Alford v. Carver

• Decision Date: 14 March 1903
• Citation: 72 S.W. 869
• Parties: ALFORD v. CARVER.
• Court: Texas Court of Appeals

72 S.W. 869

ALFORD v. CARVER.

Court of Civil Appeals of Texas.

March 14, 1903.

Error from Clay County Court; H. A. Allen, Judge.

Action by A. N. Alford against E. B. Carver. From a judgment for defendant, plaintiff brings error. Reversed.

No opinion filed in original hearing.

A. M. Carter, for plaintiff in error. Matlock, Miller & Dycus, for defendant in error.

On Motion for Rehearing.

SPEER, J.

There is no statement of facts in the record, but the case is before us upon the trial court's findings of facts and conclusions of law. The sole question raised is the sufficiency of the findings to support the judgment rendered. The findings and conclusions are as follows:

Findings of Fact.

"First. That on the 1st day of November, 1897, defendant and plaintiff entered into and executed the lease contract sued on and attached to the plaintiff's original petition, which is made a part of this finding. (This contract provided that plaintiff lease to the defendant 11,633 acres of land in Archer county, Tex., described in said lease, from the 1st day of November, 1897, to the last day of November, 1902, for $3,500, payable, $350 on the 1st day of November, 1897, and $350 on or before the 1st day of May, 1898, and a like amount on the 1st day of November and May of each following year thereafter during the lease. It was agreed that said land should be subject to sale, and that possession should be surrendered to lessor on return of any unearned rent paid for same. That the lessee might terminate and surrender the lease at the end of any one year by giving thirty days' notice to lessor or his agent.) Second Conclusion of Fact. That, by virtue of last said contract, the defendant paid the two first installments of rent, being in possession of the land mentioned in the contract. Third. That plaintiff made to one R. J. Russell an assignment for the benefit of accepting creditors July 4, 1898, and on June 12, 1899, said Russell wound up said assignment and turned over all property back to plaintiff that came to said Russell by virtue of the assignment, and said Russell made a formal deed of release of said deed of assignment to plaintiff on November 20, 1900, attached to the supplemental petition and referred to and made a part thereof. Fourth. The lands mentioned in the lease contract under item 1 of this finding of fact were patented about the year 1870 to the Texas Copper Mining & Manufacturing Company. Fifth. That afterwards, on April 19, 1884, Carson & Lewis obtained a judgment against the Texas Copper Mining & Manufacturing Company for the sum of $7,000, with interest at 10 per cent., foreclosing a vendor's lien on the land mentioned in said lease contract. Sixth. The said last judgment was, on the 25th day of March, 1885, transferred by Carson & Lewis to the Dundee Mortgage & Investment Co. by a deed of that date in legal form. Seventh. That on the 28th day of March, 1885, the Texas Copper Mining & Manufacturing Co. made a deed of trust on the lands mentioned in said lease to one Summerville, trustee, to secure the Dundee Mortgage & Trust Co. in the sum of $10,000 and interest at 10 per cent., which last said amount included the amount of the judgment mentioned under item 4 in these findings. Eighth. On June 3, 1896, the Dundee Mortgage & Investment Co. brought suit in the district court of Tarrant county, Tex., against the Texas Copper Mining & Manufacturing Co., to foreclose the trust deed mentioned under item 7 in these findings, and on February 15, 1898, judgment was rendered in said cause foreclosing said trust deed on the land mentioned in...