Texan Development Co. v. Hodges, 6123
| Decision Date | 05 February 1951 |
| Docket Number | No. 6123,6123 |
| Citation | 237 S.W.2d 436 |
| Parties | TEXAN DEVELOPMENT CO. et al. v. HODGES, et ux. |
| Court | Texas Court of Appeals |
Hill, Lochridge & King, Mission, and Crenshaw, Dupree & Milam, Lubbock, for appellants.
Klett, Bean, Evans & Justice, Lubbock, for appellees.
This is a venue suit in which appellees, J. A. Hodges and wife Helen Hodges, filed suit in Lubbock County against appellants, Texan Development Company, a corporation, and Texan Care Company, a corporation, alleging several counts, including trespass to try title and damages, to remove cloud and quiet title, for cancellation of a purported executory contract obtained through fraud and for the cancellation of a purported contract contingent upon the other counts alleged. Each appellant filed its plea of privilege to be sued in Hidalgo County, where they each reside and have a principal office for transacting business. Appellee seasonably filed and presented their verified controverting plea to both pleas of privilege wherein they asserted that the allegations in their amended original petition were true, making such petition a part thereof, and alleged that the suit is for the recovery of lands that lie wholly in Lubbock County, to remove encumbrances upon the title of their said land by reason of adverse claims thereto asserted by appellants and to quiet the title in and to their said land, all within the meaning of Section 14, Article 1995, Vernon's Annotated Texas Civil Statutes. Upon a hearing of the venue issues alone thus joined before the trial court without a jury, appellees, in order to prove the nature of their suit, introduced in evidence their original petition, their amended original petition and their controverting affidavit. It was agreed between the parties that the land described in appellees' pleadings was situated in Lubbock County; that the letters constituting the purported executory contract had not been recorded in Lubbock County and that the defendants had not been in actual occupancy or actual possession of the land in question. As a result of the hearing the trial court overruled each plea of privilege and appellants have perfected their appeals contending that such action was error.
Section 14 of Article 1995 provides that: 'Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.'
Appellees pleaded in their controverting affidavit for recovery of land and damages thereto, to remove encumbrances upon their land by reason of appellants' adverse claims, and to quiet the title to their land. Under the provisions of Section 14 of Article 1995, a suit predicated in good faith upon either one or more of the aforesaid alleged grounds for recovery pleaded by appellees must be filed and heard in the county where the land is situated. The question of good faith can be raised only by a pleading of the adverse party alleging fraud or bad faith and offering evidence to support the issue. In that event, the parties are bound by a finding of the trial court to the effect that plaintiffs' allegations were made in good faith unless it is clearly shown that the trial court abused its discretion in so finding. Cowden v. Cowden, 143 Tex. 466; 186 S.W.2d 69; 43 Tex.Jur. 862, Paragraph 119, and other authorities there cited.
In the case at bar both appellants are represented by the same counsel who concedes that usually it is necessary to establish only two venue facts in support of Section 14 of Article 1995 when its provisions have been pleaded to establish venue, and those facts are: (1) the character of the suit, which is usually determined by the allegations of plaintiffs' petition, and (2) the location of the land involved. Appellants' counsel further concedes that the correctness of his admissions cannot be doubted because they are sustained by ample authorities. We agree with his admissions made and cite a recent case in support thereof. Ross v. Martin, Tex.Civ.App., 225 S.W.2d 220. It appears that appellees herein met the two necessary venue fact issues, which appellants' counsel admits are usually sufficient in such cases, when they established by satisfactory proof the character or nature of their suit and the parties agreed that the land in question was situated in Lubbock County. Mecom v. Gallagher, Tex.Civ.App., 192 S.W.2d 804.
In spite of the admissions made by appellants' counsel, he charges, at least, indirectly in his brief that appellees did not in good faith plead the venue facts alleged by them but he has failed to either plead or establish such by proof. He did plead that appellees' allegations in trespass to try title and for removal of cloud upon title were made without probable cause or any cause but it must be presumed that the trial court found against him in these matters if he urged them in that court.
Appellants' counsel likewise charges that appellees' suit is one to cancel an unrecorded executory contract for the sale of land and for that reason venue will not lie in Lubbock County. If appellees' petition, when properly construed, only evidences an action for the cancellation of a sales contract, as distinguished from an action for the recovery of land or to quiet title or to remove encumbrances upon land, then appellants' counsel would be correct and appellees' suit would not come within the meaning of Section 14, Article 1995. But, when the contrary is evidenced by appellees' petition, and it appears that it is not a suit merely to cancel but that the other grounds for recovery heretofore mentioned are pleaded in good faith and combined with a suit to cancel, then, in that event, venue for a trial of the cause on the merits is properly laid in the county where the land is situated. Mecom v. Gallagher, supra, and other authorities there cited. In that suit it was claimed that it was one for specific performance of a contract, while cancellation of a contract is the claim made here, but the rule is the same. It may also be observed that an alleged cause of action may contain several separate counts, that they may be inconsistent with each other but that the allegations of one count should not be used to impeach or contradict the allegations of another count. It may be further observed that a suit in trespass to try title or to remove encumbrances, or remove cloud or quiet title may be maintained even though the adversary is not actually occupying or in possession of the land involved.
Appellees pleaded ownership of the land in question and that appellants are claiming that appellees obligated themselves by a contract in...
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...a recovery for damages was pleaded alternatively does not change in the least the cause of action as pleaded. Texas Development Co. v. Hodges, Tex.Civ.App., 237 S.W.2d 436, no writ history. Under our system of pleadings, it is proper to plead in the alternative. In view of the record, plead......
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