Imperial Sugar Co. v. Cabell

• Decision Date: 01 July 1915
• Docket Number: (No. 6736.)
• Parties: IMPERIAL SUGAR CO. v. CABELL et al.
• Court: Texas Court of Appeals

179 S.W. 83

IMPERIAL SUGAR CO. v. CABELL et al.

(No. 6736.)

Court of Civil Appeals of Texas. Galveston.

July 1, 1915.

Rehearing Denied October 14, 1915.

Appeal from District Court, Ft. Bend County; Samuel J. Styles, Judge.

Action by the Imperial Sugar Company against Ben E. Cabell and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Lane, Wolters & Storey and Wm. A. Vinson, all of Houston, Williams & Neethe, of Galveston, D. R. Peareson and Thos. B. Peareson, both of Richmond, and Hill & Eakins, of Huntsville, for appellant. B. F. Looney, Atty. Gen., and G. B. Smedley and C. M. Cureton, Asst. Attys. Gen., for appellees.

PLEASANTS, C. J.

This is an action of trespass to try title, brought by the appellant against Ben E. Cabell, L. W. Tittle, and R. W. Brahan to recover about 5,200 acres of land, known as the "Sartartia Plantation," in Ft. Bend county. The defendants, by plea in abatement, disclaimed any right, title, or interest in the land sued for as individuals, and alleged that they together constituted the board of prison commissioners of the state of Texas, and as such were holding the land in question for the state of Texas, and as officers of the state; that the fee-simple title to said land was in the state of Texas, and not in the defendants, or either of them; that, while the suit was brought against them, the effect of a judgment against them would be to divest the title to said land out of the state of Texas; that the suit was in fact against the state, and could not be maintained under the laws and Constitution of Texas. In their first amended original answer the defendants, both by exception and plea, raised substantially the same question. It was further specially alleged that the respective rights and contentions of the parties arose out of the following transaction, viz.: That on February 17, 1908, the Imperial Sugar Company executed and delivered to W. H. Gill, R. H. Hicks, and J. T. Mewshaw, the then board of penitentiary commissioners of Texas, a general warranty deed to the land in question, and also to a large amount of personal property therein described, for the use and benefit of the state of Texas; that as a part of the same transaction, although not contemporaneously executed, the said board of penitentiary commissioners executed and delivered to the Imperial Sugar Company a certain instrument in writing, the two instruments being executed, it was alleged, as the result of a verbal agreement and negotiations between the Imperial Sugar Company and the board of penitentiary commissioners.

The deed referred to in defendants' answer is a deed of general warranty executed by the appellant, and conveys to the persons last above named, composing the board of penitentiary commissioners, for the use and benefit of the state of Texas, the land in controversy, and also the following personal property:

"134 hogs, 139 work mules, 17 saddle horses, 80 tram cars, 75 sections of portable track, 49 cultivators, 16 disc cultivators, 115 turning plows, 6 disc plows, 35 sweep stocks, 7 stubble shavers, 5 stubble diggers, 8 middle bursters, 13 subsoilers, 6 cane scrapers, 12 cotton planters, 2 mowing machines, 30 hoes, 6 post hole diggers, 3 rice seeders, 12 shovels, 10 spades, 20 stubble hoes, 12 briar hooks, 30 axes, 6 scrapers, 6 pitchforks, a large number of double and single trees, 150 cane knives, 60 sets of plow gear, 17 cane wagons (secondhand), 10 cane wagons (new), 9 road wagons, 2 good graders, 1 corn crusher, about 20 dozen tract chains for unloading cane, 6 saddles for guards, 18 wagon saddles, and 3 complete derricks; about 1,000 bushels of ear corn, 2 large barns of crushed corn, about 50 tons of rice bran, about 200 bales of alfalfa and hay, 75 bushels of field peas, about 1,500 bushels of cotton seed for planting purposes; also one blacksmith and wheelwright shop and tools; also a large amount of repair material, such as clev lap links, etc., and such other similar personalty and chattels as were on hand and used in connection with the plantation, and all machinery improvements and buildings of every description then on the land."

Following the covenant of general warranty the deed contains the following:

"But it is expressly stipulated, agreed, and understood, by and between the parties hereto, that a vendor's lien and the superior title to all lands and personalty hereby conveyed is hereby retained and reserved by the company and granted by the board to secure full, complete, and prompt payment of the consideration herein agreed to be paid therefor, as is hereinafter fully set forth, and to fully insure the obligations herein assumed by the board [the vendee], and upon the full payment of the said consideration and performance of said obligations this deed shall become absolute. The consideration agreed to be paid for said land and personal property is the amount and upon the terms and conditions following, as is evidenced by the one certain obligation in writing, for the sum of one hundred and sixty thousand ($160,000.00) dollars, to bear interest from the ____ day of January, 1908, at 6 per cent. per annum, interest payable annually, executed by said board in behalf of said penitentiary system, and duly approved by his excellency, T. M. Campbell, Governor of the state of Texas, of even date herewith, and made payable to the Imperial Sugar Company, or its order, at Houston, Harris county, Texas. The full purchase price of said land and personalty is one hundred and sixty thousand ($160,000.00) dollars, to be paid by said board causing to be delivered to the company, or its assigns or legal representatives, as is hereinafter provided, 40 per cent. gross of the annual crops of cane and cotton raised and grown upon the lands herein conveyed; the value of said per cent. of said products so delivered to the company is to be applied annually as a credit upon the obligations given for said purchase money, first discharging and paying all accrued interest and the balance to be applied to the reduction of such principal sums, and this method to continue until the full amount thereof has been paid, when full release thereof shall be given. In connection with and as a part of this sale and purchase, the following covenants and agreements, by the company and the board, respectively, are made and entered into, and is a part of the consideration therefor."

Here follows a number of mutual agreements and covenants, among which are the following:

"(b) For the term of ten years, including the year A. D. 1908, the purchaser [the board] agrees and binds itself to sell and deliver the annual cane crop grown on the land hereby conveyed to Imperial Sugar Company or its successors or assigns, f. o. b. cars at its sugar mill at Sartaria, and when same is so delivered the company agrees to purchase the same and to pay therefor a minimum price of $3 per ton on a 79 per cent. purity test, and as much more as the test shall indicate, at the rate of 10 cents per ton for each degree or point over and above 79 per cent. test, and plus, also, such additional price per ton as the advance price of sugar at New Orleans, Louisiana, shall indicate or justify, from time to time; this agreement, sale, and purchase having been made on a basis of the price of sugar at New Orleans, Louisiana, on January 24, 1908. Such cane shall be delivered by the purchaser at proper times and in proper quantities, so as to facilitate the operation of the company's mill when the company is grinding the cane of the purchaser, and the company agrees to take and receive daily, during the grinding season, from the purchaser, a reasonable quantity of cane, so as to facilitate the harvesting of the crop, each party looking, not only to its own interest in this respect, but to their mutual interest. The vendee may, however, require the company to accept a daily average of 500 tons of cane from the beginning of delivery until the close of the season, but shall not compel the company to receive a greater daily average. The cane to be delivered under the provisions hereof shall be in good marketable condition, and reasonably clean of fodder and trash; that is to say, in such condition as cane is usually and customarily accepted by mills generally in this section, and shall be topped or cut no higher than the last full red joint. In loading same for the mill on cars, the chains shall be properly placed in cars, and if any cars are delivered without chains properly placed, the company will have the right to charge against such cars the reasonable additional cost of handling the same, and if any cane not meeting the above requirements as to marketable condition is accepted, a reasonable deduction shall be made and allowed thereon, so as to bring it to the proper standard."

"(g) It shall be the duty of the state, acting through its board aforesaid, to maintain on said plantation at all times at least 2,250 acres in good cane stubble, and to keep and maintain the personal property hereby coneveyed, and the improvements on the real estate, in approximately as good condition as they are when delivered to the board. Under the provisions of this conveyance, and this provision with reference to the maintenance of said property, shall apply to the quantity as well as to the quality of all such personal property, and shall continue in force until at least 50 per cent. of the purchase money has been paid, including all interest."

The agreement referred to in defendants' pleading is as follows:

"Whereas, the Imperial Sugar Company, a corporation, has this day executed and delivered to the board of penitentiary commissioners of the state of Texas, a warranty deed conveying to said board and its successors in office, for the use of said state in fee simple, 5,435 acres of land situated in Ft. Bend county, and known as the `Sartartia Plantation' (less 200 acres with improvements on same, less also the railroad of the...