Gibbons v. Bell , 45 Tex. 417 ( 1876 )

Moore, Associate Justice.

The appellants, as the administrator and heirs of William W. Williams, deceased, brought suit, Dovember 17,1870, against the appellees, for the recovery of a tract of land described in then petition, and alleged to be a part of two thirds of a league and labor patented to Charles Carson.

The facts upon which appellants rely to maintain their title, and to recover the land for which they sue, are fully disclosed in their petition. They are in effect that, in the year 1844, said Williams made a parol contract to locate and procure a patent on said Carson’s headlight certificate for one third of the land to be thus acquired; that in pursuance of this agreement he located said certificate on the land in controversy, and procured a patent for the same, in the name of said Carson, about the 17th of November, 1845; that some time thereafter, by the mutual consent and agreement of said Carson and Williams, said land was partitioned and divided in accordance with the stipulations of the said contract, whereby two thirds thereof was set apart to the former and one third, including the land claimed by plaintiffs, was set apart and allotted to the latter; that said partition was mutually acquiesced in and acted upon by said parties, and always recognized and respected by said Carson from the time it was made until his death, who, however, died, without having executed to said Williams a deed for the land so partitioned to Mm; that said partition had also been acquiesced in and respected by the heirs and representatives of said Carson from Ms death, prior to September 15, 1869, when they executed a deed to the defendant, Jesse W. Bell, for all then* interest in said two tMrds of a league and labor of land; that said Bell, since that time, has committed acts of trespass, &c. Upon the facts alleged in then petition, of which we have attempted merely a brief summary, the plaintiffs pray for judgment, divesting all legal title remaining in the heirs and assigns of said Carson to the land set apart by said partition to said Williams, and vesting the same in the plaintiffs; that the deed to said Bell and the other defendants, so far as they affect said land claimed by the plaintiffs, be declared nullities, set aside, and held for naught, and that all clouds upon their title be removed, and that they have judgment for said land and for damages as alleged.

The defendants demurred to the petition, and assigned a number of different grounds of special exceptions, only one of which, however, seems to have been regarded by the court as well taken. As it distinctly appears from the record that the judgment on the demurrer was based entirely on the exception that “plaintiff’s claim is a stale demand, more than ten years having elapsed from the time the same accrued,” a brief consideration of the rights of the parties under the contract between Williams and Carson, and the relation in which they stood to each other after the issuance of the patent under which the land is held, will show, we think, that the ruling of the court on this exception is erroneous.

A contract by which parties agree to acquire land together, one furnishing the certificate, and the other the labor and expense of surveying and patenting it, is not a contract for the purchase and sale of land by one to the other, but, as has been frequently held by this court, it is an agreement by which they are to acquire the land jointly. (Smock v. Tandy, 28 Tex., 132; Miller v. Roberts, 18 Tex., 19; Evans v. Hardeman, 15 Tex., 480; Watkins v. Gilkerson, 10 Tex., 340.) And when land has been thus jointly acquired, that it may, if the owners see fit, be partitioned by parol, cannot be questioned. (Stuart v. Baker, 17 Tex., 417; Houston v. Sneed, 15 Tex., 307.) When the patent is obtained, the contract is consummated and completed. The party in whom the title is vested holds it in trust for his co-tenant to the extent of Ms interest. The obligations imposed by them contract having been performed by the party locating the certificate, the legal title is a bare, naked trust in the patentee, held in subordination to the superior equitable rights of the locator to the extent of Ms undivided interest before partition, and for the specific part allotted to Mm afterwards. (Hemming v. Zimmerschitte, 4 Tex., 159; De Cordova v. Smith, 9 Tex., 129.) The fact that the contract vests in parol may occasion difficulty and embarrassment in establisMng it, if it should be controverted or denied, but will in no way change or vary its nature or effect, if fully and satisfactorily established. The equitable title of the locator, who has fulfilled all stipulations on Ms part, is similar to that of a vendee under a bond for title when the entire purchase-money- has been paid. The vendor in such case is a trustee, without interest, for the vendee, and the trust relation continues unless plainly repudiated, or there is some intention shown by the vendor to claim or hold the land adversely to the vendee. (Id.) And even when a court of eqmty might refuse to entertain a bill to divest the legal title out of the trustee, it would-not permit it to be used as a sword to destroy the superior equitable title to which it was previously held in subordination. From the petition, it appears that nothing occurred tending in any way toward a repudiation or denial of the trust until the sale to Bell by the heirs of Carson of their interest in the tract of land patented to their father, if their deed justly admits of this construction, which was only a little more than a year before suit was brought. Under these circumstances, if plaintiffs’ right to a judgment for the land and damages for the trespasses upon it can be denied, it is not because they are concluded by the allegation of their petition, but by reason of their inability to establish then rights in accordance with the principles and rules of law applicable to such a case on a trial before the J7-

The other exceptions to the petition have not been discussed by counsel, and as none of them seem to go to the merits of the action, we do not feel called upon to give them a critical examination.

The judgment is reversed and the cause remanded.

Reversed and remanded.