Clay County Land & Cattle Co. v. Wood , 71 Tex. 460 ( 1888 )

Walker, Associate Justice.

It was not error to allow the defendants to sever, even after .they had answered not guilty jointly. The record discloses that no other defendant has any interest in that part of the land sued for claimed by the defendant Wood, nor is there a common defense. (Ballard v. Perry, 28 Texas, 362; Snyder v. Methvin, 60 Texas, 489.)

The case may be disposed of without a specific discussion of the very numerous points made by counsel by passing directly upon the facts in evidence, which determine the rights of the parties. In the testimony there is little conflict.

The plaintiff exhibited a title under a patent to Angelina county to four leagues of school lands, including the land in controversy. The land had been located in 1858, and was patented July 17, 1877. The only link in the chain of plaintiff’s title which is attacked by defendants is the conveyance relied upon from the county to Eakman & Davidson, under whom the plaintiff claims. The plaintiff offered in evidence a certified copy of an order of the commissioners court of Angelina county purporting to sell the land, to which the defendants objected, (1) “because it did not sustain the allegation of title in the petition,” and (2) “because the instrument is executory and conveys no title, either legal or equitable.” Over these objections the order of the commissioners court was read. That a plaintiff may show in evidence a less estate in the land than alleged, is no objection to his proving to the extent he has. Such is not a variance. The order of court in itself recited at great length the different proceedings in reaching the contract of sale with Eakman & Davidson. It provided for the payment of instalments and interest upon the unpaid purchase money. It provided onerous conditions upon the vendees, re-taming the right upon default in any payment to rescind the contract and resume possession without paying back any of the purchase money; formal possession of the land was given, but the order recited that the “legal and equitable title” was reserved in the county until all the purchase money and interest should be paid. A copy of the order, certified by the county clerk, was to be furnished the vendees as title. "It was shown that the vendees and their assigns had paid all the instalments due at maturity and all taxes.

The recital that the “legal and equitable title” was reserved did not and could not destroy the effect of the contract to the extent of the title which the vendees acquired. They obtained possession and had the right of possession. They had a conveyance of the land which could only be defeated by their failure to pay for it as had been stipulated. This title was good against the county until default should be made in the payment; and it was good against any one not showing a better title. It was sufficient to entitle the plaintiff to judgment unless such right should be defeated by the defendants.

It is not considered error that Miller, who purchased Wood’s interest while the suit was pending, was permitted to make himself a party defendant and to be heard to assert whatever interest he had in the land sued for. (47 Texas, 188, Jamison v. Halbert.)

The defense relied upon was under article 7, section 6, of the Constitution of the State, on the subject of county school lands, vesting title thereto in the counties, but providing “Actual settlers residing on said lands shall be protected in the prior right of purchasing the same to the extent of their settlement, not to exceed one hundred and sixty acres, at the price fixed by said court, which price shall not include the value of existing improvements made thereon by said settlers.”

Wood was a man of family and settled on the land in 1875, and remained until his sale to Miller, after the institution of this suit. One J. P. Earle testified that in 1875 he surveyed the Angelina county school land into one hundred and sixty acre tracts for settlers, and among the surveys one for defendant. Wood. The field notes of this survey are not given. It was made without authority from the county. Wood settled upon the tract and made his improvements with reference to it. The county had its school lands subdivided into small surveys in 1878. By this survey Wood’s settlement was divided; his dwelling house and part of his field were upon number seventy-five, and the balance of his field, the greater part, on number seventy-four. The two surveys aggregated three hundred and thirty-eight acres.

In 1881 the county judge was sent upon the land to negotiate sales to the actual settlers. He interviewed*Wood, but failed to effect a contract with him for the sale of the land.

By an order of the county court, of date November 9, 1880, it appeared that Kerr & Gann, agents of the county,'had sold, among many others recited, “to W. J. Wood lot number seventy-five, containing one hundred and sixty-four and one-fifth acres, at two dollars per acre.” The order provided for completing the sales; that the unpaid purchase money bear ten per cent interest per annum from November 1, 1879, to be paid in ten annual instalments—notes and trust deeds to be executed by purchasers—deeds to be made them by the county. Nothing further appears to have been done under this contract—nothing more paid nor any papers signed.

In September, 1883, one Montooth, attorney for Wood, applied to the county judge to purchase the lots seventy-four and seventy-five, offering sixty dollars cash as first payment. The judge having no authority, his authority having been withdrawn, declined to act in the matter.

November, 1883, Montooth, agent for Wood, applied to the county court in session to buy the lots seventy-four and seventy-five, again tendering sixty dollars as the first payment. By the county court, in 1879, the price fixed for lot seventy-five was two dollars and of number seventy-four one dollar and seventy-five cents per acre. The county commissioners in open court refused the offer made for Wood, and on the same day the court increased the price asked. The offer by Montooth was under the existing rates when made. Wood never paid taxes upon the land. Before the application by Montooth for Wood the county court had withdrawn the land from sale in small tracts.

An examination of the facts relied upon by Wood shows (1) He seems to have taken no steps to perfect his title by availing himself of the right to purchase the one hundred and sixty acre tract surveyed at his instance in 1875, and upon which he made his improvements; (3) he has done nothing under the order of the county court, of November 9, 1880, towards the purchase of the lot seventy-five; (3) his offer to buy of the county judge in September, 1883, was not made to an authorized officer or agent of the county; and (4) the offer made November, 1883, to the county commissioners in session was not in terms such as he had a right to insist upon as an actual settler under the Constitution. The court had the right to refuse the offer.

At most, at the institution of this suit Wood only had the bare right to purchase. The county is not shown to be in fault at any time.

From this it would follow (1) That he could defend against the plaintiffs only to the extent of one hundred and sixty acres; (3) that his right to purchase would be subject to some one of the prices fixed; (3) that to defend even to the extent of one hundred and sixty acres, he must avail himself of his constitutional rights as an actual settler by paying the accrued sums and obliging himself to pay the installments not due.

The judgment below must be reversed. Wood may amend and avail himself of his rights by asking affirmative relief by pleading a readiness to complete the purchase of the lot seventy-five, which he seems to have selected. He introduced the order of the commissioners court recognizing his right to it at two dollars per acre for the one hundred and sixty-four and one-fifth acres, upon the terms specified in the order.

To obtain full relief, Angelina county is a necessary party, for Wood should not have title subject to be defeated by the default in the title held by the plaintiff as to the other part of the lands. The plaintiff should also be relieved pro tanto in his contract against the county.

Wood should tender the accrued payments, with all stipulated interest from the date specified in the order, and furnish obligation for the payment of such, if any, installments which may still be unpaid. Reasonably, the first installment should be at the date of the order, the payment of ten dollars to be credited upon the first or cash payment.

It is held that the right secured to actual settlers by the Constitution affected all the school lands owned or to be acquired by the counties under the donation from the State to the counties for school purposes.

The defendant Miller shows no right to or in the land. His vendor could pass no title; nor has either offered to perform the acts without which his claim would have no legal effect. The Constitution did not grant the land—only the right to acquire it upon terms to be fixed by the counties; the land must be paid for. It is not held that, upon Wood acquiring title, as between Wood and Miller, the latter may not acquire the benefit of such purchase.

Reversed and remanded.

Opinion delivered October 16, 1888.