Gallup v. Liberty County

• Decision Date: 20 October 1909
• Citation: 122 S.W. 291
• Parties: GALLUP et al. v. LIBERTY COUNTY.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

122 S.W. 291

GALLUP et al. v. LIBERTY COUNTY.^†

Court of Civil Appeals of Texas.

October 20, 1909.

On Motion for Rehearing, November 17, 1909.

Appeal from District Court, Polk County; L. B. Hightower, Judge.

Suit by Liberty County against David L. Gallup and others. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

Coke, Miller & Coke and Terry, Cavin & Mills, for appellants. Branch T. Masterson and Stevens & Pickett, for appellee.

NEILL, J.

"This suit was brought by the county of Liberty, appellee herein, against David L. Gallup and East Texas Oil Company, appellants herein, and C. M. Votaw, C. W. Nugent, Oscar E. Oates, A. G. Hodges, A. W. Hodges, J. K. Humble, J. W. Humble, and E. D. Saunders, to recover the title to 10 certain tracts of land, aggregating about 16,000 acres, situated in the counties of Polk, Hardin, and Tyler. The suit was in the ordinary form of an action in trespass to try title. Of the defendants, David L. Gallup was a resident and citizen of the state of New York, the East Texas Oil Company was a resident and citizen of the state of New Jersey, and all of the other defendants were residents of the state of Texas. The defendants David L. Gallup and East Texas Oil Company, who are appellants in this court, filed petition and bond for removal of the cause to the Circuit Court of the United States for the Southern District of Texas, upon the filing of which the plaintiff dismissed its suit as to all of the defendants except David L. Gallup, a citizen of New York, the East Texas Oil Company, a citizen of New Jersey, and J. W. and J. K. Humble, citizens of Polk county, Tex. The petition of these appellants for the removal of the cause to the Circuit Court of the United States for the Southern District of Texas was granted; but the cause was remanded to the district court of Polk county from the Circuit Court of the United States, and was tried in the district court of Polk county. Judgment was rendered against the defendant J. W. Humble, by default, and judgment nil dicit was rendered against the defendant J. K. Humble, and upon trial had judgment was rendered for the land in controversy against the defendants Gallup and East Texas Oil Company, appellants here. These appellants answered in the court below by general demurrer, plea of not guilty, and also filed a cross-action against the plaintiff, seeking to recover the title and possession of the same land sued for by the plaintiff, upon which cross-action judgment was also rendered against these appellants. The trial court duly filed, at the request of appellants, his findings of fact and conclusions of law, which were excepted to by these appellants, who filed also a motion to correct and supplement said findings of fact and conclusions of law, which motion was overruled. The case has been properly brought to this court by appeal of these appellants, David L. Gallup and East Texas Oil Company." This statement of the nature and result of the suit, taken from appellant's brief, is accepted by the appellee, with this emendation: "Final judgment in favor of the county of Liberty was against defendants David L. Gallup, East Texas Oil Company, J. K. Humble, and J. W. Humble, for the land in controversy" —and is adopted by us.

The findings of fact and of law by the trial judge are as follows:

"Findings of Fact.

"(1) I find that the 10 tracts of land in controversy, as described in plaintiff's first amended original petition, were patented during the year 1858 by the state of Texas to the school commissioners of Liberty county in due form of law.

"(2) I find that on July 1, 1881, the commissioners' court of Liberty county made and entered on the minutes thereof the following order: `Whereas, it is the judgment of the court that it is for the interest of Liberty county that all of the county school lands situated in the counties of Polk, Tyler, and Hardin be placed on the market for sale, and the proceeds thereof invested as provided by law: It is therefore ordered by the court that W. W. Perryman be and he is hereby appointed agent of the county of Liberty with full power to sell all of said school lands, either at private or public sale, in his judgment he may deem best for the interest of the county, and to make good and sufficient title to the purchaser or purchasers of said lands; provided that said lands, nor any part thereof, shall not be sold for a less price than $1.50 per acre. It is further ordered that any sale made by said Perryman shall in no wise affect actual settlers of any rights acquired by them under the laws of this state; and the price of land to such actual settlers is fixed at $2.00 per acre.' And also that said court on the same date made and entered on its minutes another order, as follows: `It is ordered by the court that W. W. Perryman be and he is allowed 5 per cent. commission on all sales made by him of the Liberty county school lands.'

"(3) I find that W. W. Perryman, purporting to act as agent for the county of Liberty, under the above orders, on August 17, 1881, executed a deed to Walter H. Allen, conveying the said 10 tracts of land, patented as above found, aggregating 15,905½ acres, for a cash consideration of $26,164.54.

"(4) I find that the above-mentioned consideration of $26,164.54 was paid to W. W. Perryman by the grantee in said deed executed by said Perryman, and that 5 per cent. of said consideration (the same being the sum of $1,308.22) was retained by said Perryman for himself, and that he kept and held said amount in his own right and applied same to his own use and benefit.

"(5) I find that on November 14, 1881, the commissioners' court of Liberty county made and entered on its minutes the following order: `Whereas, it appears from the report of the county judge that he has in his hands the sum of $24,843.32 from the sale of school lands: It is ordered by the court that the county judge deposit one-third of said amount with T. W. House, of Houston, one-third with City Bank of Houston, and one-third with the First National Bank of Houston, to the credit of the school fund of Liberty county.'

"(6) I find that the county judge of Liberty county deposited the said sum of $24,843.32 in the three Houston banks mentioned above, and that thereafter, to wit, on June 29, 1882, the commissioners' court of Liberty county, by order entered on its minutes, directed that said sum of money be transferred from said banks at Houston and deposited with Ball, Hutchings & Co., bankers of Galveston, Tex., and further directed that said Ball, Hutchings & Co. invest said money in bonds of the state of Texas.

"(7) I find that in pursuance of said order of the commissioners' court last above mentioned said Ball, Hutchings & Co. did invest said sum of money in bonds as directed, holding said bonds on deposit, and paid the interest collected thereon to the county treasurer of Liberty county, Tex., and the same was by him placed to the credit of the available school fund of Liberty county.

"(8) I find that W. W. Perryman, who executed the deed to Walter H. Allen dated August 17, 1881, as above mentioned, was county judge of Liberty county during all of the years 1881 and 1882, and that he died prior to the institution of this suit.

"(9) I find that during the year 1885, in accordance with orders of the commissioners' court of Liberty county, said Ball, Hutchings & Co. sold a portion of said bonds which were on deposit with them, and the proceeds of such sale were invested in Liberty county jail bonds; the amount so invested being, at first, $6,500, and later an additional sum of $3,500. And I further find that these bonds in the sum of $10,000 were placed on deposit with Ball, Hutchings & Co. of Galveston for safe-keeping. And I further find that interest on these bonds was paid to the county treasurer of Liberty county for a number of years thereafter, and the sums so paid were placed to the credit of the available school fund; but the evidence does not disclose exactly the amount so paid nor accurately the number of years such interest was paid.

"(10) I find that on September 5, 1899, the commissioners' court of Liberty county made and entered on its minutes the following order: `It is ordered by the court that the $12,100 of state of Texas 5 per cent. bonds belonging to the permanent school fund of Liberty county, and now in the hands of the treasurer of Liberty county, be sold by M. D. Rayburn, county judge of Liberty county, and delivered by him to the purchaser thereof. The proceeds to be paid over by him to the county treasurer of Liberty county to be hereafter invested as this court may decide.' And I further find that on the same date said court made and entered on its minutes this order, to wit: `It is ordered that the proceeds of the sale of $12,100 and the $500 Refugio county bonds belonging to the school fund of Liberty county be invested in the 5½ per cent. interest-bearing script of Liberty county, and the money used in paying the back indebtedness of Liberty county. Also that 5½ per cent. interest-bearing script be issued in the sum of $6,500.00 to the permanent school fund of Liberty county in lieu of $1,500 illegally spent by the county by mistake and $5,000 of jail bonds which were void for want of proper authority in their issuance, in July and December, 1885.'

"(11) I find that W. W. Perryman, who executed the deed to Walter H. Allen on August 17, 1881, for the lands in controversy (as found in paragraph 1 of these findings), made no written report of that sale to the commissioners' court of Liberty county, and that said sale was never expressly approved or ratified by said court.

"(12) I find that the defendants David L. Gallup and the East Texas Oil Company claim title by mesne conveyance to the land in controversy through and under the deed from W. W. Perryman to Walter H. Allen dated August 17, 1881, referred to in the first paragraph of these findings of...