Slaughter v. Mallet Land & Cattle Co.

• Decision Date: 02 October 1905
• Docket Number: 1,415.
• Parties: SLAUGHTER v. MALLET LAND & CATTLE CO.
• Court: U.S. Court of Appeals — Fifth Circuit

141 F. 282

SLAUGHTER v. MALLET LAND & CATTLE CO.

No. 1,415.

United States Court of Appeals, Fifth Circuit.

October 2, 1905

K. R Craig, for appellant.

Sam. H Cowan and Henry Sayles, for appellee.

This suit was brought in the United States Circuit Court on December 25, 1903, by the Mallet Land & Cattle Company, a corporation duly incorporated under the laws of the state of Missouri, for an injunction to restrain the defendant, C. C Slaughter, from trespassing upon the plaintiff's land, known as the Edwards county school lands, consisting of 17,712 acres situated in Hockley county, Texas, and to remove cloud from title to said lands.

The substantial facts set forth in the plaintiff's bill and amendment thereto, in connection with the exhibits thereto attached and filed, in the order of their happening, are as follows: That previous to June 1, 1898, D. M. DeVitt and one Scharbauer held the possession of said land under a lease contract from Edwards county, containing the stipulation that 'lessees herein shall have the preference right over all others to purchase said lands during the continuance of this or any subsequent lease contract entered into by them, they paying the highest price that can be obtained,' which lease was duly authorized by order of the commissioners' court of Edwards county June 9, 1896, to be made by James M. Hunter, county judge of Edwards county. That the firm of DeVitt & Scharbauer was dissolved, one Flato succeeding to said Scharbauer's interest in the lease and in the business, and the same was continued by DeVitt & Flato. That on June 1, 1898, DeVitt & Flato, a partnership composed of D. M. DeVitt and F. W. Flato, then engaged in the ranching and cattle business, with this land as a part of their ranch, obtained a lease from Edwards county of said lands for five years from that date at the price of 2 1/2 cents per acre per annum, payable semiannually, with a stipulation in the lease contract as follows: 'It is also agreed and understood that the lessees herein shall have the privilege of re-leasing the said land again at the expiration of this lease at any rental price and on terms offered and acceptable to Edwards county that may be made bona fide by any responsible party, but in the event that Edwards county should desire to sell the said land herein mentioned at the expiration of this lease, then in that event the lessees herein shall have the preference right to purchase said land at any bona fide offer made and acceptable to Edwards county by any responsible party; and the said lessees shall have a written notice giving them ninety (90) days in which to purchase the said land after the expiration of the lease. ' While there was no order entered upon the minutes of the commissioners' court of Edwards county authorizing said lease to DeVitt & Flato, the same was fully ratified and confirmed by Edwards county, because with full knowledge of the facts it accepted the rental, and that at the inception of the attempted title of C. C. Slaughter, and in the contract between Edwards county and W. E. Kaye, the title to be granted was made subject to the rights of DeVitt & Flato, as herein set forth. It is appropriate to further state at this point that it was proven by the testimony of James M. Hunter that he executed the lease contract to DeVitt & Flato with the stipulation contained, acting on behalf of the commissioners' court of Edwards county, and by its authority under the order of said court, which by oversight was not entered upon the record, and that the lease contract was read to the court in open session and approved by all of the commissioners. That he was directed by unanimous vote of all of them to execute that contract on behalf of Edwards county, duplicate of which was filed with the county clerk of said county for record upon the minutes, but by some oversight was not there recorded. That DeVitt & Flato, being in possession of said land, continued to use and occupy it as in inclosed pasture, and conducted the business of raising and grazing cattle thereon, having a large amount of other land also inclosed in said pasture, and that that possession continued uninterrupted until the trespasses against that possession committed by C. C. Slaughter, as hereafter stated, which constituted the disturbance of the possession against which the injunction herein was sought and obtained, and that said possession likewise continued, notwithstanding the attempts in the part of C. C. Slaughter, to forcibly dispossess the plaintiff's predecessors in title up to the time of the plaintiff's purchase of the land, and thereafter the plaintiff, of the possession thereof; such trespasses being continuous from October 17, 1903, to the date of filing the plaintiff's bill, to wit, December 25, 1903. That on March 9, 1899, the commissioners' court of Edwards county made a contract with W. E. Kaye, appointing him as agent of Edwards county to sell this land at the net price of 85 cents per acre, he to receive as a commission all over that sum which he could obtain; but the sale to be made subject to all of the rights of the lease contract of DeVitt & Flato of date June 1, 1898. That previous to that date and the 3d day of January, 1898, said Slaughter had made a contract with F. G. Oxsheer, whereby said Oxsheer was to purchase for said Slaughter the Edwards county school lands under a contract, and Slaughter advanced the part of the purchase money paid to Edwards county in the purchase in the name of R. S. Ferrell through W. E. Kaye, and that said Kaye was in truth and in fact but the agent of C. C. Slaughter in the procuring of the transfer from Edwards county to R. S. Ferrell under which C. C. Slaughter claimed title. In pursuance of the arrangement made with F. G. Oxsheer by C. C. Slaughter, and the arrangement made by F. G. Oxsheer with W. E. Kaye, and between W. E. Kaye and R. S. Ferrell, said Kaye entered into a contract with Edwards county, whereby in lieu of the contract of March 9th said W. E. Kaye, as agent of Edwards county, bound himself to sell said land at 85 cents net, on or before August 1, 1899, in consideration of $5,055.20 cash and the additional sum of $10,000 payable in certain installments as set forth, and, in the order of the commissioners' court evidencing the contract, the said lease contract of June 1, 1898, between Edwards county and DeVitt & Flato, recited to be recorded in Hockley county, Tex., was made a part of the contract with W. E. Kaye, and the county judge of Edwards county was authorized to complete such sale as W. E. Kaye might make in accordance with that order, subject to the terms and rights of DeVitt & Flato under the said contract of June 1, 1898, and Kaye was to receive as his compensation for making such sale any sum above the amount of $15,055.20. That as part of the same transaction, on the said 8th of May, 1899, said Kaye, acting as agent for said Edwards county, in the name of R. S. Ferrell, made and procured a contract of sale to R. S. Ferrell, whereby James M. Hunter, county judge of Edwards county, acting under the authority of the said order of the commissioners' court of May 8, 1899, for the purported consideration of $17,712, but for the consideration received by the county of $15,055.20, conveyed said land to R. S. Ferrell. That under date of May 24, 1899, said R. S. Ferrell, without consideration, transferred all of his right, title, and interest in said land to C. C. Slaughter, and in the deed stipulated that 'the said C. C. Slaughter hereby accepting the contract of sale as made to me by said Edwards county, Texas, under all of the conditions and specifications therein contained. ' But this transaction, it is alleged, was but the carrying out of a previous contract between said C. C. Slaughter and F. G. Oxsheer to purchase said land, as well as other lands embraced in that contract, whereby said Slaughter, through Oxsheer, and Oxsheer by using Kaye, and Kaye by using Ferrell's name completed the transaction as contemplated in the contract between Slaughter and Oxsheer, said Ferrell being merely a man of straw; and it is alleged said Slaughter had notice of the fact that said Kaye was to receive and keep as a part of the consideration for said sale as commission to him $2,656.80, which rendered the contract null and void, all of which is fully set forth in paragraph 5 of plaintiff's bill. That on the 13th day of February, 1902, Edwards county, through its commissioners, recognizing the rights of DeVitt & Flato to purchase said lands under the terms of their said lease contract, authorized its county judge, S. A. Hough, to execute a contract for the purchase by DeVitt & Flato, and sale by Edwards county of said land, at the price of 90 cents per acre. And Edwards county thereby bound itself to sell said land at the expiration of its lease of June 1,

1903 for said consideration, which contract was fully complied with by DeVitt & Flato, same having been made in order to grant them full rights that they had under their preference right of purchase, which right the said C. C. Slaughter had through the means aforesaid undertaken to destroy, but that the commissioners' court, having preserved said right by the stipulations in the contract with W. E. Kaye and R. S. Ferrell, were acting within their perfect lawful authority, in making such contract of February 13, 1902, with DeVitt & Flato, for the purpose and intent of preserving intact their said preference right to purchase said land at the expiration of said lease, and that said Edwards county thereby rescinded and revoked the pretended sale to R. S. Ferrell, as it had the right to do, for the purpose of so preserving the said right of DeVitt & Flato to purchase said land. That immediately after the expiration...