246 F. 225 | 5th Cir. | 1917
M. and A. Schneider, acting by M. Schneider, on April 8, 1907, made a contract with A. G. Crump for the sale
“Should said suit be prolonged by contest, or should A. G. Crump fail to recover judgment clearing the title, he having duly prosecuted said suit, then the said M. and A. Schneider will return all notes this day executed by said A. G. Crump in payment of said land, and neither of said notes nor the deed this day made by M. and A. Schneider will be of force and effect, and the said bank will deliver said A. G. Crump all of said notes held in escrow, and upon; the surrender of all notes this day executed by said A, G. Crump, he will surrender the deed this day made to him as aforesaid, and if necessary reconvey said land to M. and A. Schneider.
“The said A. G. Crump agrees not to sell or remove any timber from said land while said suit is pending, except by subsequent agreement with M. and A. Schneider, or without first obtaining their consent to do so.”
The occasion for the execution of the agreement just described was the circumstance that the abstract of title furnished by Schneider to Crump showed a deqd in 1855 from Isaac N. Lassiter to C. McRim-mon of one-half of the land. Crump instituted in his own name suit for the land against the unknown heirs of Lassiter and McRimmon. Citation was duly published.- At the May term, 1908, service was complete. J. E. Garland, who was representing the Schneiders and Crump, who after the institution of tire suit had removed to West Texas, returned at that time to try the case. It appears from his testimony that he expected to be able to get' judgment, “there being no answer and little evidence being required.” Crump indicated to Garland that he did not desire" the case tried, and told him that “the panic had hit him pretty hard, and that he didn’t' care anything about getting title to the land.” Crump testified that he wanted to get out of the trade, “mainly because it would cramp me to pay for it.” Garland then withdrew from the case on account of the probable antagonism between his clients. The case remained,on the docket until June, 1909, without action taken. On June 21, 1909, S. E. Ball filed an intervention, claiming an undivided one-half of the land. To this no answer was filed by Crump, nor was any effort made to contest the claim. The Schneiders were not notified of the intervention. On the day the intervention was filed, and without demanding any legal evidence of title, an agreement was entered into, signed by R. H. Jones, attorney of record for Crump, and E. M. Ball, attorney for intervener, to the effect that plaintiff Crump recover from the intervener Ball title and possession Of an undivided one-half of the land; that all costs be adjudged against Crump; that Ball recover an undivided one-
At that time the notes, to the amount of $2,200, had matured, and the Schneiders were demanding payment. The claim of the intervener was based upon a deed, dated January 22, 1909, purporting to have been executed by one Charles J. McRimmon, who made an affidavit to the effect that he was the sole heir of C. McRimmon. It subsequently developed that Charles J. McRimmon was not the heir of C. McRim-mon. Crump had made no effort to ascertain whether Charles J. McRimmon had any right to convey the premises. After the judgment S. E. Ball divided the tract of land into two equal parts, and sold the timber on half of it for more than $500. Thereafter Crump sold the timber on the other half, receiving in cash $2 per acre. Before the judgment Crump had executed oil leases of the land, and had collected 25 cents per acre, and subsequent quarterly payments. The Schneiders had received no notice of the disposition of the suit, of the oil leases, or of the sale of timber. Efforts of the holders of the notes to collect having failed, suit was instituted and judgment had. • A new trial was granted, based upon the allegation that it had been discovered after judgment that the title to the land was not at the time of sale in M. and A. Schneider, but in J. and G. Schneider. Upon another trial judgment was rendered against Crump for one-half of the notes, with foreclosure upon one-half of the land. All parties appealed.
It is not necessary to determine whether the contract was executed or executory. The parties contemplated possibility of failure of title in part, and, instead of leaving the matter to be adjusted by the ordinary rules of law, made stipulations with reference thereto. Crump has either never been placed in possession, or has been dispossessed. It is quite possible that if he had, in good faith, undertaken to secure judgment for the land, he would have been successful; but, if so, the judgment would have been for all the land, while he had title to one-half only. The Schneiders have not undertaken to repudiate the contract on account of the delinquencies of Crump. The judgment gives them the purchase price of all the land they owned. It is felt that the nearest practicable approach to equity has been accomplished.
The judgment is affirmed, the costs of the appeals being divided.