author: PHILLIPS, C. J.

text:
    YOAKUM COUNTY v. SLAUGHTER.
    (No. 2645.)
    (Supreme Court of Texas.
    May 17, 1916, and June 11, 1917.)
    1. Public Lands <&wkey;173(2) — Reservation oir School Lands by Statute for Counties — “Set Apart” — “Reservation.”
    Acts 17th Leg. c. 61, providing' for designating and setting apart 300 leagues of land out of the unappropriated public domain for the benefit of the unorganized counties of the state, and providing for its survey and location, did not have the force of a present grant of the land to the unorganized counties, and as long as any of the land remained a part of the reservation it was the land of the state, which was not divested of its title by the statute, since to set land apart to constitute it a reservation signifies something other than a present conveyance of the title.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 545'.
    Por other definitions, see Words and Phrases, First and Second Series, Set Apart; Reservation.]
    2. Public I/Ands &wkey;173(2) — School Lands —Power op Legislature.
    It was within the power of the Legislature to make such provisions for the benefit of counties in respect to the maintenance of free schools as in its wisdom were best suited to their situation.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 545.]
    8. Public Lands <@=173(2) — School Lands— Reservation by State — Statute.
    If, while Acts 17th Leg. c. 61, setting apart out of unappropriated public domain 300 leagues of land for benefit of unorganized counties for free school purposes, continued in force, any of such counties had perfected its organization, and paid or tendered the surveying fees with interest or the patent fees, it would have become entitled to four leagues out of the reservation in their numerical order, and would have acquired a vested right therein, the issuance of patent being merely a ministerial act on which the county’s title would not have been dependent.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 545.]
    4. Public Lands &wkey;173(2) — Grant oe School Lands to Counties — Constitution.
    Had a statute invested unorganized counties with title to part of the public domain for the benefit of free schools, the lands would have constituted granted lands, and the rights of the counties would have been protected from adverse legislation by Const, art. 7, § 6, providing that ail lauds granted to counties for educational purposes are the property of the counties to which they were granted, and title thereto is vested in them, etc.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 545.]
    5. Public Lands @=173(2) — Reservation of Public Lands — Kebeal of Statute.
    If no vested right was created in unorganized counties by Acts 17th Leg. c. 61, setting apart 300 leagues of unappropriated public domain for the benefit of such counties for free school purposes, the Legislature retained its power over the land, and had authority to adopt Acts 18th Leg. c. 55, making a reservation of such lands for the benefit both of unorganized counties and such organized counties as had failed to obtain title to the land previously appropriated in their behalf, and also providing that ail laws in conflict were repealed; the act of 1883 necessarily repealed the act of 18S1 to the extent that the latter set aside the land for the exclusive benefit of the unorganized counties.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 545.]
    6. Statutes @=219, 220 — Construction by LEGISLATURE AND EXECUTIVE — RESPECT BY Supreme Court.
    If the construction given by the legislative and executive departments of the state to a statute reserving- public lands for the benefit of unorganized counties for free schools were clearly wrong, it would be the duty of the Supreme Court to disregard it, but the construction should not be cast asido and dependent titles of innocent holders struck down unless the construction is clearly wrong.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 296-298.]
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Suit by Yoakum County against C. C. Slaughter. There was a judgment for defendant, plaintiff appealed to the Court of Civil Appeals, and to review the judgment of such court, reversing (160 S. W. 1175), defendant brings error.
    Reversed, and judgment of the District Court for defendant affirmed.
    Henry C. Coke, of Dallas, for plaintiff in error. Sayles, Sayles & Sayles, of Abilene, for defendant in error.
   PHILLIPS, C. J.

The plaintiff in error, holding under the patent of the State, has a lawful and complete title to the land in controversy unless the Act of March 26, 1881, amounted to an irrevocable grant on the part of the State to the unorganized counties of the State. We think the effect of that Act was to create a reservation for the benefit of such counties and that it was not a grant; and it was therefore within the power of the Legislature to deal with the reservation as was done by the Act of the succeeding Legislature in 1883, under which latter Act the patent was issued under which the plaintiff in error holds.

The judgment of the Court of Civil Appeals is reversed and the judgment of the District Court is affirmed.

The opinion in the case will be later filed.

This case is one wherein Yoakum County sued C. C. Slaughter for certain land. It was decided near the close of the last term, the judgment of the Court of Civil Appeals being reversed and that of the District Court, which adjudged the land in controversy to the defendant Slaughter, being affirmed. A memorandum opinion was at that time filed, with the intention on the part of the writer to later set forth more fully the grounds of the decision. To that end the present opinion is filed.

The real question presented by the case is whether a certain act of the Degislature,— the Act approved March 26, 1881, (General Laws of 1881, chapter 61, page 65,) — which provided for the setting apart out of the unappropriated public domain of three hundred leagues of land for the benefit of the unorganized counties of the State for free school purposes, of which each of such counties, as organized, was to receive four leagues, and the survey of the three hundred leagues thereunder, operated as a present grant of such land so as to at once invest such unorganized counties with the title; or was simply a legislative reservation of the land for the purpose stated, in respect to which there still remained the legislative power of disposition for other, or additional, constitutional uses.

The succeeding Legislature asserted such power; and, assuming that the title to the lands set apart by the previous act, — which had been surveyed pursuant to its provisions, but none of which had then been patented,— was yet in the State, enacted a law, the Act of April 7, 1SS3, (General Laws of 18S3, chapter 55, page 45,) whose effect was to make of such lands a reservation for free school purposes for the benefit both of the unorganized counties of the State, and such organized counties, as well, as had failed to obtain title to their four leagues of land previously appropriated in their behalf for that purpose; it being also provided that all laws in conflict with the act were repealed.

In brief, the object of the legislation embodied in these two acts was to enable both the organized and the unorganized counties of the state to respectively obtain their full complement of four leagues of land for school purposes, in accordance with the established policy of the State.

Shackelford County was an organized county when the Act of 1881 became effective, having been organized on September 12, 1874. In 1875 school land certificates for four leagues were issued it, which were located in Motley County, the patents issuing in 1877. Because these patents were in conflict with the older valid surveys, they were canceled in 1886; and during the same year the four leagues in controversy here, being part of league No. 81, leagues Nos. 82, 83, 84, and part of league No: 85, surveyed under the Act of 1881, were patented to it under the Act of 1S83, constituting the only land ever received by it by valid title for school purposes. The defendant Slaughter holds the title of Shack-elford County, having paid for the land in full.

Yoakum County was created by the Legislature in 1876, but was not organized until 1907. No land has ever been patented to it for school purposes. Following its organization, it made request to the Commissioner of the General Land Office for, patents to the four leagues out of three hundred leagues surveyed under the Act of 1881 to which it claimed to be entitled under the act, in writing stating that if its request was refused, it should apply to the land in controversy, making in that connection a lawful tender of the surveying and patent fees. The Commissioner refused its request upon the ground that all of the leagues surveyed under the Act of 1881 had previously been patented to other counties of the State.

The position of Yoakum County in the case is that the Act of 1S81 together with the actual survey in 1882 of the three hundred leagues thereby appropriated, amounted to a present irrevocable grant by the State of those leagues to the unorganized counties of the State; that as one of the then created and unorganized counties of the State, it thereby acquired title to the four leagues in controversy; that the Act of 1883, in so far as it sought to appropriate to other uses any of the three hundred leagues set apart and surveyed under the Act of 1881, was of no effect, and the patents to the four leagues in controversy issued Shackelford County thereunder were accordingly void; and that if under the Act of 18S1 it did not acquire the title to the specific four leagues in suit, it at least thereby took title to an interest of four leagues in the three hundred leagues referred to, entitling it to maintain the suit for the specific leagues against one wholly without any title to them.

While the Act of 1881 made an appropriation and authorized the survey of three hundred leagues, three hundred and twenty five leagues were surveyed and numbered under the act and their field notes returned to the Land Office, the twenty five extra leagues being designated by the locating surveyor as supernumerary leagues^ Nos. 1 to 25 inclusive. This designation was disregarded by the Commissioner, who numbered them as Nos. 301 to 325, inclusive; the three hundred leagues being likewise donsecutively numbered.

As before stated, none of these leagues had been patented when the Act of 1SS3 was adopted. The provisions of the Act of 18S1 had been executed no further than the surveying of the land and making the proper return and record of the field notes of the respective leagues. Such was the condition when the Legislature by the Act of 1883 provided that the three hundred and twenty five leagues thus surveyed should constitute a reservation out of which each of the unorganized counties, as it vTas organized, should be entitled to receive four leagues for free school purposes, and out of which such organized counties as had failed, from any cause, to obtain title to the four leagues to -which they were respectively entitled for that purpose under previous laws, (Art. 4032, R. S. 1879; Arts. 3464, 3468 Paschal’s Digest,) should also be entitled to receive so much'land as might be necessary to make up their lawful complement. •

Following the Act of 1S83' and pursuant thereto, throughout a period extending from August 7, 1883, to May 8, 1909, the leagues and parts of them were patented alike (1) to counties which were organized when the Act of 1SS1 took effect, (2) to counties then created but unorganized, and (3) to counties created thereafter; those of the last class having been held by this court in Yoakum County v. Robison, 103 Tex. 145, 124 S. W. 629, to be “unorganized counties” within the intention of the Act of 1881. The entire three hundred and twenty five leagues had been thus patented prior to the filing of the present suit.

The distribution of the leagues by patent among the counties of the three classes named was as follows:

Thirty seven leagues and a fraction, including the four patented to Shackelford County, were patented to twenty three different counties which were organized when the Act of 1881 became effective.

Two hundred and fifteen leagues and a fraction, with some minor exceptions, to fifty five different counties which were then created but unorganized.

And seventy two leagues to eighteen different counties thereafter created.

Of the thirty seven and a fraction leagues patented to the organized counties, leagues and parts of league's bearing the following numbers were patented prior to the patenting of the four leagues in controversy to .Shackelford County, namely, Nos. 21, 22, 23, 24, 25, 26, 3211 acres in No. 27, 28, 420 acres in No. 29, 30, 31, 32, 33, 34, 39, 40, 41, 42, 43, 44, 1895 acres in No. 45, 2533 acres in No. 53, 54, 55, 56, 2365 acres in No. 57, 322, 323, 824, and 325.

If the Act of 1881, with the survey of th'e three hundred leagues thereunder^ amounted to a present irrevocable grant ■ of . those leagues to the unorganized counties, the title of the twenty three organized counties to the entire thirty seven and a fraction leagues patented to them, except as to leagues and parts of leagues out of the original twenty five supernumerary leagues and bearing numbers succeeding League No. 300, comprising, relatively, a small amount of the land thus patented, is void.

It is not necessary to set out the Act of 1SS1 in its entirety. Such parts of it as serve to reveal its character and purpose will be given.

Its caption was as follows:

“An act to provide for designating and setting apart three hundred leagues of land out of the unappropriated public domain for the benefit of the unorganized counties of the State, and to provide for the survey and location 'of the same.”

Section 1 provided a board, constituted by the Governor, Comptroller, Treasurer, Attorney General and Commissioner of the General Land Office, to contract for the surveying and returning to the General Land Office of the field notes and plats of three hundred leagues of land from any of the unappropriated public domain within the State, or any of the reserve made by the Act of the Legislature of July 14, 1S79, which, the section continues, “shall constitute a reservation out of whdch each of the unorganized counties of this State, as it may be organized, shall be entitled to four leagues of land .for free school purposes.” The remainder of the section, with Sections 2, 3, and 4 related to the letting of the contract for the surveying, the making of such contract, and provision for its security. Section 5 provided for a proper record of the field notes and maps of the surveys, declaring that the books containing them should constitute an archive in the General Land Office. Section 6 related to the marking and establishing of the corners of the leagues on the ground.

Section 7 was as follows:

“Each league of land shall be numbered in the order it is surveyed by the contractor or contractors, beginning at number one and extending to number one hundred, and as each of the unorganized counties in the State shall be organized, such county shall be entitled to the first four leagues out of the reservation authorized by this act, which shall not have been patented to other counties for free school purposes, upon the payment to the treasurer of the state the actual costs of the surveying fees and legal interest thereon from time of payment by the State; and upon the payment of the cost of surveying and patent fees, the commissioner of the general land office is hereby required to issue patents to said county for four leagues of land as above provided: Provided, any county that fails to pay surveying and patent fees under this act, within three years after its organization, shall forfeit all claims to the lands herein donated.”

Section 8 provided for the supervision and control of the contracting surveyors in the making of the surveys; and Section 9 for the powers of the board in respect to the time and manner in which the plats and field notes of the surveys should be made. Section 10 made it a penal offense for any one charged with the execution of the act to file upon or locate any lands for himself or other person while thus employed by the State. Section 11 prohibited the drawing of any money out of the State Treasury for the execution of the act until the three hundred leagues of land had been surveyed and their field notes returned to the Land Office. Section 12, the concluding section of the act, provided an appropriation of 84500.00 for its execution.

The Act of 1SS1 does not impress us as having, either in itself or in connection with tlie survey of the land thereby authorized, the force of a present grant of the land. Its provisions reveal no such purpose. As distinguished from a present conveyance of the title, its object, in our opinion, was simply to create a certain reservation of the public domain as a means of enabling the State, in the execution of its established policy, to make, in the future, to the unorganized counties the same land donation for school purposes as under other laws was authorized to the organized counties, and in that connection to provide the time when and the conditions under which the right of such counties to the land thus reserved for their benefit should accrue. This, we think, stands out plainly as the meaning of the Act. It was not a present donation of the land. It was a law making provision for a future donation.

Convincing proof that no present divestiture of the State’s title was intended is found in the fact that the immediate purpose of the Act was the creation of “a reservation,” and, further, that it was only through the reservation thus created that its ultimate purpose was to be accomplished. If it was the contemplation of the Act that the title to the three hundred leagues should, upon the completion of the authorized survey, at once vest in all the unorganized counties of the State, as Yoakum County here claims, why the express provision that the land thus surveyed “should constitute a reservation”? Why was the land “set apart,” if it was the intention that the title thereto should at once vest? There could be no occasion for “setting it apart” by means of the survey, if the survey was to be then and there efficient to divest the State of its title. To set land apart, to constitute it a reservation, signifies something other than a present conveyance of the title. These are not appropriate terms of conveyance. They are terms of segregation. They indicate, not a present disposition of that which is segregated, but its future use for a definite purpose. In this Act they denoted a continuance of the State’s ownership and control. As long as any of the land remained a part of the reservation, it was the land of tire State. It was intended, of course, that the State’s title should eventually pass to the counties. The time when they were to become entitled to it was definitely fixed by the Act. But the fact that by its express terms the land was “set apart” and constituted “a reservation,” shows very plainly that it was the intention of its framers that there should be a period under its operation during which tlie State’s right to the land should be paramount and its dominion supreme. This feature of the Act indicates, we think, as plainly as language could, the retention of the State’s title throughout such period; and it, in turn, negatives all idea that any present conveyance of its title was intended.

That any immediate vestiture of title in the unorganized counties was contemplated, is furthermore plainly refuted by the express declaration found in Sections 1 and 7, that they should be entitled to the land only upon their becoming organized counties and their fulfilment of the requirement of the Act in respect to the payment of the surveying and patent fees. The provision of Section 1 is, that the three hundred leagues to be surveyed “shall constitute a reservation out of which each of the unorganized counties of this State, as it may be orgcmized, shall be entitled to four leagues of land for free school purposes.” The provision of Section 7, after directing the numbering of the surveyed leagues, is:

"And as each of the unorganized comities of the State shall be organized, such county shall be entitled to the first four leagues out of the reservation authorized by this act, which shall not have been patented to other counties for free school purposes, upon the payment to the treasurer of the State the actual costs of the surveying fees mid legal interest thereon from time of payment by the State; mid upon the payment of the cost of surveying and patent fees, the commissioner of, the general land office is hereby required to issue patents to said county for fow leagues * * * as above provided.’’

These are the provisions of the Act, and the only ones, which relate to the right of the counties to receive the land.

AVhile from the beginning of its career the State has recognized its obligation to make provision for the counties in respect to the maintenance of free schools, and, in consequence, during the early days of the Republic entered upon the policy of making to them donations of public lands for that purpose, their original rights to such lands were only such as the Legislature conferred in its execution of the mandate given first in the Constitution of the Republic and in each succeeding Constitution of- the State, enjoining upon it the duty of furnishing a general system of public free schools.' Whatever the nature of the several acts of this character passed for the benefit of the organized' counties of the State, in dealing with the subject as related to the unorganized counties it was within the power of the Legislature to make such provision for their benefit as in its wisdom was best suited to tlieir situation. The Acts of 18S1 and •1SS3, constituting the legislation on the subject, were the extent of their right.

It was but natural in the enactment of such a law that account should be taken of the difference between their status and that of counties which were organized. While there were sixty of such unorganized counties in existence when the Act of 1881 was passed, the Act, as already stated, was intended, as well, for the benefit of counties which might thereafter be created. The Legislature, therefore, in the devising of this law was confronted with the problem of making suitable provision in this respect for corporate bodies not yet in being, and, as to those which were in being, for bodies unorganized, incapable of exercising their corporate functions, and therefore unable in their present state to appropriate the benefits of a land donation. It was these considerations, necessarily, which induced the Legislature to frame the Act as it did, and which were responsible for the marked difference between its provisions and those of the several acts of the same general character theretofore passed for the benefit of the organized counties. As to counties already organized, in the full possession of their powers, and altogether capable of exercising them,' there could be little reason for creating a reservation of the public domain for their benefit, or postponing until a future event their right to receive the land designed for their benefit. We therefore find those acts, — for illustration, the original Act of the Republic, of January 26, 1839, — so drawn as to presently entitle those counties to their quantum of land upon their compliance with the provisions of the acts. But in carrying out this same general policy for the benefit of counties not only not organized, but those not yet in existence, there was presented a different condition to be dealt with. Though the principle be fully recognized that in the dedication of property to public uses the want of a grantee capable of taking by grant will not of itself defeat the donation where there has been such enjoyment of the property as that its interruption will prejudice public and private rights, the elements of estoppel which inhere in that doctrine are not present here, and it furnishes no aid in the solution of this question, which is simply one of the true intent and proper construction of this Act. As to counties not yet in existence, certainly no present investiture of title was contemplated. It could have been of no present benefit, and was not essential to execute the design of the Act. This was equally, true as to the counties already created but still unorganized, and hence incapable of applying the land to its intended beneficial uses. Therefore it was that “a reservation” was created by the Act as the means of withdrawing the land from other appropriation, thus saving it for this particular purpose, and making possible its devotion to such purpose when its beneficiaries should become capable of receiving its benefits and applying them to their intended use. Hence the provision, that each county as it might he organized, should become entitled to the respective four leagues.

To say that the Act and the survey thereunder were intended to operate and did operate as a present conveyance of the State’s title, presupposes, necessarily, a present right in the counties under the Act to receive the title. It can hardly be contended that the effect of the Act and the survey was to presently vest the title unless thereby there was created a present right in the counties to the land. There could not be, at the same time, title in the State and a vested right in the counties. Until the counties acquired a vested right, the title remained in the State. They could acquire no vested right until, in accordance with the provisions of the Act, they became entitled to the land.

As to the survey of the land, it was by the terms of the Act entirely disassociated from the right of the counties to the land. Instead of having any bearing upon their right to the land or its accrual, the survey was but the means of accurately defining the reservation.

The provisions of the Act which dealt with the right of the counties to the land and to receive the title are those hereinbefore quoted. They fixed the time when the counties were to be entitled to the land and prescribed the requirement the performance of which was a condition of their becoming so entitled. In a word, they provided the time when and the conditions under which the counties, severally, might acquire a vested right in the respective four leagues. The time thus fixed was when the counties became organized. The requirement to be performed was the payment of the surveying fees with interest and the patent fees. If while the Act continued in force any of these counties had perfected its organization and had paid or duly tendered these fees, it would have “become entitled” to four leagues out of the reservation in their numerical order, and would have acquired a vested right in those leagues. The issuance of the patent would have been merely a ministerial act in that event, upon which the county’s title would not have been dependent. But until it was organized and complied with the requirement in respect to the payment of the fees, what right did the Act confer upon any of the beneficiary counties? Where is there to be found any intention that the title of the State should vest in any county except as it became entitled to* the land according to the Act, both in respect to time and by performance of the condition imposed? If each county was to be presently entitled to four leagues of the land as soon as it was defined by survey, why was there interpolated in the provisions which alone dealt with its right to receive the land, the qualifying clauses, “as it may be organized,” and “upon the payment of the actual costs of the surveying fees and legal interest thereon from the time of payment by the State”?

Postponing any county’s becoming entitled to the four leagues intended for its benefit until it was organized, simply amounted to a declaration that in its unorganized state it was not entitled to them.

To hold that there was any present conveyance of the State’s title merely through the survey, is, by bare construction, to vest the title in the counties at a time when, according to the Act, they were not entitled to the land and had no right in it which could have been enforced. It is to disregard the plain provisions of the Act. It is to ignore ttheir certain declaration that each county should become entitled to the four leagues only as it might be organized and upon its payment of the fees named. It is to ascribe to the Legislature an intention of vesting the State’s title in a body not yet entitled, under its own law, to the land, and therefore in violation of its own law. That such was the intention is not, in our opinion, conceivable. The Act, accordingly, is not to he so construed.

The only expression in the entire Act which, by any possibility, indicates a purpose to presently vest the title is the phrase, “herein donated” found in the proviso at the conclusion of Section 7. The proviso reads:

“Provided, any county that fails to pay surveying and patent fees undex- this act, within three years after its organization, shall forfeit all claims to the lands herein donated.”

This phrase plainly refers to other provisions of the Act, and must therefore be interpreted by them. It is clearly a term of reference, as here used. Unless by other provisions a donation was effected, this phrase would not of itself impart to the Act the force of a donation. As has been shown, the other provisions of the Act have no such force. The Act gains its meaning from them. They determine its character. To regard this phrase as indicative of a present grant, puts it in antagonism with all the rest of the Act. Though such meaning be given it, in determining the effect of the Act it could not be allowed to prevail over all of its other provisions. It was used, we think, simply in the sense that the land was set apart for the benefit of the counties. The land might be regarded as "donated” in -the sense that it was segregated and made the subject of an intended donation. It is to be noted that it was not the land which was to be forfeited under the operation of this proviso. It was merely the county’s “claim” to the land.

It is not necessary to here determine whether these counties in their unorganized state were capable of receiving a grant of public lands. Regardless of the question of their capacity in this regard, this Act did not treat them as presently entitled to a grant, and it must have been deemed by the Legislature that they were not in a situation to receive a grant. Such was the view entertained by the court in its consideration of this Act in Yoakum County v. Robison. While the question which determines this case was not there presented, the able opinion of Mr. Justice Williams shows a careful study of tile Act, and is of weight in its interpretation. Upon this feature it was there said:

“We think it plain that the leading purpose of the Act was not so much to provide for particular counties as it was to preserve the means with which to oarry out the established policy zvith reference to all counties. The organized counties either had received their lands or could do so without delay; such as needed further protection were eventually provided for. The other class, those which were not in a situation to receive gramts at onee, were the ones for whose benefit a reservation was needed and this necessity existed with reference to all that were to organize in the future, to those that were both to bo created and organized as well as those that wei’e only to be organized. It is not unreasonable to say that the Legislature, looking forward to organizations to take place in future, referred to all counties which should thereafter oi’ganize as ‘the unorganized counties,’ without any reference to the time of their creation. The reservation was made because of the fact that for want of organization alone lands could not be supplied to all counties at once; and the intention, we think, was to make all of them the beneficiaries as they should organize and the language may be so construed as to effectuate this intention.”

The cases of Milam County v. Bateman, 54 Tex. 153, Fannin County v. Riddle, 51 Tex. 360, and Talley v. Lamar County, 104 Tex. 295, 137 S. W. 1125, have no bearing upon tire question which this case presents. The rights of Milam County, Fannin County and Lamar County to the lands involved in those cases were those conferred upon organized counties under the Acts of January 26, 1839, and January 16, 1850, and which, as organized counties, they acquired by compliance with those Acts. In the Milam County Case, it was held that the title of a county to lands which had so vested under those Acts could not be divested by the Legislature. In the Fannin County Case, it was held that Fannin County had not forfeited its title so acquired because of a failure to return the field notes of the land it had caused to be located in virtue of the Act of 1839, since that Act did not require their return within any specified time, or work a forfeiture if they were not returned; and that tire Act of February 10, 1852, requiring generally the return of field notes of surveys made prior to its passage to the General Laud Office by August 31, 1S53, had no application to surveys of county school lands. In the Lamar County Case, substantially the same question was presented as in the Fannin County Case. In each of the latter cases, the question simply was whether the appropriation made by Fannin and Lamar Counties, respectively, of tire lands involved was such as invested them with title under the Acts of 1839 and 1850. They furnish no aid in the determination of the effect of the Act of 1881.

Neither is the question here affected by Section 6 of article 7 of the Constitution. Had the Act of 1S81 been of such a character as to presently invest the unorganized counties with title, the lands would, of course, have constituted granted lands, and the rights of the counties thereto would have been protected from adverse legislation by this constitutional provision. The question here is not in respect to any right which had once vested, but whether the effect of this Act was to vest any right. Such was not its effect.

If no vested right was created by the Act of 1881, the Legislature retained its power over the land, and it had full authority to adopt the Act of 1883, under which Shackelford County acquired a valid title to the leagues in controversy, which in turn passed to the defendant Slaughter. The Act of 1883 necessarily worked a repeal of the Act of 1881 to the extent that the latter set aside the land for the exclusive benefit of the unorganized counties.

The. construction we have give® the Act of 1SS1 is that which it has received at the hands of the Legislative and Executive Departments of the State government for the past thirty years, and which had not been challenged, as we are aware, until the filing of the present suit. Under that construction a large quantity of this land has been patented to organized counties for school purposes, and possibly much of it has passed into the hands of innocent holders in reliance upon the State’s patent. If this construction were clearly wrong, it would be our duty to disregard it, and we would do so. But it should not he east aside and these titles struck down unless it is clearly wrong. We regard it as clearly right.

It follows, as we have heretofore held, that the judgment of the Court of Civil Appeals, awarding the land to Yoakum County was erroneous, and that of the District Court, awarding it to Slaughter, was correct.
      <@=F°r other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: YANTIS, J.

license: Public Domain

text:
    MOORE v. CHAMBERLAIN.
    (No. 2524.)
    (Supreme Court of Texas.
    June 20, 1917.)
    1. Vendor and Purchaser &wkey;>275 — Vendor’s Lien — Enforcement.
    Where the innocent purchaser of a vendor’s lien note was also a purchaser of the property at its sale under a trust deed, although the sale under the trust deed was void because the purchaser had notice that prior deeds were intended as mortgages, he could still foreclose the vendor’s lien to enforce the payment of the note.
    [Ed. Note. — -For other cases, see Vendor and Purchaser, Cent. Dig. § 772.]
    2. Pleading >&wkey;279(4) — Supplemental Pleading — Change of Form of Action.
    Plaintiff brought trespass to try title to land conveyed by her and her deceased husband by deed absolute on its face, but which was intended as a mortgage. Defendant was the innocent purchaser before maturity of notes secured by vendor’s lien on the land, and also the purchaser at a sale under a deed of trust and holder of a deed from the trustee. The supplemental petition in effect tendered payment of the note, interest, and attorney’s fees with a foreclosure of the vendor’s lien carried by such note. It was alleged that the trustee’s deed was .void for the'reason that the defendant purchased with notice that the deeds made by plaintiff and her husband and by their grantee were intended as mortgages. Held that, as the trustee’s deed could be attacked and proven to be void under the ordinary allegations of a suit in trespass to try title, and proof was admissible in such action to show that the land was the homestead of plaintiff when the defendant purchased it with notice of the homestead right, plaintiff was entitled to recover in trespass to try title by proving such deed to be void, and the suit was not by the supplemental petition changed to an equity suit to cancel the trustee’s deed.
    [Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 838, 839.]
    3. Limitation of Actions ,&wkey;>19(2) — Trespass to Try Title — Statute Applicable.
    In a suit in trespass to try title, where no equity suit was necessary to set aside a deed as a condition precedent to the recovery of the land, the general statutes of limitation which apply to suits for the recovery of real estate, and not the four-year statute of limitations, are applicable.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 74.]
    4. Homestead <&wkey;ll«(2) — Purchaser—1Trustee’s Sale — Mortgage—Notice—Constitutional Provisions.
    Under Const, art. 16, § 50, making a mortgage upon a homestead as between the parties to it and as to others not innocent purchasers void, and not voidable, where land when purchased at a sale under a trust deed was in possession of tenants of a prior owner, the purchaser was as a matter of law placed on inquiry as to whether the deed from such prior owner and a subsequent deed were absolute or only intended as mortgages, and, it not appearing that the purchaser exercised any diligence by making' inquiry, the possession of the tenants constituted actual notice to him that the deeds were intended as mortgages, and the deed of the conveyance by the trustee to him was void, and not voidable.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 186-100.]
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Trespass to try title by Hester E. Chamberlain against Worth Moore. From a judgment of the Court of Civil Appeals affirming a judgment of the district court for plaintiff, defendant brings error.
    Affirmed.
    See, also, 152 S. W. 195.
    Hunter & Hunter, of Ft. Worth, for plaintiff in error. Wm. J. Berne, of Ft. Worth, for defendant in error.
   YANTIS, J.

This suit was instituted in trespass to try title in the district court of Tarrant county, Tex., April 10, 1908, by Hester E. Chamberlain, the widow of William Chamberlain, who died July 11, 1895. The case was submitted to a jury on special issues. Upon the findings of the jury the district court entered a judgment in favor of Mrs. Chamberlain for the land, which consisted of 106 acres, situated in Tarrant county, Tex. The district court also, in the same suit, rendered a judgment in favor of Worth Moore, the plaintiff in error, for the recovery from Mrs. Chamberlain, defendant in error, of the sum of $2,578.78, with interest and attorney’s fees, with the foreclosure of a vendor’s lien which was established by the judgment of the court on said land in favor of the plaintiff in error to secure the payment of said sum. The vendor’s lien which ivas given to secure the payment of the notes was valid, because the purchaser was an innocent purchaser, though it be granted that the sale under the trust deed was void because the purchaser had notice that the Chamberlain and Carson deeds were intended as mortgages. Hurt v. Cooper, 63 Tex. 366. Worth Moore was the- owner of the $1,600 vendor’s lien note, and, being an innocent purchaser before maturity of the $1,500 note, of which this note ivas a renewal, still had the legal right to a foreclosure of the lien to enforce the payment of the note, together with the interest and attorney’s fees. The effect of the defendant in error’s supplemental petition, which was filed November 26, 1909, and in which a tender of payment and right to a foreclosure was made, was to concede this. It was upon this tender that the trial court rendered the personal judgment in favor of Moore, with a foreclosure. The judgment of the district court was appealed from by Worth Moore, the plaintiff in error. It was decided by the Second Court of Civil Appeals adversely to him. The case was brought to this court on petition of Worth Moore for a writ of error, which was granted.

The findings of the jury established that the land in controversy was the homestead of William Chamberlain and his wife, Hester B. Chamberlain, at the time it was mortgaged by them, as herein related. With the assistance of B. IC Carson, they borrowed $1,500, and mortgaged the homestead to secure its payment, but Mrs. Lou Sue Moore, the guardian of Worth Moore, who was then a minor, and who furnished the $1,500, was not aware that she was making a loan of the money, as she was made to believe that she was purchasing a vendor’s lien note, and not loaning money. In order to secure the money Chamberlain and wife executed, on December 20, 1892, an absolute warranty deed to B. K. Carson, and recited in the deed a cash payment by Carson of $3,000, and the execution and delivery by Carson to them of his promissory note for $1,500, payable in 12 months after date to the order of said William Chamberlain. A vendor’s lien on the land was retained to secure the payment of the note. Mrs. Lou Sue Moore, as guardian for Worth Moore, purchased this note as an innocent purchaser before maturity, for which she paid $1,500. She had no notice that the deed was in fact intended to be a mortgage. It was established by the findings of the jury, however, that no cash was in fact paid by Carson to the Chamberlains, and that the deed was not intended for an absolute deed of conveyance, but was only intended to be a mortgage. When the $1,500 note matured, the Chamberlains desired its extension, so they induced Carson to sell the land, which he did, to one Trammell. On February 3, 1894, Carson conveyed the land to Tram-mell by a warranty deed absolute upon its face, which recited a cash consideration paid by Trammell to Carson of $3,000, and a vendor’s lien note executed and delivered by Trammell to Carson for the sum of $1,600, payable one year from date. This note was also indorsed by Chamberlain. No cash was in fact paid. The note was sold by Carson to Mrs. Lou Sue Moore, who purchased as guardian for her ward, still a minor, Worth Moore. She paid for the note by accepting it in lieu and in satisfaction of the $1,500 note which had been executed by Carson. It was merely 'a renewal of this note. At the time the $1,600 vendor’s lien note was executed by Trammell, payable to Carson, Tram-mell, also executed a deed of trust as additional security for the payment of said $1,-600 note. The trust deed provided that upon failure to pay said note the trustee, Luckett, was authorized to sell the land to the highest bidder, after giving notice of such sale “as required in judicial sales,” and to apply the proceeds of sale to the payment of the note. On May 6, 1902, Luckett, as trustee, sold the land to said Worth Moore, who was the highest bidder at the prablic sale under said deed of trust, and who paid the amount of his bid, $1,500, by crediting same on the $1,600 note of which he was the owner. Luckett, as trustee, conveyed by deed the land in question on May 7, 1902, to Worth Moore as the purchaser at said sale. The notice which was given by the trustee was by posting it in three public places in Tarrant county. Notice of the sale was not advertised in a newspaper.

It is claimed by the plaintiff in error that the suit as tried was not one in trespass to try title, but was an equity suit to cancel the deed, to Worth Moore, plaintiff in error, and that, being such a suit, it was barred by the four-year statute of limitations. We do not think the supplemental petition presented a new cause of action, or that it constituted an action in equity to cancel the deed from Luckett to Moore. The effect of the supplemental petition was merely to tender payment of the $1,600 note, interest and attorney’s fees, with a foreclosure of the vendor’s lien carried by said note. There was no abandonment of the petition in trespass to try title, under whose allegations proof was'admissible to show that the land was the Chamberlain homestead, when Moore purchased it with notice of the homestead rights. If the deed to the plaintiff in error which was made by the trustee, Luckett, was void, it could be attacked and proven to be void under the ordinary allegations of a suit in trespass to try title, such as were made in the original petition which was filed April 10, 1906. If, therefore, the deed to the plaintiff in error from Luckett was Void, there was no necessity for an equity suit to set the deed aside and allow a recovery by Mrs. Chamberlain on her petition in trespass to try title. . She was entitled to recover in trespass to try title by proving the deed to the plaintiff in error, Moore, to be void. Not being an equity suit to cancel the deed, but a land suit in fact, the four-year statute of limitations would not be applicable, and could not be relied upon by the plaintiff in error in bar of the defendant in error’s suit for the land. In a suit for the land where no equity suit is necessary to set aside a deed as a condition precedent to a recovery of the land, the general statutes of limitation which apply to suits for the recovery of real estate apply, and the four-year statute of limitations does not apply.

We are of the opinion that the deed of conveyance by tbe trustee, Luekett, to tbe plaintiff in error, Moore, was void, and not voidable. When tbe plaintiff in error purchased tbe land from tbe trustee, it was in possession of tbe tenants of tbe Chamberlains. This placed him upon inquiry, as a matter of law, as to whether tbe deed from tbe Chamberlains to Carson and from Carson to Trammell were absolute, or were intended only as mortgages. There being no finding that be exercised any diligence by making inquiry, tbe possession of tbe tenants constituted actual notice to him that tbe deeds were intended as mortgages. Ramirez v. Smith, 94 Tex. 191, 59 S. W. 258; Collum v. Sanger Bros., 98 Tex. 162, 82 S. W. 459, 83 S. W. 184. Under tbe provisions of tbe Constitution a mortgage as between tbe parties to it and as to others not innocent purchasers upon a homestead is void, and not voidable. Const. § 50, art. 16. The deed, therefore, under which the plaintiff in error claims title was void, and, being so, tbe defendant in error was entitled to recover, unless tbe plaintiff in error’s contention that she was barred by tbe four-year statute of limitations should be sustained. This contention is overruled, as tbe suit was one for tbe recovery of tbe land, and not one in equity for cancellation of tbe plaintiff in error’s deed.

Finding no error, the judgments of tbe district court and the Court of Civil Appeals should in all things be affirmed; and it is so ordered.
      itnreFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J. HAWKINS, J.

text:
    HENNINGSMEYER et al. v. FIRST STATE BANK OF CONROE.
    (No. 3982.)

    (Supreme Court of Texas.
    June 20, 1917.)
    1. Appeal and Error <&wkey;345(2) — Writ of Error — -Time for Filins'Petition — Successive Motions eor Rehearing.
    By filing successive motions for rehearing, the time allowed by Rev. St. art. 1541, for filing petition for writ of error cannot be extended, the terms of the statute being imperative, and the time is to be computed from time of filing original motion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1895, 1896.]
    2. Judgment <&wkey;298 — Motions <&wkey;58 — Court of Civil Appeals — Control over Judgments and Orders.
    Tlie Court of Civil Appeals has full’control over its judgments and orders during its term, and could set aside a former order or make, after its original action in a case, any further orders it might deem proper.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 582; Motions, Cent. Dig. § 72.]
    Hawkins, J., dissenting.
    Error to Court of Civil Appeals of Ninth Supreme Judicial District.
    Suit by tbe First State Bank of Conroe against Fred Henningsmeyer and others. Judgment for plaintiff, and defendants Fred Henningsmeyer and Mary Henningsmeyer appealed to tbe Court of Civil Appeals, where judgment was affirmed- 192 S. W. 286. On motion to dismiss petition for writ of error.
    Motion granted.
    Howard Bennette and W. N. Foster, both of Conroe, and G. P. Dougherty, of Houston, for plaintiffs in error. A. L. Kayser, of Con-roe, for defendant in error.

      Writ of error dismissed by Supreme Court.

   PHILLIPS, C. J.

The judgment of the Court of Civil Appeals was adverse to the plaintiffs in error. Their motion for rehearing was overruled on February 14, 1917. Their counsel, it appears, did not learn of the overruling of the motion until the lapse of more than thirty days after the date of' the court’s order. They then filed, on April 2, 1917, an amended motion for rehearing, an exact copy of the original, adding only a. statement as to the failure of the Clerk to give them notice of the court’s action on the motion, and their want of knowledge of its action until more than thirty' days had elapsed. The prayer was for a rehearing, but, if that were not granted, that the former order be set aside, “in order that the-right of appellants to have the judgment of the Court of Civil Appeals reviewed by petition for writ of error might be preserved.” On April 11, 1917, the Court of Civil Appeals-by the same order, set aside its order overruling the original motion and overruled the amended motion. The petition for writ of error was filed in the Court of Civil Appeals on May 10, 1917.

We think the motion to dismiss should be granted. In order for this court to have jurisdiction upon petition for writ of error,, it is required, as a condition precedent, that the petition be filed with the Clerk of the Court of Civil Appeals within thirty days-from the overruling of the motion for rehearing in that court. Schleicher v. Runge, 90 Tex. 456, 39 S. W. 279. The statute on the subject (article 1541) is imperative, and, must be complied with. If merely to have-additional time for the filing of the petition, for writ of error successive motions for rehearing may be filed, the statute is rendered of no effect.

There is nothing in this record which even remotely suggests that the order that set aside the former order, overruling the original motion, and overruled the amended motion, was for any other purpose than to permit the filing of the petition for writ of error as within the time required by law, in, accordance with the appellants’ request. We. do not think that fact could be ascertained any more certainly than it here appears. Under such circumstances, we regard it as our duty to treat the time of the overruling of the-original motion as the date from which should be reckoned the thirty days allowed for the filing of the petition for writ of error.

We wish to add that we do not question the authority of the Court of Civil Ap-. peals to set aside its former order, or to make, after its original action in a case, any further orders it might deem proper. It has full control of its judgments during its term. Nor have we any purpose to in anywise cast a doubt upon the good faith of its action. To relieve a seeming hardship it doubtless felt constrained to grant the appellants’ request.

We simply rule that under the circumstances stated we do not consider its action as binding upon us; and that, to give effect to the statute, our duty, under such circumstances, is to require, as essential to our jurisdiction, that the petition for writ of error be filed within thirty days from the overruling of the original motion for rehearing.

It was not filed within that time, and the motion to dismiss is accordingly granted.

HAWKINS, J.

(dissenting). Does the record in this case justify the Supreme Court in finding and holding, as a matter of fact, that the action of the Court of Civil Appeals for the Ninth Supreme Judicial District, in setting aside its order overruling the first motion for a rehearing, was for the sole purpose of indirectly extending the period of time during which a petition for a writ of error might validly be filed, such action constituting a deliberate fraud upon the appellate jurisdiction of the Supreme Court? In my opinion it does not, and upon that proposition alone I dissent from the order granting the motion to dismiss the appeal for want of jurisdiction in the Supreme Court.

The judgment of the Court of Civil Appeals affirming the judgment of the trial court in favor of appellee, the First State Bank of Conroe (defendant in error), and against appellants Fred and Mary Hennings-meyer (plaintiffs in error), was rendered on December 14, 1916, and its order overruling the original motion for a rehearing was made and entered on February 14, 1917. Not until more than thirty days later, on May 10, 1917, was the petition of plaintiffs in error for a writ of error filed in the Court of Civil Appeals.

R. S. art. 1541, expressly requires that a petition for a writ of error “shall be filed with the clerk of the Court of Civil Appeals within thirty days from the overruling of the motion for rehearing”; and it is well settled that failure to file such petition until after the expiration of that stated period is fatal to the appeal. The Supreme Court, in an opinion by Phillips, J., now Chief Justice, said:

“It is essential to the jurisdiction of this court to grant a writ of error that the petition for the writ be filed in the Court of Civil Appeals within thirty days from the overruling of the motion for a rehearing. Schleicher v. Runge, 90 Tex. 456, 39 S. W. 279.” Vinson v. Carter, 106 Tex. 273, 166 S. W. 363.

However, after said original motion for a rehearing had been overruled, appellants filed a second motion for a rehearing which was overruled by the court on April 11, 1917, and, it will bo observed, within the statutory period of 30 days next thereafter, said petition for writ of error was filed; and upon these facts arises the contention of plaintiffs in error that their petition for a writ of error was filed seasonably.

The principal ground upon which the motion to dismiss the appeal rests is:

“Because it is apparent from the face of the record that the setting aside by said Court of Civil Appeals for the Ninth Supreme Judicial District of its order of date February 14, 1917, overruling plaintiff in error’s motion for a rehearing on the 14th day of February, 1917, and overruling plaintiff in error’s amended motion for rehearing on the 11th day of April, 1917, was done for the express purpose of enabling plaintiffs in error to avoid the consequences of their own neglect in failing to file in said court their petition for writ of error within thirty (30) days from said 14th day of February, 1917, and said proceedings were and are in direct opposition to rule 65 (67 S. W. xix), governing the practice in the Courts of Civil Appeals.”

But inasmuch as the term of court at which said order overruling said first motion for a rehearing was made had not ended when said order setting aside the order overruling said first motion for a rehearing was entered, and inasmuch as that court unquestionably had authority, at any time during its term, and even of its own volition, had there been no second motion for a rehearing, to set aside its previous order overruling said first motion for a rehearing, and to grant a rehearing in the cause, there arises, I think, upon the undisputed facts of this case, as shown by the record, a presumption of law that said order of April 11, 1917, setting aside said order overruling the original motion for a rehearing and overruling said second motion for a rehearing was entered by the Court of Civil Appeals in good faith, and that so much thereof as set aside said former order was made by that court in the belief that probably, or possibly, there was error in the original .judgment of that court in that cause, and that, upon renewed consideration of the questions involved, that court again reached the conclusion that its judgment as originally entered therein was correct, and that, as a consequence, said second motion for a rehearing was overruled, accordingly.

The facts relied upon by the defendant in error to overcome the above-mentioned presumption of good faith upon the part of the Court of Civil Axipeals in making its said order of April 11, 1917, are as follows:

In said petition for a writ of error it is stated:

“The appellants, thereafter, on January 4, 1917, filed their motion for rehearing in the Court of Civil Appeals, wherein they complained of all of the errors hereinafter assigned, and said motion, after having been duly submitted and considered, was by the Court of Civil Appeals overruled by an order entered on February 14, 1917. On April 2, 1917, the appellants filed an amended motion for rehearing; this motion is an exact copy of the motion filed on January 4, 1917, except an addition thereto alleging that the clerk of the court had failed to give appellants or their attorneys of record any notice of the action of the court in overruling the motion for rehearing, and that neither appellants nor their attorneys had knowledge or notice of the entry of the order overruling appellants’ motion until the expiration of more than 'thirty days from the date of the order, and the motion prayed for a rehearing, or, in the alternative, that the order overruling the original motion entered on February 14, 1917, be vacated and set aside in order that the right of appellants to have the judgment of the Court of Civil Appeals reviewed by petition for -ftrrit of error might be preserved.”

Said final order, of April 11th, is as follows:

“Former order entered on February 14, 1917, overruling motion for a rehearing is set aside; and the amended motion for a rehearing is overruled.”

Rule 65 prescribed by the Supreme Court for Courts of Civil Appeals is as follows:

“Upon the rendering of the judgment in the Court of Civil Appeals, as well as upon the making of an order overruling the motion for a rehearing, the clerk shall immediately give notice by postal card to the attorneys of the respective parties of the disposition made of the cause or of the motion, as the case may be, for which service he shall tax the usual fee as a part of the costs in the case. But the mailing of such notices shall not relieve the parties of the responsibility of taking notice of the disposition of the cause or motion, and the failure to receive a notice so mailed shall be no excuse for delay in taking future action as may be desired in reference to the case within the time prescribed by the statutes and rules.”

It is therefore clear that failure to file the petition for a writ of error within the statutory period cannot properly be excused, condoned, or disregarded by the Court of Civil Appeals or by the Supreme Court upon the sole additional ground for a rehearing pleaded in said second motion. Furthermore, it must be conceded that the fact that, with the exception of the additional statements showing want of notice or knowledge of the overruling of the first motion for a rehearing, the second motion was an exact copy of the first motion for a rehearing, coupled with the fact that said second motion candidly prayed that the former order overruling the original motion for a rehearing be set aside in order that the right of appeal might be preserved, and the further fact that the court undertook, by one and the same order, to set aside its former order refusing a rehearing and to overrule said second motion therefor, do strongly suggest that such final order was not really made by the court solely upon the merits or pretended merits, of said second motion for a rehearing, or in good faith, but, if not for the purpose, still, under such circumstances as to serve, in the language of the attorneys for the defendant in error, “to cloak the negligence of the plaintiffs in error in failing to file their petition for writ of error within the time required by law.” Indeed that view of the matter is borne in upon my mind so strongly that I might feel impelled to act upon it, as a matter of duty in the protection of the jurisdiction of the Supreme Court, had that court no other protection or recourse; but such is not the case.

Our state Constitution expressly declares:

“The Supreme Court shall also have power, upon affidavit or otherwise as by the court may be determined, to ascertain such matters of fact as may be necessary to the proper exercise of its jurisdiction.” . Section 3, art. 5.

R. S. art. 1525, is as follows:

“The Supreme Court shall have the power, upon affidavit or otherwise, as the court may determine, to ascertain such matters of fact as may be necessary to the proper exercise- of its jurisdiction.”

The stated power of that court has been exercised in numerous instances. Harris v. Hopson, 5 Tex. 529; Dial v. Rector, 12 Tex. 99; Johnson v. Robeson, 27 Tex. 526; Moke v. Brackett, 28 Tex. 443; Hart v. Mills, 31 Tex. 304; Simmons v. Fisher, 46 Tex. 126; Fine v. Freeman, 83 Tex. 529, 17 S. W. 783, 18 S. W. 963; Abstract Co. v. Bahn, 87 Tex. 582, 29 S. W. 646, 30 S. W. 430; Ellis v. Brooks, 101 Tex. 591, 102 S. W. 94, 103 S. W. 1196. See, also, City of Austin v. Nalle, 85 Tex. 550, 22 S. W. 668, 960. It is peculiarly applicable, I think, to the facts and circumstances of this case, as indicated by the record, and should be appropriately exercised therein preliminarily, in determining, definitely and unmistakably, if possible, whether said final order of the Court of Civil Appeals really was made in good faith or in fraud of the appellate jurisdiction of the Supreme Court.

Whenever conclusive evidence thereon reasonably is obtainable, the presumptions of regularity and good faith should attach to all orders of all courts until such presumptions shall have been overthrown.
      ©u^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes