King v. Lane

• Decision Date: 03 May 1916
• Docket Number: (No. 903.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 186 S.W. 392
• Parties: KING et al. v. LANE.
• Court: Texas Court of Appeals

186 S.W. 392

KING et al. v. LANE.

(No. 903.)^*

Court of Civil Appeals of Texas. Amarillo.

May 3, 1916.

Rehearing Denied May 24, 1916.

Appeal from District Court, Hall County; J. A. Nabers, Judge.

Suit by S. M. King and another against J. M. Lane. From a judgment for defendant, plaintiffs appeal. Judgment affirmed.

Moss & Leak, of Memphis, for appellants. J. M. Elliott, of Memphis, for appellee.

HENDRICKS, J.

On the 19th day of May, 1909, the appellee, J. M. Lane, was the owner of the S. E. 1/4 of the S. W. 1/4 of section 20, block 20, Houston & Great Northern Railway Company survey, near the town of Memphis, situated in Hall county, Tex.; said land consisting of 40 acres, more or less. On that day he conveyed the land by general warranty deed, for the sum of $8,000, to "R. A. Dunbar, trustee for J. J. Mickle, J. A. Bradford, Charles Drake, and D. Browder, executive committee of the Memphis railroad bonus committee." At the time this deed was executed by Lane to Dunbar, as trustee, it was specifically agreed between Lane, the trustee, and the executive committee (representing said bonus committee) that Lane had the right of reservation of any 3 acres of land, to be thereafter selected by him, upon payment of a pro rata consideration, in accordance with the amount paid to him, and would receive a reconveyance of said 3 acres when so selected.

We infer from this record that at this time there was a projected promotion of a railroad designated as the Altus, Lubbock & El Paso Railroad, the contemplated route of which was through Memphis, Tex. On the 6th day of May, 1909, prior to the execution of the deed by Lane to Dunbar, the railroad bonus committee of Memphis, Tex., entered into an agreement with Edward Kennedy, who was the promoter of said Altus, Lubbock & El Paso Railroad, and the president of same, by the terms of which agreement the bonus committee obligated themselves to purchase certain lands in or adjoining the town of Memphis, the title of which was to be vested in a mutually selected trustee, the land to be sold "and the proceeds placed in the bank at Memphis, Tex., to be paid out on estimates for grading work on the roadbed of the Altus, Lubbock, Roswell & El Paso Railroad Company, in Hall county, Tex., as the work should progress continuously out of Memphis."

Kennedy, the president of said railroad, caused the civil engineer in charge of the company's affairs to map and plat the particular 40 acres of land, conveyed by Lane to Dunbar, trustee (in connection with other land) into lots, blocks, streets, and alleys, evidently for the purpose of sale. Kennedy, as president of the railroad company, was fully cognizant of the arrangements between the executive and the bonus committees, and Lane, for a reservation and reconveyance to the latter of the 3 acres of land to be selected — Kennedy thereafter ratifying said agreement.

On the 15th day of June, 1909, R. A. Dunbar, as trustee for the executive committee (naming the members thereof in the deed) and for Ed Kennedy, the president of the road, in consideration of the sum of $407, paid by Lane, deeded to Lane "all that certain lot, tract or parcel of land described as * * * block No. 34, in Fairview addition to the town of Memphis, Texas." This consideration is shown to have been paid by Lane.

On June 4, 1910, in a suit in the district court of Hall county, Tex., in which the members of the bonus committee and the railroad and Kennedy were defendants, a lien was established upon the 40 acres conveyed by Lane to Dunbar, and upon other land, consisting of 80 acres, embodied in the same trust agreement, for the benefit of certain parties holding claims on account of having performed certain grade work upon the roadbed of the railroad company, and the land was ordered sold for the foreclosure of the particular lien mentioned, for the purpose of satisfying said claims.

J. B. Patterson, a master in chancery in said suit, reported a public sale of said property to the district court, which was confirmed by the district judge October 9, 1911, and the master, on the 10th day of October, 1911, deeded the land to Wilkerson, who thereafter on the 9th day of November, 1911, deeded the said 40 acres to S. M. King and R. S. Rose, the appellants herein, for a recited consideration in said deed of $7,000.

The map and plat of the Fairview addition, to Memphis, Tex. (in accordance with which block 34 of said addition was conveyed by Dunbar, trustee, to Lane), was not of record in the deed records of Hall county, Tex., at the time of said conveyance, though the land had been surveyed and staked into lots, blocks, streets, and alleys, and the plat made at the time of the deed.

On the 22d day of September, 1911, J. M. Lane, the appellee herein, recorded a plat of block 34, of said Fairview addition above mentioned, in the deed records of Hall county, designating the lots in said block and one street and an alley, as shown by this record; the instrument containing a dedication clause of said streets and alleys, to the use of the public.

Though the map of the Fairview addition was not in the deed records of Hall county at the time of the reconveyance by Dunbar to Lane of block 34, we think the title to the particular property vested in Lane for the reason that Dunbar, in describing the property in his deed, referred to an instrument (the map) which designated the land after having been actually located and surveyed upon the ground. King and Rose sued Lane for the land, and the trial court peremptorily instructed the jury to render a verdict in favor of Lane. The deed from Dunbar, as trustee, reconveying the 3 acres to Lane, was placed of record, prior to the time of the establishment of the lien above mentioned.

The trial court peremptorily instructed the jury in favor of Lane, the defendant, and appellee herein, for the 3 acres of land in controversy. When the land was sold at public vendue, by the master in chancery, Wilkerson had actual notice of the claim of Lane to that part of the land reconveyed to him, but said he...