93 S.W.2d 196 | Tex. App. | 1936
By his warranty deed dated 10/22/1929, recorded same day, Hubert Langford, joined by his wife, sold and transferred to R. and J. W. Langford 53 acres of land out of the Thomas Trevathan survey in Trinity county for $2,120, evidenced by nine vendor's lien notes, each for the sum of $200, and one vendor's lien note for the sum of $320, payable to the order of appellee, S.W. Benz, maturing serially on the 1st day of November of each year from 1930 to 1939; the vendor's lien was retained in this deed to secure the payment of these notes. By their warranty deed dated 4/29/1930 and recorded 7/23/1930, R. and J. W. Langford sold and conveyed to appellants, Texas Osage Co-Operative Royalty Pool and the Flagg Oil Company, a corporation, one-half of all the oil, gas, sulphur, and all other minerals in and under the land bought by them from Hubert Langford, and in this deed made reference to their deed from Hubert Langford. By their warranty deed dated 10/7/1933, R. and J. W. Langford, on consideration of the cancellation and delivery to them of the notes they had executed to appellee in payment of the land deeded to them by Hubert Langford, and the further consideration of $5 cash to them in hand paid by appellee, sold and transferred to appellee all the land deeded to them by Hubert Langford and against which appellee held a vendor's lien to secure the payment of his notes. After receiving that deed, appellee filed this suit, returnable to the March term, 1935, of the district court of Trinity county, in the statutory form of trespass to try title against appellants, to recover of and from them the title and possession of the land as it was described in his deed from R. and J. W. Langford. Appellants answered only by general and special demurrers, general denial, and plea of not guilty. On trial to the court without a jury, judgment was rendered in favor of appellee against appellants for the relief prayed for. No conclusions of fact and law were filed, nor were they requested. The appeal was prosecuted to the Galveston Court of Civil Appeals, and transferred to this court by orders of the Supreme Court.
What were the rights and equities of appellants? Their deed from R. and J. W. Langford did not vest them with title to the one-half of the oil, gas, and minerals described in that deed, for their grantors did not have title, but only "a mere contract for a title," conditioned on payment of appellee's notes. Johnson v. Smith,
Under Mason v. Bender, supra, appellee had the legal title to all the land at the date he instituted this suit; and, under Johnson v. Smith, appellants had no title to the oil, gas, etc., claimed by them, but only "a contract for a title," unless, by canceling and surrendering the notes in consideration of the deed from R. and J. W. Langford, appellee released appellants' interest from his lien. That such was not the intention of the parties to that deed clearly appears from the facts of the transaction, because appellee took a deed to all the land, including the interest claimed by appellants. To hold that this transaction between appellee and R. and J. W. Langford released the interest of appellants from appellee's lien, contrary to the intention of the parties, would operate as a fraud against appellee and to the great advantage of appellants, with no consideration whatever moving from them to appellee for the release. Judge Greenwood, in Johnson v. Smith, discussing a vendor's lien contract, said: "It is plainly the duty of a court of equity to prevent the perpetration of such a fraud."
As appellee had the legal title to all the land, appellants rested under the burden of pleading their equities against him — the equities which gave them the right to compel him to sell the land in satisfaction of his notes, and to resort to their interest only in the event the balance of the land was insufficient to pay his notes. This they did not do, but pleaded only a general demurrer and not guilty, which was insufficient to raise the issue of their equities. They tried their case in the lower court, and have briefed it on this appeal simply upon the contention that the transaction between appellee and R. and J. W. Langford released their interest from appellee's lien and vested them with the superior title thereto. This assignment of error presents no other proposition. In this contention they are in error.
Appellants cite Cleveland State Bank v. Gardner, supra, in support of their proposition that appellee was without title to their claimed interest in the oil, gas, etc. In that case the Cleveland State Bank did not own all the vendor's lien notes; in this case appellee owned all the notes. This distinction in the facts brings this case within the doctrine of Mason v. Bender, supra, and distinguishes it from Cleveland State Bank v. Gardner, as recognized by Judge Harvey, the writer of the opinion in that case.
For the reasons stated the judgment of the lower court is in all things affirmed. *199