Wilder v. American Produce Co., 7852.

• Decision Date: 25 March 1942
• Docket Number: No. 7852.,7852.
• Citation: 160 S.W.2d 519
• Parties: WILDER v. AMERICAN PRODUCE CO. et al.
• Court: Texas Supreme Court

160 S.W.2d 519

WILDER v. AMERICAN PRODUCE CO. et al.

No. 7852.

Supreme Court of Texas.

March 25, 1942.

Error from Court of Civil Appeals of Eighth Supreme Judicial District.

Suit in trespass to try title by H. S. Wilder against the American Produce Company and others to recover title to and possession of a strip of land. Judgment for defendants was affirmed by Court of Civil Appeals, 147 S.W.2d 936, and plaintiff brings error.

Judgment of the Court of Civil Appeals reversed and judgment of district court reversed, and cause remanded for new trial.

C. C. Carsner and C. C. Carsner, Jr., both of Victoria, for plaintiff in error.

E. L. Dunlap, of Victoria, for defendants in error.

ALEXANDER, Justice.

This suit was brought by H. S. Wilder against the American Produce Company and others, in trespass to try title to recover a tract of land in Victoria County. The defendants pleaded the statutes of limitation and improvements in good faith. At the conclusion of the evidence the court instructed a verdict for the defendants, and judgment was rendered accordingly. The judgment of the trial court was affirmed by the Court of Civil Appeals. 147 S.W.2d 936.

The land in question is a part of a four-league grant, made by the Republic of Texas to the town of Victoria in 1841. The Court of Civil Appeals sustained the action of the trial court in instructing a verdict for the defendants on two grounds. One of these grounds was that the conveyance from the City of Victoria to the plaintiff, and upon which he relies for his title, was void because not authorized in the manner provided in the ordinance of said city. The ordinance in question provided as follows: "Ordinances authorizing contracts, appropriations, or expenditures in excess of $1,000.00, or any lease or sale, under the city charter, shall be read in full at three regular meetings." The evidence shows that the matter of selling the land in question to Wilder was brought before the city council at a regular meeting on April 2, 1928, and was referred to the mayor and the city attorney for investigation. On April 9, 1928, at a regular meeting of the council, the mayor and the city attorney recommended the sale. On April 15, 1928, at another regular meeting, a motion carried authorizing the mayor to execute and deliver to Wilder a conveyance of said land, for a cash consideration of $500. On April 17, 1928, the mayor executed the deed as directed.

The Court of Civil Appeals was of the opinion that the conveyance was void because the resolution authorizing same was passed after a first reading; whereas an ordinance authorizing such sale, in order to be valid, would have to be read at three regular meetings before its adoption.

Revised Statutes, Article 962 which was in force at the time of this conveyance, authorized cities and towns to convey land belonging to them. See also Revised Statutes, Article 1140. There was nothing in the charter of the city limiting its statutory right to sell land. The city council was the governing body of the city, and, as such, was the proper agency to exercise the authority to sell the land in question. It attempted to exercise that authority by authorizing the mayor to execute and deliver the conveyance in question for and on behalf of the city. Such conveyance was made as directed, and the purchase price for the land was received and, presumably, retained by the city. The conveyance was regular on its face. The only irregularity related to the preliminaries incident to the authorization of the conveyance by the council. The requirement, provided for in the ordinance of the city, that such sales be authorized by ordinance was for the protection of the city. Several years had elapsed from the time of the conveyance to the date of the filing of this suit, during...