Texas Farm Mortg. Co. v. Starkey

• Decision Date: 20 February 1930
• Docket Number: No. 910.,910.
• Citation: 25 S.W.2d 229
• Parties: TEXAS FARM MORTG. CO. v. STARKEY et al.
• Court: Texas Court of Appeals

25 S.W.2d 229

TEXAS FARM MORTG. CO. v. STARKEY et al.

No. 910.

Court of Civil Appeals of Texas. Waco.

February 20, 1930.

Appeal from District Court, Hill County; W. L. Wray, Judge.

Action by H. B. Starkey and others against the Texas Farm Mortgage Company. From a judgment overruling defendant's plea of privilege, defendant appeals.

Reversed and remanded, with instructions.

Wear, Stollenwerck & Wear, of Hillsboro, and S. W. Marshall, of Dallas, for appellant.

Frazier & Averitte, of Hillsboro, for appellees.

GALLAGHER, C. J.

This is an appeal by Texas Farm Mortgage Company, a corporation, from a judgment overruling its plea of privilege to be sued on the cause of action asserted herein in Dallas county, where it has its domicile. This suit was filed by appellees H. B. Starkey and J. A. Harper against appellant upon a contractual receipt in writing, dated June 4, 1929, signed by appellant alone, for the sale by it and purchase by appellees of 60 acres of land situated in Hill county, Tex. Said writing acknowledged the receipt of the sum of $250 cash to be applied on the purchase price of said land, and recited that the remainder of the consideration was to be paid when abstract and deed to said land were delivered to the Texas Bank & Trust Company at Austin. The final sentence in said writing is as follows: "It is agreed that Messrs. Harper and Starkey may take immediate possession of said 60 acres." Appellees pleaded said writing in hæc verba. They further alleged that appellant failed to comply with the obligations imposed upon it thereby and failed to deliver abstract and deed to said bank at Austin, but nevertheless retained said initial cash payment of $250 until June 15, 1929, at which time it attempted to rescind said trade and offered to return said money, and that appellees refused to agree to such rescission and declined to accept a return of said money. Appellees further alleged that said property had become very valuable by reason of the discovery of oil in close proximity thereto. They prayed for judgment for the title and possession of said land, and requiring appellant to perform its agreement and accept the balance of the purchase money due thereon. They further prayed, in event appellant was unable to convey to them a good title to said land, for damages in the sum of $20,000.

Appellant filed its plea of privilege in due form, in which it alleged that said suit was for specific performance of an agreement for the conveyance of land, and in the alternative for damages, and that it resided and had its principal office in Dallas county. Said plea properly negatived the existence of any of the statutory exceptions authorizing the maintenance of this suit in any county other than the county of its residence.

Appellees filed a controverting affidavit, in which they alleged that the cause of action asserted by them was based upon a contract between them and appellant, by the terms of which appellant sold and became obligated and bound to convey to them the title to certain real estate situated in Hill county, Tex., and to deliver possession thereof to them and to permit them to enter upon, possess, use, and enjoy the same. They further alleged that appellant was a corporation and that by reason of its failure and refusal to perform its obligations under said contract, a part of the cause of action sued on arose in Hill county.

A hearing was had before the court on the issue of venue alone, at which hearing appellant's plea of privilege was overruled.

Opinion.

Appellant assigns as error the action of the court in overruling said plea of privilege. Appellant contends, by appropriate propositions germane thereto, that the cause of action asserted by appellees in this case is for the enforcement by specific performance of a contract for the purchase by them of the land involved and the sale and conveyance of the same to them by appellant, and that venue in suits for specific performance cannot be maintained solely upon the ground that the land involved is situated in the county in which such suit is brought. Appellees, however, contend by a counter proposition that the cause of action asserted by them in this case is for the recovery of real estate, and that venue of their suit was properly laid in Hill county because the land involved was situated therein. The nature of appellees' cause of action must, of course, be determined from the allegations of their petition. Koch v. Roedenbeck (Tex. Civ. App.) 259 S. W. 328; Grogan-Cochran Lumber Co. v. McWhorter (Tex. Civ. App.) 15 S.W.(2d) 126, 128, par. 4; Wood v. Tandy (Tex. Civ. App.) 299 S. W. 282, 284, pars. 1 and 2. Appellees' petition does not purport to be in form of trespass to try title. It contains none of the formal allegations usually made in such cases. The material facts alleged are the making of the contract and appellant's breach thereof. No right nor title in or to the land involved, other than the rights acquired by them under and by virtue of the provisions...