nichols. Based upon a jury verdict on special issues, the court rendered judgment in favor of defendant. From this judgment the guardian has appealed.
Appellant alleged that prior to her appointment as guardian of the estate of Mrs. Oliver, her ward executed and delivered to appellee a deed conveying Lot No. 8 in Block K, Crescent Heights Addition to the City of Abilene; that the consideration for the sale of said land was $1,400 cash and the further consideration of the assumption by appellee of a certain promissory note in the principal sum of $7,100; that appellee accepted and recorded said deed but has failed and refused to pay the $1,400 cash consideration recited therein.
Appellee answered by general denial and also alleged that he did not contract to pay Mrs. Oliver $1,400 cash but that the consideration was to be paid and was paid by the delivery to her of an automobile and that thereafter Mrs. Oliver became dissatisfied with the trade and delivered back to appellee the automobile after same had been materially damaged by her grandson and that appellee conveyed the property back to Mrs. Oliver.
The evidence discloses that Mrs. Oliver was about 76 years of age and lived in the house in question with her grandson who at that time was about fifteen tears of age and married; that Mrs. Rutherford, the guardian, was also occupying the house; that, in the absence of Mrs. Rutherford, Mrs. Oliver and her grandson agreed with appellee to convey to him the house and lot for a consideration of $1,400 to be paid by delivery to them of an automobile and the assumption by appellee of the indebtedness against the property. Mrs. Oliver executed and delivered to appellee a deed to the property which he placed of record. The automobile was delivered to Joe Rutherford, the grandson of Mrs. Oliver, who left immediately in the car on a trip to California. Appellee went to the house for the purpose of obtaining possession thereof and Mrs. Rutherford refused to give him possession and advised him that they did not want to make that kind of a trade. It was then agreed between Mrs. Rutherford and appellee that they would make every effort possible to get Joe Rutherford to return and deliver to Mr. Nichols his car.
Within a few days Joe returned with the car, which had been materially damaged, and possession was delivered to Mr. Nichols. Thereafter, appellee executed a deed conveying the property back to Mrs. Oliver for a recited consideration of $1,400 cash and the assumption by her of the indebtedness against the property, and caused same to be placed of record in Taylor County. This deed was then mailed to Mrs. Rutherford.
Upon a trial of the case, appellant filed a trial amendment and sought cancellation of this deed. A suit such as this by the vendor, to recover the purchase price, has the same effect as one for specific performance. Before appellant can recover the purchase price she must meet all requirements that would be necessary to secure a decree for specific performance of the contract. 38 Tex.Jur. 728; Reberts v. Lovejoy, 60 Tex. 253; Von Roeder v. Robson, 20 Tex. 754, 765.
The evidence is conclusive, and it was so found by the jury, that the real consideration...
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Paxton v. Spencer
...of absolute right. Johnson v. Karam, 466 S.W.2d 806 (Tex.Civ.App.--El Paso 1971, writ ref'd n.r.e.); Rutherford v. Nichols, 253 S.W.2d 306 (Tex.Civ.App.--Eastland 1952, writ ref'd n.r.e.). In order to be entitled to specific performance of a contract, the person seeking such relief must com......
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Jones v. Riley, 17236
...part of a contract and at the same time enforce specific performance on the part of the other party. See Rutherford v. Nichols, 253 S.W.2d 306 (Eastland Civ.App., 1952, ref., n.r.e.); Burr v. Greenland, 356 S.W.2d 370 (El Paso Civ.App., 1962, ref., n.r .e.); Casey v. Jones, 189 S.W.2d 515 (......
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Newsom v. Newsom, 3982
...his part of the contract according to its terms. Leverett v. Leverett, Tex.Civ.App., 59 S.W.2d 252 (Error Ref.); Rutherford v. Nichols, Tex.Civ.App., 253 S.W.2d 306; Townsend v. Milliken, Tex.Civ.App., 294 S.W. 938; 52 Tex.Jur.2d 588, 589. The Gentrys have, under the circumstances, shown a ......
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Johnson v. Karam, 6146
...158 S.W. 800 (Tex.Civ.App. ref.). In addition, specific performance is purely equitable and not based on absolute right. Rutherford v. Nichols, 253 S.W.2d 306 (Tex.Civ.App. ref. n.r.e.). The contracts themselves all dealt with a singular piece of property, for one total consideration, and w......