Bledsoe v. Sumner

LEVY, J. (after stating the facts as above). [1] By the first assignment appellant complains that the court erred, as to his findings of fact, in “not more fully setting forth therein that J. C. Sumner lived at all times prior to and on the 17th of February, 1898, and continuously since that time, in and near Vernon, 14 ■ miles from the land the notes were given in payment for.” As this particular fact is undisputed and was manifestly considered by the court in arriving at his conclusion, it will be regarded as a part of the established evidence, and no error can be predicated on the assignment. [2] The second assignment is that “the court erred in its conclusion of law and in its judgment in holding defendant liable to pay plaintiff any part of the purchase money for said S. E. %, section 10, involved in this suit, because the plaintiff had not the right to sell same to defendant, Bledsoe.” We understand by the terms of the assignment, “any part of the purchase money,” that appellant means to maleé the contention that under the findings it should be here held that the notes sued on were as a matter of law wholly without any consideration to support the same, because they were given for the purchase of the land itself, and that appellee, as vendor, had no valid right to or interest in the land which could pass or vest in the appellant, the vendee. The assignment assumes that the court found as a fact, and based his conclusion of law upon such fact, that the sole consideration supporting the promise to pay the notes was the land itself. It does not appear in the record that the court made the finding that the notes were given only for the land itself nor does it appear that the court made the finding that any part of the amount of the notes was given for the land itself. The court’s conclusion of law, based upon all the testimony as to the contract of sale, was that there was a valid and sufficient consideration shown for the notes, and that there was no failure of consideration for the notes. The terms of the contract of sale were, it appears, an entirety and not severable. The court made the general finding of fact that appellant executed the notes sued on, and that appellee madé a conveyance of the land to appellant and retained a lien to secure the payment of same. The court finds as entering the contract, and as going to make up the amount of the notes, and as benefits and value passing from ap-pellee to appellant, $250 in borrowed money, about $600 worth of improvements on, the land, the patent and filing fees paid the state by appellee, the full award price of the land, and the interest already paid the state by appellee, immediate possession of the inclosed land, and appellee’s immediate abandonment of possession and such claim as he had to appellant. If such were the consideration for which the notes were given and all this was in the minds of the parties, and that is the finding, then it could not be sa-id that the court was holding or finding that the notes were given only for the purchase of the land itself. It manifestly appears that the court was finding, and so concluded, that there was sufficient consideration to support the promise to pay the full amount of the notes, independent of the land itself. And if the notes were given for such consideration, and that is the finding of the court, then it could not be said as a matter of law that they did not amount to any ‘ consideration. The question of inadequacy or fraud is not made, and is aside. And so, under the finding, assuming that appellee had no valid right to or interest in the land itself, there still would be a sufficient consideration appearing in the facts to support the promise to pay the notes. There was no total failure of consideration. As the consideration for the notes was not solely the land itself, and the court so concluded, the point raised by the assignment that there was error as a matter of law in allowing a recovery for any part of the notes, fails, and must be overlooked. [3] If, however, it was intended by the assignment to present the point that the evidence conclusively shows that a part of the consideration for the notes was the land itself, the purchase of which by appel-lee from the state was void ab initio, and that, therefore, the court erred in not holding that there was a partial failure of the consideration for the notes, then it must necessarily bp answered that if that fact be true, and an amount in particular should be *840 so allowed, appellant neither alleged nor proved the amount nor the value that should be allowed in such abatement. . Assuming the fact to be true, we cernid not calculate the actual moneyed consideration passing, which was tendered into court, and then deduct it from the total of the notes, and say the difference between it and the amount of the notes represented what in fact was for the land itself; for, according to the findings, the abandonment at once of possession and claim by appellee to the land entered the consideration as well and such was of value. But how much the parties valued such possession and surrender of claim is not computed nor reduced to dollars and cents by the record, and we cannot assume that it was of little or merely nominal value to them. It rather appears that the possession and claim surrendered toy appellee were of value and aided appellant in getting a patdnt, for, according to the record, the patent was to appellant as assignee of appellee. [4] The abandonment of such possession and claim to the land, though subject to forfeiture, would of itself be a sufficient consideration to support a promise to pay a note given to induce such abandonment. And, if this was a part of the consideration, besides the moneyed worth tendered in court, entering the notes, as is the finding, and it being a thing of value and benefit passing to appellant, it could not be said as a matter of law that it so far represented the land itself as to constitute a partial failure or want of consideration on the ground that appellee’s claim to the land was void. Appellee’s claim to the land might have been void, and his occupancy might have been no aid to appellant in acquiring a patent by occupancy; still the possession and claim then surrendered by appellee was of value and served the purpose of the parties, and served of benefit to appellant by permitting his immediate occupancy to commence. No question of fraud arises ot appears. As to whether a vendor’s lien could be said to exist and be enforceable against land subsequently acquired by occupancy is not presented or raised by the assignment. The assignment specifically limits consideration here to the sufficiency of the consideration, and not adequacy, for the notes to support a personal judgment on the notes. As the court did not base his conclusion that there was a sufficient consideration to support the notes upon any finding that the notes were given solely for the land itself, the ruling in Schwarz v. McCall, 94 Tex. 10, 57 S. W. 81, and in the other cases cited of like import, has no application to the point here made by the assignment. [5] The third assignment is that “the court erred in holding that defendant, Bledsoe, should be compelled to pay to Sumner the illegal ‘bonus’ embraced in the notes in suit, for the main reason that Sumner was not entitled to such bonus, and it is simply extortion to compel payment of same after defendant had tendered in court to Sumner all the money Sumner had paid to the state for the land. This was all 'Sumner was entitled to, and he should have been required to take this money tendered him, and Bledsoe should have been released from further liability on the notes in suit.” There is no finding by the court, nor does the evidence show, that the notes were given in whole or in part as a “bonus” distinctively as such. If it was intended by the assignment to present the point' that the evidence conclusively shows that a part of the consideration for the notes was in fact for the land itself, the purchase of which by Sumner from the state was void ab initio, and that, therefore, the court, erred in not holding that there was a partial failure of the consideration for the notes,, then it must necessarily be answered, as in the preceding assignment, that, if the fact be-true and an amount should be so allowed,, appellant neither alleged nor proved the-amount nor the value that should be allowed in such abatement. According to the findings, there were several things of value and benefit passing as the consideration for the notes, and the court’s conclusion that there-was a valid and sufficient consideration for-the notes was not based solely or in part on the land itself. And if the evidence should' so show, as contended, the value or amount of the deduction was not so placed before the court as to enable him, or this court, to give-such relief. And from the record it does-not appear a fundamental error. The case was ordered affirmed.