San Antonio Joint Stock Land Bank v. Malcher, 11180.

• Decision Date: 22 July 1942
• Docket Number: No. 11180.,11180.
• Parties: SAN ANTONIO JOINT STOCK LAND BANK v. MALCHER.
• Court: Texas Court of Appeals

164 S.W.2d 197

SAN ANTONIO JOINT STOCK LAND BANK v. MALCHER.

No. 11180.

Court of Civil Appeals of Texas. San Antonio.

July 22, 1942.

Rehearing Denied August 19, 1942.

Appeal from District Court, Atascosa County; S. B. Carr, Judge.

Suit by August Malcher against the San Antonio Joint Stock Land Bank of San Antonio and Edwin Seay to set aside a trustee's deed, and, in the alternative, for judgment decreeing specific performance of an alleged agreement to convey realty, together with an injunction prohibiting the bank from interfering with plaintiff's possession of the realty, and, further, in the alternative, for a money judgment against the bank, wherein the bank filed a cross-action. From an adverse judgment, the bank appeals.

Judgment amended, and, as amended, affirmed.

Kelso, Locke & King and Wm. F. Koch, all of San Antonio, for appellant.

O. F. Burney, of Floresville, for appellee.

MURRAY, Justice.

This suit was instituted by August Malcher in the District Court of Atascosa County against San Antonio Joint Stock Land Bank of San Antonio, a corporation, and Edwin Seay seeking to set aside a certain trustee's deed conveying 221.4 acres of land out of the J. T. Eubanks Survey No. 506, in Atascosa County, Texas, to the above named Land Bank and, in the alternative for judgment decreeing specific performance of an alleged agreement on the part of the Land Bank to convey said 221.4 acres of land to Malcher, together with an injunction prohibiting the Land Bank from in any way interfering with Malcher's possession of said 221.4 acres of land, and, further, in the alternative, for a money judgment against the Land Bank in the sum of $1,863.94.

The trial was to the court without the intervention of a jury and resulted in judgment in Malcher's favor requiring the Land Bank to execute and deliver to the Clerk of the District Court, for August Malcher, a deed conveying to August Malcher all the right, title and interest to said 221.4 acres of land that the Land Bank has in said property, and also that Edwin Seay has in said land, upon the payment by Malcher to said District Clerk for the Land Bank of the sum of $3,262; and further enjoining the Land Bank from in any way interfering with Malcher's possession of the 221.4 acres of land. The trial judge made elaborate findings of fact resolving all fact issues against the Land Bank.

From this judgment the San Antonio Joint Stock Land Bank alone has prosecuted this appeal.

Appellant presents its first three points together, and they are as follows:

"First Point. The court erred in rendering judgment for Appellee, Malcher, herein, for the relief prayed for by him and in rendering judgment against Appellant upon its cross-action, because, under the undisputed evidence, Appellee, Malcher, was not entitled to recover herein and Appellant was entitled to judgment on its cross-action.

"Second Point. The court erred in granting Appellee Malcher's prayer for specific performance of his alleged contract to repurchase the land in suit, because the undisputed evidence shows that appellee never offered to perform his alleged option contract, to repurchase said land until the time allowed him to exercise such option had expired.

"Third Point. The court erred in granting Appellee Malcher's prayer for specific performance of his alleged agreement to repurchase the land in controversy because the undisputed evidence shows that Appellee never at any time prior to the filing of this suit made a valid tender of performance of his option to purchase."

On August 19, 1929, August Malcher and wife executed a deed of trust to William B. Lupe, Trustee, upon the 221.4 acres of land involved herein, to secure the Land Bank in the payment of a deed of trust note in the sum of $4,500.

On June 4, 1940, a trustee's sale of the land was had and the Land Bank bid it in for the sum of $2,250, leaving a balance due on the note of $2,254.47.

On June 7, 1940, Malcher went to San Antonio and had a conversation with William B. Lupe, Jr., a vice-president of the Land Bank. Malcher paid Lupe the sum of $1,500 and understood that he would be permitted to redeem the land by paying in full the amount due on the note. The Land Bank, through its officers and attorney, wrote Malcher several letters thereafter urging him to come in and complete the deal, but Malcher neglected to answer these letters.

Malcher never went back to see Mr. Lupe until about October, 1940, at which time he agreed to pay the taxes upon the land. After the taxes were paid he received the following letter from Mr. Lupe, which is self-explanatory, to-wit:

                                    "November 8th, 1940
                "Mr. August Malcher
                "Poth, Texas
                "Dear Sir:   In re: Loan 3008
                

"Confirming our conversation of October 10, 1940, in regard to re-purchasing your farm, the Bank agreed that if you would pay up all taxes by the 15th of October, that we would give you an option until December 1, 1940, to re-purchase the farm at the amount of investment the Bank has in the farm as of December 1, 1940.

"Since you have paid the taxes as per your agreement, this is to confirm our agreement that you have the option to repurchase up to December 1, 1940, and the figure will be $4,639.30 less $1,500.00 or $3,139.30.

                                   "Yours very truly
                                       "Wm. B. Lupe, Jr
                                       "Vice-President."
                

Malcher did not re-purchase the land under this option, but in June, 1941, he entered into a rental contract with the Bank, whereby he rented the land from the Bank for the year 1941. This rental...