J. D. Thomas v. Hiram Morrison, 92 Tex. 329

DENMAN, Associate Justice. By deed executed February 20, 1892, reciting a consideration of $350 paid and the assumption by Morrison of certain attorney’s fees due by George to Thomas & Turney, the amount of which had not been agreed upon, George conveyed the land in controversy to Morrison.

Soon thereafter Morrison and Thomas & Turney entered into a written contract whereby the former agreed to convey to the latter one-fourth of the land and the net rents thereof pending the litigation concerning the title thereto, in consideration of certain legal services to be rendered by them in such litigation; and afterwards he added to said contract an agreement to give them an additional 1-24 for certain legal services, making in all 7-24.

Before all the services contemplated by such written contract had been rendered by said attorneys, they and Morrison undertook to agree upon the amount of the fee due by George and assumed by Morrison in said deed; but the trial court upon conflicting testimony found that they failed to agree. After all such services had been rendered, Thomas, who had purchased Turney’s interest, demanded a settlement of Morrison, claiming $1000 as having been agreed upon as the fee due by George, and also 7-24 of the land and rents thereof.

This demand was not acceded to by Morrison, who> insisted that he had not agreed to pay either the $1000 or rents, but that the 7-24 of the land was to include and settle the George fee assumed in. said deed. Pending this controversy between Thomas and Morrison,. George conveyed the land to his sons, plaintiffs herein, who brought this-suit against Morrison to recover the land on the ground that said deed . from George to Morrison was in fact a mortgage to secure certain indebtedness subsequently paid.

Thomas answered for Morrison claiming the land in reconvention, and prepared the cause for trial, but subsequently claiming that Morrison was acting in collusion with plaintiffs in-order to allow their recovery for the purpose of depriving him of his said fee, he procured a sale of the land under execution against George and purchased same for the benefit of himself and Morrison, and in his pleadings as intervener herein set up all the facts and asked judgment for said fee and for general relief.

Plaintiffs having failed to appear at the trial, and the cause having been submitted to the court without a jury, judgment was rendered (1) that Morrison recover the land from plaintiffs and that said deed from George to them be canceled; (2) that Thomas recover from Morrison an. undivided 7-24 interest in said land; and (3) that Thomas recover from Morrison $511.50, which from the findings of fact made by the trial . judge we understand to be $350 which he found to be the reasonable value of the services rendered by Thomas & Turney to George and assumed by Morrison in the deed from George to him, plus Thomas’ share of the net rents received from the property by Morrison.

Thomas having appealed from this judgment and Morrison having filed cross-assignments-of error, the Court of Civil Appeals reversed that part of the judgment of the trial court allowing Thomas a recovery of only $511.50 and in lieu thereof gave him judgment for $1266.20, fixing same as a lien upon Morrison’s 17-24 of the land, said judgment being composed of the following amounts as we understand from the opinion of the court: $1000, fee assumed by Morrison in said deed from George; $180.86, being 1-4 of net rents; and $85.34, being 17-24 of amount paid by Thomas for land at said execution sale.

From this judgment both Thomas and Morrison have by separate applications brought the cause to this court upon writ of error. This brief statement of the nature and result of the case will be supplemented by some additional statements in disposing of the questions we deem it proper to discuss.

Morrison insists that there was error in allowing Thomas to recover anything on said contracts, because they bound said attorneys to defend this suit among others, and that he, by purchase of the title at sheriff’s sale and intervening asserting claim to all the land in his first petition, had breached and abandoned his contracts. This contention is fully met by the finding of the trial court that said contracts did not bind the attorneys to defend this suit.

We can not say as a matter of law that the court was'not justified in the holding that said contracts, read in the light of the circumstances surrounding their execution, did not contemplate or provide for a suit by George against Morrison. Morrison also insists that the Court of Civil Appeals erred in adjudging that he should pay Thomas said $85.34 as part of the sum paid for the sheriff’s deed, and Thomas concedes that such judgment can not be justified in law.

The undisputed evidence in the case shows that Thomas bought at sheriff’s sale without any authority from Morrison, and that after such purchase he offered in his pleadings to give him the benefit of the title so acquired upon his refunding said sum, and that he refused.

Owing to the relations existing between Thomas and Morrison it may be true that the latter would have had the right to have elected to treat the purchase as having been made for their joint benefit, upon tendering his proportion of the purchase money or by offering to submit to a judgment fixing same as a lien upon his share of the land, but it is -clear the court has no power to compel him to do so.

Morrison also contends that both courts erred in holding him indebted to Thomas in any sum other than the land and rents provided for in the written contracts, in that such contracts were intended to be a substitute for and in satisfaction of the fee due by George and assumed by Morrison in said deed from George to him.

The contracts do not show such intention on their face as a matter of law, and both courts below having upon conflicting testimony found that no such intent existed in fact, the question must be considered as settled adversely to Morrison, this court having no jurisdiction of such question of fact.

Morrison also contends that, the trial court having found as a fact from conflicting testimony that he and the attorneys had failed to agree upon the amount of the fee due by George and assumed by Morrison, the Court of Civil Appeals, after finding therefrom that they had agreed on the sum of $1000, erred in rendering judgment for said sum. That they -erred in so doing we consider settled by Choate v. Railway, 91 Texas, 406.

Thomas contends that both courts erred in not rendering judgment for him for all the land upon the ground that he acquired the title 'thereto by said purchase at sheriff’s sale, and Morrison declines to accept the purchase as having been made for their joint benefit and pay his proportion of the costs of same. In order to sustain this assignment, it must appear from the record that Thomas acquired the title to the land by such purchase. As above shown, the petition. alleged that the deed from George, the common source, to Morrison was in fact a mortgage.

Morrison answered, denying this fact, and asking against plaintiffs a judgment for the land as well as a cancellation of the subsequent deed made by George to them. The intervener Thomas in his original petition claims that said deed from George to Morrison was intended as a trust in favor of Thomas & Turney.

In his amended petition upon which the cause went to trial he abandons this position and sets up the ■contracts above referred to, in which Morrison agreed to pay the fee •due by George and subsequently agreed to convey the 7-24 of the land, and asks for judgment against Morrison for said fee, for said interest in the lands and rents thereof, but he nowhere asserts that said deed from George to Morrison did not in fact convey George’s title.

There is no finding by the trial court to the effect that any title remained in George after the execution of said deed to Morrison, but on the contrary the judgment of the trial court is an affirmance of the effectiveness of said deed as a conveyance of the title, for it adjudges to Morrison the land as against the plaintiffs on his plea in reconvention and then proceeds to adjudge in favor of Thomas on his plea of intervention, said assumed fee, 7-24 of the land, and rents as against Morrison.

From this brief statement it appears that Thomas, upon whom the burden rested of showing that he acquired the title by the purchase at sheriff’s sale against George, does not allege or show that there was any title in George subject to execution at the timé he purchased at such sale, and therefore does not show that he acquired any title thereby. It results that the court did not err in refusing to give him judgment for the entire land. This brings us to the question as to what disposition should be made of the case.

From what has been said above, it follows that the judgment of the Court of Civil Appeals in so far as it renders judgment against Morrison for the $85.34 must be set aside and that of the District Court, allowing him nothing upon that claim, must be affirmed, and in so far as the judgment of the Court of Civil Appeals adjudges that Morrison shall pay Thomas $1000 it is set aside, and since the finding of fact by the Court of Civil Appeals strikes out and does not include the finding of the lower court as to the reasonable value of the George fee, there is no finding before us upon which we can render a judgment for same, and therefore the judgment of the Court of Civil Appeals reversing the judgment of the District Court for such fee must be affirmed, and the cause will be remanded for the sole purpose of determining the amount thereof, with instructions to the court below to determine (1) whether the parties agreed upon such fee, and if so to render judgment in favor of Thomas for the amount so fixed, and (2) if not, then to determine the reasonable value of such fee and to render judgment in favor of Thomas therefor, in either event fixing and foreclosing the same as a lien upon Morrison’s 17-24 interest in the land, and that the judgment of the trial court and Court of Civil Appeals in so far as it adjudicates to Thomas 7-24 and to Morrison 17-24 of the land be affirmed, and that in all other-respects the judgment of the Court of Civil Appeals be affirmed.

Affirmed in part, and in part reversed and remanded.