Campbell v. McFadden

• Decision Date: 09 January 1895
• Citation: 31 S.W. 436
• Parties: CAMPBELL et al. v. McFADDEN et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

31 S.W. 436

CAMPBELL et al. v. McFADDEN et al.¹

Court of Civil Appeals of Texas.

January 9, 1895.

Appeal from district court, Williamson county; John B. Rector, Special Judge.

Action by W. T. Campbell and others against W. H. McFadden and others for specific performance of a contract. From a judgment for defendants, plaintiffs appeal. Affirmed. For former report, see 9 S. W. 138.

Peeler & Peeler and D. W. Doom, for appellants. A. S. Fisher, John C. Townes, and Walton, Hill & Walton, for appellees.

Statement of the Case.

BRYAN, Special Judge.

This is an action brought on the 8th day of June, 1885, in district court of Williamson county, for specific performance of a written contract which is as follows: "By this instrument of writing, I bind myself to make to Nathan Halbert and David Garner a quitclaim deed to one-half of the league of land to which I am entitled as a citizen of Texas, as soon as I myself shall obtain a title for the same, to be divided equally in quality and quantity, and, should I refuse to comply with this obligation, I authorize any court of justice to compel me to make the title as aforesaid; and by this instrument I authorize the said Halbert and Garner to enter upon said land, and hold the same as their own property acquired by a just and legal title; the said Halbert and Garner to pay all the expenses of selecting, surveying, and clearing from the office my said title, as also the government fee for said land by the said Halbert and Garner, binding themselves to locate the said land, or as good land as they can find vacant, and paying to me the sum of fifty dollars. January 22nd, 1838. William McFadden. Nathan Halbert. Witness: F. Harden. Absalom Jett." Partition of the William McFadden league was also sought in the suit. Appellants, who were plaintiffs below, sued as the heirs of Nathan Halbert and of David Garner, except two of the appellants, W. T. Campbell and E. H. Lott, who claimed as assignees under Halbert and Garner. The appellees, who were defendants below, are William McFadden, David H. McFadden, and a number of other persons in possession of portions of the William McFadden league; also the Missouri Pacific Railway Company; that there was an adjustment of the litigation as between appellants and said company. Appellants allege that Nathan Halbert and David Garner complied fully with their part of said contract; that they located the certificate of William McFadden on vacant land, which is now in Williamson county, in 1840, and had the field notes returned to the general land office of Texas, and paid the government dues and all fees incident to the location, and paid to William McFadden the $50 stipulated to be paid him in said contract; that a part of the location was on what was known as the "Aguirre Grant," and by reason of the apparent conflict the government refused to issue patent thereon till in July 1884, when the supreme court decided said grant to be invalid and void, and patent then issued on said location; that appellants could not procure the issuance of a patent sooner. Appellants further alleged that said contract was proved up for record, and duly recorded in Williamson county, in 1854, and that William McFadden accepted as fully satisfactory to him the performance of the said contract by Halbert and Garner as above set forth, and that the said William McFadden and the said Halbert and Garner entered into actual possession of said survey, occupying the same as tenants in common, and continued so to do from the date of said location up to the time when the patent issued. Appellants further allege, by way of excusing the delay in bringing their suit, that by the terms of the contract they could not maintain their action till patent was obtained, and that the issuance of the patent was refused by the commissioner of the land office till 1884, for the reasons already stated, and further that William McFadden was informed by Halbert and Garner, before the location was made, that it would be in conflict with what was known as the "Aguirre Grant," and that, under the rules in the general land office, it might be many years before a title could be obtained for him, and that with this knowledge he gave his full consent to the location as made, and that the delay in obtaining the patent has been with the consent and approval of William McFadden and those claiming under him; that Halbert died in 1867, and Garner in 1864. Appellants further alleged that, by reason of some sort of conveyance of the league made by William McFadden to D. H. McFadden, the patent issued to said D. H. McFadden, instead of William McFadden; and they further alleged that William McFadden refused to perform said contract, and they made a tender in court of any money that might still be due from Halbert and Garner, in fulfillment of their part of the said contract, if any such should be found due; and they prayed for specific performance and for partition. Appellees answered by general and special exceptions, by general denial, and by special pleas. They pleaded non est factum as to the contract sued on, and attacked it as a forgery, William McFadden making his affidavit to that effect. All the appellees joined in a special plea, in which they averred that if the contract on which this suit is brought was in fact made, as alleged by appellants, which is not admitted, but denied, the said Halbert and Garner failed to perform their part of said contract, and, instead of locating the certificate of William McFadden on vacant land, they located mainly upon the Raphael de Aguirre grant, and by field notes so imperfect that no patent could have issued thereon, had the conflict not existed, and that they failed to procure a patent for the location; that William McFadden, in 1844, sold an undivided half of the certificate, and the land upon which it was located, to D. H. McFadden; that William McFadden, in 1845, first learned that the location was in conflict with the Aguirre grant, and at once informed Halbert and Garner that no title could issue on the location they had made, by reason of said conflict and said defective field notes, and requested Halbert and Garner to raise the certificate, and locate it on vacant land, and notified them that if they did not, in a reasonable time, float the certificate, and relocate it on vacant lands, he would consider the contract canceled and at an end; that Halbert and Garner failed and refused to raise said certificate and locate it elsewhere, and that thereupon William McFadden repudiated said contract, and refused to recognize any right in said Halbert or Garner to any part of said survey, and that he immediately took exclusive possession of the entire survey, in open hostility to their claim, and thereafter sold it in parcels to various persons, who placed their deeds of record, and who went into actual possession, and made valuable improvements thereon; that, from and after 1846, Halbert and Garner abandoned all claim to the location, and remained silent while the entire survey was appropriated by William McFadden as aforesaid, and never, for a period of about 40 years, and until the patent issued, renewed their claim; that neither Halbert nor Garner, nor any one claiming under them, ever had said field notes corrected, or took any steps to have the conflict removed, nor did they ever do anything whatever thereafter to secure the issuance of patent on the location; and that appellees, by their own efforts, and at their own expense, had said field notes corrected, and said conflict removed, and, at their own expense, procured the issuance of the patent in July, 1884. Appellees further pleaded that the demand of appellants was a stale demand, and that they were guilty of laches. They also set up their respective interests in the survey, and pleaded the statutes of limitation, 3, 5, and 10 years, and 10 years' statute, under article 3209, Rev. St., and valuable improvements made in good faith. The appellee William McFadden answered further, separately; disclaiming all interest in the survey; alleging that he had sold and conveyed it away before appellants brought their suit. Appellants, in a supplemental petition, excepted to the sufficiency of the answer of appellees; interposed a general denial; pleaded that appellees were estopped to set up the defective performance of the contract on the part of Halbert and Garner by reason of the conflict with the Aguirre grant, if such was defective, because William McFadden not only consented, before the location was made, that it should be so made, but accepted it after it was made, and has ever since occupied it, claiming and enjoying his interest therein. They further represented that the correction of the field notes of the survey was unnecessary, and did not materially change the location, and that the patent would have issued on the field notes of the survey, as made by Halbert and Garner. They further pleaded the disability of coverture of some of the appellants, and the disability of minority of others. There are other matters alleged in the pleadings of the parties, but the testimony of the case related to the issues raised by the averments noticed, and the case was tried and decided upon those issues. There was a trial by jury, and a general judgment for all the defendants.

Conclusions of Fact.

(1) William McFadden, who was entitled to a head certificate for a league of land, as the head of a family, made a contract with David Garner and Nathan Halbert on the 22d day of January, 1838, to locate the same on vacant public land, they paying all dues and expenses in locating, and getting the title out of the government; and McFadden, in the said contract, bound himself to convey to them one-half of the league as soon as they should acquire the title for him, and Garner and Halbert were to pay McFadden $50, in addition to all government dues, expenses, etc. And in 1841 McFadden made a power of attorney...