C. C. Slaughter Cattle Co. v. Potter County

• Decision Date: 09 November 1921
• Docket Number: (No. 1820.)
• Citation: 235 S.W. 295
• Parties: C. C. SLAUGHTER CATTLE CO. v. POTTER COUNTY.
• Court: Texas Court of Appeals

235 S.W. 295

C. C. SLAUGHTER CATTLE CO. v. POTTER COUNTY.

(No. 1820.)

Court of Civil Appeals of Texas. Amarillo.

November 9, 1921.

Rehearing Denied December 14, 1921.

Appeal from District Court, Lubbock County; W. R. Spencer, Judge.

Action by Potter County against the C. C. Slaughter Cattle Company and others. Judgment for plaintiff, and named defendant appeals. Reversed and rendered.

Coke & Coke, M. D. Gano, and W. H. Flippen, all of Dallas, and W. H. Bledsoe, of Lubbock, for appellant.

H. G. Hendricks and P. F. Sapp, both of Amarillo, and Percy Spencer, of Lubbock, for appellee.

STOKES, Special Justice.

The state of Texas granted to Potter county on January 25, 1889, for its common schools four leagues of land numbered 113, 114, 115, and 116 lying in Cochran county. This land was selected by a committee appointed in February, 1888, by the commissioners' court of Potter county. That committee made its report in October, 1888, to the effect that the leagues were common plains land, soil, deep yellow, and covered with sage grass not fit for agricultural purposes but could be used for stock. In May 1890 the county sold the land to H. M. Spaulding for $7,151.04 cash and note for $18,000 payable on or before 20 years at 6 per cent. interest. Spaulding sold the land to others who assumed his note. Default in payment of the annual interest was made and the county brought suit and foreclosed its lien in December, 1894. In February, 1896, the land was sold under the judgment of foreclosure. The county attorney, Lon D. Marrs, was directed by the commissioners' court to bid for the land not exceeding $1 per acre. He bought it in at the sale at 70 cents per acre, and the sheriff thereupon conveyed the land to the county. In May, 1896, some 60 or more citizens of Potter county petitioned the commissioners' court to employ one Willis to sell the land at the price of 75 cents per acre, and to give him an option to that effect. The petition was signed by the leading citizens of the county who were acquainted with the values of land in the plains country at that time. The orders of the court show Willis was so employed for a stated period of time, and that his employment was renewed from time to time, but that he was unable to effect a sale. The last order granting the extension was dated in May, 1897. The county judge at that time, Lon D. Marrs, testified that the county was anxious to sell the land, and that Mr. Willis was the best man they could find for that purpose; that he reported he had advertised the land and he had other agents trying to sell. August 10, 1897, the commissioners' court made the following order:

"It is ordered by the court that the county judge be authorized and instructed to lease the Potter county school lands situated in Cochran county, Tex., to lease the land for not less than two cents per acre payable semi-annually in advance for a term not exceeding eight years. And the county judge is hereby authorized and instructed to make any other lease that he can make for more money than two cents per acre with any term not exceeding ten years. It is further ordered by the court that the county judge shall contract with the lessee to surrender all wells and windmills and improvements placed on said lands, provided said lease shall extend eight years or longer a contract of lease to be made and signed by the lessee and by Lon D. Marrs, the county judge of Potter county, Tex., for said county and to be filed in the clerk's office in Potter county."

November 8, 1897, Lon D. Marrs, as county judge of Potter county, executed to R. S. Ferrel a lease by which Potter county school land was leased to him for a term of eight years beginning January 1, 1898, for the rental of $400 per annum, payable $200 semi-annually in advance. On the same day, November 8, 1897, the commissioners' court entered the following order:

"Whereas, it appearing to the court that R. S. Ferrel, of Tarrant county, Tex., has leased the Potter county school lands for a period of eight years, the terms of said lease being fully described in said lease as it appears of record in the county clerk's office in said Potter county, Tex.; and whereas, the said Ferrel has asked this court to grant him an option for the purchase of the above-mentioned lands for a period of five years beginning November 1, 1897, at 75 cents per acre, total number of acres being 17,712, on twenty years' time at 5 per cent. interest per annum, payable semiannually in advance, principal and interest payable at Amarillo, Potter county, Tex., to the treasurer of said county: It is therefore ordered by the court that said option to purchase be, and the same is hereby, granted, provided that said Ferrel faithfully complies with the terms and conditions of his said lease of said land, and continues to fully comply with the provisions of said lease during the grant of option of sale, and it is further ordered by the court that the county judge of Potter county be authorized and instructed to sign in behalf of said county said option."

On the same day, November 8, 1897, Lon D. Marrs, as county judge, executed to Ferrel an option contract in writing to purchase the county school land, reciting that it was executed by virtue of the order of court above set out, reciting also that the contract of option was in consideration of $1 and other valuable considerations, stipulating:

"For and in consideration of the sum of one ($1.00) dollar cash in hand, the receipt of which is hereby acknowledged, and the further consideration of the sum of seventy-five (75) cents per acre, or thirteen thousand two hundred and eighty-four ($13,284.00), dollars to be paid on or before twenty (20) years from the date said Ferrel may or shall designate or elect to convert the option of purchase of the lands herein described, which if not done on or before five (5) years this option and all right thereto shall become null and void and of no further force or effect; the said thirteen thousand two hundred and eighty-four ($13,284.00) dollars to be paid said county on or before the expiration of twenty (20) years from the date Ferrel shall designate or elect to purchase said lands, and said county shall only be required to give `contract for deed,' and no title to be passed until the whole amount of principal and interest thereon at the rate of five (5) per cent. semiannually in advance each year interest shall have been fully and completely paid, and it is further understood and agreed that when said amount of thirteen thousand two hundred and eighty-four ($13,284.00) dollars has been fully paid by the said Ferrel or his heirs or assigns that said county is to make good and sufficient and legal title to the said land in fee simple."

It was agreed in the trial court that there was no lease of the land to Ferrel until the one above referred to as executed November 8th, and contemporaneously with the order granting the option and option contract. On July 1, 1898, the commissioners' court entered an order directing the county judge to execute to Ferrel a bond for title, the form and terms of the orders being copied in the instrument executed by the county judge, dated July 25, 1898, which is in full as follows:

"State of Texas, County of Potter.

"Know all men by these presents that this contract of sale made and entered into this the first (1st) day of July, A. D., 1898, by and between the county of Potter, state of Texas, acting by and through her county judge, Lon D. Marrs, by virtue of an order of the commissioners' court of Potter county, Texas, on the first (1st) day of July, A. D. 1898, of which the following is a copy, and duly entered in the minutes of commissioners' court, in Book 2, page 212: `July 1, 1898. Court met pursuant to adjournment and all officials of said court present, and the following proceedings were had, to wit: It is ordered by the commissioners' court of Potter county that Lon D. Marrs, county judge of said county, be authorized and instructed to make and deliver to R. S. Ferrel a bond for title of Potter county school lands situated in Cochran county, Texas, under and by virtue of an option of purchase said Ferrel has with Potter county, Texas, under an order of this court, said order being on record on page 153, Book 2; the bond for title to be delivered to the said Ferrel when the first payment is made on said land; said bond for title shall be placed on record in the clerk's office of Potter county, Texas. No commission to be paid for the sale of said lands.'

"Said vendor is hereinafter styled party of the first part, and R. S. Ferrel, of the county of Tarrant, and the state of Texas, hereinafter styled party of the second part witnesseth:

"For the consideration hereinafter named, the party of the first part, by the terms hereof, contract the sale of the lands belonging to the school fund of said Potter county, Texas, situated in Cochran county, Texas, to the party of the second part, the same being known and described as school leagues Nos. one hundred and thirteen (113), one hundred and fourteen (114), one hundred and fifteen (115), and one hundred and sixteen (116), each of four thousand four hundred and twenty-eight (4,428) acres, aggregating in all seventeen thousand seven hundred and twelve (17,712) acres of land, for the sum of thirteen thousand two hundred and eighty-four ($13,284.00) dollars, to be paid as follows, to wit: The sum of thirteen thousand two hundred and eighty-four ($13,284.00) dollars, or any part thereof, to be paid on or before twenty (20) years after date of this contract, with interest at the rate of five (5%) per cent. per annum, interest payable semiannually in advance, on or before the 1st day of July, A. D. 1898, in the sum of three hundred and thirty-two and 10/100 ($332.10) dollars and three hundred and thirty-two and 10/100 ($332.10) dollars on or before the 1st day of January, A. D. 1899, and three hundred and thirty-two...