Stone Cattle & Pasture Co. v. Boon

• Decision Date: 19 April 1889
• Citation: Stone Cattle & Pasture Co. v. Boon, 11 S.W. 544 (Tex. 1889)
• Parties: STONE CATTLE & PASTURE CO. <I>et al.</I> <I>v.</I> BOON.
• Court: Texas Supreme Court

11 S.W. 544

STONE CATTLE & PASTURE CO. et al.

v. BOON.

Supreme Court of Texas.

April 19, 1889.

Appeal from district court, Denton county.

J. Jenkins, for intervenor. Ferguson & Davis, for plaintiff. Bryant & Dillard, for defendant.

HENRY, J.

In the year 1882, E. Boon, by his deed containing a clause of general warranty, sold and conveyed to Stone & Dickey the F. Peterswick and Claiborne Wright surveys of land. The consideration of the sale was $3,107.25, of which $1,553.25 was paid in cash, and for the balance two notes for $776.32 each were given. The deed expressly reserved a lien to secure the payment of these notes, due, respectively, one and two years after date. The first note seems to have been paid. The Peters wick survey was sold by Stone & Dickey, and, by conveyances under them, the Stone Cattle & Pasture Company had a deed for and were in possession of said survey on the _____ day of May, 1885. On the last-mentioned date Boon instituted a suit against Stone & Dickey to foreclose the vendor's lien, and recover judgment upon the last due of said notes; not making the Stone Cattle & Pasture Company a party to the suit. He recovered judgment against Stone & Dickey foreclosing his lien on both of said surveys, and purchased them, at sheriff's sale made under said judgment, for an amount less than his judgment, which was credited on the judgment, and he received from the sheriff a deed for the two tracts of land. In December, 1885, Boon instituted this suit against the Stone Cattle & Pasture Company to foreclose his vendor's lien on both of said surveys of land. Subsequently to the institution of this suit the interest of the Stone Cattle & Pasture Company in said surveys was sold under a judgment against it in favor of one of its creditors, and purchased by Sam Lazarus, who received from the sheriff a deed therefor. After such purchase Lazarus came into the suit as a party defendant. At the time that Lazarus became a party, plaintiff amended his petition so as to change it from a suit to foreclose vendor's lien on the land, to one to try title and for possession. Lazarus and the Stone Cattle & Pasture Company answered this amended petition by exceptions to its legal sufficiency, by pleas of general denial and not guilty, and by special answer, alleging substantially, after setting up in detail the foregoing pleadings, as follows: That there was a superior outstanding title in one W. R. Baker to the Peterswick survey, growing out of a purchase of the same by Baker from the administrator of said Peterswick, at a sale made by him in 1851 under an order of the county court of Harris county, made in the administration of said Peterswick estate, and that said Baker was then asserting his superior title to said survey, and praying that said Baker be made a party to the suit, and cited to appear, etc.; that neither himself or co-defendant, or their vendees under Boon, knew of said outstanding title when they made their purchases and received their deeds; that by his purchase he has become entitled to the benefit of the covenant of warranty contained in the deed from Boon to Stone & Dickey; that he would long before have made payment of the unpaid balance of purchase money against said land, but for said defect in plaintiff's title thereto. He prayed that plaintiff be required to contest said question of title with Baker, and that, if Baker prevailed, he (Lazarus) have judgment against plaintiff on account of the breach of the warranty in his deed to Stone & Dickey, etc., or, if plaintiff's title to the land should prevail, he alleged his willingness to bring into court the unpaid balance of the lien debt, and prayed to be allowed to do so. He alleged that he had paid a valuable consideration for the land, and that plaintiff was insolvent. The Stone Cattle & Pasture Company adopted this answer of Lazarus. The court sustained plaintiff's exceptions to it, and it was stricken out. Defendants, declining to amend, went to trial upon their pleas of general denial and not guilty. On the 23d day of December, 1886, W. R. Baker filed his petition of intervention, the record showing leave given him to do so on January 3, 1887, and pleaded that it was true, as alleged in the answer of defendant Lazarus, that he was the owner of the Peterswick survey of land. The case was tried without a jury, and judgment rendered in favor of plaintiff for the Peterswick survey, and in favor of defendants for the Wright survey. From this judgment the defendants perfected an appeal, and all parties assign error,—defendants and intervenor because of the recovery of the Peterswick survey by plaintiff, and plaintiff because of the recovery of the Wright survey by defendants.

The court reduced to writing its findings of fact and conclusions of law, substantially finding, in addition to the matters above stated, that the F. Peterswick survey was patented to his heirs on the 4th November, 1874, for the 1,600 acres of land in controversy, by virtue of certificate No. 926, issued by Ben F. Hill, adjutant general, the 2d day of September, 1851; that said F. Peterswick was a soldier in P. S. Wyatt's company, Huntsville, Ala., Volunteers, from the 25th December, 1835, to 29th February, 1836, and was massacred at Goliad, under Fannin, in whose command he was; that one Justin Castanio, on the 19th day of June, 1851, filed, in the county court of Harris county, Tex., his application for letters of administration upon the estate of said Peterswick, and that such letters were granted at the June term, 1851, of said court; that by order of said county court said administrator sold said Peterswick's land certificate to W. R. Baker, and, the sale having been reported to said court, and approved at its November term, 1851, a deed was ordered to be made, which was done on the 2d day of December, 1851, the purchase money having been paid; that this deed was first recorded in Archer county (where the land lies) on 13th December, 1886; that the evidence shows a chain of deeds from the plaintiff, Boon, to the defendant Lazarus for the Peterswick survey, but not for the Wright.

The court's conclusions of law upon its findings of fact were substantially as follows: (1) That the sale to Stone & Dickey was an executory contract, and that by reason of the purchase of the land by plaintiff under his judgment against them he became invested with as complete a title to the land as he had before he conveyed it to them. (2) That the defendants acquired no title to the Peterswick survey by virtue of any of the deeds under which they claim it, but that, plaintiff having failed to show that defendants claim the Wright survey under him, or a...