Johnson v. Elmen (24 Tex. Civ. App. 43, 1900)

PLEASANTS, Associate Justice.

Appellant brought this suit to recover of appellees certain real estate situate in the city of Houston, and for damages, and to cancel a deed executed by appellant to appellee conveying the property sued for, on the ground that the consideration for said deed had failed. The case was tried by the court below without the aid of a jury and judgment rendered in favor of appellees, from which judgment this appeal is prosecuted. The trial court, on motion of appellant, filed its conclusions of fact, from which we deduce the following statement of the material facts in the case.

On the 15th day of September, 1897, appellant was the owner of lots 5 and 6 in block 17 of the Fair Ground addition to the city of Houston, which property was at that time and at the time of the trial of this cause in the court below worth about $3000, and was incumbered with a lien1 to secure an indebtedness of $2000. On the said 15th day of September,. the appellee, C. A. Elmen, was the owner of a tract of 320 acres of land in Harris County, worth at that time and at the time of trial in this cause, about $1500. The 640-acre tract of land of which this 320 acres is a part was at that time incumbered by a vendor’s lien to secure two notes of $250 each, besides interest and attorney’s- fees. About this time appellant, through his duly authorized agent and attorney, Stewart Johnson, commenced negotiations with said appellee with a view of trading him the lots above mentioned for the 320 acres of land, and on said date it was verbally agreed between the parties that the said C. A. Elmen would convey to appellant the 320 acres of land subject to said incumbrance, and that appellant would convey to said Elmen the lots above mentioned and pay him $700 in consideration of the conveyance of said land, said lots to be also conveyed subject to said lien of $2000, each of said parties agreeing to accept the property conveyed subject to the liens before mentioned. In pursuance of this agreement Elmen prepared a deed conveying the 320 acres of land to appellant, which deed recited a consideration of $700 cash in hand paid, the conveyance of the lots by Johnson, and the assumption by Johnson of the payment of the vendor’s lien notes upon the land. Johnson did not accept this deed, and stated that he did-not want the vendor’s lien notes mentioned in the deed, as he intended to pay them off in the next ten days, and that he would prepare a deed for Elmen to execute. Thereupon the said Stewart Johnson prepared deeds for both parties which were by them executed, and the deed prepared by Elmen was destroyed. The deeds executed by the parties were each general warranty deeds, and each contained the words,