Midland County v. Slaughter

• Citation: 130 S.W. 612
• Parties: MIDLAND COUNTY v. SLAUGHTER et al.
• Decision Date: 28 May 1910
• Court: Court of Appeals of Texas

130 S.W. 612

MIDLAND COUNTY v. SLAUGHTER et al.

Court of Civil Appeals of Texas.

May 28, 1910.

Rehearing Denied July 2, 1910.

Error from District Court, Lubbock County; L. S. Kinder, Judge.

Action by Midland County against C. C. Slaughter and others. Judgment for defendants, and plaintiff brings error. Reversed, and judgment rendered.

See, also, 118 S. W. 762.

G. G. Wright and K. R. Craig, for plaintiff in error. Caldwell & Whitaker, Geo. R. Bean, and A. H. Kirby, for defendants in error.

CONNER, C. J.

This suit was instituted by Midland county in the form of an action of trespass to try title to recover the four leagues of Midland county school land situated in Cochran and Hockley counties. The defendants answered by a general denial and pleas of not guilty. The case was tried by the court without a jury and judgment entered on May 5, 1908, that plaintiff, Midland county, take nothing and pay all costs, and from this judgment said plaintiff has duly prosecuted this writ of error.

The court filed his conclusions of fact and law, from which it appears that prior to all dates herein specified the lands in controversy were granted to Midland county for its permanent free school fund; that on or about the 14th day of May, 1895, the commissioners' court of Midland county by an order duly made and entered upon the minutes of the court accepted as per contract entered upon the minutes of the court, a proposition by John Scharbauer for the lease of said lands for the term of 20 years at the rental price of 4 cents per acre for the first year, and 4½ cents per acre for each succeeding year thereafter, and granted to said Scharbauer the option to purchase said land at any time during the life of said lease at the price of $1 per acre, payable 20 years from the date of the exercise of said option with interest at the rate of 4 per cent. per annum, payable annually in advance; that on the 8th of August, 1898, the commissioners' court of Midland county entered an order on the minutes of said court granting to John Scharbauer the privilege of subletting the lands embraced in the lease, but providing that he should not be released from his liability on his contract for the payments of the rentals; that on the 13th of April, 1900, John Scharbauer, by an instrument of writing duly executed and acknowledged, conveyed to C. C. Slaughter all his right, title, and interest in the land embraced in the lease. C. C. Slaughter afterwards conveyed to the defendant in error C. C. Slaughter Cattle Company, which was the real party in interest below. It further appears from the findings that since the assignment to Slaughter the rents stipulated for in the contract were regularly paid every year, as evidenced by the receipts of the county treasurer, until June, 1907, upon which date a legal tender of the amount of the annual rent was made by C. C. Slaughter to the county treasurer of Midland county, but which tender the treasurer refused, being so instructed by the commissioners' court. The tender was continued by appellee's offer in open court to pay all rentals due, but such offer was also refused. There are some other findings, but none that we deem it material to here state. The court concluded from the facts found that the lease was still in force, and that the defendants were lawfully in possession of the land, and judgment was, accordingly, rendered in defendants in error's favor.

Certified copies of the various contracts and orders referred to, attested by the signature and seal of the county court, were read in evidence, but to which plaintiff in error objected because they had not been authenticated by the seal of the commissioners' court, instead of that of the county court, as required by article 1556 of the Revised Statutes, and the objections are brought before us by a number of assignments, which, in view of the conclusion we have reached, we deem unnecessary to determine.

Section 6, art. 7, of the state Constitution, so far as applicable provides that: "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 provided by the commissioners' court of the county. Actual settlers residing on said lands shall be protected in the prior right of purchasing the same to the extent of their settlement, not to exceed one hundred and sixty acres, at the price fixed by said court, which price shall not include the value of existing improvements made thereon by such settlers. 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; said proceeds to be invested in bonds of the United States, the state of Texas, or counties in said state, or in such other securities, and under such restrictions as may be prescribed by law; and the counties shall be responsible for all investments; the interest due thereon, and other revenue, except the principal, shall be available fund."

Other than this we have been unable to find any statute or decision of our state that affords any clear guide. The power given to counties by this constitutional provision, however, to "sell or dispose of its lands in whole or in part," in the absence of any limitation—and we find none—doubtless authorizes counties to lease school lands granted to them for public free school purposes for at least a reasonable period, and, in view of the fact that plaintiff in error did not in this action specifically seek to rescind or cancel the lease to John Scharbauer as unreasonable, we, perhaps, are not authorized to hold that the lease for the term of 20 years is void on this ground alone, and unless the lease contract is void we think the plaintiff in error was properly denied a recovery in this action. In this connection, however, it is perhaps not unworthy of notice that at no period in the history of our legislation has the Legislature authorized the lease of the state public free school lands for a longer term than 10 years. But if it be conceded that, under the circumstances existing at the time of the execution of the lease under consideration, 20 years was not unreasonable, and if it be further conceded that at the time of the execution of the lease $1 per acre was the reasonable value of the land, we nevertheless think that the commissioners' court was without power, as attempted, to bind the county and some 20 other commissioners' courts that might succeed them. The long term of the lease is not the only feature that is to be considered. It specifically attempts to grant the right to John Scharbauer, at any time during the continuance of the term, regardless of change in conditions or values, the exclusive right to purchase the land at $1 per acre, payable 20 years from the date of the exercise of the option with interest at the rate of 4 per cent. per annum, payable annually in advance. In so doing we think the commissioners' court, a mere agent of the county for the execution of the trust reposed by the Constitution, exceeded their power. By the terms of the written proposition of Scharbauer, which is made a part of the court's findings, and which was accepted by the commissioners' court and entered upon its minutes, such option was made the condition upon which Scharbauer's offer to lease was made. In our opinion we have no authority to reject this feature of the contract and maintain the validity of the remainder.

The contract is entire, and the vice taints the whole. If the contract was a valid one, John Scharbauer, immediately before the 20-year term had expired, might purchase the land at $1 per acre and extend the time of payment therefor at a low rate of interest for a further period of 20 years. We believe that any such preference right was void on the ground of public policy, and that...