Heirs of Ross v. Mitchell

28 Tex. 150 | Tex. | 1866

Moore, C. J.

—The judgment in this case must be reversed. The defendants in error, who were the plaintiffs in the court below, failed to establish any contract, either expressed or implied, for the land claimed by them. On the facts presented in this record the judgment could be sustained only on the supposition that the contract for the location of a certificate, the terms and conditions of which are not shown, by implication gives to the party locating and procuring the patent a right to one-third of the land. The law certainly attaches no such presumption to contracts of this character. The only assumpsit or promise which the law implies from the performance of work and labor for another, *is for the payment in money of the reasonable value of the services rendered. The most favorable view which can be taken of this case for the plaintiffs below, and the parties through whom they claim to derive their rights, is, that the contract between John E. Boss and Hath an Taylor is, that Taylor was thereby invested with a sufficient title or interest in the certificate to authorize him to give a locator a part of the land for its location. But, admitting this to be the construction of the instrument, there is no proof’ in the record that Taylor contracted with any one to give a part of the land for its location. The witness, Wynne, it is true, says that Taylor gave him the certificate to locate, and incidentally, in another connection, he says that his interest in the certificate was one-third; but nowhere does he say that Taylor contracted to give him any interest in the certificate or the land located by it. We cannot infer that he was entitled to a third of the land merely from the fact that it was placed in his hands by the party entitled to it, if this were the case, and his mere statement that his interest in the certificate was one-third, without anything to show how, when, or from whom he derived such interest. The court cannot, on such slight foundations, build titles of this kind.

It cannot be held, however, that the instrument executed August 7, 1839, by Boss to Taylor, operated as an assignment or passed the absolute and indefeasible title of the certificate to Taylor upon Boss’s failure to pay the amount of his indebtedness, as therein agreed. It, in unmistakable terms, declares.itself to be a mortgage; that it was intended to secure payment of the debt mentioned in it, and that all rights, and interest vested by it in Taylor should become void upon payment. The authority given in it to Taylor to “locate, enter upon, enjoy, and dispose of said land, as if acquired by good and valid title,” cannot be held to change the legal character and nature of the contract. This clause of the instrument, like all others, is to be understood and construed with reference to its purpose and object. If the rights or privileges already conferred on the grantee (Taylor) were thereby enlarged, it was only for the purpose of giving him more ample and certain security for his money. When this was paid, these, as well as all other stipulations in his favor, were to “ cease, determine, and become absolutely null and void.”

By a liberal construction of this part of the contract Taylor may be held to have had authority to sell the mortgaged property upon default in the payment of his debt, and that he could, for its better security, have located the certificate; that the outlay for doing this was a proper charge upon the mortgaged property, and possibly, therefore, he could have given a part of the land to get this done; hut, as he could do this merely to acquire a better security for his debt, his power to do so would unquestionably cease when the debt itself was discharged, or such length of time had elapsed as raised the presumption of its payment. That the rights conferred by the mortgage cease when the debt for whose security it is given is barred is not now an open question. There is no evidence that Taylor’s debt has been paid. It was, however, unless there are facts not disclosed in the record to negative this conclusion, manifestly barred by limitation long before the location of the certificate. Hor can we say this was not the case when it was delivered, as alleged, by Taylor to Wynne. It was certainly incumbent upon the plaintiffs below, in any view we can take of the case, to have shown that Taylor’s debt was a valid and subsisting liability against Ross when he contracted with Wynne for the location of the certificate. Having failed to do this, they were not entitled to a verdict, and the motion for a new trial should have been granted.

Other questions presented by the record may not arise upon another trial, and as most of them (especially those presenting the equities on behalf of the parties claiming to be innocent purchasers) are not presented by the bills of exception in a manner to enable us to announce a satisfactory opinion upon them, we deem it unnecessary to discuss them.

There was error in overruling the motion for a new trial, and the judgment is therefore reversed and the cause

Eemanded.