A-2796, JULY 7, 1924, 4 COMP. GEN. 21

A-2796: Jul 7, 1924

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NOTWITHSTANDING THE STATED ACREAGE DIFFERS IN BOTH INSTRUMENTS AND THE CONTRACT OF SALE CONTAINED A STATEMENT THAT THE LUMP-SUM PRICE NAMED WAS "AT THE RATE OF TWENTY DOLLARS PER ACRE FOR EACH ACRE THAT THE SURVEY TO BE MADE * * * MAY DISCLOSE.'. DESCRIBED BY NAMING THE OWNERS OF THE LAND BY WHICH THE TRACT WAS BOUNDED AND STATED AS CONTAINING 1. A SIMILAR LEASE WAS EXECUTED APRIL 22. RENEWAL AGREEMENT WAS ENTERED ON JULY 1. THERE WAS ENTERED IN TO THE FOLLOWING AGREEMENT OF SALE AND PURCHASE BETWEEN THE UNITED STATES AND THE LESSOR OF THE LAND: THAT SAID PARTY OF THE FIRST PART. THE RECEIPT WHEREOF IS HEREBY ACKNOWLEDGED. WHICH IS AT THE RATE OF TWENTY ($20.00) DOLLARS PER ACRE FOR EACH ACRE THAT THE SURVEY TO BE MADE OF THE SAID PROPERTY HEREINAFTER DESCRIBED MAY DISCLOSE.

A-2796, JULY 7, 1924, 4 COMP. GEN. 21

PURCHASE OF REAL ESTATE A CONTRACT FOR THE SALE OF A TRACT OR TRACTS OF REAL ESTATE FOR A SPECIFIED LUMP SUM FOLLOWED BY A FORMAL DEED NAMING A LIKE LUMP SUM, THE BOUNDARIES OF THE TRACTS BEING CLEARLY DEFINED OR IDENTIFIED IN BOTH SALE AGREEMENT AND DEED, CONSTITUTES THE PRICE SO SPECIFIED THE ENTIRE CONSIDERATION FOR THE SALE, NOTWITHSTANDING THE STATED ACREAGE DIFFERS IN BOTH INSTRUMENTS AND THE CONTRACT OF SALE CONTAINED A STATEMENT THAT THE LUMP-SUM PRICE NAMED WAS "AT THE RATE OF TWENTY DOLLARS PER ACRE FOR EACH ACRE THAT THE SURVEY TO BE MADE * * * MAY DISCLOSE.'

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 7, 1924:

ALEX BREMER HAS REQUESTED REVIEW OF SETTLEMENT NO. M-19808, THIS OFFICE, DATED DECEMBER 12, 1923, DISALLOWING HIS CLAIM FOR $700 REPRESENTING $20 PER ACRE FOR 35 ACRES IN EXCESS OF THE ACREAGE STATED IN AN AGREEMENT TO SELL TO THE UNITED STATES A TRACT OF LAND ADJACENT TO THE LEON SPRINGS MILITARY RESERVATION, TEX., AUTHORIZED TO BE PURCHASED BY THE APPROPRIATION ACT OF JULY 9, 1918, 40 STAT. 877.

UNDER DATE OF SEPTEMBER 14, 1917, THE UNITED STATES ENTERED INTO A LEASE FOR THE FISCAL YEAR 1918, WITH ALEX BREMER, COVERING A TRACT OF LAND ADJACENT TO THE LEON SPRINGS MILITARY RESERVATION IN TEXAS, DESCRIBED BY NAMING THE OWNERS OF THE LAND BY WHICH THE TRACT WAS BOUNDED AND STATED AS CONTAINING 1,753 ACRES, MORE OR LESS. A SIMILAR LEASE WAS EXECUTED APRIL 22, 1918, FOR THE FISCAL YEAR 1919, WITH A RIGHT OF RENEWAL. EACH OF THESE LEASES CONTAINED AN OPTION TO PURCHASE BY THE UNITED STATES. RENEWAL AGREEMENT WAS ENTERED ON JULY 1, 1919, FOR THE FISCAL YEAR 1920, AND AGAIN ON JUNE 8, 1920, FOR THE FISCAL YEAR 1921. JUNE 30, 1919, THERE WAS ENTERED IN TO THE FOLLOWING AGREEMENT OF SALE AND PURCHASE BETWEEN THE UNITED STATES AND THE LESSOR OF THE LAND:

THAT SAID PARTY OF THE FIRST PART, FOR AND IN CONSIDERATION OF THE SUM OF ONE DOLLAR ($1.00) AND OTHER GOOD AND VALUABLE CONSIDERATION, TO HIM IN HAND PAID BY SAID PARTY OF THE SECOND PART AS PART OF THE PURCHASE PRICE, THE RECEIPT WHEREOF IS HEREBY ACKNOWLEDGED, HEREBY AGREES TO SELL TO SAID PARTY OF THE SECOND PART, AND SAID PARTY OF THE SECOND PART HEREBY AGREES TO PURCHASE FROM SAID PARTY OF THE FIRST PART, FOR THE SUM OR PRICE OF THIRTY-FIVE THOUSAND AND SIXTY ($35,060.00) DOLLARS, WHICH IS AT THE RATE OF TWENTY ($20.00) DOLLARS PER ACRE FOR EACH ACRE THAT THE SURVEY TO BE MADE OF THE SAID PROPERTY HEREINAFTER DESCRIBED MAY DISCLOSE, ALL OF THE FOLLOWING REAL PROPERTY, TO WIT:

ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND BEING SITUATED IN THE COUNTY OF BEXAR, STATE OF TEXAS, ADJACENT TO THE LEON SPRINGS RESERVATION OF THE UNITED STATES GOVERNMENT, AND BOUNDED ON THE NORTH BY THE LANDS OF OTTO SCHEEL AND MAX TOEPPERWEIN; ON THE EAST BY STOWERS RANCH; ON THE SOUTH BY THE STOWERS RANCH; ON THE WEST BY THE JOHN B. MUESSER LANDS. SAID LAND ABOVE DESCRIBED CONTAINING 1,753 ACRES, MORE OR LESS.

THE DEED WAS EXECUTED DECEMBER 21, 1920, AND THE PURCHASE PRICE SPECIFIED IN THE AGREEMENT, $35,060, WAS PAID BY CHECK DATED DECEMBER 20, 1920. THE VOUCHER ON WHICH THIS PAYMENT WAS MADE WAS EXECUTED MORE THAN A YEAR AFTER THE SURVEY HAD BEEN MADE. SAID VOUCHER STATED THE PURCHASE PRICE FOR THE LAND AS $35,060 WITHOUT ANY REFERENCE TO A PRICE PER ACRE AND WAS CERTIFIED BY CLAIMANT AS CORRECT. THE SAME DESCRIPTION OF THE LAND APPEARING IN THE AGREEMENT TO SELL APPEARED IN BOTH LEASES, BOTH RENEWAL AGREEMENTS, AND THE VOUCHER ON WHICH PAYMENT WAS MADE. THE ACREAGE IN EACH INSTANCE WAS GIVEN AS 1,753 ACRES, MORE OR LESS.

BETWEEN THE DATE OF THE EXECUTION OF THE AGREEMENT TO SELL AND THE EXECUTION OF THE DEED A SURVEY WAS MADE OF THE TRACT BY THE GOVERNMENT AND IT WAS FOUND THAT IT CONTAINED 1,768 ACRES, OR 35 ACRES IN EXCESS OF THAT STATED IN ALL OF THE MENTIONED INSTRUMENTS. CLAIMANT IS CONTENDING THAT BECAUSE OF THE USE OF THE WORDS IN THE AGREEMENT OF SALE "WHICH IS AT THE RATE OF TWENTY ($20.00) DOLLARS PER ACRE FOR EACH ACRE THAT THE SURVEY TO BE MADE OF THE SAID PROPERTY HEREINAFTER DESCRIBED MAY DISCLOSE" HE IS ENTITLED TO AN ADDITIONAL $700, REPRESENTING $20 PER ACRE FOR THE EXCESS OF 35 ACRES OVER AND ABOVE THE ACREAGE STATED IN THE AGREEMENT AND OTHER INSTRUMENTS.

AN EXAMINATION OF THE DEED WHICH CONVEYED THE PROPERTY TO THE UNITED STATES, ON FILE IN THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE ARMY AND APPROVED BY THE ATTORNEY GENERAL, DISCLOSES THAT THE CONSIDERATION IS GIVEN SPECIFICALLY AS $35,060, WITHOUT ANY RATE PER ACRE HAVING BEEN MENTIONED, RECEIPT OF WHICH IS ACKNOWLEDGED. THE LAND CONVEYED IS NOT DESCRIBED BY THE DESCRIPTION APPEARING IN THE AGREEMENT OF SALE, LEASES, AND RENEWALS, NOR IN ACCORDANCE WITH THE GOVERNMENT SURVEY WHICH HAD BEEN MADE SINCE THE EXECUTION OF THE AGREEMENT TO SELL, BUT IN ACCORDANCE WITH THE DESCRIPTIONS APPEARING IN DEEDS BY WHICH FIVE SMALLER TRACTS OF LAND HAD BEEN CONVEYED TO ALEX BREMER AND WHICH COMPRISED THE TRACT OF LAND CONVEYED TO THE UNITED STATES. THIS SAME DESCRIPTION AND ACREAGE APPEAR IN THE TITLE PAPERS APPROVED BY THE DEPARTMENT OF JUSTICE. THE ACRES OF THE FIVE SMALLER TRACTS ARE GIVEN AS FOLLOWS:

TABLE FIRST TRACT ---------------------------------------------- 239 ACRES. SECOND TRACT -------------------------------------------- 580.2 ACRES. THIRD TRACT --------------------------------------------- 239.2 ACRES. FOURTH TRACT ---------------------------------------- ---- 54.4 ACRES. FIFTH TRACT ------------------------------------- -------- 646.4 ACRES.

TOTAL-------------------------------------------------- 1,759.2 ACRES.

THUS THERE ARE THREE DIFFERENT ACREAGES GIVEN FOR THE SAME TRACT OF LAND, VIZ, 1,753 ACRES, MORE OR LESS, APPEARING IN THE LEASES, RENEWALS, AND CONTRACT OF SALE, 1,759.2 ACRES APPEARING IN THE DEED, AND 1,768 ACRES APPEARING IN THE GOVERNMENT SURVEY.

CONSIDERING ALL THE INSTRUMENTS AFFECTING THIS PROPERTY AND THE TRANSACTIONS INVOLVED WITH RELATION TO EACH OTHER, IT SEEMS REASONABLY CLEAR THAT BOTH THE SELLER AND THE PURCHASER HAD IN MIND A SPECIFIC PRICE FOR A SPECIFIC PIECE OF PROPERTY. THE SELLER HAD LEASED THE PROPERTY TO THE UNITED STATES FOR A NUMBER OF YEARS, AND THERE COULD HAVE BEEN NO DOUBT IN THE MINDS OF EITHER AS TO THE EXTENT OF THE TRACT INTENDED TO BE CONVEYED. IN THE CONTRACT OF SALE A SPECIFIC LUMP-SUM PRICE IS STATED AND A SPECIFIC TRACT OF LAND IS DESCRIBED AND THE ACREAGE IS GIVEN "MORE OR LESS.' THESE ARE THE CONTROLLING ELEMENTS IN DETERMINING THE PRICE OF THE LAND. WHILE THE BASIS ON WHICH THE PRICE WAS FIXED THEREIN WAS STATED TO BE $20 PER ACRE "FOR EACH ACRE THAT THE SURVEY TO BE MADE OF THE SAID PROPERTY HEREINAFTER DESCRIBED MAY DISCLOSE," THAT BASIS OF DESCRIPTION AND RATE PER ACRE WERE NOT ADOPTED IN THE DEED CONVEYING THE PROPERTY, ALTHOUGH THE SURVEY HAD BEEN MADE PRIOR TO THE EXECUTION OF THE DEED, AND THEREFORE SUCH A BASIS OF PAYMENT CAN NOT BE HELD TO PREVAIL OVER THE SPECIFIC LUMP-SUM PRICE GIVEN, AND DOES NOT CONSTITUTE A BASIS FOR A LEGAL CLAIM FOR AN ADDITIONAL AMOUNT FOR THE EXCESS ACREAGE SHOWN BY THE GOVERNMENT SURVEY.

THE CONTENTION THAT THE REASON ONLY $35,060 WAS PAID AT THE TIME THE DEED WAS EXECUTED WAS BECAUSE THAT WAS THE AMOUNT OF MONEY APPROPRIATED FOR THE ACQUISITION, AND THAT THERE WAS AN UNDERSTANDING THAT AN ADDITIONAL PAYMENT WOULD BE MADE WHEN FUNDS WERE APPROPRIATED THEREFOR DOES NOT APPEAR TO BE SUPPORTED BY THE FACTS, AS THE APPROPRIATION FROM WHICH THE PAYMENT WAS MADE WAS AN APPROPRIATION OF $88,880, MADE IN THE ACT OF JUNE 5, 1920, 41 STAT. 965, AND NO ADDITIONAL APPROPRIATION FOR SAID PURPOSE HAS SINCE BEEN MADE.