209 S.W.2d 969 | Tex. App. | 1948
This is an appeal from the District Court of Midland County. The suit was brought by Runnells County and Frank O. Ray against the Gulf Oil Corporation and a large number of other defendants to recover an excess of 197 acres out of Runnells County School Land Survey No. 3, located in Pecos County, and for the oil produced therefrom, and to set aside a judgment of the District Court of Midland County in Cause No. 2613 entered on the 17th of March 1936, styled Runnells County et al. v. Gulf Production Company, wherein the title to the lands embraced in said Survey 3 were sought to be adjudicated. At the conclusion of all the testimony the trial court rendered judgment for the defendants from which the plaintiffs appealed.
Survey 3 was patented to Runnells County February 25, 1887, as one league of land, or 25,000,000 square varas, and described by metes and bounds. The calls in the field notes were for certain corners of designated surveys in Block 1, IGN Ry. Co. along the Pecos River. It developed the distance calls for the Surveys in Block 1 had to be extended in order to reach the corners called for. The Supreme Court in Stanolind Oil Gas Co. et al. v. State,
May 17, 1917, the Commissioner's Court of Runnells County, by an order duly entered, accepted "the bid of I. G. Yates to purchase Runnells County School Land Survey No. 3 in Pecos County, Texas, for Thirteen Thousand, Two Hundred and Eighty-four Dollars," and entered into a contract to "sell and convey * * * unto the said I. G. Yates of Pecos County all and singular the following described property, to wit:
"25,000,000 square varas of land, known as Survey No. 3 on the waters of the Pecos River * * *."
On May 18, 1917, the County by warranty deed conveyed to Yates,
"all of the following described tract and parcel of Runnells County School land situated and being in the County of Pecos and *971 State of Texas, more particularly described as follows, to wit:
"Twenty-five million (25,000,000) square varas known as Survey No. 3, on the waters of Pecos River a tributary of the Rio Grande about 4 miles S. 45 E. from the Pontoon Bridge on Pecos River or 52 1/2 miles N. 86 E. from Ft. Stockton by virtue of Certificate No. 3, issued by the Land Com. of Genl. Office May 4, 1880,"
which was further described by metes and bounds as in the Patent, which, as indicated heretofore, call for adjoinder with the IGN Surveys.
The defendants in the trial court defended on the theory Yates bought the entire tract and that it was the intention of the County to sell the entire survey and the parties were mistaken as to the number of acres included therein and that the successors to the Yates title are entitled to hold the excess and tendered into court the original purchase price of $3 per acre, with interest. They here so contend. The trial court found as a matter of fact the sale was by the acre but concluded the defendants were entitled to the excess on payment of the original purchase price, because it was the intention of the parties to include the whole tract.
Plaintiffs contend on the other hand the sale was limited to the one league of land and the number of acres included in the course and distance calls only, and argue, based upon good authority, the County could not sell in gross nor give an option, but could only sell by the acre what it had for cash, or its equivalent, and that title could only be acquired from the County by present purchase and payment. Plaintiffs undertake to distinguish the instant case from the cases of O'Connell v. Duke,
There is not involved here a sale in gross, nor of 4428 acres, more or less, nor an option to buy, nor anything else less than nor more than a simple, innocent, honest error, at the time of the sale, in computation because of a lack of knowledge of the total number of acres. Had the facts been as they were believed to be and one league of 4428 acres only embraced within the field note calls and an error made in the computation of the total purchase price of $591, and the discovery subsequently made, could it be contended 197 acres less had been sold and a suit successfully maintained for its recovery, or the conveyance set aside in whole or in part? It is thought the answer is so simple the question answers itself. The issue here presented is thought to be just that simple. *972
Subsequent to the sale Yates made a request on the County to make good any shortage if any should be found to exist, to which it agreed. Yates caused the land to be surveyed in 1919, and after the survey notified the County there would be no claim made for a shortage, but did not disclose there was an excess. It is agreed the excess was determined in 1919, but the record discloses the County did not discover it until 1935. Based upon these facts the plaintiffs say if Yates ever had the right to retain the excess on payment of the original purchase price he lost it and the right is barred by both the two and four year statutes of limitation, which they pleaded in support of the position they cite Donigan v. Emmert, Tex. Civ. App.
Generally matters set up by way of defense are not subject to statutes of limitation, 28 T.J. 134, and the cases there cited. In Morris-Buick Co. v. Davis,
It is our conclusion, therefore, that the judgment of the trial court is correct and should be affirmed. In view of the conclusions reached the status of the judgment in cause No. 2613 is rendered wholly immaterial and need not be discussed.
Affirmed.