Hudman v. Henderson , 58 Tex. Civ. App. 358 ( 1910 )

W. F. Hudman sued R. A. Henderson and M. M. Redwine to enforce specific performance of the following contract:

"The State of Texas,

County of Lynn.

"This agreement this day entered into between R. A. Henderson, party of the first part, and W. F. Hudman, party of the second part, witnesseth: That said party of the first part for and in consideration of the following described property to wit:

"One bay horse about 14 1/2 hands high, nine years old and unbranded.

"Also one bay horse about 14 1/2 hands high, four years old and branded X on left thigh.

"Also two sorrel horses, one four and one five years old, branded R. F. on left shoulder.

"Also four buggies, one Perry buggy been in use about thirteen months, and three new Banner buggies.

"Two new sets of single buggy harness and one set of old single buggy harness and one set of new double harness. Said property of the reasonable market value of three hundred and twenty dollars. Said property this day sold and delivered by the party of the second part to the said party of the first part herein.

"The said party of the first part agrees to make, execute and deliver to the party of the second part a good and sufficient deed to a certain section of State school land in Lynn County, Texas, after a certain suit which is now pending involving the title to said land shall have been terminated in favor of the party of the first part herein. Said land described as follows, to wit: Being all of State school section No. 448, cert. No. 446 in block No. 1, E. L. R. R. R. R. Co. Said land of a reasonable market value of three hundred and twenty dollars.

"It is further agreed and understood by and between the parties herein mentioned that if the said party of the first part herein shall fail or refuse from any cause to execute and deliver said deed to said party of the second part then and in that event the party of the first part shall deliver to the party of the second part said property herein conveyed by him, and in the event of his failure or inability to deliver said property then the party of the first part shall pay to the party of the second part the reasonable market value of said property.

"It is further agreed and understood between and by the parties to this contract that the party of the second part agrees to pay off and discharge any and all indebtedness that may be against said property herein conveyed, and to warrant and defend the title to the same against any and all encumbrances, liens and claims whatsoever.

"In testimony whereof we have hereunto set our hands and seals this 5th day of September, 1903.

"R. A. Henderson, party of the first part. "W. F. Hudman, party of the second part."

M. M. Redwine pleaded specially that he was a purchaser of the land in good faith from Henderson, paying therefor a valuable consideration; and furthermore, that the contract sought to be enforced was void in being in contravention of public policy, the land being State school land. The court, before whom the case was tried, denied plaintiff a recovery of the land, but gave him judgment against Henderson for its agreed value, and the plaintiff has appealed.

In the view we take of the case, an examination of the instrument of conveyance under which Redwine claims is fatal to his right to recover the land. The deed is as follows:

"The State of Texas, County of Lynn.

Know all Men by These Presents, That I, R. A. Henderson, of the county of Lynn and State of Texas, for and in consideration of the sum of five hundred dollars ($500), and other considerations to me in hand paid by M. M. Redwine, of the county of Lynn and State of Texas, the receipt of which is hereby acknowledged, do by these presents bargain, sell, release and forever quitclaim unto the said M. M. Redwine, his heirs and assigns, all of my right, title and interest in and to that certain tract or parcel of land lying in the county of Lynn, and State of Texas, described as follows, to wit:

"All of section (102) one hundred and two, block 1, cert. 113, D. W. R. R. Co., and all of section (448) four hundred and forty-eight, block 1, cert. 446, E. L. R. R. Co.

"Said land sold and awarded by the Comr. of the Genl. Land Office to Jno. Green, October 1, 1902, at $2.00 per acre and transferred by Jno. Green to R. A. Henderson, July 31, 1903.

"To have and to hold the said premises together with all and singular the rights, privileges and appurtenances thereto in any manner belonging unto the said M. M. Redwine, his heirs and assigns forever so that neither I, the said R. A. Henderson, nor my heirs, nor any person or persons claiming under me shall at any time hereafter have, claim or demand any right or title to the aforesaid premises or appurtenances or any part thereof. Witness my hand at Tahoka, this 9th day of January, A.D. 1905. (Signed) R. A. Henderson."

That this instrument is not a conveyance of the land but merely of the grantor's right, title and interest, or in other words the mere chance of title, is settled by the cases of Hunter v. Eastham, 95 Tex. 648; National Oil and Pipe Line Co. v. Teel, 95 Tex. 586, and Slaughter v. Coke County, 34 Texas Civ. App. 598[34 Tex. Civ. App. 598]. And it is useless to cite authorities for the proposition that one can not claim to be an innocent purchaser for value under such a conveyance.

We know of nothing in our school land law, either statutory or otherwise, that would prohibit a contract such as that entered into between appellant and Henderson. If the proper interpretation of this contract is that Henderson should continue to occupy the land for the prescribed time and make the necessary proof of occupancy, then the transaction finds authority in the case of Witcher v. Wiles, 33 Texas Civ. App. 69[33 Tex. Civ. App. 69] (75 S.W. 889), where the awardee of State school land made a bond for title agreeing to convey the land two years and ten months from date, or after proof of three years' occupancy had been made by him. The validity of this instrument was attacked by another, who desired to purchase the land and had made application for it, but the transaction was sustained both in this court and in the Supreme Court by the refusal of a writ of error. On the other hand, if the proper interpretation is that Hudman contemplated a substitution of himself as purchaser when the Sprott-Henderson suit had been terminated, then clearly the same is authorized by our statute regulating the sales of school land.

We find it unnecessary to determine what effect should be given to the conduct of Redwine in paying a part of the purchase money to Henderson after notice of appellant's rights. The judgment of the District Court is reversed as to the title to the land in controversy and judgment is here rendered in appellant's favor, but the cause will be remanded for trial between appellant and appellee Redwine on the issue of improvements made in good faith. Reversed and rendered in part and remanded in part.

OPINION ON APPELLEE REDWINE'S MOTION ASKING LEAVE TO FILE A SECOND MOTION FOR REHEARING. On October 30, 1909, the judgment in this cause was reversed and the judgment rendered in favor of appellant Hudman. Thereafter, on December 4th, appellees' motion for a rehearing was overruled, and we now have presented to us the prayer of appellee Redwine for leave to file a second motion for rehearing, raising what he denominates a fundamental error apparent on the face of the record which was overlooked by us on the former hearings. The point made is this: In the contract between Henderson and Hudman, specific performance of which was decreed by our original opinion, the following stipulation occurs: "It is further agreed and understood by and between the parties herein mentioned that if the said party of the first part herein shall fail or refuse from any cause to execute and deliver said deed to said party of the second part, then and in that event the party of the first part shall deliver to the party of the second part said property herein conveyed by him, and in the event of his failure or inability to deliver said property then the party of the first part shall pay to the party of the second part the reasonable market value of said property." The insistence is that by virtue of this stipulation, Henderson expressly reserved the right to refuse to carry out the contract to convey the land, in which event the extent of his liability would be for the reasonable market value of the property conveyed to him, which it was agreed was three hundred and twenty dollars. The case of Durst v. Swift,11 Tex. 273, is urged as being decisive of the question. Without entering into a lengthy review of that decision we think it is sufficient to call attention to the fact that the Supreme Court in that case held the contract to be one "for the conveyance of five and one-half leagues of land lying in certain named counties, but not by any defined or certain boundaries or local description. It is, in other words, a contract to make title to so much land generally, but not to any particular tract of land so described as to be capable of being identified and made the subject of a suit for specific performance. And in case of the failure of the defendant to comply with the undertaking to make the titles within the time specified it is stipulated that he shall in lieu thereof pay to the obligee, his heirs and assigns, a certain specified sum of money. It is therefore a contract for the payment of money, not absolutely but conditionally in the event of failure to make title."

The present case is more analogous to and should be ruled by the decision of our Supreme Court in Moss Raley v. Wren,102 Tex. 567. Mr. Chief Justice Gaines there says: "We have numerous decisions holding that although there is a stipulation in the contract of this character (for) payment of a fixed sum of money as liquidated damages, does not affect the contract for sale of the land, but that the seller can enforce specific performance," and the authorities are cited in that case. A rehearing was subsequently granted (102 Tex. 569), but this principle was reaffirmed. The stipulation of the contract above quoted is obviously intended only as an agreement on the part of Henderson to return the consideration in the event he should fail or refuse to convey the land covered by the contract. The primary and principal purpose of the parties was the sale and purchase of the land, and not an undertaking on the part of Henderson to pay any sum of money whatever.

Appellees' motion for leave to file a second motion for rehearing is therefore refused.

Reversed and rendered in part, and remanded in part.