West v. El Campo Land Co.

• Decision Date: 25 September 1895
• Citation: 32 S.W. 424
• Parties: WEST v. EL CAMPO LAND CO.<SMALL><SUP>2</SUP></SMALL>
• Court: Texas Court of Appeals

32 S.W. 424

WEST v. EL CAMPO LAND CO.²

Court of Civil Appeals of Texas.

September 25, 1895.

Appeal from district court, Bee county; S. F. Grimes, Judge.

Action by D. W. Jackson, Louis Farenthold, Fred Hilgo, and George Herder, doing business in the firm name of the El Campo Land Company, against A. J. West, to recover an amount paid by them to the state for school lands purchased from defendant, and represented by him through mistake as paid. There was judgment for plaintiffs, from which defendant appeals. Affirmed.

Glass, Callender & Carsner and Proctors, for appellant. G. G. Kelley, for appellees.

NEILL, J.

This suit was brought in the district court of Bee county on the 30th day of January, A. D. 1894, by D. W. Jackson, Louis Farenthold, Fred Hilgo, and George Herder, partners under the firm name of El Campo Land Company, against the appellant, A. J. West, upon the facts stated in our conclusions, to recover $1,195.37. The appellant specially excepted to the petition upon the ground that it showed upon its face that it was barred by the two and four years' statutes of limitations, and specially pleaded said statutes in bar of the action. The case was tried without a jury, and, after filing its conclusions of fact and of law, the court rendered judgment in plaintiffs' favor.

Conclusions of Fact.

The appellees, or their vendors, whose rights they acquired, on the 1st day of June, 1888, made and entered into an executory contract with appellant, whereby appellees, or their vendors, purchased from appellant all the land in Wharton county, Tex., known as the "West Pasture," consisting of about 25,000 acres, together with all improvements thereon, for an aggregate price of $70,000. The deeds for said land were to be executed and delivered by December 1, 1888. It was provided by said contract that the purchase money for said land was to be paid as follows: $1,000 cash at the time of the execution of said contract, $9,000 on the delivery of the deed, $10,000 in two notes of equal amount, due December 1, 1889, and one note for $50,000, payable on or before the 1st day of December, 1899, with interest on all of said notes at the rate of 8 per cent. per annum, payable annually. It was further stipulated in said contract that whatever sums of money were due or owing to the state of Texas on school lands in the pasture should be deducted from the last note, and the purchasers, were to assume the payment thereof to the state; and at the time of the execution of said contract there was estimated to be nine sections of school land in said pasture, on which there was about $6,000 due the state. In pursuance of said contract of sale, the appellant, on the 19th day of November, 1885, executed and delivered to them or their vendors a warranty deed to all the land embraced in said pasture, together with certain other lands not therein, which were included in said deed to make up the 25,000 acres agreed to be sold under said contract. At the time of making the deed it was agreed between the parties: That the amounts and dates of maturity of the deferred payments should be changed from that stipulated in the contract as follows: One note for $10,000, due December 1, 1889; one note for $10,000, due December 1, 1898; one note for $10,000, due December 1, 1898; one note for $10,000, due December 1, 1898; one note for $20,000, less the amount due the state of Texas to the 1st of December, 1888, on the nine sections of school land mentioned in said executory contract, said note to be due December 1, 1898. That the nine sections of school lands mentioned in said contract of sale, and conveyed by said deed, are as follows: No. 22, S. A. & K. G. R. R. Co.; No. 20, S. A. & M. G. R. R. Co.; No. 24, S. A. & M. G....