Vogel v. Zuercher

• Decision Date: 01 March 1911
• Citation: 135 S.W. 737
• Parties: VOGEL v. ZUERCHER et al.
• Court: Texas Court of Appeals

Page 737

135 S.W. 737

VOGEL v. ZUERCHER et al.

Court of Civil Appeals of Texas.

March 1, 1911.

Rehearing Denied March 29, 1911.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by William Zuercher and another against Herman Vogel. From a judgment for plaintiffs, defendant appeals. Affirmed.

Guinn & McNeill, for appellant. Salliway & McAskill, for appellees.

JAMES, C. J.

The original petition of Wm. and John Zuercher against Herman Vogel alleged: That on August 30, 1905, Anna Uecker executed a lease to Vogel for a term of four years and three months from October 1, 1905, upon certain land, attaching the lease as an exhibit. That Vogel agreed to pay an annual rent of $425 payable on October 1, 1905, the sum of $106.25, from January 1, 1906, the sum of $212.50, and the same sum every six months thereafter in advance; the contract providing for its termination by either party on the 1st day of October, 1907, on certain notice. And that the lease was terminated on October 1, 1905 (evidently meaning 1907). That on or about May 16, 1906, Anna Uecker conveyed the land to plaintiffs by general warranty deed, but plaintiffs say that by an oral agreement with Anna Uecker at the time the deed was made she was entitled to the rent from the date, to wit, May 16th, to June 1, 1906. That the deed was duly recorded in May, 1906. That immediately after the execution of said deed they orally and by letter notified Vogel of their right to claim the rent due July 1, 1906, and that they were the owners and holders of the lease and entitled to the rents due upon the lease after their acquisition of the property. That defendant has never paid them any rent and is due them the rents that accrued on July 1, 1906, and subsequently with interest, which sum now amounts to $531.65, together with interest at the rate of 6 per cent. from and after the date when such payments became due. That they are the owners and holders of the lease together with the deed, etc.

The amended answer demurred generally to the petition, and specially: That there are no facts, as distinguished from conclusions, that allege that said lease was transferred or assigned to plaintiffs, nor that they became owners of said contract, nor when and how the same became the property of plaintiffs. There was a general denial; plea of limitations; plea that his agreement was to pay rent to Anna Uecker and no one else: and that he paid the rents in accordance with this obligation to said Anna Uecker upon her positive demand and insistence that the same was payable to her, and her only with the statement that the property was hers and not plaintiffs'. That the deed was a fraud and deception perpetrated by plaintiffs. That Mrs. Uecker so informed defendant, and threatened that unless the rent was paid to her she would file suit against defendant for same, which would have put defendant to great expense and trouble, and, having promised to pay her, he believed it was his legal duty to do so, and was so advised by counsel. That said deed was in fact only a contract procured from Anna Uecker by plaintiffs, her sons-in-law, at a time when she was very old and while her mind was in a decrepit and unsound condition, for an inadequate consideration, $2,000 to be paid, which was never paid, and for the further consideration of their furnishing her a home and providing and caring for her for life, which was not performed. That the alleged deed was, if anything, a mere contract of title, and she peremptorily demanded of defendant that he pay no lease money to plaintiffs, declaring the contract forfeited, and that she would sue for same, if not paid to her. That, although plaintiffs had a deed in form, the taking care of her was the principal consideration thereof, and was a continuing one until the time of her death, which occurred one or two years after the accrual of the said rents, at which time a suit was pending, of which defendant was apprised at the time, to cancel and annul said deed for fraud, weak mindedness of the grantor, and the other reasons above mentioned, in which suit said plaintiffs had the right and opportunity to sue for, in their cross-bill, said rents against Anna Uecker, whom they knew at the time had received and appropriated said rent, and that their claim and demand, if any they had, was then and still against said Anna Uecker, and, failing to demand it against her, on their contract with her, they are estopped from further making claim for said rents, especially against this defendant; that is to say, they have waived said rent and are not now entitled to demand or recover same. Defendant further says when the rents were due and payable that the title was not in the plaintiff and was then being disputed by the parties, and defendant was not made party to the contract, and, being obligated to Mrs. Uecker, the party in whom the title vested at that time, he in good faith paid same as aforesaid, and plaintiff claims that, if any claim he had, same was against the said vendor.

To the above answer plaintiff by supplemental petition interposed various demurrers, and pleaded res adjudicata, alleging: That Mrs. Uecker brought suit to cancel the deed upon the grounds as stated by defendant, in which suit judgment was rendered declaring the deed valid on June 13, 1908, which remains a valid, subsisting, and final judgment. That in response to plaintiffs' demands for rents defendant claimed he was going to hold the rent until said suit of Uecker v. Zuercher was decided. That said Anna Uecker left a will duly probated ratifying the deed and devising the purchase-money notes, and the devisees had accepted the said purchase money, etc.

After the trial the court charged the jury to find for plaintiffs for the...