Townsend v. Day

Citation224 S.W. 283
Decision Date28 February 1920
Docket Number(No. 9219.)
PartiesTOWNSEND et al. v. DAY et al.
CourtCourt of Appeals of Texas

Appeal from District Court, Eastland County; Joe Burkett, Judge.

Suit by F. E. Day and others against F. W. Townsend and others, in which Frank Cullinan interpleaded. From an adverse judgment, defendants appeal. Reversed and remanded.

Conner & McRae, of Eastland, and J. M. Wagstaff, of Abilene, for appellants.

John C. Kay, of Wichita Falls, J. Y. Powell, W. W. Moore, and Beeman Strong, all of Houston, and T. J. Arnold, of Dallas, for appellees.

BUCK, J.

Suit was filed September 10, 1918, by F. E. Day against F. W. Townsend, S. W. Bishop, J. M. Higginbotham, and the Farmers' State Bank & Trust Company of Gorman. In his amended petition, he alleged that W. L. Thornton and wife, Della Thornton, had on the 14th day of February, 1918, executed and delivered to F. W. Townsend a certain oil and gas lease to a certain tract of land, containing 110 acres, which lease was recorded in volume ____, page ______, Deed Records of Erath County; that said lease was for the purpose of mining and operating for oil and gas for five years, describing its terms, and, if no well is commenced on or before February 14, 1919, said lease would terminate unless lessee should pay to lessor, or to his credit in the Farmers' State Bank of Gorman, Tex., $55, which when paid should defer the expiration of said lease for six months, etc.; that on September 3, 1918, the plaintiff purchased said lease from defendants Townsend, Bishop, and Higginbotham for $100 per acre, the consideration being payable after the examination of abstract and title to same being found good; that about this time, Townsend for himself and his codefendants, Bishop and Higginbotham, executed an assignment of said lease to plaintiff, and plaintiff executed his draft for $11,000, and the assignment and lease were placed in escrow with said bank, to be held under the terms of said agreement, and, after said title was found good, said assignment was to be delivered by said bank to plaintiff, and said check to be delivered to defendants Townsend, Bishop, and Higginbotham; that within the time agreed upon, and within a reasonable time, plaintiff accepted said title, and demanded the delivery thereof, and tendered to said defendants the $11,000, but that said defendants and said bank refused to deliver said assignment, wherefore he prayed that said bank be made a party defendant, that the court order the delivery of said assignment to plaintiff, and, in the alternative, he prayed for damages in the sum of $90,000.

Defendants, after general demurrer and special exceptions, acknowledged that Townsend, Bishop, and Higginbotham did in truth and in fact enter into a verbal contract with plaintiff to sell him the lease in controversy, but alleged that said agreement was a mere option for one day, and that plaintiff failed, within the time stipulated, to accept said assignment and pay the consideration, and that the contract was at an end. Defendants specially denied that they entered into any written contract with plaintiff, but alleged that all of their negotiations were verbal. Frank Cullinan interpleaded, alleging that he had bought the lease from Day.

The cause was tried upon special issues, and to the interrogatories submitted the jury found as follows:

1. That Day was to have 24 hours after the abstract was placed in the hands of his attorney, H. P. Brelsford, in which to accept or reject said title and to pay the money due therefor.

2. That Day did pay, or offer to pay, defendants the sum stipulated, to wit, $11,000, within said 24 hours after the abstract had been placed in the hands of H. P. Brelsford, his attorney.

3. That it was not the agreement that Day was to have only one day from and after the delivery of the title to plaintiff to pay the consideration.

4. That plaintiff had not been damaged by reason of the refusal of defendants to transfer and assign to him the lease.

5. (Propounded by defendants.) That the defendants Bishop, Townsend, or Higginbotham, or either of them, did enter into an agreement with plaintiff that they would assign the mineral lease to him.

6. (Propounded by defendants.) That this agreement was in writing.

7. (Propounded by plaintiff.) That defendants did not place in escrow such agreement.

8. (Propounded by plaintiff.) That there was no agreement between plaintiff and defendants to limit the time in which the title should be accepted and the money paid over.

Upon these answers, the court rendered judgment for plaintiffs for the gas and oil lease executed by W. L. and Della Thornton to F. W. Townsend, describing the land in detail, and also that plaintiffs have and hold a valid and subsisting assignment of said lease from the defendant F. W. Townsend, who acted for himself and S. W. Bishop and J. M. Higginbotham, and that plaintiffs recover from all of the defendants all rights, title, and interest conveyed by said Thornton and wife, February 14, 1918.

The judgment further recited that, it appearing that plaintiff F. E. Day had not paid the consideration for the assignment of the lease, but had offered, and was still offering, to pay the same, defendants Townsend, Bishop, and Higginbotham have an equitable lien on the lease to secure the payment of the purchase price. The defendants Townsend, Bishop, and Higginbotham have appealed.

The first question to be considered is whether the assignment described the land to be conveyed so as to take the case out of the statute of frauds. Appellants pleaded in the trial court that the contract was only for one day after the signing of the assignment by Townsend, and that, Day having failed to pay the consideration within that time, the contract was at an end. But Day testified that the contract was that he was to have one day after his lawyer had received the abstract, and the jury has found against appellants on this contention. The assignment which Townsend signed, but did not acknowledge, on September 3, 1918, did not set out the description of the property. It reads in part as follows:

"Assignment of Oil and Gas Lease.

"Whereas, on the 14th day of February, 1918, a certain oil and gas mining lease was made and entered into by and between W. L. Thornton and wife, Della Thornton, lessor, and F. W. Townsend, lessee, covering the following described land in the county of Erath and state of Texas, to wit: * * * Said lease being recorded in the office of the registry of deeds in and for said county, in book ____, page ______; and whereas, the said lease and all rights thereunder or incident thereto are now owned by F. W. Townsend, now, therefore, for and in consideration of one dollar (and other good and valuable considerations), the receipt of which is hereby acknowledged, the undersigned, the present owner of said lease and all rights thereunder or incident thereto, do hereby bargain, sell, transfer, assign and convey unto F. E. Day all of his right, title and interest of the original lessee and present owner in and to said lease and rights thereunder in so far as it covers the above-described 110 acres of land," etc.

F. E. Day testified:

"Mr. Bishop delivered me an abstract describing the land that I was buying. The land in the abstract is described as the Thornton land, and is the same described in the petition in this suit. I afterwards transferred or assigned that to Mr. Cullinan. I saw the original lease also. That described the land as the abstract. Now, about the original lease, I don't think I ever saw the original lease. I saw the certificate of the abstractor. I saw the lease was recorded, and I saw the abstractor's certificate. That lease was recorded in Erath county; Thornton's lease."

He further testified, after describing the circumstances connected with his going out to the Duke well and the offer by Mr. Bishop to sell him the lease on the 110 acres for $100 an acre:

"I says, `Let's go down to the bank, and I will put up my money against the assignment; or you can keep the assignment, and I will go down to the bank and put the money in there.' I told him that all I wanted was the title examined and approved, by Mr. Brelsford and `your money is ready for you'; and so we went on down to the bank, and Mr. Bishop carried the assignment down there, and he said to me there was no use in keeping the assignment out; that Mr. Townsend could go up there to the bank, and Mr. Walter Collie could take his acknowledgment—that he could just go up there and sign it—and so I just put up my money against the assignment. He assured me that it would be signed up and fixed up all right, and I left my draft for $11,000, and wrote on the back of it, `Payable on approval of title.' * * * I went to the bank, down to Mr. Collie's bank there in Gorman, and got this draft for $11,000 on the First State Bank of Eastland, and marked on the back of the draft, `To be paid upon approval of title by H. P. Brelsford, Attorney.'"

Mr. Townsend came into the bank the next day and signed the assignment.

The jury found that defendants Bishop, Townsend, and Higginbotham did not place in escrow such an assignment of the lease as was agreed upon between them and plaintiff. This finding may have been due to the fact that at the time the instrument was placed in Mr. Collie's hands it was not signed by Mr. Townsend, and therefore was not an escrow at that time. After Townsend signed the instrument and left it in the hands of Collie for delivery, it was in escrow. Or it may be that the jury concluded that the lease agreed upon between plaintiff Day and defendants Bishop, Townsend, and Higginbotham was one which included a description of the premises conveyed and acknowledgment of the assignment. Either conclusion may have been justified, and it is the duty of ...

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3 cases
  • Simpson v. Green
    • United States
    • Texas Supreme Court
    • June 1, 1921
    ...case has since adopted the view expressed by the Supreme Court when it granted this writ and applied the same in the case of Townsend v. Day, 224 S. W. 283, 286. The Court of Civil Appeals for the Eighth District has also adopted the same view and has applied the same in the case of Pearson......
  • Day v. Townsend
    • United States
    • Texas Supreme Court
    • March 1, 1922
  • Hoffman v. Nelson
    • United States
    • Texas Court of Appeals
    • December 19, 1928
    ...15 S. W. 396; Priddy v. Green (Tex. Civ. App.) 220 S. W. 245; Texas Co. v. Tankersley (Tex. Civ. App.) 229 S. W. 672; Townsend v. Day (Tex. Civ. App.) 224 S. W. 283; Beckett-Iseman Oil Co. v. Backer, 165 Ky. 818, 178 S. W. 1084; Ramage v. Wilson, 37 Ind. App. 532, 77 N. E. 368; Texas Co. v.......

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