The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 35
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CARSON V. HURT
pellee, hereinafter called plaintiff, on December 1, 1906, sold to W. H.
Garrett, by warranty deed, 85,844.95 acres of land in Bailey county,
Tex. Subsequently the title was placed in W. H. Sulflow, and the
business of selling the land was conducted in the names of two corpo-
rations, the O. W. Kerr Company and the Texas & Southwestern Col-
onization Company. These parties will be called the purchasers. The
land, or most of it, was sold in smaller tracts in 1907, and the pur-
chasers of these tracts will be called the subpurchasers. The recited
considerations of the sale to Garrett were as follows: (1) The as-
sumption by Garrett of notes due by Hurt to his vendor, to the amount
of $106,058.80; (2) the payment of $50,000 cash; (3) the payment of
notes aggregating $187,321. This deed provided for a lien to secure
the purchase price. Contemporaneously with the execution of the deed,
a deed of trust was executed which specifically referred to and ex-
pressed a lien on the land to secure the payment of the notes last men-
tioned. In the deed of trust was the following provision:
"This conveyance in trust is made with the express agreement and under-
standing that a full release of this trust, as well as a full release of the
vendor's lien, will be executed and delivered to the said W. H. Garrett, his
heirs and assigns, as to any quantity or parcel of land embraced in this con-
veyance, not less than 640 acres, upon payment of such part of the entire
unpaid purchase money as is pro rata owing and unpaid on the land for
which such release may be demanded."
In the contract under which Hurt had purchased the land was a like
provision. The circumstances under which the sales were made indi-
cate the reason for the provision. It was contemplated that the land
should be sold in small tracts, and it was realized that it would be
necessary that releases be provided for, in order that a good title
might be given to the purchaser. By the terms of the provision, its
benefits could be secured by the heirs and assigns of the purchaser.
The appellants insist that the provision quoted fixed on each tract of
land sold a definite amount of $2.19 per acre, upon payment of which
the purchaser is to have his land released. This contention is upon
the assumption that the release is to be had upon payment of the pro-
portionate part of the amount secured by the deed of trust. Taking
into consideration the original provision in the deed to Hurt, and the
clause in the provision quoted, to the effect that the release is to be
had upon payment of such part of the entire unpaid purchase money
as is pro rata due upon the particular tract, the conclusion is reached
that, primarily, and after payment of the $50,000, the payment to be
made to secure a release was, instead of $2.19, $3.41 per acre, or the
total purchase price remaining unpaid, divided by the total acreage.
The provision required the payment, in order to secure a release, of
such part of the unpaid purchase money "owing and unpaid on the land
for which such release may be demanded." It was contemplated, of
course, that the land would be paid for in accordance with the terms of
the deed and of the notes given as part of the purchase price, and it
was contemplated that, to secure a release, the purchaser would be in
position to demand the release upon payment of the "pro rata part"
remaining unpaid "on the land for which such release may be de-
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38821/m1/50/: accessed December 11, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.