Bedford v. Rayner Cattle Co.

• Decision Date: 27 May 1896
• Citation: 35 S.W. 931
• Parties: BEDFORD v. RAYNER CATTLE CO.
• Court: Texas Court of Appeals

Page 931

35 S.W. 931

BEDFORD v. RAYNER CATTLE CO.

Court of Civil Appeals of Texas.

May 27, 1896.

Appeal from district court, Knox county; W. R. McGill, Judge.

Action by the Rayner Cattle Company against Ed. W. Bedford. There was a judgment for plaintiff, and defendant appeals. Reversed.

The statement of the case as made in appellant's brief is correct, and concurred in by appellee. It is substantially as follows: The note was executed as stated in the petition, and the amounts paid as alleged. The deed of the company to Bedford, dated 24th day of July, 1890, recited the consideration as $138.20 paid, and $552.80 secured and to be paid by his promissory note of even date, bearing 10 per cent. interest per annum from date, due 24th of July, 1894, payable in four installments of $138.20 of principal and all interest on the 24th days of July, 1891, 1892, 1893, and 1894, respectively; these payments represented by four coupon notes attached, numbered from 1 to 4. The granting clause of the deed is in these words: "Do by these presents bargain, sell, release, and forever quitclaim unto the said Ed. W. Bedford, his heirs and assigns, all their [the company's] right, title, and interest in and unto that tract or parcel of land," etc. The habendum clause reads, "To have and to hold the said premises, together with, all and singular, the rights, privileges, and appurtenances to the same in any manner belonging, unto the said Ed. W. Bedford, his heirs and assigns, so that neither they, the said Rayner Cattle Company, nor its heirs, nor any person claiming under them, shall at any time hereafter have, claim, or demand any right or title to the aforesaid premises or appurtenances, or to any part thereof." The land upon which the lien is sought to be foreclosed is described in the petition as lying in Knox county, being: "Section No. 90, block 45, H. & T. C. Ry. Co. Martin Casey, original grantee. Cert. No. 28, 1851." The land was appraised on July 11 1881, by D. H. Jones, surveyor of Baylor land district, which appraisement was on August 8, 1881, approved by the county commissioners' court of Baylor county. The appraisement valued the land at $1 per acre, but does not class it as watered, dry, agricultural, grazing, or timbered. The number of acres are given,—640 acres,—and the soil is described as red sandy, in smooth prairie. There were a number of other sections included in the appraisement, and it was received by the commissioner of the general land office, and examined and approved by him, August 30, 1881, for 180 sections (one-half) only; the other half being in conflict, and withheld from sale by the commissioner until the conflict was removed. On 26th day of December, 1882, Martin Casey made application to purchase the land, to the surveyor of the Baylor land district, under the act (approved July 8, 1879) to provide for the sale of school lands, simply describing the land as "section No. 90, block 45, in Knox county," and showing that it had been appraised at $1 per acre, which application was received by the surveyor on the 26th day of December, 1882, and recorded same day. It was shown by the receipt of the state treasurer, F. R. Lubbock, that Martin Casey paid the first payment ($32) on the section of land under the act providing for the sale of public school lands, approved April 6, 1881. It was agreed by the parties that on the 24th day of July, 1883, Adams & Leonard sued, in the district court of Baylor county, the Houston & Texas Central Railway Company, to recover all lands in blocks 2 and 3 of the Dallas & Wichita Railway Company's surveys in Knox county, which were in conflict with blocks 44 and 45 of the surveys made by the Houston & Texas Central Railway Company; that the venue of the suit was changed to Travis county, and on the 13th day of January, 1892, judgment was rendered in favor of plaintiffs, Adams & Leonard, against the defendant, for the recovery of the land, and that the named parties, plaintiff and defendant, were the only parties to the suit; that the judgment is in full force and effect, as between the parties, and unappealed; that plaintiff's agent paid the first installment of the purchase money for the land upon which the lien is sought to be foreclosed, "with the agreement with the commissioner of the general land office that the certificate of purchase should have indorsed thereon that it was issued subject to the decision of the courts in the case now pending," and that plaintiff's agent did receive from the commissioner of the general land office said certificate of purchase so indorsed. By letter of date "Aug. 30......1," the commissioner of the general land office notified D. H. Jones, surveyor of Baylor land district, that the surveyor's tabulated report of valuation of school land in Knox county had been received, examined, and approved, for 180 sections, 180 other sections being in conflict: Block 2, Dallas & Wichita Railroad Company, reported as covering the same land as block No. 45, Houston & Texas Central Railroad Company, and block No. 3, Dallas & Wichita Railroad Company, as the same is a portion of block 44, Houston & Texas Central Railroad Company. "And, this being the case," the letter states, "all of surveys included in these four blocks must be withheld from sale, and must be so marked on your records, until the conflict is removed. These lands cannot be sold. With this exception, you are hereby authorized to receive applications for the purchase of said lands as provided by law." This letter was received by the party to whom it was addressed in five days after its date. Block 45 of the Houston & Texas Central Railroad Company, and block 2 of the Dallas & Wichita Railroad Company, conflict, and section 90 of block 45 of the Houston & Texas Central Railroad Company is in the conflict. On the 5th day of February, 1887, Martin Casey, the original applicant for the purchase of the section of land No. 90, by deed conveyed his claim to the Raynor Cattle Company, describing the claim as "all my right, title, interest, and claim in and to," etc. (describing the land). The deed states that the grantee assumes all future payments to be made on the land. It contains no covenant of warranty. Defendant Bedford on January 28, 1893, made application to purchase section 16, block 2, of the Dallas & Wichita Railway Company surveys in Knox county, as an actual settler thereon, under the act of April 1, 1887, and acts amendatory thereof, approved April 8, 1889, and April 28, 1891, and made his note for $1,300.65 for balance of purchase money, under the provisions of the law. With the application and note, the award of the commissioner of the general land office was read in evidence by defendant. He made first payment ($33.35) on the section, as shown by the receipt of W. B. Wortham, state treasurer, of date February 9, 1894. In the spring of 1890 section 90 was worth, at a reasonable valuation, $2 per acre; i. e. in April,...