Wright v. United States Mortg. Co. of Scotland

• Decision Date: 03 November 1897
• Citation: 42 S.W. 789
• Parties: WRIGHT v. UNITED STATES MORTG. CO. OF SCOTLAND, Limited, et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

42 S.W. 789

WRIGHT v. UNITED STATES MORTG. CO. OF SCOTLAND, Limited, et al.¹

Court of Civil Appeals of Texas.

November 3, 1897.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Suit by the United States Mortgage Company of Scotland, Limited, against Mrs. Pink Gates Wright and others. Plaintiff had judgment, and defendant Mrs. Pink Gates Wright appeals. Reversed.

Franklin & Cobbs, for appellant. Upson, Bergstrom & Newton and Ogden & Terrell, for appellees.

FLY, J.

The United States Mortgage Company of Scotland sued Mrs. Pink Gates Wright individually, and as executrix of the estate of W. B. Wright, deceased, and Robert L. Summerlin, on a promissory note for $34,000, and to foreclose a deed of trust on certain property in the city of San Antonio. Mrs. Wright answered, admitting the execution of the note and mortgage, and the other material allegations of the petition, and further alleged that she and the firm of Wright & Hart entered into the contract hereinafter set forth, with D. R. Fant, with the terms of which she had fully complied, and that he thereby became liable to pay the amount of said note; and she prayed for judgment over against him. It was alleged by D. R. Fant that there had been fraud in procuring his signature to the agreement, in the representation to him that the taxes of 1895 alone were unpaid on the property belonging to appellant, when in fact taxes were due for two other years. It was also alleged that a part of the consideration for the contract was the assumption by Hart & Wright of the mortgage on the land in Buchel and Pecos counties, and their agreement to cause said D. R. Fant to be released from all liability on the mortgage, but they had failed to do so; that it had been agreed that an abstract of title should be furnished by Mrs. Wright, but she had failed to furnish the same. The trial was had before the court, and resulted in a judgment on the note, and foreclosure of the mortgage, as against Mrs. Wright and Summerlin, and Fant was held not to be liable. The agreement made between the parties was as follows: "This agreement, made this third day of March, 1896, by and between Pink G. Wright, party of the first part, D. R. Fant, party of the second part, and Claude Wright and Archibald Hart, a firm known as Wright & Hart, parties of the third part, witnesseth, the said party of the first part agrees and binds herself to convey, by a good deed of conveyance, lot No. 15, on the corner of Houston and Navarro streets, in the city of San Antonio, Texas, together with all improvements thereon; said lot having a frontage on Houston street of 60 feet, by a depth of 157½ feet to an alley. The consideration to be as follows: The said party of the second part assumes and agrees to pay a certain indebtedness of $34,750.00 on said property, together with interest thereon, and taxes on said property, and furthermore agrees to pay to the said party of the first part the sum of twenty-five hundred ($2,500) dollars in cash upon delivery of said deed to the same; and the said party of the second part furthermore agrees to convey unto Claude Wright and Archibald Hart by a warranty deed to lands in Buchel and Pecos county containing 39,680 acres, as described in a certain release hereto attached and made a part hereof, the said parties of the third part agreeing to assume an indebtedness on said lands to the amount of $30,500.00. And it is further agreed that, if said incumbrance on said land should not amount to said sum of $30,500.00, then the said parties of the third part are to execute their vendor's lien notes, secured by said lands, for difference, if any, at the rate of eight per cent. interest per annum, payable on or before eighteen months from date; each party to furnish abstracts to the properties herein mentioned within or before one month from date. It is further understood that the party of the second part, as forfeit money, has paid to the party of the first part, as evidenced by the receipt of the party of the first part, the sum of one thousand dollars, and which sum of money is to be credited to the party of the second part at and upon the consummation of the trade and exchange of properties as hereinbefore indicated. And it is further agreed and understood by all the parties hereto that all the heirs of W. B. Wright, deceased, sign, acknowledge, and deliver to the party of the second part...