Carey v. Starr

• Decision Date: 09 April 1900
• Citation: Carey v. Starr, 56 S.W. 324, 93 Tex. 508 (Tex. 1900)
• Parties: CAREY et al. v. STARR et ux.
• Court: Texas Supreme Court

56 S.W. 324

CAREY et al. v. STARR et ux.

Supreme Court of Texas.

April 9, 1900.

Error to court of civil appeals of Fifth supreme judicial district.

Action by James F. Starr and wife against J. W. Carey and another to recover the value of timber purchased from their vendees. Judgment by the court of civil appeals in favor of plaintiffs, and reversing a judgment of the district court of Wood county in favor of plaintiffs, and defendants bring error. Modified.

H. M. Cate and Moseley & Smith, for plaintiff in error Carey. T. S. Miller and Head, Dillard & Muse, for plaintiff in error Missouri, K. & T. Ry. Co. of Texas. F. H. Prendergast and Ben S. Pope, for defendants in error.

BROWN, J.

James F. Starr and his wife, Clara C. Starr, owned, as their separate property, and in separate parcels, the Andres Gonzales league of land, situated in Wood county, which they caused to be divided into blocks of about 60 acres each. During the latter part of the year 1896 and the first of 1897 they sold 20 of the blocks to 20 different persons. Each purchaser paid one-fourth of the price cash, and gave notes for the remainder, due at future dates. Starr and wife made a separate deed to each of the vendees, and in each of the deeds, and in the notes given by each vendee for the purchase money, a vendor's lien was expressly reserved, and in addition there was inserted in each deed and each note the following stipulation: "That I do agree that, until said consideration for said conveyed land is fully laid, I will duly render said land for taxation, except for the present year, and pay the taxes thereon promptly as they become due, and will not remove, nor permit others to do so, any timber, stone, or other material of value now upon said conveyed land, and will not use said material except as may be necessary in improving said land, and for necessary fuel to be used on said conveyed land by the person occupying said conveyed land under said deed." Soon after the sales were made, each of the vendees began to cut the timber and make it into railroad ties; and each of them sold, directly or indirectly, the ties to J. W. Carey, who was a tie contractor for the railroad company, and sold the ties to the Missouri, Kansas & Texas Railway Company of Texas. In August, 1897, Starr and wife learned that the vendees had cut the timber and sold it, and, by agreement between them and their several vendees, each one of the sales was rescinded, and each of the 20 blocks was reconveyed to Starr and wife, according as it had been conveyed by him or her. In consideration of the reconveyance, all of the purchase-money notes were canceled, but it was expressly stipulated that Starr and wife reserved the right to sue for the value of the timber and of the ties which had been cut from the land and sold. J. F. Starr and Clara C. Starr filed suit in the district court of Wood county against J. W. Carey and the Missouri, Kansas & Texas Railway Company of Texas for the value of the ties purchased by Carey from their several vendees, that had been taken from the lands in question. The case was tried before a jury, which returned a special verdict, finding the following facts: "(1) The timber was worth five cents per tie, standing in the woods. (2) First-class ties worth 31 cents per tie on the railroad where delivered, and culls worth 13 cents. Ten per cent were culls. (3) A. S. Cain, Starr's agent, did not consent for the ties to be cut. (4) He had no authority to consent to the timber being cut. (5) The purchasers knew that Starr and wife would object to the timber being cut. (6) A. S. Cain was plaintiffs' agent to sell the land. (7) Cain was the agent to prevent timber being cut from said land. (8) Cain was the agent to see that the timber clause in the deeds was not violated. (9) Starr and wife did not know that the timber was being cut. (10) Cain knew that the timber was being cut. (11) The facts show that the purchasers cut timber in violation of the contract. (12) Carey purchased some of the ties from persons who made the ties, and partly from other persons. (13) Defendants purchased the ties without any notice of the timber clause, and paid fair value therefor. (14) Land was worth $3.50 in May, 1897, and worth $2.25 per acre when the suit was filed, in October, 1897. (15) The plaintiffs could have learned that ties were being cut, by the use of ordinary diligence. (16) The purchaser of the land paid to Starr and wife, cash, $1,097.99. The value of the ties standing in the woods was less than this amount. (17) The purchasers of the land did not buy with any intention of paying for it. (18) The purchasers intended, when they purchased the land, to cut the timber in violation of the contract." Both parties moved the trial court to enter judgment in their favor upon the findings of the jury, but the court rendered judgment for Mrs. Starr for $289.84, and for Starr for $144.42. The court of civil appeals reversed that judgment, and gave judgment in favor of Starr and wife against J. W. Carey and the Missouri, Kansas & Texas Railway Company of Texas for the value of the ties at the time and place they were sold to Carey, less the cash payments made by the vendees of the several tracts of land.

The first question that arises upon this state of facts is, what relation did Starr and wife sustain to the land between the date of the sales made by them and the reconveyance of the land? The plaintiffs in error claim that Starr and wife occupied the relation to the land of mortgagees out of possession, and were entitled to damages according to the rules of law applicable to mortgagees, while the defendants in error claim that they were the owners of the land and the timber at the time it was cut and sold, and are entitled to recover its value...