Young v. Harbin Citrus Groves, 10389.

• Decision Date: 14 June 1939
• Docket Number: No. 10389.,10389.
• Citation: 130 S.W.2d 896
• Parties: YOUNG v. HARBIN CITRUS GROVES, Inc., et al.
• Court: Texas Court of Appeals

130 S.W.2d 896

YOUNG v. HARBIN CITRUS GROVES, Inc., et al.

No. 10389.

Court of Civil Appeals of Texas. San Antonio.

June 14, 1939.

Rehearing Denied July 12, 1939.

Appeal from District Court, Willacy County; Honorable A. M. Kent, Judge.

Suit by Harbin Citrus Groves, Incorporated, and others, against Charles N. Young and others, for purpose of restraining the sale of land by a trustee named in a deed of trust, consolidated with suit by Charles N. Young against William S. West, trustee, and another to restrain trustee from selling land. The two actions developed by amendments into an action of trespass to try title. From the judgment, Charles N. Young and J. H. Harbin appeal.

Judgment reformed and, as reformed, affirmed.

Jesse G. Foster, of Raymondville, for appellant Young.

S. L. Gill, of Raymondville, for appellant Harbin.

West & Hightower, of Brownsville, and Smithdeal, Shook & Leftwitz and J. L. Shook, all of Dallas, for appellees.

SLATTON, Justice.

Suit was instituted on the 6th day of May, 1935, by Harbin Citrus Groves, Inc., et al., against Chas. N. Young et al., for the purpose of restraining the sale of described land by a trustee named in a deed of trust. Thereafter Chas. N. Young filed suit against William S. West, trustee, and W. H. Shook, to restrain the trustee from selling said land under the powers contained in a deed of trust. The trial court granted both injunctions.

The pleadings of the parties in the two actions developed, by amendments, into an action of trespass to try title. The actions were by agreement consolidated. A trial of the consolidated actions to the court resulted in a judgment in favor of W. H. Shook against J. H. Harbin, T. H. Harbin, Harbin Citrus Groves, Inc., Chas. N. Young and Wm. S. West, individually and as trustee for the land, fully described, containing 375.45 acres; and a judgment in favor of Chas. N. Young against J. H. Harbin in the sum of $7242.20, with interest from date of judgment. Shook recovered his costs against Young, and Young recovered his costs against J. H. Harbin. Findings of fact and conclusions of law were filed by the trial court. Young and Harbin have appealed.

Mrs. Alberta B. Young, a widow, is the common source of title. Mrs. Young, on July 8, 1929, executed and delivered a general warranty deed to the land in suit to J. H. Harbin, which was filed for record March 6, 1933. The deed recited "and for the further consideration of $14281.50, evidenced by five certain promissory vendor's lien notes, Nos. 1 to 5 inclusive, each for the sum of $2856.30, dated same as deed, due on or before one to five years after date, made by J. H. Harbin, payable to me, each note reciting the same to be given in part payment of the purchase price." The deed contained the usual express retention of the vendor's lien until all the notes were paid. The deed further recited that the grantee was on the same day conveying the land to West, as trustee, to further secure the payment of said notes.

On August 19, 1929, Mrs. Young, by a written instrument, which was filed for record August 26, 1929, transferred said notes to the Merchants National Bank of Brownsville, as collateral security for indebtedness owing by her to the Bank. Thereafter, the Bank became insolvent and was placed in the hands of a receiver, Ben Freudenstein. On the 15th of August, 1935, the Bank, through its receiver, reconveyed to Mrs. Young the right, title and interest it had in the notes, by an instrument in writing, which was recorded on the 20th day of September, 1935.

On December 1, 1931, Mrs. Young and J. H. Harbin executed an extension agreement to all of the notes, except No. 1, which had been paid, to dates beginning on December 1, 1932, to December 1, 1937. The instrument was recorded February 2, 1932.

On August 15, 1935, Mrs. Young conveyed to W. H. Shook the vendor's lien notes and the liens securing the same, which instrument was recorded on September 23, 1935. Such instrument recited the payment of note No. 1, and showed the others to be due, except $135.62 had been paid February 13, 1933, and $141.78, on December 28, 1933. Shook paid a valuable consideration for said notes and liens.

On April 18, 1931, T. H. Harbin and J. H. Harbin executed and delivered to the First National Bank of Raymondville their note in the sum of $4,000, and delivered a deed of trust to said Bank to secure such note, which deed of trust was filed for record on the 12th day of May, 1931.

On May 1, 1933, J. H. Harbin conveyed the land in suit to Harbin Citrus Groves, Inc., which was recorded on May 5, 1933, subject to an indebtedness due the Young estate, Cameron County, Texas, and $3,250 payable to the Bank (situated at Raymondville).

On February 24, 1934, T. H. Harbin and J. H. Harbin conveyed the land to Craig, trustee, by another deed of trust, securing a renewal note for $3,250, due June 26, 1934, and being the balance of the $4,000 due the Raymondville Bank.

On December 27, 1933, First National Bank of Raymondville conveyed the note of $3,250 and deed of trust lien securing the same, to the Valley Loan & Trust Company, which instrument was recorded on the same date. This note and lien were conveyed to the Reconstruction Finance Corporation and back to the Valley Loan & Trust Company, and by it to Chas. N. Young, which instruments were promptly recorded, the date of the last named being August 20, 1934.

We shall make other statements from the record, if necessary, in order that our rulings may be understood.

Young contends that Shook cannot rely upon his superior title which was acquired after the suits were filed. We overrule this contention upon the authority of the case of Ballard v. Carmichael, 83 Tex. 355, 18 S.W. 734, Supreme Court.

Young contends that Shook cannot recover in trespass to try title where it appears that payments on the notes have been waived and lesser amounts accepted, without a showing of his right to declare a forfeiture by notice to the purchaser fixing a new time for payment, and that he must restore the purchase money he or his predecessors in title have received, or show some reasons in equity why he should not be required to do so. We overrule these contentions upon the authority of Branch v. Taylor, 40 Tex.Civ.App. 248, 89 S.W. 813, 815, writ refused.

In that case it is said: "This is a suit to recover land to which appellee had the superior title by reason of the vendor's lien being expressly retained in the note executed by appellants as well as in the deed executed by appellee and his wife. It was not an attempt to rescind the contract and the rules applied to suits of that character have no application to this suit. When there is default in payment of the purchase money due for land the vendor, who has reserved in the note or deed a vendor's lien in express terms, has the election of suing on the note and to foreclose his lien or to sue for the land itself, and in the last case he is not compelled, in order to recover the land, to refund any purchase money that may have been paid by the vendee. McKelvain v. Allen, 58 Tex. 383; Lundy v. Pierson, 67 Tex. 233, 2 S.W. 737; White v. Cole, 87 Tex. 500, 29 S.W. 759; Anderson v. Silliman, 92 Tex. 560, 50 S.W. 576; [Stone Land and] Cattle Co. v. Boon, 73 Tex. [548], 555, 11 S.W. 544; Pierce v. Moreman, 84 Tex. [596], 601, 20 S.W. 821; Walsh v. Ford, 27 Tex.Civ.App. 573, 66 S.W. 854."

Young contends that Shook cannot recover the land because of the following reservation contained in the deed from Mrs. Young to Harbin: "grantor herein will within a reasonable time from the date of this conveyance map, plat and subdivide the land herein conveyed * * * etc." in the absence of evidence showing a performance upon his part or by his predecessors in title.

The deed and the deed of trust under the circumstances of this case must be construed together to arrive at the contract of the parties. The provision cannot be construed to be a condition precedent because the title vests under the deed, subject only to the vendor's lien. 14 Tex. Jur. § 105, p. 880. Such provision cannot be construed to be a condition subsequent, because it would not defeat the title of the grantee under the deed. 14 Tex.Jur., § 105, p. 880. If such provision be a covenant by the grantor, the same does not run with the land, and would not bind Shook, an assignee. 12 Tex.Jur., § 33, p. 51. If the same be construed to be a warranty, the breach thereof would only give rise to a cause of action in favor of the owner of the land. 12 Tex.Jur., § 43, p. 65; Warren v. Houston Oil Co., Tex.Civ.App., 296 S.W. 637.

Moreover, in no event would the breach of such condition entitle either the grantee or his assignees to hold the land without the payment of the purchase money.

Young insists that Shook is not entitled to recover the land in virtue of vendor's lien notes reserved in a deed recorded March 6, 1933, because of his deed of trust lien created April 18, 1931. Mrs. Young was the common source of...