Carter-Kelly Lumber Co. v. Angelina County

• Decision Date: 19 February 1910
• Citation: Carter-Kelly Lumber Co. v. Angelina County, 126 S.W. 293, 59 Tex. Civ. App. 310 (Tex. App. 1910)
• Parties: CARTER-KELLY LUMBER CO. v. ANGELINA COUNTY.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

Page 293

126 S.W. 293

CARTER-KELLY LUMBER CO. v. ANGELINA COUNTY.^†

Court of Civil Appeals of Texas.

February 19, 1910.

Rehearing Denied March 17, 1910.

Appeal from District Court, Angelina County.

Action by Angelina County against the Carter-Kelly Lumber Company. From a judgment for plaintiff, defendant appealed. Reversed and rendered.

E. J. Mantooth, for appellant. Sam H. Townsend and W. J. Townsend, Jr., for appellee.

McMEANS, J.

On November 28, 1900, Angelina county was the owner of 5,140,118 square varas of land, granted to said county by the state of Texas for educational purposes. On that date the county commissioners' court of Angelina county in regular session entered the following order:

"It is ordered by the court that the following lands and timbers owned by Angelina county, and being situated in Angelina county, Texas, which said land contains 5,140,118 square varas, and is better known as the Angelina county school land, and which was patented by the state of Texas to said Angelina county on the 17th day of July, A. D. 1889, which patent is recorded in Book Q on pages 494 and 496, Deed Records of said Angelina county, to which record reference is here made for further description of said land, be and the same is this day put on the market for sale, and J. T. Maroney, county judge of said county, is hereby duly appointed and commissioned as the legal and qualified agent of said county, to negotiate, sell, and make good and sufficient title to the purchaser or purchasers of all or any portion of said land, or timber, so sold, upon the following terms and stipulations, to wit: Provided that none of said land shall be sold for less than two dollars and fifty cents ($2.50) per acre, and the timber only, if sold separately from the land, at not less than the regular customary market price for same and the purchase price of said timber, only, shall be paid in cash. The said land shall be sold either for cash or on credit as the said J. T. Maroney, agent as aforesaid, shall deem to be the best interest of said county; and if sold on credit, the vendor's lien shall be specially retained in the deeds of conveyance, on said land, to secure the deferred payments on same, and all deferred payments shall bear interest at 6 per cent. per annum. J. A. Sumrall voting, `No.'"

Thereafter on the 3d day of June, 1901, J. T. Maroney sold and conveyed to J. D. Ford all the merchantable pine timber growing upon all the land, except 40 acres occupied by one Foster, for the consideration of $600 paid in cash; the deed conveying same, omitting the description and acknowledgment, being as follows:

"The State of Texas, County of Angelina — Know all men by these presents: That I, J. T. Maroney, County Judge, agent for the land and timber herein described, of the county of Angelina and state of Texas, in consideration of the sum of six hundred ($600.00) dollars, to me in hand paid by J. D. Ford, have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said J. D. Ford of the county of Angelina, in the state of Texas, all that certain merchantable pine timber now growing and standing on the hereinafter described 871 acres of land being situated in Angelina county, Texas, a part of survey of 5,140,181 sqr. varas of land and all of said survey except 40 acres of same heretofore sold to Ed. Foster, the said 40 acres so sold to the said Foster to be surveyed out of said 5,140,181 sqr. varas in a square block and to include the premises and improvements where the said Foster now lives, the timber herein conveyed being on the following described and bounded land, and all the merchantable pine timber growing on said land except that growing on the 40 acres heretofore sold to the said Ed. Foster as above stated. [Then follows description.] To have and to hold the above-described merchantable pine timber and right of way together with all and singular the rights and appurtenances thereto in anywise belonging to said premises, the said tramways, wagonways and skidways, exclusively unto the said J. D. Ford, his heirs and assigns, shall have gone over said land once and cut the merchantable pine timber thereon. It is understood and agreed by both parties hereto that when the party of the second part, J. D. Ford, or his assigns, shall have once gone over said land and cut and removed the merchantable timber or such timber as he or they may cut and remove when they first go over said land, then such portion of said land as gone over will no longer be under control of the said J. D. Ford or his assigns. The said J. D. Ford or his assigns has ten years only to remove said timber when this deed shall become void. To have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto in anywise belonging, unto the said J. D. Ford for a period of ten years, or till be removes said timber if removed before the ten years expires, heirs and assigns forever, and I do hereby bind myself and successors to warrant and forever defend, all and singular, the said premises unto the said J. D. Ford for a period of ten years only or till removed if removed sooner, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through, or under said Angelina county. Witness my hand at Lufkin, Texas, this 3d day of June, 1901. J. T. Maroney, County Judge."

At the time of the execution of the deed Ford paid the consideration of $600 to Maroney, who in turn paid it over to the county treasurer of Angelina county, and the same was placed in the permanent school fund of the county, and afterwards, by order of the commissioners' court, invested in interest-bearing bonds; and thereafter, up to the time of the filing of this suit, the county annually collected the interest on said bonds, and used the same for the benefit of its public schools. Before depositing the $600 in the treasury, and a few days after the sale and delivery of the deed to Ford, Maroney reported the sale of the timber and the price he had received therefor to the commissioners' court of Angelina county, then in session, and the court approved and confirmed the sale, a majority of the members of the court voting in favor of approval, and one member voting against it, but no order of approval or confirmation was entered in the minutes of the court. The appellant claims the timber through mesne conveyances from Ford. This suit was filed by Angelina county on July 9, 1907, and was in the nature of an action of trespass to try title for the land and...