De Vitt v. Kaufman County

• Citation: 66 S.W. 224
• Parties: DE VITT v. KAUFMAN COUNTY et al.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 02 November 1901
• Court: Court of Appeals of Texas

66 S.W. 224

DE VITT v. KAUFMAN COUNTY et al.¹

Court of Civil Appeals of Texas.

November 2, 1901.

Appeal from district court, Kaufman county; J. E. Dillard, Judge.

Action by D. M. De Vitt against Kaufman county and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Cowan & Burney and Morrow & Boggess, for appellant. K. R. Craig and G. G. Wright, for appellees.

TEMPLETON, J.

In July, 1895, Kaufman county leased to De Vitt & Scharbauer 960 acres of its free school lands, situated in Hockley county. The lease contract reads thus: "Kaufman County, Texas, July 20th, 1895. This instrument witnesseth that Kaufman county, acting by and through Nestor Morrow, judge and legal agent for said county, hereby agrees to lease, and does hereby lease, to De Vitt & Scharbauer, a firm composed of D. M. De Vitt, of San Angelo, Texas, and John Scharbauer, of Midland, Texas, a certain tract of land, situated in Hockley county, Texas, and patented to Kaufman county as a part of its free school lands, and containing 960 acres, and particularly described as follows: [Inserting description;] for and during the period of three years, at the sum of three (3) cents per acre, payable annually in advance, with the privilege at the expiration of said term of a further lease of two (2) years at such rental price as hereinbefore mentioned, or at such higher rate as may be offered bona fide to said county for said lands. It is further provided that said county reserves the right to sell said land at any time, and terminate said lease at the end of any rental year, provided six months' notice thereof shall be given to said De Vitt & Scharbauer prior to the end of any year for which the rent is paid, and provided, also, that said De Vitt & Scharbauer shall have the privilege of buying said lands at such price as the county may see fit to accept, and which may be bona fide offered for the same by any other party. It is expressly agreed that in case said lessees, De Vitt & Scharbauer, shall fail to pay the annual rent for thirty days after it shall become due, said lease shall be at once forfeited and at an end. It is agreed at the termination of this lease, except by forfeiture, the said lessees shall have the right to remove any improvements they shall place or erect on said land. It is further agreed that said lessees shall not take or remove any wood, coal, stone, or other mineral from said land upon penalty of forfeiture. The said De Vitt & Scharbauer hereby agree to take said land upon the terms above mentioned, and to pay said rentals, and comply with the terms hereof. The rental year, as herein stated, shall begin August 1st." Within three years Scharbauer sold out his interest under the contract to De Vitt, who, with the consent of the...