Sweet v. Berry

• Citation: 236 S.W. 531
• Decision Date: 21 December 1921
• Docket Number: (No. 1868.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: SWEET et al. v. BERRY.
• Court: Texas Court of Appeals

236 S.W. 531

SWEET et al. v. BERRY.

(No. 1868.)^*

Court of Civil Appeals of Texas. Amarillo.

December 21, 1921.

Rehearing Denied January 11, 1922.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Wheeler County; W. R. Ewing, Judge.

Suit by O. B. Berry against A. O. Sweet and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Hoover, Hoover & Willis, of Canadian, and Templeton & Templeton, of Wellington, for appellants.

Frank Willis, of Canadian, and Turner & Dooley, of Amarillo, for appellee.

HUFF, C. J.

The appellee, Berry, as plaintiff, brought this suit against A. O. Sweet and H. A. Crowley, as partners and owners of certain land, and M. V. Sanders, to recover a deposit made with Sanders of $500 upon a contract between Berry and Sweet & Crowley, dated October 28, 1920. It is alleged, in substance, that in pursuance to the contract appellee, Berry, placed the sum of $500 in the hands of Sanders as forfeit money, which was to be returned to appellee forthwith in the event the attorneys for Berry should disapprove of the title to certain lands described in the contract; that on or about December 1, 1920, Sweet & Crowley delivered to the attorneys for appellee what purported to be complete abstracts of title to said lands, and that about December 12, 1920, the attorneys for appellee reported their disapproval of the titles, which opinion and report contained divers and sundry objections to the title to all of the lands involved in the deed, and in particular condemning title to section 28, mainly on the ground that the title to said Sweet & Crowley was based upon a vendor's lien foreclosure obtained on or about October 14, 1919, in the case of Markey v. Cassle et al., No. 807 in the district court of Wheeler county, Tex.; that it appeared that one Elizabeth Cowan, widow of W. C. Cowan, deceased, who appeared to have a half interest in said section as community property of herself and deceased husband, and the minor Cowan children of said Elizabeth Cowan and deceased husband, who appeared to own the other half thereof by inheritance from their father, subject to the vendor's lien declared upon in said suit, and one Green, who held a mortgage upon said section, and one Stafford, who appeared to claim some interest therein, were omitted as parties defendant in said foreclosure suit, and were not included in the decree entered therein and the sale thereunder, through which Sweet & Crowley derived title; that promptly thereafter appellee, on or about December 13, 1920, redelivered the abstracts to Sweet & Crowley and advised them, as well as said Sanders, that the title to said land had been condemned and the ground therefor, and did then and there demand that appellants refund said sum of $500 earnest money there mentioned; that thereupon appellants stated that the objections to the title were based upon a misconception due to the fact that the abstracts which had been furnished plaintiff were incomplete, and that in reality all of the parties above named who were supposedly omitted as parties to the foreclosure suit were in fact made parties therein, and that the record showed everything in that respect to be regular, all of which would appear by perfecting the abstracts according to the representations of appellants, who claimed, moreover, that the various other criticisms made by attorneys of the title to the various tracts of land could be and would be satisfied in the amended abstracts, and requested appellee that he allow them to have the abstracts perfected and resubmitted to appellee's attorneys; appellee assented thereto; afterwards appellants made additions to the abstracts, and on or about January 1, 1921, resubmitted same to the plaintiff's attorneys, who proceeded to re-examine the title and found from the additions and amendments that said Elizabeth Cowan and her minor children and said Stafford and Green had in fact been made parties to said foreclosure suit, but said attorneys condemned the title on the ground that no guardian ad litem had been appointed to represent the minor children in said suit and judgment which was taken against them, and they were not represented by a guardian ad litem therein, and because no notice of the sale effected upon the foreclosure judgment was served upon the minor defendants nor upon defendant Green; that, having condemned the title to section 28 on said ground, the attorneys omitted further special mention of the numerous objections to the title of the various tracts, which were stated in the original opinion rendered by said attorneys, many of said original objections still being unremedied, which likewise rendered said title unacceptable. Promptly after the attorneys advised appellee they still condemned the title the appellee, on or about January 6, 1921, in person redelivered the abstracts and advised appellants that the title had been condemned and the grounds therefor, and did then and there again make demand upon all of the appellants that they would return or cause to be returned to him the sum of $500, and that subsequent demand for the return was also made on or about January 15, 1921, and on or about February 14, 1921. He prayed for judgment for the $500 against all the parties.

The appellants answered by general demurrer and numerous special exceptions and special answers, setting up that there was no time limit for a compliance with the contract, and that they had a reasonable time in which to cure any supposed errors, and that appellants were entitled to further time for such purpose; that the claimed objections made by the attorneys were arbitrary, captious, capricious, and unreasonable, and not based upon any real defects; that the objection raised regarding the omission to appoint a guardian ad litem was not tenable, because it would be presumed in favor of the judgment in question and the absence of a recital to the contrary that a guardian ad litem was appointed, and several other reasons why the objections were not tenable; that the right to insist upon a peremptory demand for a return of the purchase money or performance of the conditions with respect to abstracts and showing of title was waived by the action of the parties in delivering the abstract, and the duty to furnish the abstract was a continuing duty. Appellee further waived the time in granting further time for corrections and amendments and accepting the return of the abstract, as the parties did, for the purpose of securing corrections and amendments and in treating the contract as still in force. It was alleged also that, after the objections were made with respect to the failure to appoint a guardian ad litem for the minor heirs of W. F. Cowan in the suit above mentioned, appellants proposed to appellee they would bring suit in the district court of Wheeler county against said minors and have a guardian ad litem appointed and bar any supposed equity of redemption and that appellee did not object to the bringing of any such suit or at least by his action and conduct waived his right to object to the same; that the suit was actually brought against the heirs at this March term, 1921, and that service was had upon the minors, and that a guardian ad litem was appointed and appeared in the cause, and the case called for trial, and the court adjudged that the plaintiff Markey was entitled to judgment divesting the title and possession out of the minors and fixing it in said Markey for the benefit of appellants, and thereupon all the objections with reference to the heirs of Cowan, deceased, were removed and cured, and that said suit and judgment constituted a cure thereof within a reasonable time. After alleging other facts and matters, they prayed for specific performance of the contract against appellee. The appellee also answered by supplemental petition, setting up that time was of the essence of the contract, and that he had cattle and was purchasing cattle and desired the land for pasturage by the 1st of January, in accordance with the terms of the contract, and that appellants knew of this fact, etc. They further allege that they did not waive the other objections to the other tracts of land included in the contract of sale. At the end of the introduction of the testimony the court instructed a verdict for the appellee, and judgment for the $500, with interest thereon, was entered, from which this appeal is prosecuted.

The contract upon which the suit is based is dated the 28th day of October, 1920, entered into between A. O. Sweet, of Collingsworth county, and H. A. Crowley, of Wheeler county, of the first part, and O. B. Berry of Potter county, of the second part. The first parties agree to sell to the second party all of section 28, block R. E., containing 640 acres, and all of the E. 1/2 of section No. 30, block R. E., containing 320 acres, and all of the N. E. 1/4 of section No. 29, in block R. E., containing 160 acres, and all of the N. W. 1/4 of section No. 24, in block R. E., containing 160 acres, aggregating 1,280 acres of land, for a consideration of $16,000, $650 to be paid in cash at the delivery of deed to N. E. 1/4 of section 29 and the assumption of certain indebtedness thereon, and $2,600 cash on section No. 28, and the assumption of certain notes. The contract further stipulated:

"It is understood and agreed that the first parties are to pay the interest that has accrued on said notes up to the 15th day of December, 1920. The first parties are to pay all taxes on said land up to January 1, 1921. The second party places the sum of $500 in the hands of M. V. Sanders of Wheeler, Tex., as a forfeit that he will take said property and make the cash payment as herein mentioned on or before December 15, 1920, upon a condition that the title to said property is passed by the attorneys of the second party. The first parties execute their deed conveying said property to the second party, and place them in the hands of M. V. Sanders, of...