Freestone County v. McKinney

• Decision Date: 14 April 1926
• Docket Number: (No. 2647.)
• Citation: Freestone County v. McKinney, 285 S.W. 340 (Tex. App. 1926)
• Parties: FREESTONE COUNTY v. McKINNEY et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

285 S.W. 340

FREESTONE COUNTY v. McKINNEY et al.^*

(No. 2647.)

Court of Civil Appeals of Texas. Amarillo.

April 14, 1926.

Rehearing Denied May 26, 1926.

Appeal from District Court, Clay County; Vincent Stine, Judge.

Suit in trespass to try title by Freestone County against C. E. McKinney and others, in which the named defendant was granted a severance. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

T. H. Bonner, of Fairfield, W. W. Ballew, of Corsicana, Geo. W. Fryer (of Bonner, Bonner & Fryer), of Wichita Falls, Wantland & Glasgow, of Henrietta, and J. S. Dickey, of Wichita Falls, for appellant.

Thompson, Knight, Baker & Harris, of Dallas, Weldon & McDonald, of Wichita Falls, and Benson & Benson and Chancellor & Bryan, all of Bowie, for appellees.

JACKSON, J.

This is a suit in trespass to try title instituted by Freestone county, the appellant, in the district court of Clay county against several hundred defendants to recover four leagues of land.

C. E. McKinney, one of the defendants, and appellee here, was granted a severance by the court, and answered disclaiming as to all the lands in controversy save and except 40 acres described in his answer, and pleaded not guilty, and valuable improvements in good faith. The case was tried before the court without the intervention of a jury, and judgment rendered denying appellant a recovery of said 40 acres of land, and discharging appellee with his costs.

The appellant rested after introducing in evidence the patent from the state of Texas, dated January 19, 1855, and recorded in the deed records of Clay county, granting to it for school purposes the four leagues of land described in its petition.

The appellee introduced in evidence a certified copy of a plat approved by and recorded by order of the commissioners' court of appellant county, subdividing said four leagues of land into blocks, which were numbered, and upon said plat is block No. 63; an order of said court fixing the price per acre and the terms and conditions upon which the blocks were to be sold to purchasers, which authorized O. C. Kirven, county judge of appellant county, to negotiate the sale of the county's lands and make, execute, and deliver to purchasers proper deeds thereto for the consideration and upon the terms and conditions provided in said order; a deed dated January 13, 1879, from O. C. Kirven, county judge, as attorney in fact of Freestone county, conveying block 63 to J. H. Wakefield in accordance with said order for a consideration of $70.87 cash paid, the receipt of which was acknowledged, and a note for $707.63, executed by the grantee in said deed and payable to Freestone county on January 13, 1889, with interest at the rate of 10 per cent. per annum from date, payable annually; an order of said court dated February 15, 1879, acknowledging the receipt by the county of the cash consideration recited in the deed, and approving the report of the sale of this and other lands.

Appellee then introduced a connected chain of title from J. H. Wakefield down to himself covering the 40 acres of land involved in this appeal. He introduced in evidence from the office of the state superintendent of public instruction a certified copy of a report of the permanent school fund of said county, made by the treasurer thereof to the commissioners' court, by whom the report was approved, and which was filed in the office of the state superintendent. This report states it is for the scholastic year beginning July 1, 1888. He offered a similar report by the county treasurer of Freestone county, made to and approved by the commissioners' court, of the permanent school fund for the scholastic year, beginning, it states, September 1, 1889, and ending August 9, 1890, and was on file with the state superintendent of public instruction.

The findings of fact filed by the trial court, in so far as they are necessary to a consideration of this appeal, are, in effect, that the state of Texas patented four leagues of land for school purposes to Freestone county; that the commissioners' court of said county approved a plat subdividing said four leagues into blocks, which were numbered, one of which was block No. 63; that by proper order of said court, O. C. Kirven, the county judge of the county, was authorized to sell and convey for it block No. 63 for $2.25 per acre upon the terms set forth in the order; that block 63 was sold and conveyed by O. C. Kirven, as attorney in fact for the county, by virtue of said order and in accordance with the terms and conditions thereof, to J. H. Wakefield by deed dated January 13, 1879, for a consideration of $70.87 in cash, and the execution and delivery of the promissory note of the grantee for the sum of $707.63, of even date with said deed, bearing interest at the rate of 10 per cent. per annum, payable annually, and due January 13, 1889; that a lien was retained in the deed to secure the payment of said note according to the face and tenor thereof; and that appellant county received and accepted the consideration for said land recited in the deed; that the 40 acres of land involved in this appeal was a part of block 63, and that the appellee has title thereto by reason of a connected chain of title from J. H. Wakefield to himself; that the vendor's lien note given by J. H. Wakefield, payable to Freestone county, as a part of the consideration for block 63, had been paid in full to the county; that appellee and his predecessors in title have made valuable improvements upon said 40 acres of land of the reasonable cash market value of $1,900; and that the value of said 40 acres was enhanced by the improvements placed thereon in the sum of $1,900.

The trial court concluded as a matter of law that the deed from Freestone county to J. H. Wakefield constituted a valid sale of block No. 63, subject to the vendor's lien contained in the deed to secure the purchase-money note in the principal sum of $707.63, due January 13, 1889; that Freestone county ratified the sale by the receipt and acceptance of the purchase price; that the defendant C. E. McKinney is the owner of said 40 acres of land; that the vendor's lien retained by Freestone county in the sale of block 63 to J. H. Wakefield has been paid, satisfied, and discharged; and that appellant should be denied a recovery of said land.

Appellant contends that inasmuch as the suit is one in trespass to try title, with no facts alleged entitling appellee to equitable relief, he having answered only by plea of not guilty and valuable improvements in good faith, thus admitting possession, that the patent from the state to Freestone county was prima facie proof of its legal title, and the court committed error in denying it a recovery because appellee failed to show any title to the land, either legal or equitable.

Under this record the title to the land involved passed to J. H. Wakefield, appellee's remote predecessor in title (King County v. Martin [Tex. Civ. App.] 173 S. W. 960; Gallup v. Liberty County, 57 Tex. Civ. App. 175, 122 S. W. 291; Carter-Kelly Lumber Co. v. Angelina County, 59 Tex. Civ. App. 310, 126 S. W. 293; Matagorda County v. Casey, 49 Tex. Civ. App. 35, 108 S. W. 476; Leon County v. Vann, 86 Tex. 707, 27 S. W. 258), subject only to the lien retained by the county to secure the payment of the purchase money evidenced by note (Rooney v. Porch [Tex. Com. App.] 239 S. W. 910, and authorities cited).

Neither party pleaded title specially, nor alleged independent equities; hence, under the plea of not guilty, appellee was authorized to prove any fact, except limitation, that would defeat appellant's right to recover. Wittbecker v. Walters, 69 Tex. 470, 6 S. W. 788; Kauffman v. Brown, 83 Tex. 41, 18 S. W. 425; McKamey v. Thorpe, 61 Tex. 648; Key v. Jones (Tex. Civ. App.) 191 S. W. 736; Birge-Forbes Co. v. Wolcott (Tex. Civ. App.) 176 S. W. 605; Parker v. Schrimsher (Tex. Civ. App.) 172 S. W. 165; Pierce v. Texas Rice Development Co., 52 Tex. Civ. App. 205, 114 S. W. 857.

Appellant presents, as error, the action of the trial court in admitting in evidence, over its objection, certified copies of the annual reports made by the county treasurer of Freestone county to the state superintendent of public instruction, giving the status of the permanent county school fund of appellant county for the years beginning July 1, 1888, and September 1, 1889, respectively. The objections are that the purported reports are not properly certified; do not describe the land; could not affect the school fund; not the best evidence; not binding on the county; and were immaterial.

Chapter 7 of the Acts of 1888 (Gammel's Laws of Texas, vol. 9, p. 1004), made it the duty of the county treasurer of the county to report to his commissioners' court the disbursement of the school fund, state and county, and, after such report had been examined and approved by the commissioners' court, to immediately transmit a copy of such report, "including a statement of the status of the permanent county school fund, certified to by the county clerk, to the superintendent of public instruction at Austin."

The copies of these reports offered in evidence were certified by the county treasurer and approved by the commissioners' court of Freestone county, but do not appear to have been certified to by the county clerk before being transmitted to the superintendent's office; however, it appears that these reports were forwarded to and were filed with the state superintendent and accepted as a compliance with the law, and therefore became archives of his office. Under article 3694, V. S. C. S., and the conditions revealed by this record, it is our opinion that there was no reversible error in admitting them in evidence. Magee et al. v. Paul et al., 110 Tex. 470, 221 S. W. 254; State v. Sais et al., 60 Tex. 87; Stone Land & Cattle Co. v. Boon, 73 Tex. 548, 11 S. W. 544; Zettlemeyer v. Shuler, 52 Tex. Civ. App. 648, 115 S. W....