Loving County v. Higginbotham

• Decision Date: 08 April 1938
• Docket Number: No. 1772.,1772.
• Citation: 115 S.W.2d 1110
• Parties: LOVING COUNTY v. HIGGINBOTHAM et al.
• Court: Texas Court of Appeals

115 S.W.2d 1110

LOVING COUNTY v. HIGGINBOTHAM et al.

No. 1772.

Court of Civil Appeals of Texas. Eastland.

April 8, 1938.

Rehearing Denied May 6, 1938.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Dawson County; Gordon B. McGuire, Judge.

Trespass to try title by Loving County against R. Wilson Higginbotham, Jr., and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

Mullican & Nelson and Lockhart & Brown, all of Lubbock, for appellant.

Crenshaw & Dupree, of Lubbock, Wagstaff, Harwell, Wagstaff & Douthit, of

Abilene, and Carl Rountree, of Lamesa, for appellees.

FUNDERBURK, Justice.

Following the creation of Loving County by act of the Legislature in 1887, and the attachment thereof to Reeves County "for judicial, surveying and all other purposes," an election to organize the county was held July 8, 1893, as the result of which Mentone was selected as the county seat, and J. J. Combs was elected county judge, together with other officers, including four county commissioners, all of whom qualified and received certificates of election, except one county commissioner and one other officer (sheriff and tax collector). On September 6, 1893, the commissioners' court entered an order appointing J. J. Combs as the agent of Loving County "to locate, secure patents, and negotiate the sale of, the school lands belonging to the said Loving County." A certified copy of this order was filed in the General Land Office on February 8, 1894, with payment of $92 surveying fees. The next day (February 9, 1894) the State of Texas, by the Governor and Land Commissioner, issued patents to Loving County covering four leagues of county school land located in Dawson County, being leagues Nos. 271, 272, 273, and 274. By deed dated February 21, 1894, filed for record in Dawson County February 28, 1894, Loving County, by J. J. Combs, styling himself "County Judge and agent of said county," with the further recitation that he was "duly authorized by an order of the commissioners' court of said county to sell and convey the land described" therein, purported to convey said league No. 271 to W. R. Fowler. The consideration recited was a note for $3,099.60, further described as being "of even date, payable five years after date and stipulating for six per cent per annum interest and ten per cent attorney's fees on the principal and interest of said note if it is not paid at maturity and suit is brought to enforce its collection." Said deed contained a general warranty of title, and recited the usual agreement and stipulation that a vendor's lien was retained to secure payment of the note with interest and attorney's fees. On the same date three other identical deeds were executed purporting to convey each of the other leagues, 272, 273, and 274, to said W. R. Fowler, each deed being acknowledged before the same officer, and filed for record at the same time in Dawson County.

In 1897 the Legislature passed an act, the caption of which was as follows: "An act to provide for the disorganization of the County of Loving, in the State of Texas, and to attach said county to the County of Reeves for judicial and other purposes; and to provide for the assessment and collection of taxes in said county, and for the payment of the outstanding indebtedness of said county."

A preamble to the act recited: "Whereas the County of Loving as it now exists is in a disorganized condition, having no county officials resident within the limits of said county, and no taxes having been assessed and collected in said county for the years 1895 and 1896 and a portion of the taxes assessed for the years 1893 and 1894 remain uncollected; Therefore," etc. 10 Gammel's Laws, p. 1259. Section 7 of that act in part provided that "* * * the commissioners' court of Reeves County shall take all necessary steps by suit in the name of Loving County to recover back to said county all lands and other property properly belonging to it, which may have been wrongfully converted or disposed of by any person assuming to act for said county or otherwise * * *."

On February 13, 1899, the commissioners' court of Reeves County entered an order providing for the employment of counsel to institute and prosecute a suit for the recovery of said four leagues of school land. Such suit was brought January 16, 1900, in Howard County, to which Dawson County was attached for judicial purposes, against Fowler and the persons then claiming to own the land under title through him. League No. 271 was, by amendment of pleadings, eliminated from the subject matter of the suit before rendition of the judgment. The judgment of date October 5, 1903, awarded R. N. Graham, vendee of W. R. Fowler, title and possession of leagues 272, 273, and 274, subject to a lien thereon in favor of Loving County to secure the purchase price. The court papers in that case were lost and not available at the trial of this case. By deposition, testimony by one of the attorneys was introduced to show that the authority of Combs to execute the deeds to Fowler of the four several leagues of land, particularly with respect to a certain order of the commissioners' court, was put in issue and adjudicated in favor of such authority. Without appeal the judgment became final. The purchase price of leagues Nos. 272, 273 and 274 was subsequently paid to proper officials of Reeves County and the commissioners' court of said county duly authorized the release of said liens.

On February 14, 1924, the commissioners' court of Reeves County entered an order reciting that Loving County had received the proceeds of the note executed by Fowler in payment of the purchase price of league No. 271, and that said note had been fully paid and released by the holder of said note, but that no formal transfer of said note having been made to such holder a cloud was created on the title to said land; and the county judge of Reeves County was directed to execute a release on behalf of Loving County of any right, title, and interest of said Loving County in and to said vendor's lien note and to the land by which it was secured. Such release was executed as provided in said order.

Thereafter, on or about July 10, 1931, Loving County was reorganized. Funds including in part the purchase money of leagues 272, 273, and 274 upon demand were paid to Loving County by Reeves County. On or about June 27, 1935, through the commissioners' court, Loving County made a contract with G. E. Lockhart, an attorney, in form a sale of the four leagues of school land, but which, since no question is made of it upon this appeal, may be regarded as a contract of employment by said county of said attorney to represent it in an effort to recover the title and possession to said lands.

This suit involving only a part of said league 271 followed, it being an action of trespass to try title with additional allegations apparently designed, by way of anticipation, to negative the validity of any title claimed by the defendants and to constitute the basis for an alternative claim of title to the land on the theory of a rescission for nonpayment of the purchase-money notes, if the conveyance of the land should be sustained as sufficient to pass the equitable title to the said W. R. Fowler and through him to the defendants.

In a jury trial special issues were submitted, in response to which it was found by the special verdict: (1) That the commissioners' court of Loving County, Tex., was in session at Mentone, Tex., on February 19, 1894; (2) that said commissioners' court passed the order on February 19, 1894, a certified copy of which was introduced in evidence upon the trial; (3) that the proceeds, if any, of the note for $3,099.60 executed by W. R. Fowler as purchase money for league 271 were received by the county commissioners' court or the county treasurer of Loving County. From the judgment based upon said verdict, providing that plaintiff take nothing by the suit, said plaintiff Loving County has appealed.

It is quite apparent that special issues 1 and 2 sought to elicit findings of evidentiary facts and not of ultimate issues joined by the pleadings. However, it is further apparent, we think, that but one issue was supposed to be concluded by the finding of such evidentiary facts and what that issue was. It was either an issue of whether or not a certain purported certified copy of an order of the commissioners' court of Loving County, stated in the certificate to have been made February 19, 1894, and purporting to have been certified the same day, recorded in Dawson County January 18, 1907, was a forgery; or else, an issue of whether Loving County on February 19, 1894, had an organized existence with consequent capacity, through a commissioners' court, to make valid provision for the sale of, and conveyance of title to, the county school lands. If the latter was the issue a finding of which was sought to be concluded by special issues Nos. 1 and 2, we are of the opinion that, as an issue, it was not embraced in, or joined by, any pleadings. There were no pleadings by Loving County, even purporting to allege a cause of action for the cancellation of, or to have adjudged null and void, such purported action of the commissioners' court, or even the purported Loving County-to-Fowler deed. The presumption would, of course, be against any intention to submit an issue not made by the pleadings. Therefore, if the issue intended to be concluded by the findings upon issues Nos. 1 and 2, in the form and manner as submitted, was whether there was a functioning county government with capacity to pass the order in question, then after all that would be but an evidentiary fact, although conclusive, perhaps, of the issue of forgery. Issues 1 and 2 we think must be regarded as an attempted submission of the single issue of forgery and in themselves sufficiently indicative of such purpose as to impose upon Loving County the duty of making objections to...