145 S.W. 1041 | Tex. App. | 1912
Lead Opinion
Findings of Fact.
1. In April, 1906, eight sections of school land in El Paso county were awarded to J. R. Arnett, who remained a settler thereon until about the 15th day of February, 1907, when he sold same to J. H. Altizer.
2. Upon proper application, Altizer was substituted by the state for Arnetf as the "purchaser of said land.
3. About March 1, 1907, Altizer sold said land to appellant Clark, who at once became a settler thereon, and so remained until he sold to appellant Padgett, to wit, on May 4, 1908.
4. Clark executed the notes herein sued on for the purchase money of said land.
5. After Clark had bought said land, some question was raised as to Altizer’s occupancy of said land, when Altizer, by agreement with Clark, sent to the land office his affidavit that on account of the continued sickness of his wife, and a misapprehension of the law, he could not make proof of continued occupancy, and asked that the sale to him as substitute purchaser for Arnett be canceled and that the land be awarded to Clark. This was accompanied by a proper application from Clark, together with one-fortieth of the purchase money, and his obligation for the balance, and the land was awarded to him August 1, 1907.
6. When Altizer first sold to Clark, Clark executed a deed of trust on said land to secure said notes, and again on January 22, 1908, executed a second deed of trust on said land to secure said notes. Both of said deeds of -trust were duly recorded in El Paso county prior to the purchase of said land by Padgett.
. 7. The deed from' Altizer to Clark and from Clark to Padgett were each quitclaim deeds.
8. Padgett finished the three years’ occupancy under the sale to Clark, and obtained the certificate of the commissioner of the land office to that effect.
9. Clark alleged that Altizer never became an actual settler on said land. This issue was not submitted to the jury, and we do not deem it necessary to make any finding of fact in reference thereto. The evidence was sufficient to raise the issue had it been necessary to a determination of this case.
10. Clark alleged that the first deed of trust was to be held in escrow, and that it was never legally delivered. That the execution of the second deed of trust was obtained by Altizer’s fraudulently representing to him that the same was a note. These-issues were submitted to the jury, as hereinafter explained. The effect of the verdict is that Clark’s contention as to one or the other of said deeds of trust is not true. The evidence would sustain a verdict either way as to either of said issues.
11.When Altizer sold to Clark, there were improvements on the land of the value of from $100 to -.
Opinion.
In view of the facts above set out upon the issues raised by the pleadings and assignments of error, we hold:
It was competent for the parties to enter into this agreement whereby Clark secured title to the land; and it was lawful for him to agree that Clark, upon securing the award to himself, should execute a second deed of trust to Altizer to secure the payment of the purchase money that he owed on said land. Williams v. Findley, 99 Tex. 468, 90 S. W. 1089; Garrett v. Findlater, 21 Tex. Civ. App. 635, 53 S. W. 839; Miller v. Roberts, 18 Tex. 16, 67 Am. Dec. 688.
6. Where the vendor of school land, which has been awarded to him, is in possession thereof, sells the same, and delivers possession to his vendee, and it is afterwards ascertained that he had no title to said land, it cannot be said that there was no consideration for such sale, nor that the consideration has wholly failed. Williams v. Findley, supra; Hodo v. Leeman, 27 Tex. Civ. App. 204, 65 S. W. 381.
For the reason herein stated, the judgment of the trial court is affirmed.
Affirmed.
Rehearing
On Rehearing.
1. Both Clark and Padgett, appellants herein, have filed motions for rehearing. All of the issues raised in Clark’s motion for pe-
In our findings of fact herein, we stated that the land in controversy was awarded' to appellant Clark on August 1, 1907. The sale io Altizer was canceled August 26th, and the sale to Clark was made August 30, 1907. •In so far as the issues were discussed in appellants’ original brief herein, the date of said award was immaterial, but appellant Padgett in his motion for rehearing has called our attention to the fact that the act of 1905 (Acts 29th Leg. e. 103), which was supposed to be the law governing this case, was amended by the act of 1907 (Acts 30th Leg. [1st Ex. Sess.) c. 20) and that said act went into effect 90 days after the adjournment of the Legislature, which occurred on May 12, 1907, and consequently said act went into effect August 11th. Attorneys. for appellant Padgett frankly confess that they did not know that the act of 1907 was in effect at the time Padgett was substituted as purchaser for Clark, to wit, on August 30, 1907, but they now call our attention to said fact, and insist that by reason thereof the judgment herein should be reversed as to said appellant.
Our Supreme Court in the case of Good v. Terrell, 100 Tex. 275, 98 S. W. 641, construing this provision of the act of 1905, said: “The effect of this provision is to make a sale not only before settlement but also before the affidavit thereof (which was the evidence required by law of the settlement) shall be filed in the general land office * * * work a forfeiture ipso facto, and to make it the duty of the commissioner to de: clare the forfeiture when informed of the fact. The words are too plain to admit of any other construction. * * * Whatever may have been the motive the law is so written, and it must be given effect' — the statute is imperative.”
The act of 1907, § 6d, provides that, “One who hereafter buys land on condition of settlement shall not sell any part of such purchase prior to one year after the date of award of the home tract.” The act of 1905 provided that no such sale should be made until the applicant had made his settlement and filed proof of same in the land office. The act of 1907, § 6e, provides that, “One who may hereafter purchase land * * * on condition of settlement in' the counties named in section 6a of this act (El Paso is one of said counties) * * * who executes a transfer contrary to the provisions of this act * * * shall forfeit the land and all payments made thereon to .the fund to which the land belongs; and when the commissioner shall be sufficiently informed of the facts which operate as a forfeiture, he shall cancel the award or sale by noting the act of forfeiture on the obligation, and mail notice of that fact to the proper county clerk.”
It will be seen that the language declaring a forfeiture for a violation of the act of 1901 is practically the same as that used in the act of 1905, and under the authority of Good v. Terrell, supra, we hold that, when Clark executed a deed to Padgett within less than 12 months after the sale to him by the state, the award to him bec'ame thereby ipso facto forfeited, and the land reverted to the state free of any incumbrance which Clark may have placed upon the same. Tillman v. Erp, 121 S. W. 551. The undisputed evidence shows that the land in controversy was awarded to W. G. Clark August 30,
For the reasons herein stated, we overrule the motion of appellant Clark for a rehearing, and grant a rehearing as to appellant Padgett, and, as to him, the judgment of the trial court is reversed and rendered in his favor.
Affirmed in part, and in part reversed and rendered.
Lead Opinion
2. Upon proper application, Altizer was substituted by the state for Arnett as the purchaser of said land.
3. About March 1, 1907, Altizer sold said land to appellant Clark, who at once became a settler thereon, and so remained until he sold to appellant Padgett, to wit, on May 4, 1908.
4. Clark executed the notes herein sued on for the purchase money of said land.
5. After Clark had bought said land, some question was raised as to Altizer's occupancy of said land, when Altizer, by agreement with Clark, sent to the land office his affidavit that on account of the continued sickness of his wife, and a misapprehension of the law, he could not make proof of continued occupancy, and asked that the sale to him as substitute purchaser for Arnett be canceled and that the land be awarded to Clark. This was accompanied by a proper application from Clark, together with one-fortieth of the purchase money, and his obligation for the balance, and the land was awarded to him August 1, 1907.
6. When Altizer first sold to Clark, Clark executed a deed of trust on said land to secure said notes, and again on January 22, 1908, executed a second deed of trust on said land to secure said notes. Both of said deeds of trust were duly recorded in El Paso county prior to the purchase of said land by Padgett.
7. The deed from Altizer to Clark and from Clark to Padgett were each quitclaim deeds.
8. Padgett finished the three years' occupancy under the sale to Clark, and obtained the certificate of the commissioner of the land office to that effect.
9. Clark alleged that Altizer never became an actual settler on said land. This issue was not submitted to the jury, and we do not deem it necessary to make any finding of fact in reference thereto. The evidence was sufficient to raise the issue had it been necessary to a determination of this case.
10. Clark alleged that the first deed of trust was to be held in escrow, and that it was never legally delivered. That the execution of the second deed of trust was obtained by Altizer's fraudulently representing to him that the same was a note. These issues were submitted to the jury, as hereinafter explained. The effect of the verdict is that Clark's contention as to one or the other of said deeds of trust is not true. The evidence would sustain a verdict either way as to either of said issues.
11. When Altizer sold to Clark, there were improvements on the land of the value of from $100 to _____.
1. The land having been legally awarded by the state, and Altizer having become the substitute purchaser, he had a vendible title, the transfer of which to Clark was a sufficient consideration to support the notes given for the purchase money thereof and the mortgage to secure the same, although the three years' occupancy prerequisite to the issuance of final title by the state had not been completed. Bumpass v. McLendon,
Such sale was not against public policy; on the contrary, the statute contemplates, and expressly provides for, such sale. Bourn v. Robinson,
2. Altizer's failure to settle on or to continue to occupy the land, if such was the fact, did not, ipso facto, forfeit the sale to him, but the title remained in him until the same was declared to be forfeited by the Commissioner of the Land Office. Adams v. Terrell,
3. It is insisted by appellants that the issue as to whether or not Altizer became and remained an actual settler on the land should have been submitted to the jury in this case, and that, if they had found against such settlement, the first mortgage should have been held to have been invalidated by such failure. However this may have been *1044 under other circumstances, we conclude that, in view of the fact that the cancellation of the sale to Altizer was procured with the consent of Clark, and for the purpose of strengthening his title, and the title to said lands was vested in him under said agreement, he cannot be heard to object to the foreclosure of such mortgage. If the first mortgage was properly foreclosed, the judgment of the trial court should be sustained without reference to the second mortgage.
4. The fact that Altizer paid the expenses of obtaining the award to Clark, including the first payment of one-fortieth of the purchase money, did not make him interested with Clark in the purchase of said land within the meaning of the statute on that subject. If there was a fair doubt as to Altizer's settlement being a compliance with the law, the payment by him of the expenses incurred in removing all doubt as to Clark's title ought to have been borne by him. It is true that he was interested in the security for his debt, but he acquired no interest in the land by virtue of the award to Clark.
But a sufficient answer to appellants' contention in this regard is that, if there was collusion between Clark and Altizer in the sale to Clark by the state, no one but the state could take advantage of such collusion. Logan v. Curry,
5. The appellants contend that even though the second deed of trust was executed in pursuance of an agreement between Altizer and Clark, that Altizer should file an affidavit that he had not complied with the law as to continued occupancy of the land, and thereby to secure the cancellation of the sale to him, and the award of the land to Clark, such transaction was against public policy, and the deed of trust based thereon cannot be enforced. To this we cannot agree. It is true that in such transaction the state lost Altizer as a purchaser, but at the same time it secured Clark in his place upon the same terms, and in addition thereto received payment of the one-fortieth of the purchase money the second time. In this transaction the state is the gainer by $128. It was not the purpose of Altizer or of Clark to in any manner defraud the state in this transaction, but only to settle all question as to Clark's title. Had the sale to Altizer been canceled without his consent, the state would have done just what it did do, and that is award the land to Clark upon his application to purchase.
It was competent for the parties to enter into this agreement whereby Clark secured title to the land; and it was lawful for him to agree that Clark, upon securing the award to himself, should execute a second deed of trust to Altizer to secure the payment of the purchase money that he owed on said land. Williams v. Findley,
The pre-existing debt was a sufficient consideration to support the second mortgage. Alstin v. Cundiff,
6. Where the vendor of school land, which has been awarded to him, is in possession thereof, sells the same, and delivers possession to his vendee, and it is afterwards ascertained that he had no title to said land, it cannot be said that there was no consideration for such sale, nor that the consideration has wholly failed. Williams v. Findley, supra; Hodo v. Leeman,
7. Partial failure of consideration will not abate the price as to one claiming under a quitclaim deed. Scott v. Slaughter,
8. As to the second deed of trust, at least, Padgett was not an innocent purchaser. Had he examined the records of El Paso county, he would have found said deed of trust executed subsequent to the title which Clark received from the state. The record of such mortgage was constructive notice to him.
9. Padgett, having acquired title under a quitclaim deed, cannot defend under the doctrine of innocent purchaser, even though it should be held that he had neither actual nor constructive notice of either of the deeds of trust executed by Clark on said land. Harrison v. Boring,
For the reason herein stated, the judgment of the trial court is affirmed.
Affirmed.
In our findings of fact herein, we stated that the land in controversy was awarded to appellant Clark on August 1, 1907. The sale to Altizer was canceled August 26th, and the sale to Clark was made August 30, 1907. In so far as the issues were discussed in appellants' original brief herein, the date of said award was immaterial, but appellant Padgett in his motion for rehearing has called our attention to the fact that the act of 1905 (Acts 29th Leg. c. 103), which was supposed to be the law governing this case, was amended by the act of 1907 (Acts 30th Leg. [1st Ex. Sess.] c. 20) and that said act went into effect 90 days after the adjournment of the Legislature, which occurred on May 12, 1907, and consequently said act went into effect August 11th. Attorneys for appellant Padgett frankly confess that they did not know that the act of 1907 was in effect at the time Padgett was substituted as purchaser for Clark, to wit, on August 30, 1907, but they now call our attention to said fact, and insist that by reason thereof the judgment herein should be reversed as to said appellant.
2. The act of 1905 regulating the sale and purchase of school lands did not repeal article 4218k of the Revised Statutes. Clark v. Terrell,
3. Appellant Padgett insists that the attempted sale by Clark to him operated under the act of 1907 as an absolute and ipso facto forfeiture of the land in question, and that, as the substitute purchaser becomes the original purchaser, he acquired title to the land in controversy by reason of his purchase from the state, free of all claims against said land. We think this contention is correct. The statute of 1905 provided that, "A purchaser shall not transfer his land prior to his actual settlement thereon and evidence of that fact is filed herein; provided any attempt to so transfer by deed, bond for title or other agreement, shall operate as a forfeiture of the land to the fund to which the same belonged, together with all the payments made thereon; and when sufficiently informed of the facts which operate as a forfeiture, the commissioner shall note the fact of forfeiture upon the application and proceed to place the land on the market by notice to the proper county clerk and advertisement in the manner provided for canceled leases."
Our Supreme Court in the case of Good v. Terrell,
The act of 1907, § 6d, provides that, "One who hereafter buys land on condition of settlement shall not sell any part of such purchase prior to one year after the date of award of the home tract." The act of 1905 provided that no such sale should be made until the applicant had made his settlement and filed proof of same in the land office. The act of 1907, § 6e, provides that, "One who may hereafter purchase land * * * on condition of settlement in the counties named in section 6a of this act (El Paso is one of said counties) * * * who executes a transfer contrary to the provisions of this act * * * shall forfeit the land and all payments made thereon to the fund to which the land belongs; and when the commissioner shall be sufficiently informed of the facts which operate as a forfeiture, he shall cancel the award or sale by noting the act of forfeiture on the obligation, and mail notice of that fact to the proper county clerk."
It will be seen that the language declaring a forfeiture for a violation of the act of 1907 is practically the same as that used in the act of 1905, and under the authority of Good v. Terrell, supra, we hold that, when Clark executed a deed to Padgett within less than 12 months after the sale to him by the state, the award to him became thereby ipso facto forfeited, and the land reverted to the state free of any incumbrance which Clark may have placed upon the same. Tillman v. Erp, 121 S.W. 551. The undisputed evidence shows that the land in controversy was awarded to W. G. Clark August 30, *1046 1907; that said Clark and wife on May 4, 1908, conveyed said land to Padgett; that said Padgett applied to purchase said land on May 4, 1908, and that the same was awarded to him on his said application; and that the sale to Padgett is now in good standing. Such being the fact, Padgett acquired the land as a purchaser from the state, free of all incumbrances.
For the reasons herein stated, we overrule the motion of appellant Clark for a rehearing, and grant a rehearing as to appellant Padgett, and, as to him, the judgment of the trial court is reversed and rendered in his favor.
Affirmed in part, and in part reversed and rendered.