*1 George l. et a H. McEntire Rio Oil Bravo No. 6539. Decided June Rehearing 21, 1936. October overruled Series, 1110.) (95 W., Series, 381; S. 2d 2d *2 Jr., Wright, Russell, Tupper, A. H. of San C. Charles W. Wharton, Angelo, Baker, Botts, H. Ger Andrews & and S. Houston, plaintiff man, in error. all of holding Appeals erred in The Court Civil conveyed title the minerals in the land Trustee’s deed deed, controversy in said because there was no reservation description specifically limited therein when the 24, conveyed property affected of June contracts August 1882, min- 1882, 12, expressly reserved Texas, Gilbough Runge, company. v. 99 erals W., Texas, 104, W., 566; Barnard, Doty 92 47 v. S. 846; Teagarden Combs, W., 712; v. & v. 216 Coke Co. S. Coal Co., Texas, Godley 105 616. Lumber Angelo, Gayer, for defendant in error.
Kerr & of San though a could not confer his vendee Even vendee him, conveyed yet later he could that had never been formerly convey his ven- his an interest reserved vendee him. Waco dor, had if such reserved interest been W., 137; Texas, 320, Bridge Waco, Associated S. Co. Seguin Ry. Hart, (2d) Fennell v. St. Oil Co. v. 10 S. W. Co., Texas, 670, Judge opinion delivered the of the Commis- SMEDLEY
Mr. Appeals, B. sion Section subject ownership controversy herein is the
minerals 23 and 25 in Block Houston and Sterling Railway Company County, Texas Central lands surveyed which sections of land for the Houston and patented Railway Company year Texas years to it in the 1884 and 1886. Defendant McEntire error plaintiff sued for the title and land, alleging regular ownership sections of under chain of three, title and also virtue of the statutes of limitation five, *3 twenty-five years. ten Defendant in error Gulf Pro- and Company by ownership duction asserted its intervention gas gas oil and in 23 and 25 under an oil and lease section Judgment by trial court executed McEntire and wife. the in favor of defendants in error was affirmed Court of the Appeals. (2d) Civil 59 S. W. questions purchaser,
Aside from limitation and innocent positions parties are, by plain- briefly the taken the stated: error, patentee, tiff in that in sales of the land made the Railway Company, year Houston and Texas Central the .the through Kelley, 1882 to one J. M. whom defendants claim, excepted railway all minerals were or reserved to the company and that defendants have never acquired minerals; error, that, through title to the defendants year the other instruments than contracts of made in the sale railway company Kelley, they have title between the land, including minerals, to the from and under the rail- the way company. land, together .property
These owned sections with other railway company, conveyed by company the in its the Mortgage” 1, 1872, “Consolidated to The executed October pay- Farmers Loan and Trust trustee to the secure large apparent ment of It its bonds a amount. the conveyance purpose instrument that the made for the was sole securing bonds, being expressly provided it that con- the veyance upon upon payment condition that granted void and bonds estate to trustee should be thereupon that title should revert to revest assigns, reconveyance. grantor, or without its successors empowered of default on the trustee the event deed of trust proceedings in a railway company institute property or so proper procure court of sale of the decree might necessary meet the much thereof as be might provided upon It that trustee default default. also necessary, land, might at sell or so much thereof as pub- public legal private proceedings, after sale and without notice, upon a lication sale to execute and authorized such conveying property and the deed of encumbrance free equities railway company. of trust claims or The deed right railway company condi- reserved' to certain were in tions to sell the it. conditions lands covered Such prices; substance: that for certain minimum sales should be per reported at least ten sales should be to the trustee and it; mort- cent of the consideration and that bonds gages securing de- of the consideration should be balance provided thereupon trustee livered to it. It was acknowledge a deed to such “should execute interest, assigns right, title, purchaser, his heirs of, in and to the section estate and said trustee parcel of land so sold.” railway company, apparently On June without undertaking comply in the deed with the conditions set out trust, (one entered into a contract of sale of section controversy) Kelley. M. This instru- with J. railway by Kelley company is in ment executed both agrees company form a contract. It recites Kelley consideration of to sell the section of land to *4 one, two, cash, payments in in like and be made $320.00 being years, payments and four deferred evidenced such agrees bearing Kelley promissory four notes at interest 8%. punctual payment and to make of the notes and of all taxes provides in lawfully imposed. assessments The instrument company Kel- railway will execute to case the notes are special warranty ley premises “but a deed with railway following rights com- subject of the said madé pany, to the rights hereby and are all are reserved each and of which railway company.” pass by said not to the deed to be railway right of rights as a so reserved is described One conveyed. way The other land feet over the width long para- rights rights in a described reserved are mineral graph, as follows: the first of which is Railway Company re- Texas Central
“The Houston and upon the land right to enter all times hereafter at serves will, surveys at prospect for and hereby conveyed and make any part coal, mineral, stone, any and of it other valu- deposits, open upon operate and able said with all land and machinery, appliances may and it deem ne- attachments which mines, cessary, borings coal, mineral, quarries; and and the deposits stone or other taken all valuable found in and mines, borings such quarries property of and said shall be Railway Houston Company, and Texas have and shall right ingress same, purpose of remove the and for the egress mines, borings quarries, and and from such and right sixty way further hereby the land feet over mines, borings quarries' width to and from such and hereby reserved regulations paragraph
Then follow in the same detailed respect with enjoyment mineral use and reserved rights. containing After the paragraphs reservations following: instrument contains agrees Joseph Kelley by accepting
“The M. this deed to the reservation herein- aforesaid and to entire contract specified Railway above and covenants to the said with assigns enjoy and its it and shall have reservations, rights privileges contained con- agrees tracted for in this further this covenant deed and sold, hereby stipulated shall run with the agreement in this land and it is assignment premises that no be valid shall unless the same shall endorsed hereon.” August 12, 1882,
On another contract of sale substan- 1882, tially 24, language was as the contract of June company made between M. fór thé and J. controversy sale to two other sections of herein, 25, recited sections 13 consideration $576.00 by Kelley *5 58C.” part eight original given by Kelley the con-
130 begin provisions. They re- with
identical in their terms and pendency the of the citals of trust and about several deeds 7,May They order of foreclosure suit. make reference to the substantially 1885, describing of order as terms recite: have been described above. instruments then order; provided the receiver render his account as in said did Company present its that petition and did The Farmers Loan Trust asking advice; and that court the court for petition order that court after “made an consideration and forth in the ratification of said sales investments as set petition court, by approved said and that confirmed regards May execu- the terms of order of deeds, funds, payment delivery of of tion and of cancellation bonds, respects, performed out and all other be carried part by by party first said receivers and hereto practicable.” Following as trustee as soon as recitals these releasing follows: clause of the instruments is as WITNESSETH, “NOW, THEREFORE, THIS INDENTURE premises party part, first in consideration hereto pursu- payment and of to it the said receivers order, to it in and of the sum of one dollar ance the above receipt part, party hand hereto the second acknowledged, granted, demised, hereby re- whereof hath and, grant, quitclaimed, presents, leased doth de- these mise, quitclaim party part, unto the second release and lot, forever, assigns piece and to all that certain his heirs and situate, parcel lying of land and Texas, county de- known and of Tom Green in the State follows, namely:” scribed as in one the "instruments thus: land is described containing 23, 23, Block
“All of Section Certificate acres, party part Houston and Texas of second deeded June, 1882, by Railway day Company 24th on the fifty Sl^C, price Two cents at the Dollars Deed No. per acre.” description in the other is: instrument 25, Block 1007 and
“All of Sections Certificates containing acres, party second deeded Railway Company on the Houston and Texas Central August, 1882, by price day No. at the of two 12th Deed 58C per twenty-five acre.” dollars and cents R. Mc- of release delivered to W. two deeds These George McEntire, by Entire, H. father of defendant Gibbs, and Texas for the Houston Land Commissioner C.C. Central Railroad on March which the record a short after final indicates was time was made eight originally indebtedness *7 against The several foreclosure suits and Houston consolidated, by Texas Central Railroad an and were 26, 1886, order May made in the three consolidated cause on appointed, Dillingham. receivers were one of them Charles gave authority order the receivers to continue to make under of the direction the court contracts for sale in their of land possession belonging railway company; to the and it directed them, already made, keep as to separate sales to and records, proceed to representing accurate portions to collect notes credit sales, pay proceeds
of such to over the of such notes respectively, purchasers trustees and to to deliver when paid the lands were full had the deeds which been respective executed trustees. foreclosing ordering
A decree the several of trust and deeds 4, the sale property May of the covered them was entered 1888, pursuant lands, property and decree to that ex- cept portion sold, already such of the land as had been report sold approved to F. P. Olcott. The con- sale was 18, 1889, firmed January property and on the land and other Dillingham conveyed Special sold were to Olcott as Charles Pending Master perfecting plan Commissioner. for reorganization Dillingham, company of the who receiver, had possession prop- become sole remained erty, including to which had been sold and Ol- cott, 1, February until sometime en- after 1891. An order 7, 1888, Dillingham, tered December authorized as receiver Olcott, until the should delivered to for be to collect parties possession the land and on interest notes in his payment mortgages of the notes to execute of the releases securing notes, him to sales and further authorized make possession to lands in his which had sold deeds been Olcott, sales, reporting however, to to The such to Olcott and approval. Company, Farmers Loan and for Trust February 1, Dillingham receiver, 1891, On as Kelley part unpaid as in 1882 *8 Company. By con- Live the terms The Stock Wilson accept Company to bound itself tract The Wilson Live Stock pay Kelley the times"and notes and to same at .pro- upon The contract further amounts and the terms stated. any pay- of the annual vided that the event of default receiver, notes, Dillingham, -the or other holder of ments (cid:127) the lien to secure the notes. authorized to foreclose (cid:127); paragraph is follows: last contract part'; party of the first “It understood that further party assigns to said notes or are to deliver his successors assigns part, when the consider- its or the second successors paid in has been full. When ation-hereinbefore mentioned heréin off in full the notes Co. have Wilson Live Stock shall part, described, party or first his successors then the assign party second assigns to of the and transfer shall assigns lands.” part, of his interest in said' its successors original payment by the notes Final evidenced debt given by Kelley given by by the The Wilson new notes year early part Company Live Stock was made Gibbs, Land Commissioner 1898 and on March C.C. Company, successor Texas Central Railroad the Houston and Company, Railroad delivered to the Houston and Texas Central McEntire, of the three owner to R. who had become the W. through Company, Live Stock deed from Wilson given by Kelley, original the last *9 three.,seer confirmation, releasing such ratification and the by tions of. land from lien the the created deed of trust executed convey sell, in 1872. There was no intention or release to to Kelley any bought, other than what he had estate buy, in 1882. contracted to
The deeds from Trust to The Farmers Loan and power not to were made under the trustee’s sell and convey upon payment principal default in the or interest due executed, plainly They on the their recitals bonds. as state, 7, 1885, pursuant May and for to the court’s order of purpose confirming ratifying prior the unauthorized the company Kelley. effect of sales made the authorizing ratify and of the the the sales order trustee to the that the'trus- pursuant to the order was deeds of made release 134 original accepted bondholders, for in the lien
tee the lieu trust, in created 1872 deed of in so far as affected Kelley, pur- three sections of land had been sold securing money given by Kelley *10 (Com. Ogletree R., 940; W., 1094, v. Abrams 3 L. 174 S. A. 326, Texas, Randon, 227; App.), (2d) v. 67 S. W. Sisk 549, Burns, Texas, 84 W. (2d) v. Oil Co. S. W. Sun (2d) 442. expressed deeds herein as to the effect
The conclusion the rights release, is, convey not the mineral that did railway company sales the which had been reserved Gammon, Kelley, supported by Humphreys-Mexia W., R., Texas, 247, In that case 29 A. L. 254 S. retained conveyance the minerals and also of land reserved purchase price part of a vendor’s lien to secure represented by grantor *11 parties authorized to collect them for the at interest. payment. notes their were secured liens reserved to secure Dillingham assign trans- The contract made was that would upon Kelley fer the notes to The Live Stock Wilson assigns, payment by company, or its successors principal full notes to amount of the and interest due on said February 1, 1891, being provided that this It was $4304.15. amount should on execution of the con- be one-fifth installments, equal tract and the balance in four annual payments. notes were executed annual This to evidence such original was a renewal and an extension of the Kelley. notes regarded Kelley parties, notes It was so together McEntire, retained and surrendered to R.W. in with the two had been executed deeds release which notes, payment of the debt the last of the new when final was made 1898. February
That clause of the contract of full, Dillingham, receiver, agreed, paid in when the notes were assign Company, its and transfer to The Live Stock Wilson land, assigns, is to successors and all of interest his respect to the construed in with the recitals with connection original provisions purchase by Kelley and the other clauses construed, apparent it is the contract. When it is so extend and parties the intention contract was to assign Kelley them to renew the and to and transfer *12 price, present gave equitable evidenced sales and an right posession. purchaser to the land with of and The possession his successors went into of for the land and held it long purchase money a time final before was made. The purchaser pay contracts bound the and taxes lawfully imposed upon premises. assessments thereafter rights way reservations of of and of minerals contained in agreements merely the contracts were not that such reserva tions incorporated would be in deeds thereafter but to be made made, language presently reservations used rights hereby that “each and all of which are reserved.” given by Kelley Each note at the time the contracts were exe cuted part payment land, stated that it in de for the scribing it, “sold and to me Houston and said Texas Railway contract,” giving Company by of the number the contract and its and date stated further that it was “secured a vendor’s lien on said as retained in said contract.” These accomplished present contracts and notes a sale of the land with reservation the minerals and retention of vendor’s lien and worked as minerals from effective a severance of the the surface as would have been an instrument form of a deed land with similar reservation Humphreys-Mexia minerals and retention of vendor’s lien. Company Gammon, Texas, 247, W., 296, v. 29 A. L. R., 607; Texas, 469, Munsey Garitty, & Mills Company’s Gulf innocent Production claim that it an purchaser gas gas of the oil and lease and virtue its oil sustained, because defendant in error McEntire cannot be only took under McEntire had lease such title as gas. title, legal equitable, oil and McEntire had no either gas, oil and minerals was reserved title to the because Kelley, railway under company land to when it sold the held, title, Mc acquired whom has been McEntire and as his' through of release acquire Entire did not the deeds minerals by adverse 1891 or executed in 1885 the contract under possession. judgments of the Court court and district Appeals Judgment
Civil are reversed. is here rendered as fol- George lows: in favor of defendant H. McEntire against plaintiff Rio Bravo the title Oil and three sections land described said original petition, defendant and error’s first amended save in, except minerals, including gas, oil under and on and land, rights except said save and to use surface for, developing removing prospecting said land for minerals, right except way 200 feet and save and right land, rights way are in width over said as said the Houston reserved and in the contract between described Joseph Railway Company and M. and Texas Central 24, 1882, contract between the June date parties August recorded of date as said contracts are records, 16-21, County pages deed Tom Green Volume 26, pages Sterling County, Texas, Transcript, of and Volume Texas; Sterling 482-486, County, that as records of deed land, including gas in, minerals, oil on and under said *13 right rights the as to way to use surface the contracts, in defendant in said as reserved and described nothing; Georg-e in and that defendant H. take error McEntire nothing by the suit Production take error Gulf alleged petition in intervention. in its of action cause 24, .1936. adopted by Supreme June Opinion the Court
ON REHEARING. rehearing ques- for McEntire in motion Defendant original given in the the of the construction tions correctness by which in contracts opinion contained the to the reservations Railway Company sold the Texas Central the Houston and parties failed Kelley. the Since of land to J. M. meaning of these reservations briefs the their to discuss all reserved contend, the contracts the that one than to further gas, other that including and the minerals, oil and filed additional and have requested to file not, they were did arguments. written rehearing the motion careful consideration After ruling made to arguments, the we adhere written and the and notes were contracts original that the opinion the land with reserva- present sales accomplish effective to gas, including minerals, oil and the of all of vendor tions out in the con- as set rights the surface use to of such rights in detail these to describe effort was No tracts. deny to judgment intended opinion nor neither assigns privilege to his the vendee or to him contracts, upon under the conditions and royalty specified, operate for and remove from the minerals land. privilege taking minerals, paragraph of each a gives vendee, expressly
of the contracts to the subordinate to may vendor’s reservation title to it the minerals and be only prescribed upon exercised payment under certain conditions and vendor, minerals, per
to the owner five interprets cent of all minerals taken. Defendant this paragraph giving ninety-five per as vendee cent title contrary recognizes of the minerals. it On the vendor’s ownership of all of the as minerals theretofore reserved gives instrument and surface owner a same privilege restricted provided pays to take minerals from the land he five per royalty cent as to the owner of the minerals. provision contained in each the contracts of sale
that development vendor in locations made for mineral occupy aggregate shall never more a than certain number acres of modify surface of the does not restrict Clearly reservation the minerals. merely it surface, was intended as limitation the amount of the rights way, might exclusive of the that used at be any one time the vendor. Corporation
The deed construed States Oil v. Ward (Com. App.), W., 446, contained a reservation of the language minerals tracts, except the same used con specify aggregate failed number of. might occupied development. acres in mineral grantor present court held that the deed reserved to title to all of minerals. *14 rights
As contention defendant in error that way expressly reserved contracts have been extinguished by possession, opinion, our is after adverse evidence, error, careful consideration of the defendant court, plaintiff prove who was trial failed continued shown was commenced and under claim of right rights inconsistent with and hostile to the to use the sur- face the contracts. were reserved rehearing granted motion of incor- extent porating judgment provi- heretofore rendered herein George adjudged H. ownership sion that McEntire is defendant own, his as incident of the surface have and land, privilege prospect for and land, subject to the reservations minerals from take and Texas between Houston the vendor contracts Joseph Railway M. described Company and .judgment and conditions and under restrictions specified in royalty upon payment of the set out rehearing is respects motion for In other contracts. overruled. adopted Supreme October 1936. Court
Opinion Company. G. Walker C. et Flat Water al. v. Salt July 15, No. 6667. Decided Rehearing 21, 1936. overruled October 460.) (96 W., Series, Series, S. 2d 2d cash of four each and the execution one, two, years four after the sum due three and $576.00 for record date. The first of filed these contracts sale was "4, December was for record October the second filed plaintiff duplicate, and 1929. Both executed in contracts were copies retained' offered which were evidence copy railway company. of June contract copy Sl^C,” was No. endorsed: “Contract No. August “Contract the contract of endorsed
Notes
him offered for the were evidence sideration land sold Each four notes in of the defendant McEntire. given part recital that it was sum of contained $320.00 for section 23 “sold me said Railway Company by contract Houston Texas Central bearing June, 1882, day date the 24th and is No. 31%C property, on secured a vendor’s lien as retained in said The four notes in the each con- contract.” sum of $576.00 language, recitals in referred to tained but sections August conveyed by 13 and sold and contract No. 58C dated 12, 1882. early part year In the filed in 1885 four suits were against Court United States Circuit the Houston and Texas Railway Company for of deed of trust liens foreclosure upon property, its these for one of suits foreclosure of 1, 1872, the lien created the deed trust of herein- October described; appointed. and in were these suits receivers above May 7, 1885, In each four an order suits was entered purposes give respective one was to which trustees opportunity, so, ratify if deemed it to do advisable of land railway company sales been had made knowledge without the consent or of such trustees. The order proceeds recited that such had sales been made and sales, same, consisting of cash and of notes given by purchasers receivers. adjudged It was ordered and that the trustees were entitled to proceeds upon of such sales their affirmance of the sales delivery them; and the of deeds the receivers should duly render verified accounts of all sales and contracts of sale any all lands and of monies or re- other consideration person sales; any ceived or taken from with the connection within time the reasonable trustees should elect whether ratify investment; or not to sales and and that their electing ratify, of the receivers from cash hands such sales and from collection for the land of notes trustees; respective be should delivered to the that the receivers proceed possession representing should to collect notes in their portions already pay over the credit proceeds of such sales respectively as fast as col- notes to trustees lected; respectively deliver and that should to the trustees sold, purchasers so the deeds receivers deeds to the of the land pur- held and delivered whenever the the receivers had lands in full. chasers foregoing Pursuant Loan and order The Farmers August and delivered to Trust on executed affecting release,” J. M. two section “deeds one instruments are the other 13 and 25. These two
evidenced J. M. in
land, into three consideration sections entered Company, a written which contract with The Wilson Live Stock under at that time of land owned or claimed three sections to Kelley. chain makes reference This contract sale, and the other of June two contracts of one August 12, bought given by railway company of land from and to the notes. weré It recites that there as of the consideration. special reserved in said contracts liens secure due, principal the- notes and that on all of the notes there February sum of the total $4304.15. interest By agrees Dillingham receiver terms of the contract assign Company the Live and transfer Wilson Stock upon payment company full amount said notes said notes, paid due on the to be as follows: $860.83 contract; delivery cash the execution and each, equal be balance in four installments of $860.83 one, years two, respectively on after or- three and four before February 1, 1891, payments to with interest at 6%. notes each in the sum made were evidenced four Dillingham, receiver, payable and executed to Charles $860.83
last six of the Company, Live by The Stock executed Wilson four notes Farmers Loan and Trust release executed the deeds trans- stated his letter Companjr Kelley 1885. Gibbs mitting the notes and deeds of release that a deed for execu- Company Railway con- tion the Houston and Texas Central veying Kelley the lands under contract had been sold York, forwarded New but there is no evidence in the record support finding any that would deed was executed Railway Company conveying and Texas Central Houston holding Kelley, anyone sections of land to under him, Kelley after the of the two contracts of sale to execution Dilling- in 1882. And there is no evidence in record that ham, assigns, assignment or his successors or ever executed the agreed February 1, 1891, or transfer in the contract of to be Kelley full notes. language Appeals The Court of correctly Civil held that the used in the reservation of minerals the contracts railway company Kelley in 1882 sold the land to was suf gas. ficient as a matter of law to oil Elliott v. include Nelson, Texas, 62, W., 501; Boatman, Luse v. S. (application refused); for writ of error Warner Patton, (2d) (application W. for writ of re fused). approve We do not Ap- the conclusion of the Court of Civil Loan, peals that the deeds of release from The Farmers Trust in 1885 had the effect of opinion to him It minerals. is our that the court’s order, release, surrounding circumstances, the deeds of beyond question several transactions detailed above show these instruments were intended court and .the parties ratifying to them to have .con- only the effect of firming and, sale theretofore made to. as a
chase and the liens them. The deeds of executed as of this ratification release were a prior not sales and to make the ratification effective and enlarging purpose making Kelley’s for the purchase. new sales or of shown, provided As has been that the rail- the deed of trust way might company make sales of lands covered by complying specified deed of trust with conditions any a when such so made trustee should execute sale was title, prop- purchaser deed all of its estate erty evidently purpose in the land so It sold. was authorizing court in the ratification of the unauthorized sales trustee, in and the execution and of trustee of deeds release, ratifying executing the sales and in the deeds of place purchaser substantially position in he would occupied originally have had in accordance the sales been prescribed with the conditions. given In this State a trust a debt is deed of to secure legal mortgage power a mere remains effect with to sell. Title grantor subject the deed trust lien created Paschal, Texas, for the of the debt. McLane 365; O’Neal, Texas, Rep,. Fuller v. Am. St. Jur., 791-792, May pp. order of 29 Tex. court’s Sec. had been ratification the trustee of the sales approval Kelley, the notes made to trustee’s and the by Kelley part payment lien created satisfied the far it affected three the deed of trust so interest, under no further sections of land. The trustee had trust, sections, deed of and the execution formality the title. merely to clear the deeds of release and in the “deeds” The use court’s order word “grant” “granted” cannot deeds of release of words estate that property or an serve to invest title to with railway company, acquire purchase he did not his considered when deeds release the court’s order and the merely ratify entirety distinctly their an intention disclose Texas, 119, Smith, original and confirm Cook v. sales.
sold notes. The thereafter them, which, assignment it while and executed a written purpose transfer the notes recitals that its was to showed its notes, legal also and the lien and title retained to secure the grantor bargained, sold contained words to effect estate, right, title, quitclaimed both all of his interest and legal equitable, contention was and to the land. The assignment gave assignee the min- made that title to grantor, the court which had but erals been reserved gave the effectuate a common sense construction to instrument notes, parties the intention of the and held that them, naked retained lien to secure title convey purpose minerals. and did not decision, supporting ex- A the conclusions similar also pressed herein, & Brothers v. Crowdus was made Sanborn Company, Texas, 605, held where the court releasing had only a lien which that a release had the effect grantor, conveyed by against formerly been retained although ordinarily been would have it contained words which hold- grantor’s land. In so pass to other sufficient to ing gathered grantor’s from the recitals intention court language to which it of the deed and from the release Justice Williams statement of referred. The Associate appear to opinion an intention that “Nowhere does in that case peculiar application to the grant anything” has new make a present case. construed of release deeds grant anywhere a new intention to Nor do we find an make through performance anything by or or a new sale of was contract February 1891. When the contract of receiver, Live Stock Dillingham, and The Wilson made between of land the three sections Company, or claimed which owned of each Kelley, the last under chain of title unpaid past given by Kelley due of notes two series the notes and possession of Dillingham had as receiver
securing together lien Company, Wilson Live Stock with them, new payment full debt as evidenced notes, conveyance a new accomplish and not to a sale Humphreys-Mexia v.Co. Gam- different interest or estate. See supra. mon, Company, & v. Brothers and Sanborn Crowdus securing assignment them lien notes and the Such Kelley, after under chain of title to the owner of the land notes, would by the renewal of the debt as evidenced securing the effect, course, extinguishing the lien have the nothing method original an indirect more than notes and was releasing lien. correctly defendant Appeals held that The Court Civil acquired tile to the min predecessors no error and in title his surface, through posession use of the their erals miner after the exercised and use were since such Kelley contracts the reservations als had been severed W., Texas, Luse Nelson, 251 S. v. Elliott re- for writ of error Boatman, W., (application v. 217 fused); Hoyt, (application Wallace for writ refused). of error contracts not contracts for the sale of the time, contracts, together land at a future but the with the notes contemporaneously by Kelley purchase executed