Bell County v. Felts

• Decision Date: 16 June 1909
• Citation: 120 S.W. 1065
• Court: Texas Court of Appeals
• Parties: BELL COUNTY v. FELTS et al.<SMALL><SUP>†</SUP></SMALL>

120 S.W. 1065

BELL COUNTY v. FELTS et al.^†

Court of Civil Appeals of Texas.

June 16, 1909.

Appeal from District Court, Bell County; John M. Furman, Judge.

Trespass to try title by Bell County against G. M. Felts and others. Judgment for defendants, and plaintiff appeals. Reversed and rendered in part, and reversed and remanded in part.

The appellant, Bell county, instituted this suit on the 8th day of May, 1907, in the district court of Bell county, against the appellees, defendants below, G. M. Felts, J. T. Traylor, and R. E. Tulloch, to recover of the defendants the lands and premises in controversy, plaintiff's suit being (1) trespass to try title to the lands in controversy; and (2) plaintiff further alleging that plaintiff had a moneyed judgment against one W. Y. McFarland, establishing and foreclosing a lien upon the lands in controversy. That while said judgment was in full force and effect, and while the defendant G. M. Felts was county judge of Bell county, duly elected, qualified, and acting as county judge, the defendant Felts procured an order of sale to be issued on said judgment, and caused the land to be, by the sheriff of Bell county, in due and legal manner, advertised and sold under said order of sale. That at said sale, to wit, on the 7th day of April, 1903, the defendant Felts, being still county judge of said Bell county, bid in said lands at the sum of $330, and caused deed thereto to be made to himself by said sheriff. That he paid the sheriff nothing thereon, except probably the costs, of about $14. That the sheriff of Bell county, making said sale, returned said order, showing sale to said Felts and the payment of the amount bid by crediting the said judgment against said McFarland in favor of said Bell county the amount of said Felts' bid, less the costs. Plaintiff alleges that said Felts paid nothing for said lands and premises, but claims the payment of $300 by the commissioners' court of Bell county allowing him said amount for fees in criminal cases. But plaintiff alleged that said amount was not legally allowed, because the same was not a lawful allowance or payment the commissioners' court could make, and was not a lawful charge, and that, if same was a lawful fee, the commissioners' court could not, by its order or otherwise, allow said Felts to have and acquire said lands, in that the same would be the commissioners' court trading with its presiding officer, a member of said court, the property of Bell county. That the real and equitable and beneficial title to said lands and premises were in said Bell county, and whatever title said Felts acquired by the sale and the sheriff's deed aforesaid were held by said Felts in trust for Bell county; and plaintiff prayed for title and possession of said lands and premises and for rents. Defendants answered by plea of not guilty and general denial, and pleaded the statute of four years' limitation and the statute of three years' limitation in bar of plaintiff's action. The defendant R. E. Tulloch further pleaded to be the owner of nine acres of the land in controversy under defendant Felts for valuable consideration without notice of any of the rights of plaintiff. A jury was waived, the cause tried by the court, and on the 26th day of March, 1908, judgment was rendered by the court against the plaintiff and in favor of all the defendants.

The court filed conclusions of law and fact, from which it appears that the court concluded that the four years' statute of limitation applied, and therefore the defendants were entitled to recover. In view of the fact that we differ with the trial court as to the effect of the evidence, and have reversed and rendered in favor of the appellant, we think it best to set out the evidence in full, notwithstanding the agreement of the parties contained in the first part of the statement of facts would be, in our opinion, sufficient upon which to rest the conclusion reached by this court. The facts are as follows:

"It was agreed in open court by both plaintiff and defendants that W. Y. McFarland, who owned the land in controversy in fee simple, and had a regular chain of title from the sovereignty of the soil, gave Bell county (plaintiff) a deed of trust on the lands in controversy to secure the payment of a note given by him to Bell county for borrowed money. That suit was brought by Bell county against said McFarland on said note and to foreclose said deed of trust, the style of said cause being `Bell County v. W. Y. McFarland et al.,' and numbered 4,850 on the docket of the district court of Bell county. That said judgment was for $2,522. That said judgment was alive and in full force when the order of sale herein referred to was issued and executed. That, while the defendant Felts was county judge of Bell county, he caused an order of sale to be issued on said judgment and to be delivered to the sheriff of Bell county (who was then Sam Sparks), and caused the property to be sold under said order of sale; and while he was county judge of Bell county said sale was made by said sheriff in due conformity of the law, and said Felts, then being county judge, was present at said sale and bid in the property. The amount of his bid was $330. The sale was made on the 7th day of April, 1903. Said Felts paid on the bid at the time $14.85, the rest of said bid, to wit, $313.10, the sheriff making said sale, as shown by his return on said order of sale, credited upon said judgment that said Bell county held against said McFarland, and no part of said $313.10 was paid in money by said defendant Felts to the sheriff. That said $313.10 was credited on said judgment in favor of said Bell county against said McFarland by said Felts' consent and approval. That the sheriff, said Sam Sparks, at the instance and request of said Felts, made the deed to said lands and premises to said G. M. Felts in due form.

"The defendant G. M. Felts, witness on the stand in his own behalf, testified as follows:

"`I am one of the defendants in this cause. I was county judge of Bell county in 1903 and 1904. With reference to the judgment against W. Y. McFarland and the issuance of the order of sale on the 7th day of March, 1903, I caused the order of sale to be delivered to the sheriff, Sam Sparks, who made the sale. In going over the affairs of the county, the judgment against McFarland was discussed a number of times in the commissioners' court. They finally took it up while in fact I was not with them when they began it, but when I came in the courtroom they were discussing it. They had agreed to have an order of sale issued and for the lands to be sold, and instructed me to have the order issued. I told them I would attend to it, and came to McKay's (the district clerk) office and informed him of the wishes of the commissioners. The commissioners gave me no instructions with reference to buying in the lands for the county. Nothing was said about the disposition of it, more than to have it sold. My recollection is that before the sale I spoke to a number of parties and called the attention of a number of parties to the fact that it was to be sold. This was before the sale. I was present at the sale on the 7th day of April, 1903. The sale was made at public outcry. There were a good many people there. I remember nothing about the bidding. In my inquiry about the matter I was trying to get a purchaser for the property. I spoke to a number of persons in order to have it bring as much as possible, and I think I spoke to Mr. Prater, Mr. Austin, and Mr. Elliott—I don't remember definitely. I bid in and bought the property. I bought the lands and the property at the sale in my own name and for myself, and not for Bell county. My bid was $330. I don't think I paid anything in cash at the time, unless it was the same afternoon that I paid Mr. Sparks his costs. When Mr. Sparks had the deed ready, I did not have the money to pay for it. The county was owing me, and I asked him to hold that up until the commissioners' court got together. The fact is I was a little surprised when the property was knocked off to me. I did not expect to get it. I told him to hold it up until the commissioners' court met. Q. Now, what did you do after that with reference to the matter of paying the money? A. The commissioners' court met soon after that; I presume the minutes of the court will show when the meeting was. It was in open court; the minutes would only show the date. The commissioners were in session. The first meeting of the commissioners after that I informed them of what I had done with reference to the matter. I told them the land had been sold, and that I had bid it in, and told them the price. I asked them if they would take it. We discussed then with reference to the payment. I took it up with them and asked then if they would take it. They decided that they did not want it, and I asked them if they would give me time. I said to them, "All right, I'll keep it and pay for it," but I asked them to give me time to take the matter up with McFarland and see if he would redeem it. All the commissioners were present; that is, Worth Walton, Mr. French, Mr. Aycock, and Mr. Wilson, and also W. J. Lee, deputy county clerk. I asked them if they would give me time to take the matter up with McFarland and see if he would redeem it. I explained to them that they were owing me more than enough to cover it, and I was willing to let it go for that purpose, and they agreed to that. All of the commissioners present agreed to it. There was a little fence around most of the property. I think Geo. Austin was using the brush and Mr. Kinnard was using the field grounds. My self and others took possession the next week; that is, the week after the commissioners met. I told the commissioners what disposition I had made, and asked them if they wanted it or would take it. I am sure that it was Mr. Walton said they wanted money and not the land. The other commissioners...