Carothers v. Alexander

• Decision Date: 11 June 1889
• Parties: CAROTHERS <I>et al.</I> <I>v.</I> ALEXANDER.
• Court: Texas Supreme Court

12 S.W. 4

CAROTHERS et al.v.

ALEXANDER.

Supreme Court of Texas.

June 11, 1889.

Appeal from district court, Bexar county.

Maxey & Fisher, Hancock & Shelley, and Coopwood & Coopwood, for appellants. Clark & Dyer and Goodrich & Clarkson, for appellee.

HENRY, J.

This was an action of trespass to try title and for partition, brought by appellee to recover an undivided five-twelfths of an 11-league grant in Kinney county, in the name of Dona Dolores Soto de Beales, less certain tracts described and specially excepted. The defendants are alleged to be the owners of the remaining seven-twelfths. The defendants pleaded "not guilty," stale demand, and the statute of limitations of 10 years. Judgment for plaintiff was rendered on the verdict of a jury. On the 30th day of May, 1867, John Charles de Beales and his wife, Dolores Soto de Beales, of the one part, and C. R. Johns and J. C. Kerbey, composing the firm of C. R. Johns & Co., of the other part, entered into a written contract substantially as follows: Whereas, the government of Mexico did on the 18th day of April, 1834, grant to the said Dolores Soto de Beales 11 leagues of land on the Las Moras, a tributary of the Rio Grande river, in the state of Texas; and whereas, the said C. R. Johns & Co. have agreed to undertake the settlement of the title to said lands and the adjustment of the claims of the parties of the first part thereto, for a compensation of one-half of the interest therein of the parties of the first part in lieu of all other compensation and of all personal liability of the parties of the first part to the said parties of the second part, or any one employed by them: Now, therefore, the said parties of the first part, in consideration of the premises, do hereby agree to convey to the parties of the second part one equal half part of any tract, piece, or parcel of land of which they may by virtue of the rights and interests aforesaid secure a good and perfect title, and to release to them one-half of the proceeds in money or other property which they may realize for or in lieu of the rights and interests aforesaid, such conveyances or releases to be made from time to time, as soon as any definite arrangements shall appear from the reports and accounts of the parties of the second part to have been accomplished, such reports and accounts of their actions in the premises to be given to the parties of the first part as often as once in three months from the date hereof. Plaintiff's claim of title comes through C. R. Johns and J. C. Kerbey under the above agreement. Defendants' claim of title depends upon purchases from the heirs or devisees of John Charles de Beales and his wife, Dolores Soto de Beales. It follows that, if plaintiff has any title at all, the last-named persons are common source of title of both parties, and it becomes unnecessary to trace the title to the government, or beyond J. C. de Beales and wife. In order to prove title from the common source it was incumbent on plaintiff to prove such performance of the terms of the contract of May 30, 1867, as would entitle J. C. Kerbey and C. R. Johns to the interest in the land thereby provided for. To whatever extent plaintiff was required to prove title in Mrs. Beales in order to show that Johns and Kerbey had complied with their undertaking, the rule of common source had no application. The two things should not be confounded. If plaintiff cannot prove that Johns and Kerbey performed their part of the contract, except by proving the Beales' title from the government down, he must do that. On the other hand, when he has proved such performance of the contract, the rule of common source relieves him from further proof on that line. The construction of the contract is a question of law. Its true meaning is to be arrived at by giving effect to all of its provisions read in the light of the circumstances surrounding the parties and the subject-matter at the time of its execution.

Looking to the contract itself, it is evident that it was not intended that Johns and Kerbey undertook to procure a grant from the government, nor to perfect an inchoate or imperfect grant, for the agreement expressly recites that "the government of Mexico did on the 18th day of April, 1834, grant to the said Dolores Soto de Beales eleven leagues of land on the Las Moras, a tributary of the Rio Grande river, in the state of Texas." Kerbey and Johns and their assignees are as much entitled to the benefit of this express stipulation in the contract, and the other parties and their successors are as much bound by it, as they are by any other clause in the agreement. The fact that the lands were titled being fixed by the agreement, Johns and Kerbey "agreed to undertake the settlement of the title to said lands, and the adjustment of the claims of the parties of the first part thereto." That the undertaking of Johns and Kerbey in agreeing to settle the title was not to procure one, but to quiet one already in force, is made manifest by what follows in the writing, whereby the parties of the first part bind themselves to convey to the parties of the second part "one equal half of any tract, piece, or parcel of land of which they may, by virtue of the rights and interests aforesaid, [meaning the title aforesaid,] secure a good and perfect title." If it had been the government title that the parties of the second part were to establish, it would properly have been referred to as a whole, not by parcels; but, the title being conceded, as it was, and the object being to settle or quiet it upon the land by removing conflicting claims, the language was properly applied to tracts or parcels of the land, as one after another they became clear to the adjustment or removal of conflicting claims, and by the acquisition of possession under the Beales title. The method of settlement with Johns and Kerbey, being by a release to them of "one-half of the proceeds in money or property which they may realize to be made from time to time as soon as any definite arrangements shall appear," and the provisions with regard to taxes and expenses, "after any parcel or tract of property shall have been secured and the title perfected by virtue hereof," still further illustrate that it was not the government title to Beales that was to be established, but the removal of other claims that stood in the way of the enjoyment of that title. It is evident that the parties to the contract intended that, when such obstructions to the enjoyment of the Beales title were once removed, the obligations of Johns and Kerbey would be performed, and they would thereby become equitable owners of one-half of the lands so quieted, and their obligations under the agreement be forever discharged. It cannot be contended that, after the lands were once reduced to possession, and cleared of conflicting claims, Johns and Kerbey would be bound to protect them from future attacks of the same character; or that their title to their interest, being once earned, could afterwards be divested by the unlawful acts of other persons with which they had no connection. Briefly, we construe the contract to be an agreement of all parties that Mrs. Beales had a perfect title to the land, and an undertaking upon the part of Johns and Kerbey that they would clear the land of then existing adverse claims, and get possession of it under the Beales title, and a promise upon the part of the Beales that for doing that they should have title to one-half of the lands. This, we conclude, is the language that the contract itself speaks.

There seems to have been no conflicting testimony as to the circumstances surrounding the subject-matter and the parties when the contract was made, nor as to what was done in executing it. The conditions in these respects, as shown by the evidence of C. R. Johns, were as follows: That he and J. C. Kerbey were the original parties to the contract of May 30, 1867. That under the contract he and Kerbey undertook the settlement and adjustment of the Dolores title for a compensation of one-half of the land or proceeds thereof. That when the contract was executed he and Kerbey constituted the firm of C. R. Johns & Co., engaged in a land-agency business at Austin, Tex. That at the time last aforesaid the Dolores title was not recognized by the state authorities as a valid title. It had never been platted or delineated upon the maps in use in the general land-office, and the testimonio of the title on deposit in the land-office lacked evidence of authority to act in Fortunato Soto, the commissioner by whom the title purported to have been extended. That in 1867, within a month or two after the execution of the contract, C. R. Johns & Co., (as the firm was then constituted,) through J. C. Kerbey, took formal possession of the grant for the Beales, and executed a lease thereof to one O. A. Strickland. That during the same year Johns & Co. caused said grant to be surveyed by the duly-authorized surveyor of the land-district to which Kinney county, in which the land lay, belonged, and returned the field-notes to the general land-office. That after the return of the field-notes the grant was platted on the map of Kinney county, and has since been there represented. That, it being deemed necessary by the land-office to secure proper evidence of the authority of Soto, special commissioner, to extend the title to Dona Dolores Soto de Beales, Johns & Co. made efforts to supply this defect in title. That they succeeded in finding Soto in Mexico, and finally succeeded in getting possession, through Dr. Beales, of the original letter of authority or commission under which Soto acted, and filed and deposited the same in the general land-office, where it has since remained. That, after the platting of the grant on the map, the then commissioner (Keuchler) recognized and respected said grant, and gave to Johns & Co. certificates to that effect, which were forwarded to Dr....