50 S.W.2d 462 | Tex. App. | 1932
On the 15th day of September, 1927, the Board of Regents of the University of Texas, acting under an act of the Legislature of the State of Texas (Acts 1895, c.
On the 20th day of December, 1028, John Y. Francis expressed in writing his desire of using, in conjunction with Crowley and Lindley, the said lands embraced in the lease by the Board of Regents of the University to Crowley and Lindley, and therein expressed his willingness to perform all the covenants and conditions of the university lease contract and assume the liabilities therein contained, in consideration of Crowley and Lindley and the Board of Regents of the University shall agree to such joint use of said lands, *463 and in further consideration of Francis agreeing to perform the covenants, agreements, and obligations contained in said university lease, Crowley and Lindley, on January 3, 1928, expressed in writing an agreement that Francis should exercise a joint use with them of said lands as joint tenants, provided the Board of Regents approve same, and should the board do so it was to be understood that such approval would be at the request and for the benefit of Crowley and Lindley, and as in no wise releasing them from their obligations assumed in said lease.
On the back of the above-stated instrument is the following:
"Duplicate Assumption of University Lease No. 311 by John Y. Francis, Midland, Texas.
"Recommended for Approval: R. E. Saner, Special Agent.
"Approved: R. G. Storey, Chairman, University Land Com. Reported to Auditor and filed in G. L. O. 1 — 7 — 1929.
"Filed for record this 21 day of Jan. 1929, at 10:30 o'clock A. M. Sam M. Smith, County Clerk, Andrews County, Texas."
On the 11th day of October, 1928, Crowley and Francis entered into a written contract by the terms of which Crowley, in part consideration of $2,150 to be evidenced by one promissory note of date November 1, 1928, and to become due November 1, 1929, bearing interest and providing for attorney fees as stated, the note to be secured by a vendor's lien upon the land conveyed, assigned, transferred, and conveyed to Francis nineteen sections of the lands included in the lease of the Board of Regents of the University, the lands fully described by block and section numbers.
On November 1, 1928, Francis executed and delivered to Crowley his obligation by which he promised to pay to Crowley, or order, the sum of $2,150, as in the said instrument stated, the obligation stating that it is given in part payment of the purchase of the unexpired lease on the university lands embraced in said lease and expressed a vendor's lien retained. Certain credits are indorsed on the note or obligation leaving a balance due thereon of $1,105.40, as of January 8, 1930.
This suit was brought by Crowley against Francis to recover the unpaid balance on said note as stated, interest due, the attorney fee, and to foreclose the vendor's lien on the property described.
Francis answered by exceptions, general and special, general denial, and by special denial to the effect that he has a grass lease upon said lands executed by the Board of Regents of the University, and that one of the provisions of said lease is that it cannot be transferred or assigned voluntarily or involuntarily, and that it is not such property as can be alienated by order of the court.
The demurrers were not expressly passed upon by the court and are thereby waived.
The case was tried without a jury, and judgment entered for Crowley on October 3, 1931, for the amount due with interest, attorney fee, and a foreclosure and the vendor's lien.
Francis duly prosecutes this appeal.
Appellee submits several counter propositions to the effect First, that the lease in question, not providing for unconditional forfeiture upon the assignment or transfer without written consent of the Board of Regents first having been obtained, was such property upon which a valid vendor's lien could be obtained, and could be sold under execution growing out of such lien foreclosure; second, that valid vendor's lien was created in favor of appellee by his assignment of the lease to appellant; third, there being no evidence that the Board of Regents ever objected to the sale from appellee to appellant, or had objected to appellee as a lessee, the assignment by appellee to appellant retaining the lien was valid.
Appellant refers us to Moser v. Tucker,
Scott v. Slaughter,
In Jackson v. Knight (Tex.Civ.App.)
Wilkinson v. Sweet et al. (Tex.Civ.App.)
The Board of Regents had the authority to execute the lease to Crowley and Lindley. Under the authorities cited, Crowley could make a valid sublease to Francis, subject only to the action of the Board of Regents to give or withhold consent. Where consent to sublease is not expressly given and no action taken by the Board to cancel, right to cancel is waived.
The contract for the sublease can be enforced through the courts.
*465The case is affirmed.