
    TEMPLE HILL DEVELOPMENT CO. v. LINDHOLM et ux.
    (No. 6232.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 28, 1919.
    Rehearing Denied June 18, 1919.)
    Appeal and Error <®=>719(8) — Review—Necessity op Assignments.
    In the absence of an assignment challenging the accuracy of the trial court’s findings, the reviewing court will not question their accuracy.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Suit by the Temple Hill Development Company ■ against Erie A. Lindholm and wife. Decree for defendants, and plaintiff appeals.
    Affirmed.
    W. C. Church and T. F. Mangum, both of San Antonio, for appellant.
    Barrett, Eskridge & Barrett and 'Hood Boone, all of' San Antonio, for appellees.
   COBBS, J.

This suit was instituted by appellant to recover from appellees Lot Nos. 3 and 4 in block No. 4 in section A of Temple Hill addition to the city of San Antonio, Bex-ar county, and for damages and rent, at $20 per month, and for amounts already paid to be held and recovered as liquidated damages, together with all improvements erected and placed upon the premises by .appellees. Plaintiff prays for a writ of possession and a permanent injunction restraining defendants from interfering with the possession of said land or from occupying and holding possession.

Appellant alleges it instituted the suit to enjoin defendants from interfering with the possession of the land and occupying the premises, and thereafter entered into a new agreement and contract, and agreed that the cause be held on the docket until such agreement would be complied with.

In said new agreement dated April 30, 1918, it was provided all unsightly objects, and especially the pile of wood now located thereon, would be removed and keep the same therefrom, and also all'exposed hay and material of any kind would be removed. It also provided:

“Further, to turn said shed around so that the same shall face the street in front of said lots or the alley in the rear of said lots and to paint said sheds and building with three coats of good paint and to screen said building and place window and electric lights therein in accordance with the plans for its construction and to construct cesspool and toilet in sanitary manner.”

It was agreed that the building could be used for residence purposes only until a residence shall be built, according to their agreement, then its use as a residence to cease. It was agreed that the appellees were permitted to remain on said premises for a period of six months until a residence be erected in accordance with the contract, then to reside in it, and all improvements thereon to be forfeited to appellant in case of the breach. The former contract was forfeited, and this contract made in lieu thereof.

The appellant sold said lots for $900 to ap-pellees, the sum of $155 having already been paid, and balance to be paid in installments of $20 per month on the 20th day of each month until paid. Upon the payment of all the installments appellant agreed to convey the property by a general warranty title with certain reservations and conditions. The one was:

“No building for residence purposes costing less than twelve hundred dollars shall ever be erected on said property; any building for residence purposes shall front on the street running east and west in front, and no building shall be erected on said property 20 feet on the street.
“The appellant agreed to furnish abstract of title showing good and merchantable title free and clear of incumbrances.”

The appellant alleged a breach of the contract in that appellees have “failed to remove from said lots all unsightly objects, and especially the pile of cordwood located thereon, and to keep the same therefrom, and also all exposed hay and material of any kind so as make said lots an incentive to prospective purchasers of lots in said addition instead of the unsightly place that it has been, and further to turn said shed round so that the same shall face the street in front of said lots or the alley in the rear of said lots, and to paint said shed and building with three coats of good paint, and to screen said buildings and place electric lights therein in accordance with the plans for its construction, and to construct cesspools and toilet in a sanitary manner,” and further violated contract in occupying same for a residence, and have failed to build the residence on the lot that should cost not less than $1,200.

The prayer was to recover all improvements thereon and all money paid as liqui- ■ dated damages, for writ.of possession, and permanent injunction.

Appellee answered by" general denial and that they went upon said premises in good faith and placed permament improvements thereon of the value of $1,500, and complied with the contract substantially in every particular; that no electric lights had been placed there, through no fault of theirs, but because of the restrictions the war department placed on the public service corporation they were not able to get the building wired and the electric current extended to the premises'.

At the time of execution of agreement there were two buildings upon the property-described therein, one designated a “shed,” and the other as a “building,” about which some confusion arose, but clear in the minds of the parties. The “shed” was being completed, and the other building was undergoing construction. That “shed” was changed so as to face street in front of lots. 'The “building” has been painted, screened. Cesspool and toilet have been constructed in a sanitary condition, so improved as to meet the demands of the contract, and cost more than $1,200. It was appellees’ understanding, if building cost the minimum of $1,200, no question would he raised, and appellees could continue to use the same as their residence.' They allege that they complied with their contract and promptly tendered and offered plaintiff the $20 to cover monthly installments and made no default therein. Upon appellant’s refusal to accept the installments, they promptly legally tendered to appellant the entire purchase price remaining due, and continued to tender said money in court, but the appellant refused to accept the same. Ap-pellees further replied that appellant waived the clause in the contract requiring houses to cost not less than $1,200. Appellees prayed that plaintiff take nothing by the suit; that writ of injunction be dissolved and not made permanent; that defendants be quieted in their right to occupy said property undisturbed and plaintiff required to accept the monthly payment due and such others as they may fall due on or before the due date or that it be required to accept the full amount of the unpaid purchase money; in case plaintiff be adjudged to recover title and possession, defendant have judgment for his improvements; and for all relief, general and special.

Upon request of appellant the court filed the following findings of fact and conclusions of law:

“I find that on the 2d day of April,. 1918, plaintiff filed this suit against the defendants, the same being an ordinary suit in trespass to try title, covering lots 3 and 4 in block 4, section A of the Temple Hill addition to the city of San Antonio; that the plaintiff was a corporation ; that theretofore it had entered into a contract of sale with the defendants under the terms of which the defendants were to pay for the property in installments; that in this suit a temporary mandatory writ of injunction was issued without a hearing; that before a hearing to dissolve was had plaintiff and defendants entered into another contract, which is set out fully in the amended petition. I find that at the time of the original contract the plaintiff knew the financial condition of the defendants, and knew that they had some three or four cars of various kinds of personal property, including lumber, hay, etc., which they intended to place upon the property, and that the plaintiff acquiesced therein; that after the second contract was entered into the defendants in good faith proceeded to comply with the terms of said second contract; and that at the time of the trial of the ease each and every one of the terms of same had been substantially complied with.
“I find that the defendants, after going into possession of the property and with the knowledge of the plaintiff, made valuable improvements in good faith amounting to the sum of $1,500.
“I further find that at the time of the trial of the case the plaintiff did not hold clear and unincumbered title to this property, but that there is a lien outstanding against the Temple Hill addition, including these lots involved in this suit.”

Conclusions of Law.

“The court finds as a conclusion of law that the plaintiff, Temple Hill Development Company, did not at the time the case was tried own a clear and unincumbered legal title to the property involved in this suit; that the suit is one in trespass to try title, and plaintiff did not show such title in itself under the pleadings as to entitle it to recover. I further find 'that under the evidence it is shown that the defendants have substantially complied with the terms of their contract; hence it would be inequitable to enter judgment forfeiting what they had paid on the property and the improvements they had placed thereon.”

Appellant makes a number of assignments. The first complains that the court erred in rendering judgment for the appellees for the reason that it appears that appellees had agreed to erect another building on the lots in question other than the buildings on said lots at the time of said contract, and that same should be erected within six months from the date of contract, and in ease of failure to so erect' said building the contract of purchase was to be canceled, and plaintiff was to have possession of the premises in question, but defendants had failed to comply with said agreement.

An examination of the contract shows that appellees were authorized to use the building for residence purposes until a residence shall be built on said lots, and not to use the same for residence purposes after their residence shall be built. The appellees moved from the shed to the new building.

The court found as a fact that at the time of the trial of the case each and every term of the contract had been complied with, and appellees went into possession of the property with knowledge of appellant and made valuable improvements amounting to $1,500.

The second and third assignments are practically to the same effect, complaining that appellee failed to perform their contract in the particulars stated, and further in not making the character of improvements contracted, and not putting in electric lights. Thé court has already found the facts against appellant on these issues, as seen from the findings aboye.

In addition to the findings of fact by the court, there is also a full statement of facts filed.

There was no exception taken and properly preserved in the record or any assignment made challenging the accuracy of the court’s findings, which appellant requested to be filed, and in the absence of such an assignment we are not at liberty to question the accuracy thereof, and, as the court found all the facts against appellant and in favor of the appellees, they will not be disturbed.

There is no reversible error assigned, and the assignments are all overruled, and the prayer for injunction is denied.

Judgment is affirmed. 
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