Layton v. Hall

• Decision Date: 01 January 1860
• Citation: 25 Tex. 204
• Parties: BUXTON LAYTON AND OTHERS v. EDWARD HALL.
• Court: Texas Supreme Court

25 Tex. 204

BUXTON LAYTON AND OTHERS

v.EDWARD HALL.

Supreme Court of Texas.

1860.

This court concurs in the views expressed by the present chief justice in the dissenting opinion in this case (16 Tex. 272), as to the application of the rule then laid down by the majority of the court. The question in the case was deemed by him to be, as to the sufficiency of the evidence, to establish the alleged fraud by the defendant in a settlement with one of the plaintiffs, and not as to the sufficiency of oral testimony to establish a trust in lands. 16 Tex. 272.

On the question as to the existence of the fraud, it is for the jury to say whether or not the evidence is sufficient to establish the charge; and to charge them that it could not be established by the testimony of a single witness was erroneous.

It can hardly be called a legal presumption, that one member of a firm is aware of the correspondence of the firm, and acquainted with its business affairs and transactions.

APPEAL from Galveston. Tried below before the Hon. Peter W. Gray.

This was a suit brought by Buxton Layton and others, composing the firm of Layton & Co., against Edward Hall for the recovery of 2,400 acres of land lying on Galveston island, which they claimed by virtue of a contract made by them with the defendant, in the year 1838, for the location of five pieces of land scrip (640 acres each), which the defendant agreed to locate and procure titles for at his own expense, receiving one-fourth thereof for his services.

Hall located the scrip on Galveston island in 1839, together with a large amount of other land scrip, in conjunction with Bryan, with whom he was associated in the land business. Hall advised Layton & Co. of the location by letter, dated April 12, 1839. Shortly after this, Levi Jones claiming a prior and better right to the land, sued out an injunction, restraining Hall and others from proceeding further with their surveys. A compromise was effected, by which it was arranged that Jones should have a one-half interest in the enterprise of Bryan, Hall, Franklin and Watrous, who were associated together in the project of making locations on the island, of scrip amounting to over 21,000 acres. By the terms of the compromise, it was arranged that the scrip (Bryan & Toby scrip), in Hall's name should be used in making the location, and that the patent should be taken in the joint names of Jones & Hall; Jones agreeing to return to Hall scrip equal in value and amount to one-half of the quantity required for the location. (The scrip having been transferred in blank, had been assigned to Hall by filling the blanks with his name.)

The surveys then went on, and scrip for 18,215 acres (including the five pieces of Layton & Co.) was used in making the locations. The balance of the scrip, amounting to over 3,000 acres, returned to Hall, was by him, as the witness understood, placed in a surveyor's hands, to be located on islands further west. On the 28th of November, 1840, a patent was issued to Jones and Hall for the 18,215 acres. A few days thereafter, congress, by joint resolution, declared that the islands were not subject to location.

Afterwards, there was a partition between Jones and Hall, under a decree of the district court of Galveston county, the land being divided equally between them by alternate sections.

In 1844 (after the partition between Hall and Jones), Hall was called upon by Buxton Layton, a member of the firm of Layton & Co., for an account of the scrip. The result of the interview was that Hall returned to Buxton Layton certain other scrip for 3,200 acres, and that Layton surrendered to Hall the receipt of the latter for the original five pieces of scrip, which receipt embraced in its terms the contract for their location, and there appeared to be no other written evidence of the contract. This suit was brought in 1848; plaintiffs setting out their contract with Hall, his location of their scrip on Galveston island, as well as of the other scrip held by him and Bryan; the compromise with Jones; and the partition aforesaid. The plaintiffs alleged further that Hall, being in New Orleans in the year 1844, called upon Buxton Layton, one of the plaintiffs (Robert Layton, a former member of the firm, then being deceased, and Thos. Layton, another member, being absent in Europe), and falsely and fraudulently represented that said scrip to him, said Hall, so intrusted, had not been located, but that the surveyor by him employed to locate it, had lost or mislaid the same, but that it would be found and returned to said Layton & Co.; and as collateral security for its return, delivered to said Buxton Layton other unlocated scrip (3,200 acres last referred to) for an equal quantity of lands; and upon the representation of said Hall that the unlocated scrip would serve in lieu of his original receipt and engagement, and by his request the said Buxton was induced to deliver the said receipt of said Hall to him, then believing the representations to be true, and that the scrip had not been located. The plaintiffs alleged that the correspondence of their firm had been conducted and kept by said Thomas Layton, then absent; that said Buxton was not familiar with the same, and, at the date last aforesaid, he was ignorant of the fact that the lands had been located and patented; and if he had ever been informed thereof, the fact had escaped his memory. That he had acted solely on his reliance on the statements of Hall that the lands had not been located, that the original scrip would be returned, and that the scrip then delivered should be retained merely as collateral security for the return of the original scrip.

The answer of Hall denied the charges of fraud and false representations, setting out the embarrassments attending the location, and the interest of Bryan, Watrous and Franklin in the locations made on the island; alleging that he informed Buxton Layton that he had not been able to make the scrip available for the number of acres authorized to be located by it, and that the attempted location was involved in doubt and litigation, and averring that the scrip delivered by him to Buxton Layton was not given as collateral security, but in lieu of the return of the original scrip, and was accepted by said Buxton in satisfaction of the original contract of 1838, which was then canceled, and his receipt surrendered to him by said B. Layton.

The plaintiffs proved by the deposition of John Williams (who had been their book-keeper since 1841), that Buxton Layton called on Hall in 1844 for an account of the five pieces of scrip. That Hall stated it was in the hands of a surveyor and had been mislaid; that he could not find the surveyor to get it. He gave to Layton other scrip as security for the original 3,200 acres, until he could procure it from the surveyor to return to him, Layton. That Layton then returned to Hall the original receipt for the scrip. The witness annexed to his answers the letter dated April 12th, 1839, which acknowledged the location by Hall of the scrip for Layton & Co., on Galveston island. He also stated that at the time of the conversation between B. Layton and Hall in 1844, Thomas Layton, a member of the firm, was absent in England. That previous to that time Thomas Layton attended to the correspondence of Layton & Co., and that Buxton Layton never did attend to the correspondence. Also that Thomas Layton, on his return, expressed surprise when he was informed of what had been done, and referred to the letter of Hall of April, 1839, on file and above referred to.

Special issues were submitted to the jury, who returned responses thereto which in effect affirmed the allegation of the petition as to the existence and contents of the original contract, the location by Hall of the scrip received from Layton & Co., on Galveston island; that Hall wrote to them the letter dated April 12th, 1839, advising them of the location; and that Hall got subsequently a perfected title to the land located by virtue of the scrip belonging to Layton & Co.

Among the special issues submitted were the following:

9. “Did Buxton Layton in the year 1844 know of the letter?” Ans., “Yes.”

10. “Did Hall falsely represent to Layton & Co., or one of the firm, in the year 1844, that their scrip was lost or mislaid?” Ans., “No.”

11. “Did Hall get back his receipt from Layton & Co. by false and fraudulent representations?” Ans., “No.”

12. “With what member of the firm did he have the conversation which led to his getting back the receipt?” Ans., “Buxton Layton.”

13. “Did Hall at the time of his getting back his receipt give Layton & Co. any land scrip? If yea, how...