Watt v. Hunter (20 Tex. Civ. App. 76, 1898)

KEY, Associate Justice.

May SO, 1897, appellant brought this suit in trespass to try title to recover from appellee a tract of land in Falls County. The defendant pleaded the general issue, and also interposed a special plea alleging that prior to the appellant’s acquiring the land from one E. J. Gurley, defendant had made a contract with said Gurley for the purchase of the land. The plea sets forth specifically the terms of the contract, alleges that the defendant immediately took possession of the land, and up to the time of trial had made valuable improvements thereon, to the extent of $8799.14.

He also alleged that the agents of E. J. Gurley prevented him from procuring the money to discharge the Gurley debt, hereinafter referred to. This pleading requests the court to fix the amount of the Gurley debt to be paid by defendant within such time as the court might designate; and to also fix the amount, times of payment, etc., of the remainder of the consideration, as stipulated in the contract between Gurley and defendant. This pleading, in terms and effect, asks the court to construe and enforce the contract referred to, and also prayed for general and special relief.

The plaintiff filed a supplemental petition, embracing exceptions and a general denial, and by way of replication alleged that the defendant had failed to comply with the terms of the contract between him and Gurley, charging, in effect, that the defendant had forfeited his rights under the contract. This pleading is voluminous, but asserts that the plaintiff is still willing to carry out the contract between Gurley and the defendant, and concludes as follows: “Therefore, plaintiff prays the court that upon final hearing hereof for a decree requiring said Hunter to pay into court' the said sum due on said mortgage, interest, charges, and attorney’s fee, and all costs of this suit, and to execute and deliver to plaintiff the notes, as provided for in'said contract. Plaintiff further prays that in the event said Hunter fails or refuses to comply with such order of the court, that he have his decree rescinding said contract of sale between said Gurley and Hunter, for the restitution of said land and for his damages, and have his judgment against the sureties on defendant’s bond, and for all his damages and cost in this behalf expended, and for all such other, different, and further relief, either in law or in equity, to which he may be entitled by reason of the premises.”

It is not specifically averred, in the pleading of either party, that the note executed by Gurley and secured by the mortgage stipulated for 10 per cent, or any other sum, as attorney’s fee, if placed in the hands of an attorney, etc.; but in stating the conditions upon which he offers performance of the Gurley contract, the plaintiff asks that the defendant be required to “pay the amount due on the Sillimah mortgage, including $50 paid for an extension of time, as above set out, and also including 10 per cent additional on the amount of the principal and interest shown to be due on said note, as attorney’s fee.”

The court below held that Hunter had not forfeited his rights under the Gurley contract, and undertook to decree specific performance of said contract, substituting appellant Watt for Gurley. This decree is complained of by both parties; but appellant has filed a motion, asking that appellee’s cross-assignments of error be stricken out and disregarded, upon the ground that the cross-assignments are not contained in the transcript and appear only in appellee’s brief, and a copy of the brief is not shown to have been filed in the court below as required by rule 101. Appellee’s brief was filed in this court November -1, 1898. The case was submitted on brief for both parties November 9, 1898, and the motion complaining of appellee’s brief was not filed until November 16, 1898. The filing of appellee’s cross-assignments in the court below could be waived by appellant; and, therefore, the motion objecting to their consideration on that ground, not having been filed before the case was submitted, comes too late and must be overruled. (Rule 8 for the Courts of Civil Appeals.) Besides, as appellant’s brief points out reversible error, and as there is nothing requiring the cause to be remanded for another trial, it is the duty of this court, not only to correct the errors pointed out by appellant, but to render such decree as the court below should have rendered. Rev. Stats., art. 1027.

The contract between Gurley and Hunter reads as follows:

“The State of Texas, County of Falls.—This memorandum agreement witnesseth:

“1. That E. J. Gurley sells to C. T. Hunter nineteen hundred and fifty-six acres of .land on the west bank of the Brazos River, in Falls County, beginning at the S. W. corner of a tract of 258-¡- acres of land sold to Scoggins, on the bank of the river; thence with Scoggins’ line N. 561/2 W. 455 vrs.; thence N. 30 W. 676 vrs. to Scoggins’ N. W. corner; thence N. 60 E. 696 vrs. to the S. W. corner of Martin Buckley’s tract; thence N. 30 W. 1347 vrs. to Martin Buckley’s N. W. corner in the McKissack line; thence S. 60 W. 3443 vrs. to the N. E. corner of the J. J ones survey of 3000 acres; thence S. 281/2 E. 3830 vrs. to a stake for corner; thence N. 60 E. 534 vrs. to the N. W. corner of a tract of 50 acres sold to Eliza Sharon on the bank of Cow Bayou; thence meandering Cow Bayou, to the Brazos River; thence up the Brazos River, with its meanders, to the place of beginning, containing 3047 7-10 acres, excepting 91-J acres undivided interest now belonging to the Puckett heirs.

“3. That said Hunter is to pay fifteen dollars per acre for said land, with ten per cent interest from January 1, 1897.

“3. Whereas, there is now a deed of trust or mortgage on said land, held by C. H. Silliman, of Fort Worth, Texas, upon which there is a balance of nearly nine thousand dollars past due. Now, therefore, as a part of the purchase money for said land, the said Hunter assumes said debt, and agrees and binds himself to pay off and fully discharge the same, and for the amount so assumed and paid by said Hunter, he shall be entitled to and shall receive a credit upon the amount of the purchase money he is to pay to said Gurley. For the purpose of renewing and extending said loan and mortgage, it is agreed and understood that the title to said land shall be vested in said Hunter, and the said Gurley hereby expressly agrees and consents to such renewal and extension and authorizes the said Hunter to make the same.

“4. So soon as said mortgage is renewed and extended, as above provided, this transaction shall be closed by the said Gurley executing to said Hunter a good and valid warranty deed for said land, and the said Hunter shall execute his notes in the usual bankable form for the purchase money due said Gurley, as follows:

“Note due January 1, 1899, for $3000, with 30 per cent interest after maturity; note due January 1, 1900, for $1000, with 10 per cent interest after maturity; note due January 1, 1901, for $1000, with 10 per cent interest after maturity; note due January 1, 1903, for $1000, with 10 per cent interest after maturity; note due January 1, 1903, for $6000, with 10 per cent interest after maturity.

“The five foregoing notes are given for the interest due said Gurley from the 1st day of January, 1897, to the 1st day of January, 1903, on the balance of the purchase money due said Gurley, after deducting the amount of said renewed loan from the whole amount of the purchase money. Said balance of purchase money being approximately $30,000, shall be divided into ten equal annual pajunents, for which the said Hunter shall execute his notes, the first and twelve months interest being due and payable January 1, 1904, and the interest on the balance of said purchase money due said Gurley shall be paid annually at the rate of 10 per cent per annum, on the 1st day of January of each year until the whole amount of the purchase money and interest is paid.

“5. 'Unless some difficulty should necessarily prevent the carrying out of this contract, the said Hunter agrees to begin work on said land about November next, and to put as much of it into cultivation as he can for the next year, and to continue improving said land and cultivating the same until the purchase money is all paid, thereby making the land more valuable, and the better securing the payment of all of the purchase money notes.

“6. The survey made by Ed. Pierson (the field notes of which are copied above), and by which we are governed in estimating the number of acres specified in this contract, is to be corrected, if it is found to be incorrect in any material respect.

“7. The said Gurley agrees and binds himself to pay all back taxes due on said land, and covenants that the title to said land is perfect in him; that he has good right to convey the same, and that there are no incumbrances on said land. Should it hereafter appear that such is not the case the said Gurley binds himself to perfect said title, and to remove such incumbrances (save and except the Silliman mortgage above referred to), and in case he fails to do so within a reasonable time after notice from said Hunter, the said Hunter may, at his option, abandon this contract or perfect said title and remove said incumbrances at the cost and expense of said Gurley.

“Witness our hands in duplicate, this 25th day of September, 1896.

“E. J. Gurley,

“C. T. Hunter.