Cleaver v. Taylor

• Decision Date: 09 January 1900
• Docket Number: 844.
• Citation: 98 F. 900
• Parties: CLEAVER et al. v. TAYLOR et al. [1]
• Court: U.S. Court of Appeals — Fifth Circuit

98 F. 900

CLEAVER et al. v. TAYLOR et al. ^[1]

No. 844.

United States Court of Appeals, Fifth Circuit.

January 9, 1900

J. A Martin and John G. Winter, for appellants.

Felix H. Robertson, for appellee.

Before PARDEE and SHELBY, Circuit Judges, and PARLANGE, District judge.

PARDEE Circuit Judge.

This is a suit in equity instituted in November, 1897, by the appellants, A. W. Cleaver and T. L. Criswell, against Isaac Taylor et al., appellees, to enjoin the execution of a writ of possession issued out of the United States circuit court at Waco, Tex., at the instance of the appellees, upon a judgement at law entered in that court on the 15th day of April, 1889, in cause No. 393, styled, 'John D. Taylor et al. v. W. B. McAlister et al.' Under the writ mentioned the appellees sought to oust the appellants from certain lands possessed by them,-- 200 acres by said Cleaver, and 331 acres by said Criswell,-- which land the appellants claim under an agreement of sale with the appellees, which agreement they seek in their bill to enforce. The cause came on to be heard at the May term, 1899, on the bill, answer and replication, and the evidence adduced thereunder; and there was a decree dismissing the complainants' bill, and dissolving an injunction theretofore granted.

It appears that in 1876 a certain grant or survey of land in Falls county, containing 1,476 acres, and designated upon the map of said county as the 'Josiah Taylor 1/3 League,' was owned by the heirs of Isaac Taylor, all of whom resided in the state of Tennessee. In that year the said heirs instituted a suit in the chancery court of White county, in that state, for partition among themselves of the lands belonging to the estate of their ancestor, the said Isaac Taylor, among which lands was included the above-noted one-third league. In this chancery proceeding the court appointed two of the heirs, Isaac Taylor and John D. Taylor special commissioners to sell the lands in Texas, including said one-third league, belonging to said estate. Shortly thereafter, in the same year, the said Isaac and John D. Taylor came to Texas, and, as such commissioners, sold several tracts of land out of said third league. Of the lands so sold, the complainants, T. L. Criswell and A. W. Cleaver (appellants here), purchased, and by mesne conveyances acquired and went into possession of, the several tracts of land by them respectively claimed in this suit,-- Criswell, 331 acres; Cleaver, 200 acres. So stood the title, claim, and possession of the appellants when the Taylor heirs instituted their aforementioned ejectment suit against them in 1889 (No. 393), in which they recovered judgment April 15, 1889. It further appears that, after the aforementioned conveyances by John D. and Isaac Taylor, nothing was done concerning the lands involved in this suit until eight years afterwards, when the said Taylor heirs filed a suit in the district court of Titus county, Tex., for partition among themselves of the lands in Texas belonging to the estate of the said Isaac Taylor. This suit was numbered 2,060 seems to have been between the same parties and for the same object as the hereinbefore mentioned chancery proceedings in Tennessee in 1876; i. e. partition among the heirs. Among the lands so described to be partitioned in the Joseph Taylor one-third league (1,476 acres), located in Falls county, Tex., parts of which had been conveyed in 1876 by the commissioners of the Tennessee chancery court, John D. and Isaac Taylor, as hereinbefore set forth. November 8, 1884, the Titus county court entered a decree in No. 2,060 determining the respective interests of the heirs in the lands of Texas, and appointing commissioners to partition the same. April 16, 1887, the said court entered a further order in No. 2,060 reciting that an agreement, signed by all the parties, had been filed in the cause, asking a modification of the previous decree; and it was thereupon ordered, 'in accordance with said written agreement,' that the lands then unsold be sold at private sale, subject to the approval of the court; and appointed F. H. Robertson, of Waco, McLennan county, Tex., 'agent to sell all of said lands situated in the counties of Falls and Limestone. ' The land involved in this suit is a part of lands which said Robertson was so constituted agent to sell. April 28, 1888, the court made a further order in said cause No. 2,060, under which order the agents appointed by previous orders of the court were authorized to make sales 'without the approval or confirmation of the court being required to give validity to such sales; and trustees or agents are hereby empowered to make such sales final, and to make good and valid conveyances without the intervention of the court. ' The said F. H. Robertson, as agent for the Taylor heirs, under the agreement mentioned in and decreed in the above-noted orders of court, and under direct employment by said heirs to so represent them, undertook the business of the supervision and sale of the land embraced in the aforementioned Josiah Taylor grant claimed by the heirs, including the land here in controversy. He found appellants in possession of, and holding title to, the several tracts of land conveyed to them as hereinbefore set forth. Thereupon, in 1889, in the name of the Taylor heirs, and as their attorney, he instituted the suit No. 393 hereinbefore mentioned.

The appellants, Cleaver and Criswell, unquestionably had strong equities to urge in their defense, and they employed lawyers to protect their interests. The evidence shows that on the 8th of April, 1889, the following memorandum in writing was made, to wit:

'Waco, April 8th, 1889.
E. H. Criswell-Brock note ..	$ 869 40
Criswell land .................	797 87
Excess of 8 1/2 acres ..........	85 00
	---------
	$1,752 27
Deduct $47.50 ..................	47 50
	---------
	$1,704 77
	---------
240 A. W. Cleaver Hammond land ...........	$ 945 00
Excess .........................	55 00
	---------
	$1,000 00
	---------
McAlister ..................	$1,025 79

'Gen'l Robertson agrees to make title to Cleaver for the Hammond land, 200 acres for $1,000.00, cash, and agrees to make T. L. Criswell a title to the W. H. Brock and E. H. Criswell tracts, containing 331 acres, for $1,704, cash. It is understood that this proposition shall stand open for a month from the next Friday, 12th April, '89. To make such title as is given by decree of U.S. court in No. 393, J. D. Taylor et als. vs. W. B. McAlister et als.

'Robertson & Davis, Attorneys for Plaintiffs.'

Indorsed on the back are the names of A. W. Cleaver and Felix H. Robertson.

Following this, on April 12th, the plaintiffs filed their first original petition, and on the same day the defendants filed their first original answer, and on April 15th the plaintiffs filed their first supplemental petition, by which pleadings the legal title of the parties was placed in controversy; the defendants relying solely upon the title as conveyed by the commissioners of the Tennessee court. An agreed statement of facts, limited to the strict legal titles of the parties, was entered into, a jury was waived, the case submitted, and there was a judgment for the plaintiffs. It is not disputed that this judgment was obtained through and by reason of the agreement to sell as set forth in the written memorandum, but both sides claim verbal agreements and understandings in addition. The bill herein charges:

'That, pending the hearing of said suit at law for the recovery of said lands as aforesaid, it was discussed and agreed between orators and said defendants, acting through their respective attorneys aforesaid, and particularly through and between the said Patrick and the said Robertson, that if orators would not assert and prosecute their defenses to said suit at law, and permit and consent to a judgment against them for the recovery of said land involved in said suit, that said plaintiffs, through their said attorneys, or through and by the said Robertson, would sell to orators a portion of said land, to wit, 531 acres thereof, then occupied by orators, and designated by metes and bounds as hereinafter set forth, at the price of five dollars per acre, to be paid when the said plaintiff made good title thereto to your orators. * * * Orators aver and say that, while said judgment recites appearance of parties defendant, in truth and in fact said judgment was agreed upon between said Patrick and Rice and said Robertson and Davis, and was in truth and in fact in all respects a consent judgment, based upon the contract, agreement, and considerations hereinbefore set forth.'

It is alleged by the defendants in answer:

'The said Robertson then agreed to sell to said Cleaver 200 acres of said land to said T. L. Criswell about 331 acres of said land, for the sum of five dollars per acre, cash; the money to be paid as soon as the complainants could secure a loan from some mortgage company to pay for the same. The said Robertson agreed to aid said complainants by turning over to the attorney of complainants such original papers as might facilitate the negotiations to be carried on between said complainants and such mortgage or loan companies as the complainants might see proper to negotiate with. Said Robertson further agreed to make deeds for such tracts of land to such persons as the complainants might direct, but never

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