Turnbow v. Head, 2223.

• Decision Date: 09 January 1942
• Docket Number: No. 2223.,2223.
• Citation: 158 S.W.2d 854
• Parties: TURNBOW et al. v. HEAD.
• Court: Texas Court of Appeals

158 S.W.2d 854

TURNBOW et al. v. HEAD.

No. 2223.

Court of Civil Appeals of Texas. Eastland.

January 9, 1942.

Appeal from District Court, Taylor County; M. S. Long, Judge.

Action of trespass to try title and for damages by A. P. Head against A. F. Turnbow and others, wherein the defendants asserted a "cross-bill" against the plaintiff. From a judgment in favor of the plaintiff, the defendants appeal.

Judgment affirmed.

Stinson, Hair, Brooks & Duke, of Abilene, and E. M. Critz, of Coleman, for appellants.

Smith & Eplen, of Abilene, for appellee.

FUNDERBURK, Justice.

In this suit, brought by A. P. Head, plaintiff, against Mrs. J. A. Turnbow, and others, defendants, plaintiff's second amended orginal petition (trial pleading) purports to set forth the one, or more, causes of action in four counts. In "Count One" is alleged a statutory action of trespass to try title and for damages. The allegations in "Count Two" are expressly "as an alternative count to count one." Count Two purports to be complete in itself, in that it does not adopt any allegations in other counts. This count may be interpreted as a special pleading of plaintiff's title, emanating from A. F. Turnbow, deceased, Mrs. J. A. Turnbow, his widow, L. F. Turnbow, and L. H. Turnbow (the latter three being defendants herein); said title from the Turnbows consisting of a judgment, order of sale and sheriff's deed. Independently of said judgment, order and conveyance thereunder, plaintiff's title was also specially pleaded as emanting from A. F. Turnbow and wife, J. A. Turnbow, L. F. Turnbow and L. H. Turnbow, through a quitclaim deed from said parties to plaintiff, dated January 7, 1938. Count Three and Count Four require no consideration since plainly the judgment was based, not upon either of them, but upon Count One or Count Two.

The defendants answered by general demurrer, general denial and plea of not guilty. In addition, defendants asserted a "cross bill" against the plaintiff, in which they affirmatively allege facts to the effect that the land in suit had been conveyed by sheriff's deed to plaintiff in pursuance of a judgment recovered by Bankers Life Company against A. F. Turnbow (since deceased) and foreclosure of a lien upon the land in suit against A. F. Turnbow, Mrs. J. A. Turnbow, L. F. Turnbow and L. H. Turnbow. Defendants in said cross bill also affirmatively alleged facts to the effect that after such conveyance by sheriff to plaintiff, the defendants, said Mrs. J. A. Turnbow, L. F. Turnbow, L. H. Turnbow, and said A. F. Turnbow (since deceased), on January 7, 1938, executed a quitclaim deed of the land to the plaintiff.

In a jury trial the judge peremptorily instructed a general verdict for plaintiff, upon the return of which verdict the court gave judgment awarding recovery of the land to the plaintiff. The defendants have appealed. Any further statement of the case, deemed necessary, will be made in the course of the opinion.

The pleadings of the parties foreclose the fact in favor of plaintiff that he had legal title to the land at least in so far as defendants were concerned. The judgment awarding plaintiff recovery of the land was, therefore, proper, unless, notwithstanding plaintiff's title to the land, he was, nevertheless, under some character of duty to reconvey it to defendants or to pay defendants damages for his refusal to do so.

Appellants (defendants below) sought specific performance of an alleged promise of plaintiff to convey the land to defendants. Such promise, if containing all other requisites necessary to constitute it a contract, was oral. True, for some of the terms of the contract it adopted the terms of a written contract, but it is deemed unnecessary to cite authorities to show that that would not have the effect of converting the parol...