Allen v. Franks

• Decision Date: 14 February 1914
• Docket Number: (No. 7889.)
• Citation: 166 S.W. 384
• Parties: ALLEN et ux. v. FRANKS et al.
• Court: Texas Court of Appeals

166 S.W. 384

ALLEN et ux. v. FRANKS et al.

(No. 7889.)

Court of Civil Appeals of Texas. Ft. Worth.

February 14, 1914.

On Motion for Rehearing, April 11, 1914.

Appeal from District Court, Johnson County; O. L. Lockett, Judge.

Suit by W. M. Allen and wife against J. A. Franks and others. From an order dissolving a temporary injunction, plaintiffs appeal. Affirmed.

Ramsey & Odell, of Cleburne, for appellants. J. K. Russell, O. T. Plummer, and W. E. Myers, all of Cleburne, for appellees.

DUNKLIN, J.

W. M. Allen and wife executed a deed to certain land to the trustees of school district No. 31 in Johnson county, and their successors, containing covenants of general warranty of title, but with the following stipulation contained in the deed, to wit: "Conditioned that when the above-described land ceases to be used as school purposes, the same shall revert to us." The school trustees procured the erection of a schoolhouse upon the land which was thereafter used for school purposes. Later, J. A. Franks, W. W. Wilson, and J. H. Yarbrough, successors to the former trustees to whom the deed was executed, decided to abandon the land upon which the house was originally built, to relinquish any further claim to that land, and to move the building to another location which had been selected by them for that purpose. W. M. Allen and wife instituted this suit to enjoin the removal, alleging that the building erected upon the land was a part of the realty; that the land had been abandoned by the trustees; and that by reason thereof the building, as well as the land, had reverted to them. A temporary writ of injunction was granted, but later was dissolved, and from the order of dissolution this appeal has been prosecuted by Allen and wife.

Appellant has cited many authorities, such as Brown v. Roland, 92 Tex. 54, 45 S. W. 795, Hutchins v. Masterson, 46 Tex. 551, 26 Am. Rep. 286, and Jones v. Bull, 85 Tex. 136, 19 S. W. 1031, announcing the general rule that a house erected upon land becomes a part of the freehold, in the absence of any intention by the parties erecting it that the same shall not become permanently annexed to the land. The evidence shows that the money with which the building was erected consisted solely of contributions by the citizens of that community. Upon the hearing of appellee's motion to dissolve the writ, many affidavits were introduced of persons who contributed to the building fund. Allen was one of those contributors, and he and many others testified that the contributions were made with the distinct understanding with the trustees that the building was to remain upon the land permanently. Some of the same persons, including Allen and wife, testified that there was a further understanding with the trustees that the building should also be used as a place for public worship, as well as a schoolhouse. Two of the trustees who were acting as such at the time of the execution of the deed also testified that it was their intention at the time of the erection of the building that the same should remain upon the land permanently, while another trustee testified that it was his understanding and intention that the building should remain upon the land so long only as the trustees of the district might desire, and that they would have the right to remove the same to any other location whenever they thought it was necessary to the best interests of the school district to do so. The present trustees also testified that it was not the intention of the former trustees at the time the building was erected that the same should remain a permanent fixture upon the land, and that the present trustees now deemed it advisable to consolidate the district with another district and to move the house upon another location for the convenience of all the patrons of the school. They further testified that, while they made no further claim to the land upon which the building had been erected, they had never abandoned the building and had no intention of doing so. Other witnesses testified that the house was not built for church purposes at all, but strictly for school purposes, and that the use of the same as a church was an afterthought.

Following are articles of our Revised Statutes:

"Art. 2822. The trustees of school districts provided for in the preceding articles of this chapter, and their successors in office, shall be a body politic and corporate in law, and shall be known by and under the title and name of district trustees of district number ____, and county of ____, state of Texas; and as such may contract and be contracted with, sue and be sued, plead or be impleaded, in any court of this state of proper jurisdiction, and may receive any gift, grant, donation or devise made for the use of the public schools of the district. All reports and other official papers shall be headed with the number of district and name of county."

"Art. 2844. The trustees of a school district Shall contract for the erection of the buildings and superintend the construction of the same; and the county superintendent shall draw his warrant or warrants upon the school fund so appropriated only upon the accounts first approved by them.

"Art. 2845. No mechanic, contractor, materialman, or other person, can contract for, or in any other manner have or acquire, any lien upon the house so erected or the land upon which the same is situated; and all contracts with such parties shall expressly stipulate for a waiver of such lien."

"Art. 2847. All schoolhouses erected, grounds purchased or leased for a school district, and all other property belonging thereto, shall be under the control of the district trustees of such district."

"Art. 2849. All conveyances, devises and bequests of property for the benefit...