Brazoria County v. Padgitt

• Decision Date: 15 October 1913
• Citation: Brazoria County v. Padgitt, 160 S.W. 1170 (Tex. App. 1913)
• Parties: BRAZORIA COUNTY v. PADGITT et al.
• Court: Texas Court of Appeals

160 S.W. 1170

BRAZORIA COUNTY v. PADGITT et al.

Court of Civil Appeals of Texas. Austin.

October 15, 1913.

Rehearing Denied November 26, 1913.

Appeal from District Court, Coleman County; John W. Goodwin, Judge.

Trespass to try title by Brazoria County against Mrs. Willie Day Padgitt and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Louis J. Wilson, W. T. Williams, and Masterson & Rucks, all of Angleton, for appellant. Snodgrass, Dibrell & Snodgrass, of Coleman, for appellees.

JENKINS, J.

This is a suit of trespass to try title, brought by appellant to recover land in Coleman county, Tex Appellees, in addition to a plea of not guilty, alleged they claimed under a deed executed by E. N. Wilson and A. J. Burke, Jr., who were appointed by the commissioners' court of Brazoria county to sell said land; that said deed had been ratified by said court; that their title was res adjudicata by reason of certain proceedings in the probate court of Travis county, and alleged their willingness to pay any balance of the purchase money that might be found to be due on said land. They also pleaded improvements in good faith.

Findings of Fact.

(1) The land in controversy was Brazoria county school land, patented to the school commissioners of said county April 27, 1848.

(2) The commissioners' court of said county, on November 16, 1876, made and entered upon the minutes of said court the following order: "Commissioners' Court of Brazoria County, Texas. Thursday Nov. 16, 1876. Presiding: E. N. Wilson, County Judge; A. J. Burke, Jr., Com. Prect.; Walter Wormly, Co. Com.; Geo. W. Thomas, County Com. Whereas, by virtue of section 6, art. 7 of the Constitution of the state of Texas, entitled `Education—The Public Free Schools—It is ordained that all lands heretofore granted to the several counties of this state are of right the property of said counties, and it is therein, among other things provided, that each county may sell and dispose of the same in whole or in part in the manner to be provided by the commissioners court of the county,' and the proceeds thereof when sold shall be held by said counties alone as a trust for the benefit for public schools therein. And whereas, many counties are availing themselves of said provision of the Constitution and thereby disposing of their land; and whereas, the lands belonging to the county of Brazoria are unproductive and yielding no income to said county for the maintenance or support of the public free school, and it is deemed advisable, judicious and to the interest of said county that said lands should be sold or disposed of in whole or in part as is thereby authorized by said provision of the state Constitution: Therefore, be it resolved by the commissioners' court of Brazoria county, Ervin N. Wilson and A. J. Burke, Esqrs., be and they are hereby appointed and constituted commissioners to make sale and conveyance on behalf of said county of Brazoria and on behalf of the commissioners' court of said county of Brazoria, Texas, of all lands heretofore granted to said county of Brazoria for education or schools, and said E. N. Wilson and A. J. Burke, Jr., are hereby fully authorized and empowered to sell said lands in whole or in part for cash or on time, taking notes for deferred payments, payable to them as commissioners as aforesaid, secured by lien on the land, for which said notes are given, at such price or prices as in their judgment may deem reasonable and proper, and upon such sale or sales good and valid deeds of conveyance of said land to make and deliver in behalf of said county of Brazoria and in behalf of said commissioners' court of said county of Brazoria to the purchaser or purchasers thereof and said Ervin N. Wilson and A. J. Burke, Jr., commissioners as aforesaid, be and are hereby fully authorized and empowered to employ a surveyor or surveyors, if they so desire and determine, and to cause said lands to be surveyed and subdivided in tracts of such size and description as they may deem advantageous, and said Ervin N. Wilson and A. J. Burke, Jr., be and are hereby authorized to sell said land in whole or in part to such person or persons for such price or prices, on such terms as they may determine upon. Hereby giving and granting to the said Ervin N. Wilson and A. J. Burke, Jr., full power and authority to exercise freely their discretion in the manner of said sales and the terms thereof, and all deeds executed and delivered by said Ervin N. Wilson and A. J. Burke, Jr., as commissioners, as aforesaid, shall be binding and conclusive and effectual in behalf of said county of Brazoria and upon the commissioners' court thereof. And it is expressly provided that all reasonable and necessary expenses incurred by said Ervin N. Wilson and A. J. Burke, Jr., including traveling expenses, surveyor's fees, investigation fees, and all other incidental expenses connected therewith, shall be reimbursed them by said county of Brazoria. And Ervin N. Wilson and A. J. Burke, Jr., shall be and are hereby authorized to receive and retain reasonable commissions and compensation upon all sales made by them of said lands or any part thereof. Said compensation to be not only a reasonable commission upon all cash received by them but also a reasonable commission upon the amount of all notes, or notes taken or received by them in part payment for said lands or any part thereof, and a special lien upon all cash payments and upon all notes taken or received by them as aforesaid, is hereby granted to the said Ervin N. Wilson and A. J. Burke, Jr., to secure their commissions, compensation, and expense aforesaid. A certified copy of this decree recorded in each county in which said lands are situated, shall be deemed and held full evidence of the authority of said Ervin N. Wilson and A. J. Burke, Jr., in the premises, and all sales of said land made by said Ervin N. Wilson and A. J. Burke, Jr., commissioners as aforesaid, and all acts of said commissioners in relation thereto shall be and are hereby decreed valid, binding and conclusive on the commissioners' court of said Brazoria county and upon said county of Brazoria county."

(3) On April 15, 1878, said Wilson and Burke, as commissioners for Brazoria county, sold said land to W. H. Day for the consideration of $500 cash, and his promissory note for $3,324.55, payable ten years after date, with interest at the rate of 10 per cent. per annum, payable annually, and executed a deed therefor, retaining the vendor's lien to secure the payment of said note. Said deed recited that it was executed by virtue of the order above set out, and a copy of which was attached to said deed and made a part thereof.

(4) On November 12, 1878, said Wilson and Burke made a written report of said sale to said commissioners' court in words and figures as follows:

"The State of Texas, County of Brazoria.

"Be it remembered that on the 12th day of November, A. D. 1878, there was begun and holden a regular term of the county commissioners' court for the county of Brazoria. And the following business was transacted:

"Present and presiding, E. N. Wilson, Co. Judge. Commissioner A. J. Burke, Pct. No. 2; Commissioner Walter Wormly, Pct. No. 1; W. H. Sharp, Clerk, by J. W. Yerby, Dep. Chas. Temstall, Constable.

"It is ordered that the report of the commissioners for the sale of Brazoria county school lands this day, may be and is hereby approved and that the said commissioners turn over to the treasurer the balance of money on hand as is therein shown, to wit, the sum of one hundred and seventeen 55-100 dollars, and that said report be recorded in the minutes of this court.

"To the Hon. Commissioners Court of Brazoria County:

"The undersigned commissioners appointed for the sale of Brazoria county school lands have to report sale of one league and 23 labors of land situated in the N. W. corner of Coleman county to W. H. Day at forty-five cents per acre. Payments five hundred dollars cash and note at ten years for the balance, with interest at ten per cent. payable annually on the first day of January of each year at the office of the county treasurer of Brazoria county and in default of the payment of said interest at said time and place so specified, the whole of said note to become due and payable; a vendor's lien being reserved upon the land for the purchase money. With power to foreclose in default of the payment of the interest on the note. The land has been on the market for sale for near two years in as public a manner as possible without advertisement, this offer has been held off for a long time by the commissioners in the effort to obtain a better one, but none has offered. One of us, Mr. Burke, visited the land, and was absent about four weeks, spending a week or ten days in riding over and examining the lands and endeavoring to make an estimate of their value. The tract fronts on the Colorado river just opposite and above the mouth of the Concho and extends from Runnels Co. line about two miles and a half down the Colorado on the upper line there is a small tract of about probably sixty acres arable lands down on the upper line of the lower league is another small valley tract of about one hundred acres the tract run back from the river to the hills crossing a rocky creek, and on the bank of the creek is another small tract of tolerably good land. Altogether in the whole tract there is less than 200 acres of land that will ever be worth anything for cultivation and this in three small tracts, the rest is rocky hills and prairie dog towns value less for any purpose for all time except for pasturage and for this purpose who we sold to bought—buying the three leagues owned by Ft. Bend county, just adjoining these at the same price for pasturage of sheep. We are satisfied that the price obtained is a fair and reasonable one and fully as much as the land will ever be worth. We annex statement of payment and net amt. to the...