McKinney v. Freestone County

• Decision Date: 23 February 1927
• Docket Number: (No. 738-4679.)
• Citation: McKinney v. Freestone County, 291 S.W. 529 (Tex. 1927)
• Parties: McKINNEY v. FREESTONE COUNTY.
• Court: Texas Supreme Court

291 S.W. 529

McKINNEY v. FREESTONE COUNTY.

(No. 738-4679.)

Commission of Appeals of Texas, Section B.

February 23, 1927.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit in trespass to try title by Freestone County against C. E. McKinney and others, in which named defendant was granted a severance. A judgment for named defendant was reversed and the cause remanded by the Court of Civil Appeals (285 S. W. 340), and he brings error. Reversed, and judgment of the trial court affirmed.

Chancellor & Bryan, Weldon, & McDonald, and Benson & Benson, all of Bowie, and Thompson, Knight, Baker & Harris, of Dallas, for plaintiff in error.

T. H. Bonner, of Fairfield, J. S. Dickey and G. W. Fryer, both of Wichita Falls, and Wantland & Glasgow, of Henrietta, for defendant in error.

SPEER, J.

Justice Jackson, of the Seventh district, thus states the case:

"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."

The Court of Civil Appeals reversed the judgment of the trial court (285 S. W. 340), saying: "On account of the insufficiency of the testimony, the judgment is reversed and the cause remanded."

When the opinion is analyzed it will appear this is not a fact finding within the exclusive jurisdiction of the Court of Civil Appeals, but the real holding is that the undisputed evidence on the issue of payment, as against a county, is not sufficient to support the judgment. This clearly presents a matter of law over which the Supreme Court has jurisdiction.

We think the judgment of the trial court was right, and the judgment of the Court of Civil Appeals in reversing it was wrong for the following reasons: We think the erroneous conclusion of the Court of Civil Appeals is due to a confusion of defenses. It has treated the defenses of payment, evidenced by the lapse of time, as so intimately connected with limitation and laches as to be not applicable to a county. But there is no such similarity of these defenses. Limitation is a fixed, arbitrary period, which bars the remedy. Laches is that delay for such time and under such circumstances as to make it inequitable to permit the suit. Each of these defenses is a complete bar, but neither is applicable to sovereignty. The defense of payment as evidenced by long lapse of time is altogether a different thing. No lapse of time, however great, is a bar to the action (unless by statute), but where applicable at all, it merely raises a presumption of payment amounting to prima facie proof. This presumption may be overcome and the prima facie case destroyed by evidence. In other words, it is a rule of evidence, not a law of limitation. 21 C. J. "Equity," § 211; Pomeroy's Eq. Jur. vol. 4, § 1442.

It is thoroughly settled that when the state or any arm of sovereignty comes into the court, it is subject to all the...