Ward v. Graham
Decision Date | 26 May 1920 |
Docket Number | (No. 1553.) |
Citation | 224 S.W. 294 |
Parties | WARD v. GRAHAM. |
Court | Texas Court of Appeals |
Suit by W. A. Graham against Mrs. A. A. Ward. Judgment for plaintiff, and defendant brings error. Affirmed.
Carl Gilliland, of Hereford, for plaintiff in error.
H. C. Randolph, of Plainview, and Wm. M. Knight, of Hereford, for defendant in error.
Defendant in error, Graham, sued plaintiff in error to enforce specific performance of a contract of sale of real estate, alleging in his second amended original petition, upon which the case was tried, substantially that on the 22d day of August, 1917, plaintiff and the defendant, acting by her duly authorized agent, S. B. McClure, entered into the following agreement:
The plaintiff alleged: That by reason of said contract the defendant promised him and became bound to convey him the 2½ sections of land described in consideration of the said sum of $12.50 per acre, and further bound to furnish and deliver to plaintiff a warranty deed, conveying a good and merchantable title, and to do and perform all the other obligations of the contract. That at the time of the execution of the contract plaintiff deposited the sum of $1,000 in said bank, to be held by it in escrow until the consummation of the contract, when it was to be applied as part of the purchase money, and in the event of plaintiff's default said sum was to be forfeited to the defendant. That in compliance with the terms of the contract defendant tendered an abstract of title, in which certain defects were found, among others a deed of trust lien securing notes aggregating $15,000, in favor of H. P. Drought & Co. That defendant employed an attorney to correct said defects, and after all of said defects had been corrected except the matter of said lien, the defendant, without fault on the part of plaintiff, who was ready, able, and willing to perform the obligations of the contract, refused to make and deliver to him a proper conveyance of said land. That the said deed of trust securing the debt due Drought & Co. was secured by deed of trust executed by Geo. R. Ward, and his then wife, Mrs. Ama A. Ward, the defendant. That after the execution of said trust deed Geo. R. Ward and defendant were legally divorced, and the community estate and property belonging to them equally divided. That subsequent to the rendition of the divorce decree, defendant and Geo. R. Ward entered into an agreement in writing, whereby each of them was to pay a proportional part of said debt, in proportions unknown to plaintiff. Notice is given defendant to produce the partition agreement at the trial. That defendant's attorney, who was employed to correct the defect in the chain of title, notified plaintiff's attorney, prior or to the institution of this suit, that a release had been secured and recorded in Castro county, releasing certain lien, evidenced by deed of trust, executed by defendant to one E. S. Ireland, as trustee, conveying to said Ireland all of said section No. 236, to one J. G. Ayers, to secure a certain note in the sum of $4,048.50, dated February 16, 1917, bearing interest at the rate of 8 per cent. from date, and due in five years. That at the time plaintiff's attorney examined the title to said land he pointed out said defect and returned the abstract of title to defendant, and has been unable to secure the same until the afternoon of the 20th day of June, 1918. That upon inspection of the abstract it appears that the lien securing the Ayers note has not been released. Notice is given to defendant to file in the registry of the court the release from the said Ayers, showing full payment of said note. It is further alleged that plaintiff has at all times been ready, able, and willing to perform his part of the contract, and to do and perform all things necessary to complete the same, but that the defendant, by her refusal to perform the obligations resting upon her, has prevented the plaintiff from full performance; that he is now ready, able, and willing to accept a conveyance from the defendant, conveying said land, and to pay for the same, and hereby agrees to assume the payment of such portion of said Drought & Co.'s debt and the debt due and owing to J. G. Ayers, deducting principal and interest adjudged by the court for the amount of the cash payment to be made by plaintiff under said contract; that by reason of defendant's breach plaintiff has been deprived of the use of the grass and rent from said land; that the market rental value of the use of the land and grass thereon is $.25 per acre per annum, aggregating the sum of $400. The prayer is for citation, and that upon final trial plaintiff have judgment for specific performance; that the court deduct the amount of the indebtedness against the land, which defendant is legally bound to pay, and for which defendant has pledged the same, and that the amount of said debts so found by the court as a charge against said land due by the defendant be assumed by plaintiff. Plaintiff prays further for judgment for his rents, and damages, amounting to $400, for costs of suit, and for general and special relief, to which in law and equity he may be entitled. Defendant's second amended original answer contains first a general demurrer, and the following special exceptions, both of which were overruled by the court:
"Further excepting to said amended petition, and especially that portion seeking specific performance of the alleged contract, this defendant says is insufficient, in that the said petition on its face shows that the defendant is not able to and cannot carry out and perform said contract."
The answer further denies generally the allegations of the petition, and alleges specially...
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Smith v. First Nat. Bank of Brownfield
...Renfro v. Harris (Tex. Civ. App.) 72 S. W. 237; C., R. I. & G. Ry. Co. v. Barrett, 45 Tex. Civ. App. 73, 100 S. W. 800; Ward v. Graham (Tex. Civ. App.) 224 S. W. 294. There is no fundamental error apparent of record, and the judgment is ...