Fincher v. Malcolmson

Temple, C. — Defendant appeals from the judgment and order refusing him a new trial.

The action is to quiet plaintiff's title to atract of land. The answer, after certain denials, sets out, as a further answer and cross-complaint, an agreement between the defendant and L. N. Fincher, husband of plaintiff, who, it is averred, owned the land, by which agreement said Fincher, in consideration of one dollar, agrees, at any time within six months, to sell to defendant, or any one he might name, the whole or any part of a tract of 320 acres of land, which included the tract in controversy. The contract reserved the crop then growing, or required compensation therefor at $2.80 per acre. There was a provision for the extension of the time for performance.

It is averred that plaintiff knew all these facts, and [40]that the conveyance to her was made for the purpose of hindering, cheating, and defrauding the defendant; that defendant, within the time, elected to purchase on the terms proposed, and notified Fincher of the fact, and also that he would take the crop growing on the land at the stipulated price; that said Fincher refused to perform his part of the agreement, and is about to harvest the crop, which he avers is worth four thousand five hundred dollars, and he asks that said L. N. Fincher be brought in and made a party and required to answer; that he have specific performance of the agreement, and that a receiver be appointed to take possession of the crop.

To the answer and cross-complaint separate demurrers were interposed by plaintiff.

An order was obtained making L. N. Fincher a party, and he was duly served.

Before he had appeared herein the case was set down for trial. At the time set, the demurrers had not been disposed of, but counsel for both parties were in court. No objection was made on any ground to the trial, but defendant’s counsel asked and obtained leave to withdraw his cross-complaint, without prejudice to his right to bring an action for damages against L. N. Fincher. Defendant’s counsel then left the court-room, although fully aware that the trial was about to proceed, having concluded, as he says, that it would be better to make the entire suit against Fincher a suit for damages. The plaintiff obtained a judgment quieting her title against defendant, whereupon, having changed his attorneys, defendant moved for a new trial on the minutes of the court and upon affidavits.