Randolph v. State

73 Tex. 485 | Tex. | 1889

Stayton, Chief Justice.—

The conclusions of fact reached by the. court below are supported by the evidence and are sufficient to justify the judgment rendered in favor of the State, and on the appellant’s appeal it only becomes necessary to consider questions other than those of fact.

The action was brought originally against John R. Ward, and this was done within one year after the Act of April .14, 1883, took effect, and under the direction of the board created by that act.

A few days after the action was brought Ward conveyed to appellant, but this was done before there was service on Ward, who died pending the action.

The heirs of Ward were not made defendants, but by amendment appellant and those in whose names the application to purchase the lands were originally made were made defendants.

This amendment was made, however, after the expiration of twelve months from the time the Act of April 14, 1883, took effect, and there was no specific direction from the Land Board to the Attorney-General to bring the suit against the persons thus made defendant.

Appellant by demurrer and answer questioned the right of the Attorney-General to bring the suit without specific direction so to do directly applicable to him.

Such a question can not be raised by demurrer. State v. Thompson, 64 Texas, 690.

It was not necessary that the Land Board should have directed the suit to be brought against any particular person. It did direct the suit to be instituted to annul and set aside the purchases of the land in controversy, and this was done against Ward who then held the claims by transfers from the original applicants.

Ho further authority to the Attorney-General was necessary, and ap< pellant could not defeat the right of the State to maintain the suit by the conveyance made to him by Ward after the suit was commenced.

It is urged that the heirs of Ward should have been made parties after his death, and that the suit could not be maintained against any person claiming through him by conveyance made after the suit was brought.

As Ward divested himself of all claims to the land by his conveyance to W. H. Randolph his heirs had no interest and were not necessary parties, and it was the right of the State to make W. H. Randolph a party defendant.

Even in case of purchasers during Us pendens strictly it is the right of a plaintiff to make them defendants if he desires to do so. Jemison v. Halbert, 47 Texas, 188.

W. H. Randolph is the representative of the interest claimed by Ward at the time the suit was brought, and while he would not be affected with notice of the defects in Ward’s title as purchaser Us pendens the suit may well be maintained against him, not as a new suit but as a suit brought within twelve months after the Act of April 14, 1883, took effect.

There is no question of notice of the defect of the title in the cause, for W. H. Randolph was cognizant of all the facts bearing on the question of the validity of the original applications, which seem to have been made in the name of others for his benefit, and he is also shown to have negotiated in having the conveyances made to Ward, in which, as between himself and Ward, each was equally intersted.

Ward was unwilling to assume the burden of this litigation, and to free himself from it conveyed to W. H. Randolph after the suit was brought. The conveyance from Ward to W. H. Randolph seems not to have been made or not to have been known until twelve months had expired after the Act of April 14, 1883, took effect.

It is urged that the suit can not be maintained because the State did not tender or offer to return money paid on the land. That this was not necessary to entitle the State to maintain this suit was decided in the case of The State v. Snyder, 66 Texas, 687, and in other cases. There is no error in the judgment of which appellant complains.

The suit was brought to annul the sale of five and one-half sections of land, two and a half which were applied for in the name of the wife of W. H. Randolph, he having before that time purchased four and one-half sections. The court below annulled the sales of only three sections, and refused to annul the sale of the two and one-half sections purchased in the name of the wife of Randolph.

The State filed a cross-assignment of errors questioning the correctness of so much of the judgment as was against it, but has not prosecuted its cross-appeal by filing brief, and for this reason must be deemed to have abandoned it.

There is no error in the judgment and it will be affirmed.

Affirmed.

Delivered April 12, 1889.