Doss v. Slaughter , 53 Tex. 235 ( 1880 )

Bonner, Associate Justice.

It would seem from the meagre statement of facts in this case, that it was not fully developed in the court below.

It was tried by the court without the intervention of a jury, and it does not appear upon what ground judgment was rendered for Slaughter. It is suggested by counsel, however, that it was based upon the fact that the certificate was not located by Noble in person, but that he delegated this trust to another, and that thereby his locative claim to part of the land was forfeited under the ruling in Smith v. Sublett, 28 Tex., 163.

We are of opinion that the facts did not warrant the judgment upon this ground.

That the location was entrusted to another by Noble was communicated by him to Slaughter, who not only made no objection thereto, but accepted the location, and which was a valuable one. To permit Slaughter under these circumstances to ratify the acts of Noble and accept its benefits, and yet after the lapse of so long a time, to now refuse, without any excuse shown therefor, to comply with his own part of the contract, would be contrary to sound principles of justice. Reed v. West, 47 Tex., 240.

The contract between Slaughter and Noble to locate the certificate, was one for the joint acquisition of land, which, when performed, was analogous to a joint purchase of the land thus acquired, and Slaughter held the patent which subsequently issued to him, in trust for the beneficiary under this contract. Ross v. Armstrong, 25 Tex. Sup., 366; Reed v. West, 47 Tex., 240.

As under the law the certificate could have been located in more than one survey, the contract was severable and not indivisible, and Noble was entitled to his interest in each survey, if more than one. Smith v. Crosby, 47 Tex., 121.

This suit was in trespass to try title for one survey only, by which but a part of the certificate had been appropriated, and it was not shown, by either the pleadings or evidence, what disposition had been made of the remainder. Under the case as presented by the record, the defendant Doss, as the vendee of the heirs of Noble, deceased, was entitled prima facie to the one-third locative interest of Roble in the land sued for, and which lie could have asserted under the plea of not guilty. Pasch. Dig., art. 5307.

Slaughter did not rebut this prima facie case by showing any facts which would defeat this locative interest.

As shown by the record, it was error in the court to render judgment for Slaughter for the whole of the land, for which the judgment must be reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered April 16, 1880.]