Welch v. Brock, 11626.

• Decision Date: 03 July 1946
• Docket Number: No. 11626.,11626.
• Citation: 195 S.W.2d 940
• Parties: WELCH et al. v. BROCK.
• Court: Texas Court of Appeals

195 S.W.2d 940

WELCH et al. v. BROCK.

No. 11626.

Court of Civil Appeals of Texas. San Antonio.

July 3, 1946.

Rehearing Denied July 31, 1946.

Appeal from District Court, Nueces County, 117th District; Tillman Smith, Judge.

Suit by C. V. Brock against J. L. Welch and others for partition of realty. The trial court rendered a personal judgment in favor of plaintiff and against named defendant and another for one-fourth of the value of realty which jury found was converted by such defendants and ordered foreclosure of a lien against their interest in the realty sought to be partitioned, and subject to such lien ordered partition of the realty, and defendants appeal.

Judgment reversed, and cause remanded for rendition of judgment in accordance with directions.

T. H. Burruss, of Corpus Christi, for appellants.

Sidney P. Chandler and J. B. Trimble, both of Corpus Christi, for appellee.

NORVELL, Justice.

This is a suit for partition of real property brought by C. V. Brock against J. L. Welch, J. E. McCord and H. H. Edwards. Defendants have appealed.

Trial was to a jury which found in answer to thirteen special issues that:

(1) On or about December 13, 1928, it was agreed between all parties to the suit that they then and would thereafter own Lots 7 to 37, inclusive, in Block "C", Lots 17, 44, 45, 48, 49, 50 and 51, in Block "B", and Lots 1 to 5, inclusive, and 34 to 38, inclusive, in Block "A", and Lots 7, 8 and 9 in Block 6, all in Bonita Addition to the City of Corpus Christi, Texas, together as joint owners, each to have an undivided one-fourth interest in the property.

(2) On or about October 12, 1932, the parties by exchange of other property owned by them acquired Lot 6 in Block 2, Southmoreland Addition to Corpus Christi, and Lot 18, Block 3, Bay View Addition No. 3 to Corpus Christi.

(3 and 4) Welch and Edwards had converted to their own use Lots 7, 8 and 9, Block 6, of the Bonita Subdivision, and also

(5 and 6) Lot 6, Block 2, of the Southmoreland Addition, and

(7 and 8) Lot 18, Block 3, Bay View Addition No. 3.

(9) Lots 7, 8 and 9, Block 6, Bonita Addition had a value at the time of the trial of $100 per front foot; Lot 6, Block 2, Southmoreland Addition had a value of $750; and Lot 18, Block 3, Bay View Addition No. 3, had a value of $500.

(10) C. V. Brock, as trustee, and succeeding said Brock, J. L. Welch, as trustee, held the legal title to the lots in question for the purpose of paying the purchase price and costs of improvements thereon out of sales by said trustee to the extent of the sales made and for the benefit of each of the parties to the extent of one-fourth of said property by the payment and upon the payment of each of one-fourth the cost of said property which remained unpaid after such sales.

(11) C. V. Brock used all the funds that came into his hands as trustee for the purpose of paying for the improvements to the property in question and on the purchase money thereof, and in addition also paid, individually, his one-fourth of the cost of the property which remained unpaid after the application of such funds that came into his hands as trustee, and after the deduction of the funds that came into the hands of J. L. Welch as trustee.

(12) C. V. Brock completed his said payments on December 16, 1931.

(13) C. V. Brock did not have notice from appellants during the month of March, 1936, that said appellants were contending that Brock had not made his payments upon his part of the purchase price, and consequently appellants were asserting that unless Brock paid up, he would have no interest in the property. (Numbers in parenthesis refer to Special Issue numbers.)

Upon these findings, the trial court rendered a personal judgment in favor of Brock and against Welch and Edwards for $2,187.50—one fourth of the value of the lots which the jury found were converted by Welch and Edwards, and ordered a foreclosure of a lien against the interest of Welch and Edwards in the property sought to be partitioned in order to enforce payment of this amount to Brock.

The Court further appointed Commissioners of Partition and, subject to the lien above mentioned, ordered a partition of the property described in the jury's first finding (except Lots 7, 8 and 9, Block 6) between the parties, each to receive one-fourth thereof.

Appellants contend that the trial court erred in overruling appellants' motions for an instructed verdict and for judgment non obstante veredicto.

The various arguments advanced are primarily based upon the premise that Brock was delinquent in his payments of one-fourth of the purchase price and expenses.

In our opinion, the jury's finding as to the existence of the oral agreement which gave rise to the various rights of the parties in and to the property involved has support in the evidence. In fact, the existence and terms of the agreement are hardly disputed.

It clearly appears that originally Brock, Edwards and McCord went into a joint venture to purchase real estate. They borrowed money from a Corpus Christi Bank for this purpose. The legal title was conveyed to Brock subject to a vendor's lien. Later Welch came into the transaction and it was converted into a four-way deal. Some dissatisfaction developed with Brock's handling of the property as trustee, with the result that he conveyed the property to Welch, who thereafter acted as trustee.

From time to time the parties made partial payments and renewed the note to the bank which was secured by a deed of trust lien. In 1936, the balance of this note was about $800. Welch, Edwards and McCord considered that this amount was owed by Brock. One or more of them paid the balance owing to the bank, but secured an assignment rather than a release of the note. Welch, as trustee, then executed a deed of trust to H. S. Guy, trustee, to secure the payment of a note for $885 payable to H. H. Edwards and J. L. Welch. This deed of trust recited that the note secured thereby was "given in renewal of the balance due and owing" upon the note originally held by the bank. This deed of trust was foreclosed by trustee's sale on July 7, 1936, and the property purchased by C. R. Young, trustee, who was admittedly acting for Welch, Edwards and McCord.

As above pointed out, the jury found that Brock had paid all of his part of the obligations owing upon the joint venture and owed nothing in 1936. Much of the evidence taken in the trial court related to various transactions and accounts of the members of the joint venture particularly Brock's accounting of receipts and expenditures while acting as trustee. According to Brock, he had paid all that he was obligated to pay under the original agreement. He testified that some of these payments were made in cash and consequently were unsupported by written evidence. In view of the period of time over which these various transactions extended, there is some uncertainty with reference to the exact standing of accounts between the parties, but we can not say that the jury's finding that Brock had paid his proportionate part is unsupported by any evidence.

In view of the jury's findings, the purported trustee's sale of July 7, 1936, did not operate to divest Brock of his interest in the property. If Brock did not owe the indebtedness represented by the note which was the basis of the foreclosure, then it follows that either there was no actual existing unpaid indebtedness against the property, insofar as the parties to this suit are concerned, or that said unpaid indebtedness was owed by parties other than Brock. In any event, the trustee or agent acting for Welch, Edwards and McCord, in purchasing the property at the purported foreclosure sale, took title to the property burdened...