Citations
- 114 S.W.2d 658
Full opinion text
JACKSON, Chief Justice.'
The appellant, W. L. Pevehouse, instituted in the district court of Swisher county an. action in trespass to try title against the corporate appellees, Oliver Farm Equipment Sales Company, Distributors Investment Company, and the Southern Rock Island Plow Company, to recover section 33 in block B-3, in said county.
In the alternative, the appellant, in addition to the action of trespass to try title,, set out his title specially attached to and made a part of his petition as exhibits the contracts and agreements through-which he deraigns title, and according to such exhibits he held his title subject to $19,200' evidenced by twenty notes payable to Hickman Price and secured by a lien against the land. He alleged that appellees, according to his information, claimed to own the land involved by virtue of a certain attachment lien, the foreclosure thereof, and a purchase under execution, but avers his ■claim is superior to any and all claims of .appellees, who acquired whatever title they assert with full notice and knowledge of his rights. He prays under the second count that the cloud placed on his title by the claim •of appellees be removed.
The Oliver Farm Equipment Sales Company answered by general denial, plea of not guilty, and alleged that if appellant ever acquired any right or interest in the land by reason of the contracts and agreements alleged in ^the second count of his petition, he had waived and forfeited such right and interest by defaulting in the payment of the purchase price of the land and the taxes thereon for which he was liable under his contract; that this appellee owns and holds the legal title free and clear of any right, incumbrance, or equity of appellant, because in addition to his default his right, if .any he has, is subject to the twenty vendor’s lien notes, which he is obligated to pay Hickman Price; that said notes have not been paid, arid it is the present legal and ■record owner of said section of land under valid court proceedings, and such owner■ship includes the vendor’s lien notes which it acquired by virtue of said proceedings.
Each of the other appellees answered alleging a separate judgment against Hickman Price, the amount thereof, that such judgments were unpaid, but were subject to the lien of the Oliver Farm Equipment .Sales Company. Owing to this admission .and the judgment in this case, it is unnecessary for ⅜ further statement of their pleadings.
At the close of the testimony, in response to a peremptory instruction, the jury found in favor of the appellees, and judgment was ■entered that they go hence without day with their cost, and that appellant take nothing by this suit.
The appellant challenges as error the action of the court in directing a verdict against him, contending that the testimony shows he held the land under a contract ,-of purchase, which evidenced the part of the consideration unpaid; that he was in possession thereof, using and cultivating it at and prior to the time the attachment was levied and the judgments abstracted and recorded, under which appellees had purchased at execution sale; that they had notice of his interest, and, therefore, he had as to them the superior title. '
The' testimony discloses that on April 14, 1930, Hickman Price, acting for Price Bros., entered into a contract, in which they are designated as sellers, by the terms of which M. E. Courtney, designated therein as buyer, purchased section 33, block B-3, in Swisher county, for a consideration of $22,400, to be paid as follows: $500 in cash, $2,700 by August 1st, thereafter, and the remainder of $19,200 in twenty equal annual installments of $960 each. The seller agreed to furnish abstract of title for examination and approval, execute a warranty deed to the buyer, which with the contract and the twenty vendor’s lien notes were to be deposited in the First National Bank of Plain-view, Tex., to be held in escrow until one-half of the purchase price had been paid, at which time the deed was to be delivered to the buyer and the notes to the seller. The forfeiture clause in the contract will be later quoted. Courtney, after the abstract was examined, accepted the title, the deed and notes were executed, the $500 and the $2,700 paid to the sellers, and all the papers placed in escrow as agreed.
On July 21, 1930, M. E. Courtney, by written contract in which he is referred to as first party, bargained and agreed to sell and caused to be conveyed unto W. L. Pevehouse, referred to as second party, said section 33, block B-3, for and in consideration of $22,400, $3,200 cash, which was paid, and the assumption of all covenants an