Weekes v. City of Galveston

• Decision Date: 27 April 1899
• Citation: 51 S.W. 544
• Parties: WEEKES et al. v. CITY OF GALVESTON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

51 S.W. 544

WEEKES et al. v. CITY OF GALVESTON.¹

Court of Civil Appeals of Texas.

April 27, 1899.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Suit by the city of Galveston against N. Weekes and others. There was a decree for plaintiff, and each appeals. Reversed on plaintiff's cross appeal.

Hume & Kleberg, Maco Stewart, and W. M. Jerdone, for appellants. R. Waverley Smith, City Atty., for appellee.

PLEASANTS, J.

By virtue of a resolution of the council of the city of Galveston, of the 18th of June, 1894, the mayor of the city and Robert Shaw on the 29th of the same month, entered into the following contract: "The State of Texas, County of Galveston. This contract, made and entered into the 29th day of June, 1894, between the city of Galveston, a municipal corporation, incorporated under the laws of the state of Texas, of Galveston county, Texas, acting in this behalf by and through A. W. Fly, mayor of said city of Galveston, and by virtue of a resolution passed and adopted by the city council of the said city of Galveston at a regular meeting thereof held on the 18th day of June, A. D. 1894, of the first part, and Robert Shaw, of Galveston county, Texas, of the second part, witnesseth: First. The said party of the first part doth hereby grant, demise, lease, and farm let unto the said Robert Shaw, his heirs and assigns, for the period of twenty-five (25) years commencing on the 29th day of June, A. D. 1894, the following described property and premises situated in the county of Galveston, and state of Texas: That certain parcel or tract of land known and described on the maps of Galveston county as `Pelican Island,' and the land adjacent thereto, usually covered with shallow water, and commonly called and designated as `Flats'; said Pelican Island and Flats being the land heretofore ceded, granted, and conveyed to the city of Galveston by the state of Texas; said island and flats lying north of the channel of Galveston Bay, running in front and north of the city of Galveston,—except so much of said island and flats as have been released and quitclaimed unto the state of Texas by the city of Galveston as described in a certain quitclaim deed recorded in Book One Hundred and Thirty (130), page thirty (30), of the deed records of said county of Galveston, Texas; and at the termination of the said period of twenty-five years it is hereby especially agreed between the said parties of the first and second parts that the said party of the second part, his heirs and assigns shall have the privilege of renewing this lease for a further period of twenty-five (25) years from the date of the termination hereof. Second. For and in consideration of the above premises the party of the second part agrees to pay to the party of the first part the annual rent of twenty-five dollars ($25.00), to be paid annually in advance, and the rent for the first year having been paid to the party of the first part by the party of the second part, the receipt whereof, to wit, the sum of twenty-five dollars, is hereby acknowledged. Third. The party of the second part hereby agrees not to maintain, transact, carry on, or cause, or allow to be maintained, transacted, or carried on, any business on said property that may be contrary to the charter and ordinances of said city, or contrary to the laws of the state of Texas. Fourth. Should there at any time be any default in the payment of any rent due, or in any of the covenants herein contained, then it shall be lawful for the party of the first part to re-enter said premises, and remove all persons therefrom, without prejudice to any legal remedies which may be used for the collection of rent; all and every claim for damages for or by reason of said re-entry being hereby expressly waived. Fifth. At the expiration of this lease, unless the party of the second part, his heirs or assigns, avail themselves of the privilege of the renewal hereof, the party of the second part agrees to quit and surrender the said premises in as good state and condition as a reasonable use and wear thereof will permit. Sixth. It is expressly agreed and understood by and between the parties hereto that the party of the first part have, and by his contract has, a valid first lien upon any and all the goods, furniture, chattels, or property of any description belonging to the party of the second part as a security for the payment of all rent due or to become due, and any and all exemption laws in force in this state by which said property might be held are hereby expressly waived. In witness whereof, I, A. W. Fly, as mayor as aforesaid, and acting in this behalf for the city of Galveston, do hereunto subscribe my official signature and office, under the corporate seal of said city, this, the 29th day of June, 1894, and the said Robert Shaw in witness whereof sets his hand on the said 29th day of June, A. D. 1894. A. W. Fly, Mayor of the City of Galveston, Texas. [Seal.] Attest: E. K. Marrast, City Clerk of the City of Galveston, Texas. Robert Shaw." Two other instruments, amendatory and explanatory of the above, were subsequently executed between the parties, and on the 2d day of May, 1898, this suit was instituted by the attorney for the appellee in obedience to a resolution of its council adopted on the 17th of January, 1898, against the appellants, to whom the lessee, Shaw, had assigned said contracts, to cancel and annul the same, and for the removal of cloud from appellee's title, and for the recovery of the premises from possession of appellants. The appellants answered by general and special demurrers and general denial, and upon trial of the cause by the judge of the court without a jury judgment was rendered annulling the contracts of lease, and restoring the property to the possession of the appellee, with a judgment for appellants against appellee for the rents paid by them to the city collector, with interest on same, and also for $500, the alleged consideration for the assignment of the lease by Shaw to appellants, and that the costs of the suit be paid equally by plaintiff and defendants; and from the judgment the defendants appealed to this court, and the plaintiff made cross assignments of error. The numerous assignments presented in the brief for appellants, and discussed by counsel with much learning and ability, need not be discussed seriatim by us, for the case was tried by the judge alone; and, if his rulings upon the exceptions to the pleadings and in the admission of evidence over the objections of the defendants were in part erroneous, if the judgment canceling and holding void the contracts of lease sought to be annulled by the appellee be such as should have been rendered, it must be affirmed, and we will therefore proceed to inquire if the judgment be authorized by the law under the pleadings and the facts adduced in evidence.

The validity or invalidity of the lease involves the interpretation of the act of the legislature of Texas passed February 2, 1856, granting Pelican Island to the city of Galveston. If that act conveyed to the city a title in fee simple, without limitation or trust, as its language might import,—that is to say, if the legislature intended to convey the island to the city for its municipal or private uses,—then the lease in question should be upheld, unless, as is insisted by appellee, the inadequacy of the consideration for the lease demonstrates the contract to be fraudulent, and that the assignees of the lease knew of, or at least were chargeable with notice of, the fraud, when they took the assignment; or unless the joint resolution of the senate and house of representatives of Texas, passed on the 8th of March, 1879, could and did impose and ingraft a public trust upon the property. In construing the act of February 2, 1856, we should look beyond the words of the statute to ascertain the intent and purpose of the legislature. That municipal corporations may acquire and hold property for public as well as for corporate uses seems to be well settled and, when the grant is for public purposes, duties are imposed...