Odell v. the Gulf, Colorado & Santa Fe Railway Co.

STEPHENS, Associate Justice. Appellant brought this suit against appellee to recover damages resulting to him from the construction of its railway diagonally across a 15 acres block of land near the town of Cleburne, in which he claimed to own an undivided one-third interest. The court instructed the jury that the written instrument upon which appellant founded his right to the land did not vest in him any interest therein; and therefore that they should return a verdict for appellee. This instrument reads: “State of Texas, County of Johnson.—Whereas, we, M. M. Crane and W. F. Ramsey, did on the 7th day of February, 1887, purchase from Henry and Jerusha Donahoo about 15 acres (near Cleburne) of land, fully described in said deed, which is recorded in Johnson County records, volume 34, page 516, to which reference is made, at and for the sum of $670.70, as follows, $223.50 due November 15, 1887, and $223.50 due April 15, 1888, $223.50 in cash, with 12 per cent per annum interest date; and whereas it was understood that J. M. Odell was to share in said purchase, and paying his proportional share of the purchase money of said land: Now, therefore, we, M. M. Crane and W. F. Ramsey, hereby bind ourselves, on the payment to us on or before January 1, 1888, of one-third of the same as we have paid on said land or may hereafter pay, with 12 per cent interest from date of such payment, and with the understanding that he is to pay one-third of any sum to become due on said land, to deed to said J. M. Odell an undivided interest of one-third in and to said land in the said Donahoo deed described. “ Witness our hands, this March 7, 1887. “ M. M. Crane, “ W. F. Ramsey.” It was duly acknowledged and recorded, and appellee had full knowledge of whatever rights it conferred before the construction of the rail *610 way across the land. It appears that appellant furnished to Crane and Ramsey the information which led to the purchase of this land, and that the purchase was made, as indicated by this instrument, for the joint, benefit of the three. Ramsey and Crane declined to make a conveyance of the right of way to the railway company, on account of the interest of appellant in the land; but agreed to take $125 as their proportion of the damage incident to the taking of the land by the railway company, provided it would institute condemnation proceedings against them, which was accordingly done in the spring of 1887, resulting in the assessment of $125 as the damages to Crane and Ramsey’s interest only in the land. It appears that the total damage amounted to at least the sum of $200 or $250, and that the land was taken and the railway constructed about-May or June, 1887, and that appellant could have sold his interest in the land at a profit before, but not after, the railway was constructed. It also appears, that while the damage was done before the time specified in the obligation for the first payment to be made had arrived, he had not at the institution of this suit, which was after that time, made any paj^ment, as provided in said instrument; but no advantage seems to have been taken by Crane and Ramsey of this default, and it seems that they were still willing to execute a deed, as therein provided, upon his complying with the terms of the instrument. Appellant was not made a party to-the condemnation proceedings, but met the commissioners appointed to-assess the damages, and informed them of his interest in the land and that he claimed damages. We are of opinion that there was error in instructing the jury, under this state facts, to return a verdict against appellant. In treating of the subject of parties to condemnation proceedings, Mr. Lewis, in his work on Eminent Domain, section 3-19, lays down this rule: “In case of an executory contract of sale, it is generally held that the vendee is entitled to the compensation, on the ground that he is the equitable owner of the property, and that what is taken is subtracted from what he is to receive by his contract, while the vendor remains entitled to the whole amount of purchase money agreed to be paid. The better course, however, would seem to be to make both the vendor and vendee parties, and then the compensation can be paid to the one or the other, or apportioned between them, as may seem just to the court.” The following authorities cited in the note have been examined, and seem to-sustain the text: Railway v. Wilder, 17 Kans., 239; Kuhn v. Truman, 15 Kans., 423, 426; Railway v. Ingalls, 15 Neb., 123; Pinkerton v. Railway, 109 Mass., 527, also 10 Cush., 385. But Smith v. Ferris, 6 Hun, 553, tends in a different direction. It would also seem that in this State, where an express trust may be shown by paroi, appellant’s interest in the land did not depend alone upon the written obligation to convey the legal title upon his making the specified payments, but that from the date *611 of the deed previously made to Crane and Eamsey, they held in trust for him the legal title to an undivided one-third interest, subject to his compliance with the terms of the joint purchase. Black v. Caviness, 2 Texas Civ. App., 118, and cases there cited. Delivered June 14, 1893. These views lead to a reversal of the judgment. . The cause will, therefore be remanded for a new trial. Reversed and remanded. Motion for rehearing overruled September 15, 1893, by Court of Civil Appeals, Fifth District.