Logan v. Stephens County

• Decision Date: 14 May 1904
• Citation: 81 S.W. 109
• Parties: LOGAN et al. v. STEPHENS COUNTY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

81 S.W. 109

LOGAN et al. v. STEPHENS COUNTY.^*

Court of Civil Appeals of Texas.

May 14, 1904.

Appeal from District Court, Callahan County; J. H. Calhoun, Judge.

Action by E. B. Logan and others against Stephens county to recover certain school land. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

W. H. Jenkins and D. A. Kelley, for appellants. J. W. Crudgington, Jno. D. Hopson, A. J. Power, and Theodore Mack, for appellee.

CONNER, C. J.

This is an appeal from a judgment in favor of appellee for league No. 4 of Stephens county school lands, situated in Crosby county, claimed by appellants O. F. Green, M. C. Ferris, and Cynthia Bowen. The parties last named held actual possession by and through appellant Logan, their tenant. The title relied upon by appellants consisted of: (1) The original patent to Stephens county, dated November 28, 1877. (2) The following order of the commissioners' court of Stephens county, regularly made and entered upon its minutes on May 14, 1883, to wit: "It is ordered by the court that E. L. Walker is hereby appointed commissioner for the sale of the Stephens county school lands situated in Crosby county, Texas, and make title to the same as aforesaid commissioner." (3) Deed in the name of Stephens county, by E. L. Walker, the person named in said order, to C. W. Israel, purporting to convey the land in controversy, dated January 24, 1884, reciting a consideration of $3,000, the order of the commissioners' court above quoted, and that "Stephens county does hereby warrant and forever defend all and singular the said premises unto the said C. W. Israel, his heirs and assigns forever." (4) Deed in regular form, and with general warranty of title, from C. W. Israel to C. E. Grant and F. Fuller, of Galesburg, Ill., reciting a cash consideration of $4,428. The deeds mentioned were duly acknowledged, and it is agreed that appellants Bowen, Green, and Ferris have all of the title to the land in controversy that was acquired from Israel by said Grant and Fuller. Appellee relies on the patent hereinbefore mentioned, and we find that Grant and Fuller paid the consideration as recited in the deed to them from Israel, without knowledge or notice of appellee's title or claim, except such as it may be necessary to impute to them.

Appellants' contention of error in the trial court's adverse judgment for the land is dependent upon the effect to be given to the order of the commissioners' court hereinbefore set out. If the legal effect of said order was to confer upon E. L. Walker full power to sell and convey the land involved, then the judgment should have been for appellants. If otherwise, the judgment is correct. For appellants are undoubtedly affected with notice of any want of power manifest from the order, it being one of the necessary links in their chain of title. Pulliam v. Runnels County, 79 Tex. 363, 15 S. W. 277. Let us therefore look a little more closely at the order which lies at the very foundation of appellants' claim of title.

It is undisputed that the land involved in this suit, together with leagues 1, 2, and 3, was granted and patented to Stephens county for educational purposes, by virtue of constitutional and legislative provisions. Section 6, art. 7, of our Constitution, provides: "All lands heretofore or hereafter granted to the several counties of this state for educational purposes, are of right the property of said counties respectively, to which they were granted, and title thereto is vested in said counties, and no adverse possession or limitation shall ever be available against the title of any county. Each county may sell or dispose of its lands in whole or in part in manner to be prescribed by the commissioners' court of the county. * * * Said lands and the proceeds thereof when sold shall be held by said counties alone as a trust for the benefit of public schools therein." No other constitutional and no statutory provision of opposing effect has been cited, or by us found. It will be observed from the terms of the constitutional provision quoted that, as to lands of the character under consideration, the county is but a trustee, as, indeed, has been expressly decided. See Board, etc., v. Webb County (Tex. Civ. App.) 64 S. W. 486. The power to sell nevertheless is conferred upon the county in whose name such land is granted, but it is not an unrestricted power. For instance, as has been decided, the county has no power to convey part of its school lands in payment for services in locating them (Tomlinson v. Hopkins County, 57 Tex. 572; Pulliam v. Runnels County, supra), nor for services in platting, subdividing, etc., such lands for sale after their original location (Dallas County v. Club Land & Cattle Company [Tex. Sup.] 66 S. W. 294). It is to be also observed that the Constitution expressly provides that sales shall be made in manner to be provided by the commissioners' court of the county.

It is by no means clear that the order of the commissioners' court appointing E. L. Walker as commissioner for the sale of Stephens county school lands is necessarily to be construed as intended to confer upon said Walker unrestricted power to sell the lands therein referred to in any manner that he (Walker) might see proper to follow. It is perhaps susceptible of the construction that the true intendment of the order was merely to appoint a commissioner who should make formal conveyance — title — to the lands after the same had in fact been sold by the commissioners' court or county. In the absence of terms clearly requiring a different construction, the one indicated...