This case is elaborately set out in the able opinion of Mr. Justice Jenkins of the Court of Civil Appeals, and is fully discussed therein. Findlay et al. v. State, 238 S.W. 956. We will limit our discussion to those considerations and issues that essentially control the case.
A comprehensive statement of the facts of the case is of controlling importance, and in order that our holdings may be clearly understood we quote the following from the opinion of the Court of Civil Appeals:
"The state of Texas brought suit No. 36183, in the district court against George Findlay, Francis C. Farwell, and Hobart C. Chatfield-Taylor, to recover an alleged excess in a great number of surveys in a number of counties in the Panhandle of Texas, which were patented to Abner Taylor, in payment for the building of the present state capitol. The allegation in this regard is that by mutual mistake excesses were included in said surveys aggregating 55,116 acres, and that the State is the owner of an undivided interest in the entire tract to the extent of said excess, and entitled to possession of same; that Taylor and his assignees have conveyed a large portion of said land, but that the said Findlay, Farwell, and Chatfield-Taylor still hold the legal title to about 600,000 acres of same as trustees, out of which the State seeks to have the portion to which it is entitled set apart to it. Numerous issues of law are raised by the pleadings. The State also brought two separate suits against some of the appellants herein, to recover alleged vacancies between certain of the capitol league surveys. All of those suits were consolidated, and tried before the court without a jury, with the result that judgment was rendered for the State, both upon the issue of title involved in the first suit and upon the issue of boundary involved in the other suits. All of the defendants have appealed. *Page 40
"We think it will avoid confusion, if we treat the issue of title involved in the partition suit and that of boundary in the other suits separately.
"The court filed its findings of fact, which we think, for the most part at least, are sustained by the evidence. They cover 5 pages, which are not unduly long, in view of the fact that the statement of facts, besides the numerous maps, covers 1,194 pages. However, with the view of stating them in their logical order, we make, as to the partition suit, the following
"Findings of Fact. "(1) The Constitution of 1876 contained the following clause:
"`Three million acres of the public domain are hereby appropriated and set apart for the purpose of erecting a new state capitol and other necessary public buildings at the seat of government, said lands to be sold under the direction of the Legislature; and the Legislature shall pass suitable laws to carry this section into effect.' Art. 16, sec. 57.
"(2) In obedience to this command of the Constitution, the Legislature, on February 20, 1879 (Gammel's Laws, vol. 8, pp. 1309, 1310), passed an act which set apart for the purpose of erecting the capitol all of the vacant land in a number of counties in the Panhandle of Texas; created a board to have the same surveyed into league surveys to the amount of 3,050,000 acres, not to include in such surveys any land not fit for agriculture or grazing purposes, after which the remaining lands in said counties should cease to be subject to the reservation created by the act. The 50,000 acres were to be sold, one-half of the proceeds to go to the school fund, and the other half to the payment of expenses in surveying the land.
"(3) On April 18, 1879 (Gammel's Laws, vol. 8, pp. 1412, 1414), the Legislature passed an act creating a board of commissioners, to let the contract to build the capitol, to the bidder who would agree to build the same `for the smallest amount of the said public domain so set aside' for building the capitol, and appropriating the 3,000,000 acres to be surveyed, or so much thereof as might be necessary to that purpose.
"(4) On June 28, 1879, the Capitol Commissioners made a contract with J.T. Munson to survey in league surveys 3,050,000 acres of land in said reservation.
"(5) On January 28, 1881, the Commissioner appointed to supervise the surveying, reported that the same had been completed, showing in detail what lands had been surveyed, and that the field notes had been returned to the Land Office.
"(6) The Commissioners advertised for bids for building the capitol. On December 31, 1881, Mattheas Schnell submitted a proposition `to build the New Capitol Building, according to plans and *Page 41 specifications, for 3,000,000 acres of land, as designated in your notice to contractors, dated July 1, 1881.' This bid was accepted by the Commissioners, January 10, 1882.
"(7) The contract provided that the contractor should receive title to the lands as the work progressed, beginning with league No. 1, and taken in numerical order.
"(8) On January 31, 1882, Schnell assigned three-fourths of his contract to C.B. Farwell, John V. Farwell, Abner Taylor, and A.C. Babcock, and on May 9th the remainder of said contract was assigned to said parties by Schnell. On June 30, 1882, Babcock and the Farwells assigned their interest in the contract to Abner Taylor.
"(9) The state accepted Taylor as the contractor instead of Schnell, and the Farwells and Babcock signed his bond as securities, for the faithful performance of said contract.
"(10) On April 16, 1888, the Capitol Board adopted a resolution to the effect that, whereas, the Commissioner of the Land Office had reported that errors had been discovered in the survey of the capitol reserve lands, and that by agreement with the contractor a partial resurvey had been made by W.S. Mabry, from which it appeared that about 16,000 acres of said survey were in New Mexico, and that excess in some of the league surveys had been discovered sufficient to make up for the land lost by reason of the conflict with New Mexico, therefore the corrected field notes as made by Mabry were adopted; that the excess discovered in some of the leagues had been taken out, and the said leagues had been reduced to their proper size, and the excess from same placed in new league surveys, numbered 333 1/2, 345 1/2, and 357 1/2, to be awarded to the contractor in lieu of the lands in New Mexico; and that the supplemental contract of January 11, 1887, with reference to this matter, was ratified.
"(11) Certificates were issued to the contractor from time to time, as the work progressed, showing that he had earned, and was entitled to have patented the number of acres mentioned in such certificates, beginning with Survey No. 1. Prior to June 1, 1885, such certificates had been issued, aggregating 199,260 acres. Other certificates were issued from time to time amounting in the aggregate to 3,000,000 acres. Patents were issued to Taylor for this amount of land.
"(12) On August 25, 1888, the Capitol Commissioners certified that the capitol had been completed according to contract.
"(13) On or about June 1, 1885, Abner Taylor contracted to convey all of the lands earned and to be earned by him under his contract to the Capitol Freehold Land Investment Company, Limited, then in process of organization in Great Britain, in consideration of stocks and debentures of said company.
"(14) In compliance with said contract, Taylor, joined by C.B. and J.V. Farwell, conveyed said lands to trustees, who were *Page 42 authorized to sell any or all of said lands to pay the debentures issued by said company, and thereafter to convey the remainer to said company. Prior to this Babcock had conveyed his interest to the Farwells.
"(15) Said original trustees conveyed portions of said land to various parties, and, after paying off said debentures, conveyed the remainder of said lands to the said company, hereinafter referred to as the Capitol Company.
"(16) The Capitol Company sold to various parties portions of said land, and, on June 4, 1915, conveyed the remainder thereof to George Findlay, Francis C. Farwell, and Hobart C. Chatfield-Taylor, appellants, in trust for the purpose of selling said lands and liquidating the affairs of said corporation, then in process of dissolution, and which has been dissolved as provided by the laws of Great Britain. But said trustees are still in possession of the unsold portion of said lands, amounting to about 600,000 acres, being the land described in Schedule X of appellees' petition.
"(17) There is an excess in the lands patented to Taylor of 55,089 acres, arising from the fact that many of said surveys, as found to exist upon the ground, contain excesses. These excesses are not confined to any one survey, or to any one county, but exist with tolerable uniformity throughout all of the surveys.
"(18) It was the purpose of the State to convey, and of the contractor to receive, full 3,000,000 acres of land for constructing the state capitol, and no more. Both the state and the contractor believed, when the patents were issued, that such patents conveyed the number of acres called for therein, and no more. That said patents do in fact contain more land than is shown upon their faces, arising from a mutual mistake on the part of both parties to the contract.
"(19) The State, by bringing this suit, and by the allegations in its petition, has elected to ratify the sales of the portions of said lands which have been sold, as set forth in the foregoing findings of fact, and to claim its undivided interest in the lands now held by the trustees, Findlay et al.
"(20) The lands now in the possession of the trustees are more than sufficient to satisfy the claim of the State to the excess, if any, to which it is entitled, and are susceptible of an equitable partition being made of the same between the State and said trustees."
The Court of Civil Appeals in its opinion on rehearing held that there were no vacancies; that it was intended that the surveys should join, and that the land sued for by the State as vacancies is only excess and should be added to the other excess found and judgment rendered against plaintiffs in error therefor, thus making the total excess 59,281 acres. *Page 43
At the outset, the issue first to be determined is the identity of parties, i.e., the privity of estate between Abner Taylor and plaintiffs in error to all the leagues of land, and that plaintiffs in error are privy in interest and title thereto with Taylor. The trial court and the Court of Civil Appeals found as a fact, from the testimony, that Abner Taylor received all the leagues from the State under his contract, for the benefit and ownership of the Capitol Freehold Land Investment Company, Ltd.; that the lands were conveyed by Abner Taylor to trustees of said company; that as the lands were sold the debentures were paid off, and thereafter the land remaining was conveyed to said company; that said company succeeded to all rights of Taylor therein, by virtue of the contract, and performance thereof, between Taylor and said Capitol Company; that the plaintiffs in error are the legal representatives of the company, and that said Capitol Company received all the lands conveyed by the State for building the capitol, and that it and the said plaintiffs in error stand in the position of Abner Taylor himself regarding all of said leagues.
These findings are supported and confirmed by the findings of fact of the Court of Civil Appeals. Indeed, it is not contended by plaintiffs in error that these findings of fact have no evidence to support them. Such findings supported by evidence are conclusive upon this court. The fact that the Capitol Company was created for the purpose of acquiring these lands, and through a series of years of selling them, and the fact that some of its original stockholders are dead, and there have been changes in the ownership of its stock, can not affects its legal status in relation to the excess contained and its restoration through partition. (Findlay v. State, supra, pp. 962, 963).
In support of their claim of right to keep the excess, plaintiffs in error assert that the State contracted to give Abner Taylor for building the capitol building all the leagues of land surveyed, as a "whole tract", and that, therefore, he became entitled to all the acres contained therein; and they assert, further that if the contract was limited to 3,000,000 acres, and they are not entitled to retain the excess as a matter of right, then, and in that event, they are entitled to keep the excess contained in all the leagues, the whole tract, by paying for it at the value per acre at the date of the contract. The facts and the contract itself dispose of these contentions against plaintiffs in error.
There was other unappropriated land besides these leagues, — much more vacant State land. It is not that the State had a tract of land thought to contain 3,000,000 acres, but that out of its public domain it contracted to convey 3,000,000 acres. The State merely undertook to measure off from the general body of its land 3,000,000 acres. Three million acres was the subject of contract between the parties *Page 44 for building the State House. In measuring the 3,000,000 acres mistakes aggregating 59,281 acres were made; but the contracting parties were dealing with the leagues surveyed as containing only 3,000,000 acres.
The Constitution set aside 3,000,000 acres for the purpose of building a new State Capitol. Art. 16, Sec. 57. This was a limitation upon the authority of the Legislature to grant more than 3,000,000 acres of the public domain for the purpose of erecting a new State Capitol, and upon those acting under such authority from giving or receiving more than that stipulated amount. The Legislature provided for conveying 3,000,000 acres, or so much thereof as might be necessary for that purpose. The parties contracted for 3,000,000 acres for building the capitol. The parties while in the performance of the contract construed it to mean 3,000,000 acres, no more and no less, and had a shortage corrected based upon that construction. The State showed a readiness to make good a deficiency of acreage to the amount of 16,000 acres, due to mistake of the surveyor in running over into New Mexico, and did make good the shortage, out of excess discovered in some of the leagues, and the parties to the contract reiterated their intention that 3,000,000 acres should be conveyed, and by supplemental contract stipulated that it was intended that no more than 3,000,000 acres should be conveyed. (Findley v. State, supra, p. 961). Thus the parties themselves construed the contract. The conveyance was for 3,000,000 acres, and now an excess being developed, the State is entitled to recover same through partition.
Plaintiffs in error insist that Abner Taylor and the Capitol Company acquired under the contract "complete and perfect title" to the first 3,000,000 acres patented down to what they term the 3,000,000 line, beginning, according to the contract, with League No. 1.; that the State upon delivering patents to Taylor to leagues and to land up to 3,000,000 acres including excess thereby ceased to have any interest in such lands whatsoever, the title being absolute under the contract; and therefore the State can not maintain its suit for any excess land so included; that if it has any remedy at all, it must be applied to those lands and leagues patented to Taylor after said three million mark, including excess, had been reached; that upon any theory the contract by express direction covenanted to give perfect title to all of the northern and middle parcels of the general tract, those parcels admittedly not containing 3,000,000 acres; and, therefore, that the excess accrued in the third or south parcel of the general tract, and that the State must recover its excess, if it recovers any, from said last parcel below the 3,000,000 acres first conveyed. (The land now owned and held by plaintiffs in error, and out of which partition is sought by the State, lies in the northern *Page 45 and middle parcels, and is not contained in the said last or south parcel).
This is a severely strained theory at best. It is true that Abner Taylor under the contract was to receive title to the land as the work progressed, beginning with League No. 1 on the north border of the State, and that they should be taken in numerical order. But this selfsame contract contemplated that all the leagues, containing 3,000,000 acres, should be so taken when earned. It was mutually thought by the parties that all the leagues contained 3,000,000 acres, and that they contained only 3,000,000. Thus Abner Taylor became entitled to have patented to him all the leagues as containing 3,000,000 acres, and this was done. But these leagues actually contained more than 3,000,000, in the substantial amount of 59,281 acres. The mistake of acreage applied to all the leagues, and the excess was scattered through them all.
Upon the completion of the building, Taylor had the right to have all the leagues conveyed to him. In doing this he was receiving what was stipulated in his contract as 3,000,000 acres. The issuing of the patent to the last league was just as much a performance of the contract as was the issuance of the patent to the first one. And yet he received too much land. The mistake in the acreage of the first league patented was as much a part of the total excess as that in the last league. We must view the performance of the contract as a whole. But this does not alter the fact that the contract was limited to 3,000,000.
All the leagues having been patented to Abner Taylor for the benefit of the Capitol Company, and plaintiffs in error as its representatives having come into possession of and received all the leagues, with the excess, they are chargeable with the excess contained in all the leagues.
Plaintiffs in error follow their argument upon this theory with the statement that, "When the State made its resurvey and brought suit, none of the original tract was held either by the original patentee or his descendants. All that was embraced in the Capitol Reservation had been conveyed to many grantees, and was the subject of many individual ownerships. The defendants in the suit owned a part of it, but they neither owned, nor had ever owned, any of the land below the 3,000,000-acre line. Their land was entirely within that which was concededly embraced within the 3,000,000 acres which the State was expressly obligated to convey and to which it covenanted to give `complete and perfect title'."
There can be no difference of opinion as to the correctness of the proposition of plaintiffs in error that, "There is no right to partition where there is no common ownership. There can be no partition of a tract of land where the parcels making up the tract are separately *Page 46 owned. The object of partition is to put an end to a common ownership. . . . Partition is applicable only to a common ownership where each has a partial title to every part of the land. It, therefore, has no application to a case where the separate parcels are separately owned."
If the premise of plaintiffs in error were true, this would be persuasive. But the facts are, as concluded by the findings of fact of the trial court and the Court of Civil Appeals, that plaintiffs in error are in legal effect the Capitol Company, for whom Abner Taylor received patents to all the leagues, and thus they received patents to all the leagues and came into possession of all the land patented. Plaintiffs in error make no contention that there is no evidence to support the findings of fact in this respect by the trial court and the Court of Civil Appeals. They conveyed this very land below what they term the "3,000,000 acre line" to their vendees.
The Capitol Company having received the excess, and as they still have it through their representatives, plaintiffs in error, it violated no principle of equity, but is in accord with the principles of right and justice, for the State to have partition against it for the excess out of land still in its hands, and not disturb those parties to whom it has sold parts of the land.
Where parties are joint owners of several tracts of land, and one of them sells off some of them, the court would be authorized to partition to him such parts so sold, if it could be equitably done, and thus protect his vendees in their title and possession; or, as stated in the syllabus to New York T. Land Co., Ltd. v. Hyland et al., 8 Texas Civ. App. 601[8 Tex. Civ. App. 601],28 S.W. 206, "Where one tenant in common conveys a certain portion of the common property by description, the other may, by ratifying the sale, charge the former with the proceeds of the sale, and, without making the vendees parties to the action, sue for a partition of the remainder."
Certainly the co-tenant so conveying could not be heard to complain. This is so clearly equitable and right, and is so well settled in law, that it is unnecessary to do more than state it. Campbell v. Campbell, 145 S.W. 638; Byrn et al. v. Kelas, 15 Texas Civ. App. 205[15 Tex. Civ. App. 205], 39 S.W. 980; Moonshine Co. et al. v. Dunman et al., 51 S.W. 159,111 S.W. 161; Hanrick v. Gurley, 93 Tex. 458; Peak v. Swindle, 68 Tex. 242, 4 S.W. 478; Arnold v. Cauble, 49 Tex. 527; March v. Huyter,50 Tex. 243; Beale's Heirs v. Johnson, 45 Texas Civ. App. 119[45 Tex. Civ. App. 119], 99 S.W. 1045; Broom v. Pearson, 180 S.W. 895.
In the case of Peak v. Swindle, supra, the application of this rule in that case was expressed by Justice Stayton in the following language: *Page 47
"The general rule, that a sale by one tenant in common of a distinct part of a larger tract of land will be protected, and the part so sold set apart to the vendor when it does not exceed the share to which the co-tenant vendor was entitled, ought to be enforced in this case, if under the general rules applicable to such cases this can be done without prejudice to other persons. This is the only manner in which the equities existing between the parties can be fairly adjusted."
It is equitable and right that the various persons who have, in good faith, purchased from the Company, be protected in their purchases.
To entitle plaintiffs in error to the right to purchase the excess under their contract with the State, it would be necessary to find that their contract was for a "whole tract" as such, rather than for a specific number of acres out of the public domain. This the record does not support.
The essential difference in the purchase or acquisition of land in this case by plaintiffs in error and that shown in the case of Willoughby v. Long, 96 Tex. 194, 71 S.W. 545, is that in the latter case the vendee sought to buy and contracted to buy a certain section of land, Sec. No. 23, the sale being the entire section at so much per acre; while in this case the contract for the acquisition of the land was for a certain specific number of acres, and not by the league or for a number of leagues, nor for a group of leagues as embracing a whole tract.
There was a lack of contractual obligation on the part of the State to sell and convey to Abner Taylor any excess. The extent of its obligation was to convey 3,000,000 acres. This it performed, and the fact that mistakes were made in surveying out the 3,000,000 acres, involving many thousand acres in excess of the amount contracted for, does not add to the contractual rights of plaintiffs in error.
The ruling in Willoughby v. Long was based upon the intention of the parties, "that the intention was to purchase the whole survey, and that the sale was a sale of the entire tract." Page 197.
Here, it is clear, we think, the contract for the building of the capitol building was not that the builder should take the group of leagues as an entire tract, regardless of whether they contained 3,000,000 acres, but that he was to receive 3,000,000. As shown, this was the construction put upon the contract by the parties.
Abner Taylor and his successors did not accept the leagues as 3,000,000 acres more or less, in consideration for their contract to build the capitol, but accepted them as 3,000,000 acres, and when they discovered that some of them were in New Mexico, they demanded their equivalent in Texas, and as such equivalent accepted excess discovered in surveys already included in the contract. There is no *Page 48 obligation on the part of the State to sell to them any excess, or any other land beyond the 3,000,000 acres, at any price.
If Abner Taylor and the plaintiffs in error acquired the right to have the State convey to them all the leagues (nearly 700) of land as an entirety, regardless of acreage, for building the capitol, though 3,000,000 acres was the stipulated consideration, then if a substantial excess was developed, the plaintiffs in error would be entitled to retain same by paying for it at its value as controlled by the contract as contended by plaintiffs in error. But, as shown, this is not supported in the findings of fact, nor in the proper construction of the contract.
There was no stipulated price per acre, but a specified number of acres was given for building the capitol. Since there was no contractual obligation, and there being no stipulated price per acre, and its value being undetermined, the sale being for the specific acreage, and plaintiffs in error having received 59,281 acres more than was contracted for, they neither have the right to hold same, nor to retain it by paying for it, and partition was properly applied.
It is well settled under the authority of Revised Statutes, Article 1626, and the cases of Wortham v. Harrison, 8 Tex. 141; Pridgen v. Bonner, 28 Tex. 799; Broocks v. Masterson,82 S.W. 822; Cummings v. Masterson, 42 Texas Civ. App. 549[42 Tex. Civ. App. 549], 93 S.W. 500 (writ of error denied); Markley v. Martin, 204 S.W. 123 (writ of error denied), that the Court of Civil Appeals had authority, and it was its duty, to render proper judgment as to the excess contained in the so-called "vacancies", there being no issue of fact involved.
One, reading the reports of the building of the capitol, can not fail to be impressed with the high integrity, fairness, and ability of Abner Taylor, and his desire to give to Texas a State House of which the State would be proud. It is clearly evident that he used every effort possible, and did in good faith build a magnificent capitol building according to his contract. The correspondence between him and the Building Commissioners, and the various reports as the building progressed, fully substantiate this.
In this connection, we will make mention of a fortunate circumstance that at first was apparently embarassing to the contractor, Mr. Taylor, but redounded at last to the satisfaction of all. It was discovered that the white limestone out of which the capitol building was to have been built under the original contract was not to be found in quantities sufficient for the great structure. After much negotiation, the contract was changed, and Texas red granite, from Burnet County, was substituted for the white limestone. This entailed a large additional cost to the builder, but was partly compensated for by the State in three different ways: (1) The State agreed to furnish Mr. Taylor 500 State convicts for a period of two years, to be *Page 49 used in building fifteen miles of railroad from Burnet to Roseville, the granite quarries, and in working the granite quarries and the limestone quarries; (2) it agreed to give Mr. Taylor immediate possession of all the 3,000,000 acres of land without charge; (3) changes were made in the plans and specifications which reduced the cost of construction.
While it is true that the contractor faithfully performed his contract, and built for Texas a structure worthy of the greatness of the State, the State in turn delivered to the contractor a great domain, as it were, of land, larger in area than several of the States of the Union, and of great value. Each of the parties treated the other right, and as far as the general equities are concerned, they are, as far as can be ascertained, about equal. The State performed its contract in full, and passed "complete and perfect title" to the contractor to 3,000,000 acres of well chosen selected land. Since through mistake of the parties the State actually conveyed to the contractor practically 60,000 acres more than the 3,000,000 acres, it is not inequitable for the State to recover back from him and plaintiffs in error this excess, and thus leave both parties in the same position as they would have occupied had only the 3,000,000 acres been conveyed.
The judgment of the Court of Civil Appeals is affirmed.
Affirmed.
Chief Justice Cureton took no part in the decision of this case.