Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-02-02

ana /. W. stephens. associate iusiicos,
W. l.. Hun, clerk
No. 81. Ashby II. James ct al. appel.
hnts, vs. J. II. Lamb. appellee. Ap.
peal from Wichita county.
OPINION.
In September, 1885. one William san
undertook to purchase from the stnfc
through the land board g,9 acres off
school land situated IN Wichita county.
lie applied 90 purchase &c as Agricultural
land, and obligated himself to live upou
u aS an actual settler as provided by
the law then IN force The sale 10 him
IN accordMcc with the regulations of
The land board was NOT in compliance
with the act of 1Si. and did not confer
uue upon him, among other reas1hs bp.
plieu To the state under the law then I'm
county or district where the land was
situated, ag required under TINT act.
lie also tailed TO beronc am actual sci.
TER Soc State vs. Oppcrmuu, - Texas.
lab; Martin vs.. McCury. "a Texas. t9S
IN March, 1887, he conveyed this lnud
by warranty deed To appellant. james.
VINO assumed the payment of the notes
executed by Still to- the state. Jamrs
likewise failed TO become an actual set
tier aud, In February, 1889. conveyed
the same 10y deed with covenant OF
general warranty To appellee j. II.
Lamb, and one Edwards Lamb and l.d.
wards paid James 500. cash. and exc.
cuted four negotiable promissory notes
Tor N2Hiuj, each, aud assumed the nay
meut OF the original Still notes, in con.
si'eihllon OF this conveyance froM
James. Soon after Appellee Lamb uc-
Quircd the interest of Edwards aud be-
came an actual settler upon the land
aud continued To- reside thereon
Whom the act, passed April s. 1850.
page ~ giving preference in the sale
of school land 10 the actual settler. took
erect mo was residing upon the land.
Soon thereafter he seems TO have 40.
lied TO the state under the law chen IN
force TO- purchase this land aud this was
followed by suit to recover from uI-
prllant, James, the 500. previously paid
| him, ANA To- have the notes, then i'm tbp
possession of the Pan Handle National
bank. cancelled. as grounds of recovery
he charged That Appellant james had
frludulcntly represented himself To- have
title when he had none: That Ec had boon
deceived and dcfruudcd in the trans.
action; and also alleged breach of the
covenant OF general warranty Those
allegations Of fraud were wholly uusus-
tanned by the proof aud thut issue was
not submitted 10 the jury The state
lutcrNcucd iu This suit prrsumptiyply at
! the instance of Lgmhl and obtained 20
! cancellation, Us against Appellant James,
| Jumvs of the original contract uf put-
Sull
Appellee Lamb recovered judgment
! against james for The $500, and ugniust
/ appellant bank for Dhr cancellation %,
| the notes. From that judgment this APP.
! peal IS prosecuted.
The court submitted. as the measure
| oi damages for q hrcuch of the warranty.
! the purchased money paid aud secured
! TO Appellant James, ps SCI iDylh above.
! lu his original petition, Appellee Lamb
! alleges that, u order tO protect himself
| u The Use occupation and enjoyment uf
/ the land and 90 save the improvements
| hr had placed thereon be- had boon COM
| PEELED To purchase and acquire title to
| the same lrulu the state of TcXus In
| his first supplemental petition iu reply 90
| Go the answer uI Appellant Lumps, he
| alleges that he was lu poss'Hlul ui the
| land described In his petition, holding the
| same from aud under the state OF Texas.
| and pursuant To the law of the land and
| not under the void title sold him 10y
James should respond in damages in his
| warranty.
The only assignments Of error pre-.
scented by appellants which seems 60 nv
| to be well taken rclate TO the question ol
| the measure of damages. The correct
| ness of the rule followed IN the trial be-
! low is not questioned in cases where IN,
| title has ftilcd and the purchaser has lost
| land. II seems to us, however that this
| rule rs not applicable 90 the case here
| submitted. nusuWrh as Appellee Lamb
| admits IN his plCAdlugs that hr has uc,
| Iuired q tide from the state. which WC
| understand 10 mean that hr has nc
mirpd such title as Appellant james pur
ported tu convey him We arc at the
opinion thar the loss which hc has sus
tanned, II any. In securing by pUrUhuS,
from the state such right To the land as
he would have acquired u'dcr deed from
James had the original purchase ui still
| been valid, is the true measure of hi.
damages. az compensation for This loss
| will place him ia stain quo. His pur
| pose. AIS contemplated by all parties, IN
acquiring the l,ud m the irst iustunc,
seems tu have been that he might scttl,
upon 10 aud enjoy 1t MS n home, and
| after making fun payment 10 the state
future of the title which James dee,
plpOrtcd 10 convey rendered the nc
complishmcnt Of this result more Onerou
aud expensive 70 appellee Appellant
James.
Appcllce Lamb relies upon the cases o
Wheeler vs. Styles, 2S Texas, 30, nnC
Rodgers vs. Daily, 4O Texas 5IS. a'
authority for tie supposition that WHERE
the land sold turns out To be vacant
public domain the vcndcc may resist th'
| payment of the purchase money! or ne
cover il back when paid, without sur
|
and nt the same time acquire from th,
state title 10 the vacant land. In euci
of those cases the contract of purchase
was cNecutory, there being only bone
for title and no covenant OF warranty
hence the correctness OF the rule ns thrrc
In applied Is not questioned. Where ih'
contract Is executed ANA warranty nj
title is relied upon, Ms in this case n
the absence of fraud or other circuu.
stances which would authorize a cancel
lHtion OF the contract we thllli u mus
be held that the covenant OF warranty
is a sufficient consideration Tor lh'
money aud notes executed Ia obtain I'M
warranty deed. and that the prope
remedy Is for damages for breach o
the warranty.
I'm the case of Mcclellan vs.. Moore
| ~ TcNns 3OS, there was such convey
ance and covenant; and the land sol
had been surveyed. but the certificate b
virtue of which IL had been suYeye
was not returned 20 the general lam
, | office within the time required, ana ~
4 ! survey was therefore forfeited and Oh
. | nnd became subject 10 rr-appropnutlul
Tho yopdee had ii located aud suryeye
. by virtue of a certificate belonging i
= him and subsequently obtained paieh
; for IL. In that ease the rule was al
p. nounced and applied that when 10
4, covepputcp purchases the paramount
7 title thp measure Of damages Is IN
; actual loss thereby sustained IL ls "
/. cumbent on the purchaser. m order
; recover more than nominal DAMAGES !
, prove the amount paid 10y him TO 90
. | FL. purUfunfIut title. NJ