Mansfield v. Wardlow

• Decision Date: 20 December 1905
• Citation: 91 S.W. 859
• Parties: MANSFIELD et al. v. WARDLOW.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

91 S.W. 859

MANSFIELD et al. v. WARDLOW.^*

Court of Civil Appeals of Texas.

December 20, 1905.

Rehearing Denied January 31, 1906.

Appeal from District Court, Pecos County; B. C. Thomas, Judge.

Action by Dudley Wardlow against W. H. Mansfield and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Eugene Williams, J. F. McKenzie, and Fiset & McClendon, for appellants. Walter Gillis, for appellee.

NEILL, J.

We adopt the following statement of the nature and result of this suit from appellants' brief: "Appellee, plaintiff below, sued appellant W. H. Mansfield, in trespass to try title for three sections of land in Pecos county. Appellant Mansfield impleaded as his immediate warrantors appellants India Myrtle Ellis Harrell and David Harrell, who in turn impleaded their immediate warrantors appellants Amanda M., C. G., Emmette A., and Leigh Ellis. There was a trial before the court resulting in a judgment in favor of appellee for the land, and in favor of appellant Mansfield against appellants Harrells for $1,250, and in favor of appellants Harrells against appellants Ellises for $1,250, said money judgments being upon warranties. Upon application of appellants the court filed conclusions of law and fact. Exceptions were taken by appellants both to the judgment of the court and the conclusions of law and fact and notice of appeal given to this court. No exceptions, however, were taken to so much of the judgment as found in favor of defendants against codefendants upon warranties and no objection to that part of the judgment is made, it being admitted by all parties that if plaintiff is entitled to recover, then defendants are liable on their warranties to the extent of 50 cents per acre and interest."

Conclusions of Fact.

The land in controversy, consisting of three sections in Pecos County, Texas, described as follows:

                Abstract   Survey   Block   Cert.      Original Grantee
                No.         No.      No.    No
                3,052       37       R-3    4,398    G. C. & S. F. Ry. Co
                2,958       43       R-3    4,401    G. C. & S. F. Ry. Co
                2,959       45       R-3    4,402    G. C. & S. F. Ry. Co
                

— was patented to J. S. Daugherty in April, 1884, by virtue of certain railroad certificates issued on September 28, 1881, which had been transferred by the original grantee to said Daugherty by instrument executed in November, 1881, and filed in the general land office in April, 1882. On April 11, 1883, after the location of the land in controversy, but prior to the issuance of patents, J. S. Daugherty executed the following instrument, which was duly acknowledged, and on the 29th day of December, 1884, duly recorded in Pecos county records:

"State of Texas, County of Dallas. Know all men by these presents: That, whereas, William H. Thomas, of the aforesaid county and state, has heretofore furnished to J. S. Daugherty of the same place from time to time money with which to buy and pay surveying and filing fees on 199 alternate sections of land scrip for 640 acres each, described as follows, to wit: Nos. 1,629 to 1,728, issued to the East Line & Red River Railroad Company by the Commissioner of the general land office on the 6th day of May, 1881; also G. C. & S. F. Ry. Co. scrip Nos. 4,194 to 4,206, and Nos. 4,213 to 4,236, and Nos. 4,378 to 4,393, all issued by said commissioner to said company October 26, 1881; also Nos. 3,887 to 3,893, issued by said commissioner to the G. C. & S. F. Ry. Co., September 30, 1881; also Nos. 4,394 to 4,432, issued by said commissioner to the G. C. & S. F. Ry. Co. November 21, 1881. The sum of money heretofore furnished by the said Thomas for this purpose amounting to $9,950, and the said Thomas is yet to furnish the sum of $1,194 with which to pay the patent fees; and, whereas, the said Daugherty has superintended the location of said land scrip and has returned it, together with the field notes, to the general land office, and is to use his best efforts to sell the land so located for as high a price as possible: Now, therefore, it is agreed by and between the said Thomas and Daugherty that in order to facilitate the sale of said lands, that the patents from the state of Texas shall issue in the name of said Daugherty, and that when either or both can succeed in making a sale of all or a portion of said lands at such a price, and on such terms, as will be acceptable to both; that the said Daugherty shall execute to the purchaser a satisfactory deed to the land and deliver it to the said Thomas, who shall collect the money on the sale and out of the proceeds thereof shall first reimburse himself in the amount which he has furnished the said Daugherty for the purpose aforesaid, and the remainder, after deducting the amount so expended for the scrip, surveying, filing and patent fees (which will amount to $56 per scrip), shall be divided equally between them, one-half to the said Thomas or his legal representatives and one-half to the said Daugherty or his legal representatives; and it is understood by and between the parties to this agreement that if the said Daugherty should be indebted to the said Thomas in any sum when they realize from the sale of said lands that the said Thomas shall appropriate out of the interest of the said Daugherty in said sale as shall appear from this contract so much thereof as may be necessary to pay the said Thomas the amount due him by the said Daugherty. Witness my hand this 11th day of April, A D. 1883. J. S. Daugherty."

Plaintiff claimed title to the land under the following conveyances: J. S. Daugherty, on the 19th day of April, 1889, by a warranty deed duly executed, acknowledged, and delivered by him, conveyed to Dudley Wardlow, the plaintiff herein, said survey No. 37, said deed being filed for record in the office of the county clerk of Pecos county, Tex., February 19, 1891. J. S. Daugherty on May 15, 1889, by a warranty deed duly executed, acknowledged, and delivered by him, conveyed to John B. Cox said surveys 43 and 45, said deed being filed for record in the office of the county clerk of Pecos county, Tex., January 4, 1890. Plaintiff proved up a regular chain of title by deeds and inheritance from John B. Cox to said surveys 43 and 45, vesting plaintiff with all the title of said John B. Cox to said surveys 43 and 45. On April 27, 1891, said W. H. Thomas, by a deed duly executed, acknowledged, and delivered by him, conveyed to Addison Wardlow said surveys Nos. 37, 43, and 45, said deed being filed for record in the office of the county clerk of Pecos county, Tex., on the 25th day of May, 1891. And plaintiff proved up a regular chain of title by deeds and inheritance from said Addison Wardlow to said three surveys, vesting in plaintiff all the title to said Addison Wardlow in said three surveys.

Defendants proved up a deed of trust executed by J. S. Daugherty on July 28, 1885, and recorded in Pecos county deed records August 3, 1885, conveying the land to S. Robertson, as trustee, to secure the payment of a promissory note of said Daugherty, payable to the order of Nelson & Noel three years after date for the principal sum of $10,000, besides interest notes. This deed of trust provided for the sale of the property by the trustee in Dallas county, and also for the appointment of a substitute trustee. Default was made in the payment of the notes at maturity, and a substitute trustee regularly appointed, and the land was sold at two sales by said trustee to W. O. Ellis, the first of said sales being made in Pecos county on September 3, 1889, the deed being duly recorded in Pecos county on October 23, 1889, and the second sale being made in Dallas county on May 11, 1891, and the deed recorded in Pecos county May 29, 1891. All the proceedings in connection with said sales were conceded to be regular with this exception; that plaintiff did not admit the right of the trustee to make sale in Pecos county. Defendant Mansfield proved up a regular chain of title to all the land in question from said W. O. Ellis. A. Wardlow and his family moved to Pecos county and established their residence on section 20, block R-3 about 300 varas from the east line of survey 20, same being about six miles southwest from section 37, about seven miles in same direction from section 43 and about eight miles southwest from section 45 in controversy. He continued to reside with his family at that place up to about June, 1891, when he died and was buried on section 20, and soon after his death his family moved away from Pecos county and has never resided there since. During the time of such residence on the section, Wardlow was engaged in ranching, owning cattle, horses, and sheep, which grazed on the land in controversy, when there was water on it or adjoining lands. During the time of his residence up to the time of removal of his family, none of the land in controversy was fenced.

In support of the defendants' title the following facts were admitted to be true: Said J. S. Daugherty on July 28, 1885, executed a deed of trust (which was duly recorded in the Pecos county deed records on August 3, 1885), conveying all the lands described in plaintiff's petition to S. Robertson, as trustee, to secure the payment of a certain promissory note of said date executed by said J. S. Daugherty, and payable to the order of Nelson & Noel three years after date, for the principal sum of $10,000, besides interest notes. Said deed of trust provided for sale of said property by the trustee in Dallas county, Tex., upon default in the payment of said notes, and for the appointment of a substitute trustee by the holder of said notes at the time of such default, in case of refusal of said trustee to act. Default was made in the payment of said notes at maturity, the holder of said notes at the date of such default being Daniel R. Sortwell, who, after said default, transferred said notes to W. O. Ellis. Subsequent to said default and said transfer to said W. O. Ellis, demand was...