Coleman v. Ebeling

• Decision Date: 10 May 1911
• Citation: 138 S.W. 199
• Parties: COLEMAN et al. v. EBELING.
• Court: Texas Court of Appeals

138 S.W. 199

COLEMAN et al. v. EBELING.

Court of Civil Appeals of Texas. Austin.

May 10, 1911.

Rehearing Denied June 7, 1911.

Appeal from District Court, Burnet County; Clarence Martin, Judge.

Action by Otto Ebeling against T. A. Coleman and others. From a judgment for plaintiff, defendants appeal. Reversed and rendered in part, and affirmed in part.

C. C. Clamp, for appellants. T. E. Hammond, Dayton Moses, and Ike D. White, for appellee.

JENKINS, J.

Appellee brought suit against J. C. Proctor, T. A. Coleman, C. A. Keeran, and R. L. Lacy, alleging, in substance: That said Proctor, Coleman, and Keeran entered into a written contract with said Lacy to sell him and one Evans certain lands in Dimmit county, Tex., including four certain sections of school land, and, contriving and conspiring to wrong, cheat, and defraud the said Lacy, represented to him that the defendant Proctor was the owner of said school land; that he had purchased said land from the state of Texas under and in compliance with the laws providing for the sale of school lands; that he had settled upon said lands and resided on same up to the date of said sale in strict accordance and in compliance with the laws of the state of Texas regulating and pertaining to the purchase and occupancy of state school land; and that there was a fine well of water on said land. That said Lacy believed said statements to be true, and, relying upon the same, paid said Proctor, Coleman, and Keeran the sum of $4,021.80 for said land, and received from said Proctor a deed to said lands. That in truth and in fact the said Proctor had never settled upon or resided upon said land, as by law required of the purchaser of school land, and that there was no well on said lands, all of which was well known to said Proctor, Coleman, and Keeran at the time said contract was executed, but was unknown to said Lacy. That in consequence of the failure of said Proctor to settle upon and to continue to reside upon said land, as by law required, the Commissioner of the General Land Office had canceled the sale of said school sections to said Proctor, and had sold them to other parties. That by reason of the premises the said Proctor, Coleman, and Keeran had become indebted to said Lacy in the amount so paid for said school land, and that said Lacy had transferred his said claim against said parties to appellee herein, and had in writing guaranteed the payment of same. Coleman and Keeran excepted to appellee's petition as showing no cause of action against them, but only a separate cause of action against Proctor. Proctor also excepted to said petition as showing a misjoinder of parties. The petition, in addition to the facts above set out, alleged that said contract was also for the sale of other lands belonging to Coleman and Keeran, referred to in said contract hereinafter set out. Proctor, Coleman, and Keeran pleaded the two-year statute of limitation and a general denial. The case was tried before the court without a jury. All exceptions were overruled, and judgment was rendered for appellee for $3,840, the amount paid by Lacy, with interest from September 1, 1907. Proctor, Coleman, and Keeran have appealed from said judgment upon assignments of error filed separately by Coleman and Keeran and by said Proctor.

Findings of Fact.

The contract referred to in appellee's petition was as follows:

"The State of Texas, County of Bexar.

"This memorandum of agreement made on this the 15th day of December, A. D. 1906, by and between T. A. Coleman and C. A. Keeran and J. C. Proctor, acting herein by their duly authorized agent C. C. Clamp of Bexar county, Texas, hereinafter called parties of the first part, and R. H. Evans and R. L. Lacy, both of Burnet county, Texas, hereinafter called parties of the second part, witnesseth: That said parties have this day made and entered into the following contract of sale and purchase of the following tenor and effect, that is to say:

"First. The parties of the first part hereby agree to sell and convey by deed with covenants of general warranty unto the parties of the second part the following described land and premises, lying and being situated in the county of Dimmit and state of Texas, and consisting of the following surveys:

                Abst.  Certif.  Sur.  Original Grantee.   Acres
                711     0-426     1  T. W. N. G. Ry. Co.   640
                712     0-427     3           "            640
                713     0-430     9           "            640
                714     0-431    11           "            640
                715     0-432    13           "            640
                716     0-433    15           "            640
                717     0-434    17           "            640
                718     0-435    19           "            640
                719     0-436    21           "            640
                720     0-437    23           "            640
                721     0-438    25           "            640
                722     0-439    27           "            640
                723     0-440    27           "            640
                724     0-441    31           "            640
                725     0-442    33           "            640
                942        82     1    Gilbert & Brooks    640
                1081    0-426     2        E. F. Fisk      640
                1082    0-427     4           "            640
                1083    0-431    12           "            640
                1084    0-432    14           "            640
                1085    0-433    16           "            640
                1087    0-442    34      George Fisk       640
                1088    0-437    24           "            640
                1090    0-438    26           "            640
                1091    0-441    32           "            640
                1092    0-440    30           "            640
                

—containing in the aggregate 16,640 acres of land, and being the same identical land conveyed by Higgans and others to said Coleman and Keeran on July 26, 1900, which deed is duly recorded in the deed records of Dimmit county; also survey No. ____ in the name of Nancy A. Boone, containing 1280 acres of land, abst. 983, cert. 896. All of the foregoing described land containing in the aggregate 17,920 acres, which land is title land and owned by the said Coleman and Keeran. Also the following school sections owned by the said J. C. Proctor, to wit: Sections 10, 20, 22, and 28 in block No. 10, T. W. N. G. R. R. Co. of 640 acres each, the Proctor school land aggregating 2560 acres.

"Second. The parties of the first part agree to sell said land and the parties of the second part agree to purchase said land, paying therefor the sum of four dollars and fifty cents ($4.50) per acre, which is payable as follows: Five thousand ($5,000) dollars cash at the signing of the contract, receipt of which is hereby acknowledged by the parties of the first part, which $5,000 belongs to the said Coleman and Keeran; twenty-one thousand eight hundred and eighty ($21,880) is payable by the parties of the second part to the said Coleman and Keeran when this deal is consummated and deed executed as hereinafter provided for. The balance of the purchase money of said Coleman and Keeran land of seventeen thousand nine hundred and twenty (17,920) acres is payable in three (3) equal annual payments evidenced by three (3) vendor's lien promissory notes, which notes shall be executed by the parties of the second part when the deed is executed, which notes shall be due and payable on or before September 1, 1908, September 1, 1909, and September 1, 1910, respectively, each of said notes to bear six per centum (6 per centum) interest per annum, interest payable annually. Said interest to begin on said notes September 1, 1907, and is payable annually thereafter. Said notes providing that default in the payment of any installment of interest or of any principal note shall, at the option of the holder thereof mature the entire indebtedness, said notes having the usual attorney's fee clause therein, said notes payable to the order of T. A. Coleman and C. A. Keeran at San Antonio, Bexar county, Texas, and said notes retaining a vendor's lien upon the said 17,920 acres above described, which notes shall be executed by the parties of the second part. The parties of the second part bind and obligate themselves to pay for the said four (4) Proctor sections the sum of four dollars and fifty cents ($4.50) per acre, which sum is payable as follows: On the day this deal is closed, as hereinafter provided for by the execution of the deed from Coleman and Keeran to the said parties of the second part, the parties of the second part shall then pay at said time to the said Proctor the sum of $4.50 per acre for all said four (4) sections, less the amount due the state of Texas thereon, which sums of money the parties of the second part bind and obligate themselves to assume. The balance of the purchase money of the said four (4) sections above the amount due the state of Texas shall be paid at the time of the signing of the deed from Coleman and Keeran to the parties of the second part for the title land. The said Proctor agreeing on his part to continue to reside upon said four sections in full compliance with the law of the state of Texas until September 1, 1907, at which time the said J. C. Proctor shall execute to the parties of the second part or to persons whom they may indicate a special warranty deed for said four sections.

"Third. The said Coleman and Keeran agree to convey the said title land by deed with covenants of general warranty and agree that said land shall be cleared of all incumbrances whatsoever, including taxes for all years, except the year 1907 taxes, for which taxes upon said land they agree to pay to September 1, 1907, the parties of the second part paying for the remainder of the year.

"Fourth. Possession of said property shall be given by the parties of the first part to the parties of the second part on September 1, 1907, up to said time the parties of the first part shall use and occupy the same precisely as they are doing now; they agreeing not to overstock the ranch.

"Fifth. The said Coleman and Keeran shall, at their own expense, deliver to the parties of the second part at San...