Clark v. Altizer

• Decision Date: 24 January 1912
• Citation: 145 S.W. 1041
• Parties: CLARK et al. v. ALTIZER et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

145 S.W. 1041

CLARK et al. v. ALTIZER et al.^†

Court of Civil Appeals of Texas. Austin.

January 24, 1912.

On Rehearing, February 28, 1912.

Rehearing Denied March 27, 1912.

Appeal from District Court, Tom Green County; J. W. Timmins, Judge.

Action by J. H. Altizer and another against W. G. Clark and another. From a judgment for plaintiffs, defendants appeal. Affirmed in part, and in part reversed and rendered.

L. H. Brightman, of San Angelo, and J. B. Wade and Smith & Wade, all of Ballinger, for appellants. B. B. Stone, of Ballinger, and Blanks, Collins & Jackson, of San Angelo, for appellees.

Findings of Fact.

JENKINS, J.

1. In April, 1906, eight sections of school land in El Paso county were awarded to J. R. Arnett, who remained a settler thereon until about the 15th day of February, 1907, when he sold same to J. H. Altizer.

2. Upon proper application, Altizer was substituted by the state for Arnett as the purchaser of said land.

3. About March 1, 1907, Altizer sold said land to appellant Clark, who at once became a settler thereon, and so remained until he sold to appellant Padgett, to wit, on May 4, 1908.

4. Clark executed the notes herein sued on for the purchase money of said land.

5. After Clark had bought said land, some question was raised as to Altizer's occupancy of said land, when Altizer, by agreement with Clark, sent to the land office his affidavit that on account of the continued sickness of his wife, and a misapprehension of the law, he could not make proof of continued occupancy, and asked that the sale to him as substitute purchaser for Arnett be canceled and that the land be awarded to Clark. This was accompanied by a proper application from Clark, together with one-fortieth of the purchase money, and his obligation for the balance, and the land was awarded to him August 1, 1907.

6. When Altizer first sold to Clark, Clark executed a deed of trust on said land to secure said notes, and again on January 22, 1908, executed a second deed of trust on said land to secure said notes. Both of said deeds of trust were duly recorded in El Paso county prior to the purchase of said land by Padgett.

7. The deed from Altizer to Clark and from Clark to Padgett were each quitclaim deeds.

8. Padgett finished the three years' occupancy under the sale to Clark, and obtained the certificate of the commissioner of the land office to that effect.

9. Clark alleged that Altizer never became an actual settler on said land. This issue was not submitted to the jury, and we do not deem it necessary to make any finding of fact in reference thereto. The evidence was sufficient to raise the issue had it been necessary to a determination of this case.

10. Clark alleged that the first deed of trust was to be held in escrow, and that it was never legally delivered. That the execution of the second deed of trust was obtained by Altizer's fraudulently representing to him that the same was a note. These issues were submitted to the jury, as hereinafter explained. The effect of the verdict is that Clark's contention as to one or the other of said deeds of trust is not true. The evidence would sustain a verdict either way as to either of said issues.

11. When Altizer sold to Clark, there were improvements on the land of the value of from $100 to ____.

Opinion.

In view of the facts above set out upon the issues raised by the pleadings and assignments of error, we hold:

1. The land having been legally awarded by the state, and Altizer having become the substitute purchaser, he had a vendible title, the transfer of which to Clark was a sufficient consideration to support the notes given for the purchase money thereof and the mortgage to secure the same, although the three years' occupancy prerequisite to the issuance of final title by the state had not been completed. Bumpass v. McLendon, 45 Tex. Civ. App. 519, 101 S. W. 491; Harwell v. Harbison, 43 Tex. Civ. App. 343, 95 S. W. 30.

Such sale was not against public policy; on the contrary, the statute contemplates, and expressly provides for, such sale. Bourn v. Robinson, 49 Tex. Civ. App. 157, 107 S. W. 874; Williams v. Findley, 99 Tex. 468, 90 S. W. 1089. In the absence of statutory prohibition, as in the case of a homestead, any property that may be sold may be mortgaged.

2. Altizer's failure to settle on or to continue to occupy the land, if such was the fact, did not, ipso facto, forfeit the sale to him, but the title remained in him until the same was declared to be forfeited by the Commissioner of the Land Office. Adams v. Terrell, 101 Tex. 331, 107 S. W. 538; Williams v. Keith, 111 S. W. 1056; Bates v. Bratton, 96 Tex. 279, 72 S. W. 157; Tillman v. Erp, 121 S. W. 549. While the original purchaser acquired no title by reason of his application and the award to him, but only a prior right for a limited time to purchase, yet when he made his settlement within 90 days, and thereafter within 30 days filed his affidavit of settlement, the equitable title to the land was vested in him and passed to his assignee, subject to forfeiture by failure to comply with the law as to settlement and payment of interest; but, until such forfeiture was legally declared by the state, such title remained in the original purchaser or his assignee as substitute purchaser.

3. It is insisted by appellants that the issue as to whether or not Altizer became and remained an actual settler on the land should have been submitted to the jury in this case, and that, if they had found against such settlement, the first mortgage should have been held to have been invalidated by such failure. However this may have been under other circumstances, we conclude that, in view of the fact that the cancellation of the sale to Altizer was procured with the consent of Clark, and for the purpose of strengthening his title, and the title to said lands was vested in him under said agreement, he cannot be heard to object to the foreclosure of such mortgage. If the first mortgage was properly foreclosed, the judgment of the trial court should be sustained without reference to the second mortgage.

4. The fact that Altizer paid the expenses of obtaining the award to Clark, including the first payment of one-fortieth of the purchase money, did not make him interested with Clark in the purchase of said land within the meaning of the statute on that subject. If there was a fair doubt as to Altizer's settlement being a compliance with the law, the payment by him of the expenses incurred in removing all doubt as to Clark's title ought to have been borne by him. It is true that he was interested in the security for his debt, but he acquired no interest in the land by virtue of the award to Clark.

But a sufficient answer to appellants' contention in this regard is that, if there was collusion between Clark and Altizer in the sale to Clark by the state, no one but the state could take advantage of such collusion. Logan v. Curry, 95 Tex. 664, 69 S. W. 129; Underwood v. King, 102 Tex. 561, 119 S. W. 300; Maney v. Eyers, 33 Tex. Civ. App. 497, 77 S. W. 969; Thomson v. Hubbard, 69 S. W. 649; Hamilton v. Votaw, 31 Tex. Civ. App. 684, 73 S. W. 1091. The writer has never regarded the proposition that no one but the state can take advantage of the collusion of the purchaser of school lands as the correct interpretation of the statute nor as in accord with sound public policy, but it is stare decisis, and not now open to discussion. Its application works no injustice, however, in this case. If there was collusion between Altizer and Clark, it but prevents Clark from taking advantage of his own wrong.

5. The appellants contend that even though the second deed of trust was executed in pursuance of an agreement between Altizer and Clark, that Altizer should file an affidavit that he had not complied with the law as to continued occupancy of the land, and thereby to secure the cancellation of the sale to him, and the award of the land to Clark, such transaction was against public policy, and the deed of trust based thereon cannot be enforced. To this we cannot agree. It is true that in such transaction the state lost Altizer as a purchaser, but at the same time it secured Clark in his place upon the same terms, and in addition thereto received payment of the one-fortieth of the purchase money the second time. In this transaction the state is the gainer by $128. It was not the purpose of Altizer or of Clark to in any manner defraud the state in this transaction, but only to settle all question as to Clark's title. Had the sale to Altizer been canceled without his consent, the state would have done just what it did do, and that is award the land to Clark upon his application to purchase.

It was competent for the parties to enter into this agreement whereby Clark secured title to the land; and it was lawful for him to agree that Clark, upon securing the award to himself, should execute a second deed of trust to Altizer to secure the payment of the purchase money that he owed on said land. Williams v. Findley, 99 Tex. 468, 90 S. W. 1089; Garrett v. Findlater, 21 Tex. Civ. App. 635, 53 S. W. 839; Miller v. Roberts, 18 Tex. 16, 67 Am. Dec. 688.

The pre-existing debt was a sufficient consideration to support the second mortgage. Alstin v. Cundiff, 52 Tex. 464; Robertson v. Parrish, 39 S. W. 646. If the second mortgage was properly foreclosed, the judgment of the trial court should be affirmed without reference to the first mortgage.

6. Where the vendor of school land, which has been awarded to him, is in possession thereof, sells the same, and delivers possession to his vendee, and it is afterwards ascertained that he had no title to said land, it cannot be said that...