Wilson v. Beaty

• Decision Date: 09 April 1919
• Docket Number: (No. 6201.)
• Citation: 211 S.W. 524
• Parties: WILSON v. BEATY.
• Court: Texas Court of Appeals

211 S.W. 524

WILSON v. BEATY.

(No. 6201.)

Court of Civil Appeals of Texas. San Antonio.

April 9, 1919.

Rehearing Denied April 30, 1919.

Appeal from District Court, Travis County; George Calhoun, Judge.

Suit by W. B. Smith against Annie N. Beaty, in which defendant filed a cross-action against Lula B. Wilson. Judgment for plaintiff in the main action, and for Annie N. Beaty in the cross-action, and Lula B. Wilson appeals. Affirmed.

N. A. Stedman, of Austin, for appellant.

White, Cartledge & Wilcox and D. H. Doom, all of Austin, for appellee.

FLY, C. J.

This is a suit instituted by W. B. Smith against Annie N. Beaty to recover the sum of $6,000, interest and attorney's fees, as evidenced by two promissory notes, respectively, for $3,500 and $2,500, and to foreclose a certain deed of trust on certain land in Travis county. Annie N. Beaty, appellee herein, filed a cross-action against Lula B. Wilson, appellant herein, in which she sought to obtain specific performance of a certain contract, as follows:

"The State of Texas, County of Travis.

"This contract of bargain and sale made and entered into this the 5th day of December, A. D. 1916, by and between Mrs. P. C. Beaty, a feme sole, of Austin, Travis county, Tex., party of the first part, and Mrs. Edwin Wilson, a feme sole, also of Austin, Travis county, Tex., party of the second part, witnesseth:

"(1) That the said party of the first part has this day bargained and sold and by these presents does hereby bargain, sell, and obligate herself to convey or cause to be conveyed by a general warranty deed unto the said party of the second part all and singular the following described property, to wit: That certain tract of land which the said party of the first part now owns and which is situated in South Austin, Travis county, Tex., consisting of twelve acres, more or less, and having a mineral well thereon, and being the same property against which the lien held by W. B. Smith now exists.

"(2) The consideration paid and to be paid to party of the first part by said party of the second part for the property above described is the sum of fifteen thousand ($15,000.00) dollars, to be paid as follows: Party of the second part agrees and obligates herself to assume the indebtedness against the said property for which the above-mentioned W. B. Smith holds a lien. For the difference between said indebtedness and the agreed sum of fifteen thousand ($15,000.00) dollars, party of the second part agrees and obligates herself to execute vendor's lien notes on the said property conveyed to her by the said party of the first part.

"(3) Party of the first part agrees and obligates herself to furnish a full and complete certified abstract of title to the above-described property for examination, and if the title to the property is approved, or if the abstract shows no fault which cannot be removed, then party of the first part shall at once execute the general warranty deed above mentioned, and party of the second part agrees to buy said property on the terms above set out. But should the abstract fail to show a good title, or such faults as cannot be removed within a reasonable length of time, then this contract shall not be binding on either party, but shall be null and void.

"(4) Party of the second part agrees to execute the above-mentioned promissory notes when the property is conveyed to her by the general warranty deed above mentioned; said notes to bear seven per cent. (7%) interest per annum, to be paid on or before the 15th day of December, of each year. The above notes are also to so read that they may be paid at any time not later than five years from the date of their execution, at the option of the party of the second part.

"This contract is executed in duplicate, and one copy delivered to each of said parties, this the day and year first above written.

                                "[Signed] Mrs. Lula B. Wilson
                                        "Mrs. Annie N. Beaty."
                

Appellee alleged that at the time of the execution of the contract she owned the same tract of land on which foreclosure of the deed of trust was sought, and the same described in the contract, which appellant obligated herself to purchase and agreed to pay off the indebtedness to W. B. Smith and execute promissory notes for the difference between said debt and $15,000, the price she agreed to pay for the property, that appellee had furnished a full and complete abstract of title to the property, which showed a good and merchantable title, and was approved by the attorney of appellant, and appellee executed a warranty deed conveying the property to appellant as agreed in the contract and delivered the same to appellant, which she still has in her possession, but she refused to pay off the notes due Smith, and refused to execute the note as she had bound herself to do. Appellee prayed for specific performance of the contract.

Appellant answered by general demurrer and general denial, and specially pleaded that she signed the contract with the understanding that appellee should sign and return the same to appellant within ten days, and, if not so returned, it should not be binding on appellant, and appellee did not sign and return the instrument as agreed; that, although appellee placed in possession of appellant a deed purporting to convey the land, yet it was not legally delivered because not accepted by appellant.

The court overruled the general demurrer, and upon a hearing of the cause rendered judgment in favor of Smith as against appellee for $9,831.53, and foreclosed the lien on the land described in the petition, and also adjudged that the contract between appellant and appellee be specifically performed, and appellee recover of appellant the sum of $9,831.53; that the title to the land be divested out of appellee and vested in appellant, subject to the lien in favor of Smith and lien of appellee; that appellee recover of appellant the difference between the debt due Smith and $15,000, and, as an evidence of such indebtedness, that appellant execute to appellee a note for $6,726 as of date December 21, 1916, with 7 per cent. interest to be secured by a vendor's lien on the property. This appeal was perfected by appellant as against appellee.

We find the facts to be as alleged in the cross-action of appellee and as found by the court in his findings of fact. The allegations as to an agreement for the contract to be signed and returned to appellant in ten days are not sustained by the facts. The deed executed by appellee was delivered to appellant by appellee, and was retained by appellant with the statement that she desired to submit it to her attorney, and she made no objection to the difference between Smith's debt and the $15,000 being evidenced by four notes, and made no suggestion as to the number of notes desired by her. Appellee offered to change the notes to suit any wish of appellant. Appellant never returned the deed, and made no suggestion as to how the notes should be executed.

The remedy of specific performance is one well established in courts of equity, and, being purely an equitable proceeding entirely different from any kind of relief known to and granted by the law, belongs exclusively to the jurisdiction of courts of equity. The remedy of specific performance is given to compel a party violating his primary duty to do the very acts which his duty and the other party's corresponding primary right required of him, such as the performance of a contract according to its terms and requirements. The foundation of the action is that, by compelling the parties to a contract to do the very things they have agreed to do, more complete and perfect justice is attained than by giving damages for a breach of the contract. The end in view should be primarily the protection of the plaintiff, but the equities of the defendant must also be protected; the supreme object being the attainment of exact and complete justice between the parties. Pomeroy, Eq. Jur. § 1401. Where a contract is in writing, is certain in its terms, is fair and just in its provisions and capable of being enforced with fairness to both parties, it is a matter for enforcement in a court of equity. The essential elements that a contract must possess in order to be specifically enforced have been thus enumerated in a note to section 1403, Pomeroy's Eq. Jur.:

"The contract must be concluded, certain, unambiguous, mutual, and upon a valuable consideration; it must be perfectly fair in all its parts; free from any misrepresentation or misapprehension, fraud or mistake, imposition or surprise; not an unconscionable or hard bargain; and its performance not oppressive upon the defendant; and, finally, it must be capable of specific execution through a decree of the court."

Absolute and positive certainty as to the terms of the contract is not required, but there must be reasonable certainty as to the subject-matter, the stipulations, the purposes, and the circumstances under which the contract was made. The certainty of the contract may be aided by proof of such extrinsic facts as may lawfully be used for such purpose. Stanton v. Miller, 58 N. Y. 192.

The contract is certain and definite in its terms if it leaves no reasonable doubt as to what the parties intended and no reasonable doubt of the specific thing equity is called upon to have performed. Pom. Eq. Jur. 764; Ward v. Stuart, 62 Tex. 335; Munk v. Weidner, 9 Tex. Civ. App. 491, 29 S. W. 409. There can be no reasonable doubt as to what was intended by the simple contract made by the parties, and, as hereinbefore stated, the option to execute several notes for the deferred payments on the land cannot by a refusal to exercise such option be used as a weapon with which to destroy or obscure the contract. The provisions of the contract herein copied cannot be subjected to the charge of being uncertain unless it be that section or paragraph which provides for the execution of a...