Tomahagen v. Sarber, 3411.

• Decision Date: 21 May 1930
• Docket Number: No. 3411.,3411.
• Citation: 29 S.W.2d 438
• Parties: TOMAHAGEN v. SARBER et al.
• Court: Texas Court of Appeals

29 S.W.2d 438

TOMAHAGEN v. SARBER et al.

No. 3411.

Court of Civil Appeals of Texas. Amarillo.

May 21, 1930.

Appeal from District Court, Hale County; Kenneth Bain, Special Judge.

Action by C. M. Sarber and another against J. A. Tomahagen. Judgment for plaintiffs, and defendant appeals.

Reversed and remanded.

C. D. Russell and Kinder & McMath, all of Plainview, for appellant.

Oxford & Oxford, of Plainview, for appellees.

HALL, C. J.

This suit was instituted by C. M. Sarber of the state of Kansas and C. C. Covert of Hale county, against J. A. Tomahagen, a resident citizen of Chicago, in the form of trespass to try title to recover numerous lots in the town of Olton, Lamb county. By agreement, the case was transferred and tried in Hale county.

The defendant answered by a plea of not guilty and set up the statute of limitation of four years. By a supplemental petition, the plaintiffs alleged that on April 3, 1909, plaintiffs C. M. Sarber, W. P. Soash, and John R. Jones owned the lots described in plaintiffs' original petition; that Soash held the title in his own name in trust, each party owning an undivided one-third interest; that, on said last-named date, Soash conveyed all of said property, together with other lots in the town of Olton, to defendant Tomahagen in trust, in order that he might convey to purchasers of town lots and reconvey to Soash within a short period thereafter all lots remaining unsold; that Tomahagen did convey to certain purchasers certain lots in the town of Olton, and on April 28, 1909, reconveyed to Soash what was thought to be all unsold lots, but through mutual mistake of the parties a large number of the lots described in the original petition and unsold were not included in said reconveyance; that while the conveyance to Tomahagen was, upon its face, a deed absolute, the property was in truth and in fact conveyed to Tomahagen in order to enable him to convey to the purchasers of lots in the Olton town site the respective lots to which each was entitled; that the fact that Tomahagen had not reconveyed all the unsold lots was not ascertained by the said Soash and his copartners and assigns until about the year 1926; that the said Tomahagen never repudiated his trust by word or by deed in any manner up to the time of the institution of this suit, and still holds said property in trust for the benefit of plaintiffs; that the deed from Soash to Tomahagen casts a cloud upon the title of plaintiffs, which they pray be removed.

In reply, the defendants pleaded the two and four years' statutes of limitation, and further alleged that plaintiffs' cause of action, if any, accrued about nineteen years before the commencement of this suit, by reason of which fact plaintiffs' demand is now stale and plaintiffs are guilty of laches, barring their right to recover.

The case was tried to the court without a jury, resulting in a judgment for plaintiffs, for all of the lots sued for.

The undisputed testimony shows that Soash, Sarber, and Jones purchased all of section 35, block O-2, in Lamb county, Tex., in 1908, taking the conveyance in the name of W. P. Soash. They then plotted the town of Olton on said section and began selling town lots to purchasers at $35 per lot under an agreement that at a later date there would be a drawing in which each purchaser would have his lot assigned him by lot; that Soash had his home and office in Waterloo, Iowa, and was bringing immigrants into Texas from other states selling great quantities of land and employing several hundred subagents for this purpose. It further appears that he put his army of agents in the field selling lots in the Olton town site and succeeded in selling several hundred of them; that the purchasers of the undesignated lots elected a club captain for each twenty lots sold, said captain to draw lots for the purchasers in his club, and that no purchaser knew what lot he was buying until after the drawing; that Soash brought a train load of immigrants, each of whom had purchased one or more lots in the town site. The train was delayed en route, and, while stopping at Dalhart, the purchasers had the drawing. In disposing of the lots, it was agreed that the purchasers could select from among their number a man of their choice to whom Soash would deed the entire town of Olton, and that the grantee so selected should convey to each purchaser the lot or lots drawn by them respectively, and, after the purchasers had received the lots so sold, the trustee would reconvey to Soash the remainder of the lots. Tomahagen was elected by the purchasers as the grantee and trustee to whom the town site should be conveyed. He accepted the trust, and Soash conveyed him the entire town site to be held as trustee, although the deed was absolute upon its face. At the time of the drawing, the captain of each twenty lots kept a list for purchasers in his club, Soash and Tomahagen also retaining...