text:
    RYAN et al. v. WITT et al.
    (No. 8046.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 28, 1915.
    On Motion for Rehearing, Jan. 30, 1915.)
    1. Agriculture &wkey;>6 — Farmers’ Union — Organization — Oeeiceks—Right TO PROPERTY and Records.
    The Farmers’ Educational & Co-operative Union of America was incorporated under laws of Texas, and land was conveyed to a district union, which thereafter obtained a private charter from the Union of America, and, after certain parties had received a state charter for a state union of Texas, the district union resolved to and obtained a charter under the state organization and amended its by-laws and constitution and substituted the word “Texas” for the word “America” in its name, and thereafter acted under authority of the charter granted by the state organization, though not surrendering its former charter. Sold, that its duly elected executive committee, which, under the constitution and by-laws before the change in organization, adopted and acted under thereafter, were vested with control of its property, were entitled to charge and control of the warehouse and cotton yards which the union had built upon the land conveyed to it, and to possession and control of its books, constitution, and bylaws.
    [Ed. Note. — For other cases, see Agriculture, Dec. Dig. <&wkey;>6.]
    2. Agriculture <&wkey;6 — Farmers’ Union — Acceptance op New Charter — Effect.
    A farmers’ district union chartered under a national organization, by subsequent application for a charter from a state organization and the acceptance thereof, ipso facto repudiated and surrendered its charter from the national organization, though without formal repudiation or surrender.
    [Ed. Note. — For other cases, see Agriculture, Doc. Dig. &wkey;>6.]
    On Motion for Rehearing.
    3. Words and Phrases — “Charter.”
    A “charter” is the authority by virtue of which an organized body acts.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Charter.]
    4. Appeal and Error &wkey;>1175 — Reversal-Rendering Judgment for Appellant.
    In an action by plaintiffs claiming to be the officers and executive committee of a district farmers’ union to enjoin defendants from interfering with its property and books, constitution, and by-laws, where it did not appear that defendants were prevented from introducing any evidence they had, where they filed no motion for a continuance, and did not indicate the existence of any evidence not given at the trial, the court, on reversing judgment for defendants, might render judgment for plaintiffs, where such judgment was sufficiently supported by uncontroverted evidence upon the material issues, or by the allegations in plaintiffs’ verified pleadings not denied by defendants’ answer.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-A587; Dec. Dig. <S&wkey; 1175.]
    5. Agriculture <&wkey;6 — Farmers’ Union — Officers — Control of Property.
    Where the officers of a farmers’ district union had not violated any of its by-laws or private charter provisions, but were elected in accordance with such by-laws and given possession and control of its property, their acts, as officers of the union, were binding upon other members of the same organization.
    [Ed. Note. — For other cases, see Agriculture, Dec. Dig. &wkey;>6.]
    Appeal from District Court, Eastland County ; Thomas L. Blanton, Judge.
    Action for injunction by J. E. Ryan and others against W. S. Witt and others. Judgment for defendants, and plaintiffs appeal.
    Reversed, and judgment rendered for plaintiffs.
    Alexander, Power & Ridgway, of Ft. Worth, for appellants. J. R. Stubblefield, of Eastland, for appellees.
   BUCK, J.

Plaintiffs filed in the district court of' Eastiand county the following original petition:

“Now comes J. E. Ryan, J. L. Tucker, D. E. Tyrone, M. R. Brooks, J. W. Pulley, J. A. Blackwell, W. I. Tyrone, and Fayette ÁVether-man, all of whom reside in Eastland county, Tex., and hereinafter called plaintiffs, and complain of W. S. Witt, G. R. Stracener, and D. J. Neill, all of whom reside in Eastland county, Tex., and the Continental State Bank, a corporation, with its principal office at Go'rman, Eastland county, Tex., and hereinafter called defendants; and for cause of action plaintiffs would show to the court:
“First. That the Farmers’ Educational & Co-operative Union of Texas is an organization .of farmers duly incorporated and chartered as a state organization under the laws of the state of Texas, with branches and subsidiary organizations known as district, county and local unions, to each of which is issued a charter from the state organization under and by virtue of the constitution and by-laws of said state organization. That said Texas State Union by its constitution and by-laws recognizes and affiliates with the Fanners’ Educational & Cooperative Union of America, being a charter corporation, and in turn said Texas State Union is recognized by the national organization as being affiliated with it.
“Second. That said national union gives out, quarterly, a secret password to all state unions affiliated therewith and gives such password to the Texas State Union. That the Texas State Union, through its secretary, communicates said password to county unions in good standing, and county unions in turn communicate said password to local unions in good standing, and the local unions communicate said password to the individual members of said locals who are in good standing; and under the constitution of said order said local unions may form a district union, and only members in good standing in the union selected from such locals in good standing are entitled to participate in the proceedings and business of district or local unions, and only such members are entitled to the password.
“Third. That there is now, and was at the times hereinafter mentioned, a district union affiliated with the said state union and known as the Gorman District Union, which district union was up to about March, 1013, composed of the following local unions, viz., Howard, Hay, Almeda, Jewell, Gorman, Grandview, and, Kokomo, all in Eastland county, and Indian Mountain in Comanche county. That on or about March, 1913, the local unions at Gor-man, Kokomo, and Grandview local, from and about January 1, 1014, withdrew from the state union and county union, and their charters were canceled or surrendered to the state union, and from and since said dates said last-named locals ha've ceased to exist as a part of the said Farmers' Union of Texas, have ceased to pay dues to the state union as is required by the constitution and by-laws of the order, and by the action of the said locals the right to participate by delegates or otherwise in any state, district or county meeting of said union was forfeited, and the right to receive the password of said union was forfeited to all the members of said seceding locals.
“Fourth. That the affairs, business, and property of said Gorman District Union are in the control and management of plaintiffs, as successors to these original officers of said district union, and plaintiffs are the officers and directors of said Gorman District Union, being the duly elected and acting officers thereof as follows: J. E. Ilyan, president; J. L. Tucker, vice president; D. E. Tyrone, secretary; and M. It. Brooks, J. W. Pulley, J. A. Blackwell, W. I. Tyrone, and Fayette Wetherman, who constitute the executive committee — said officers having been duly elected by representatives of local unions in good standing in said union as provided by the constitution and by-laws.
“Fifth. That the said Gorman District Union owns a certain tract or parcel of land with a cotton warehouse thereon situated in the town of Gorman, Eastland county, Tex., known as the Gorman District Union Warehouse, containing about two acres of land and described as follows; Lots 2 and 3 x/i. v. in the town of Gorman, Eastland county, Tex., as shown by the records of Eastland county or shown by tax rolls or deed, volume 73, nage 2, D. R. Eastland county for full description, and of the value of about $1,000, and plaintiffs, as the officers and executive committee of said district union, are entitled to the possession, management, and control of said warehouse property for the benefit of the loyal members in good standing belongmg to said Gorman District Union.
“Sixth. That the three seceding unions above named, whose members were not, after about the date above mentioned, members of the state, district, county, or local unions, were not entitled to the password of said order or to any of its privileges held on Saturday, January 10, 1014, some kind of a meeting, and defendants W. S. Witt is claiming to be president and G. R. Stracener is claiming to be secretary of said seceding unions and claiming the right to the control and possession of said warehouse property and threatening to take entire control and possession of said property and deprive plaintiffs of the control and possession thereof, and have an agent in charge thereof, and said Stracener has possession of the books, charter, constitution, and by-laws and papers belonging to said district union, and has refused to deliver said books, charter, and papers, constitution, and by-laws to plaintiffs, who are the legal custodians thereof and entitled thereto.
“Seventh. That the members of said district union in good standing as aforesaid under the provisions of the constitution and by-laws are entitled to the annual profits made from the operation of said warehouse, it being- provided that any such dividends shall be paid pro rata to the loyal members of the Farmers’ Educational & Co-operative Union of Texas of the Gorman District, and that there is now on hand in said fund for distribution among said loyal members about the sum of $300, which amount is and was deposited by said Stracener in the Continental State Bank at Gorman, Tex.
“Eighth. That the said Stracener was formerly the secretary of said district union, and as such secretary came into the control of said money, and is now threatening to pay out a part of the same to persons who are not members of said district union and not entitled thereto, and refuses to deliver it to plaintiffs for proper distribution, and said defendant bank has the custody of said money and will pay out same if directed to do so by said Strac-ener, and it is necessary for your honor to grant an injunction to restrain said defendants from such acts, or said money will be paid out to plaintiffs’ irreparable injury, as it could be only recovered, if at all, by_ a multitude of suits for small amounts which would entail great trouble and expense.
“Ninth. That said warehouse and warehouse property was originally purchased by subscription made by individual members of the district union and title taken in the name of the then officers, but with the agreement that the subscribers be paid back the amounts contributed and that the property should then be owned by the said district union and the profits divided pro rata among the loyal members thereof as above set out, and that the subscribers have been repaid in full.
“Tenth. That a ‘loyal member,’ as used herein, is defined by the constitution and by-laws of said organization as being one who is a member of the local or county union, and in harmony with the state and national unions, and that all of plaintiffs are loyal members of said farmers’ union and entitled to a part of said fund, and on information and belief plaintiffs allege that the defendants Witt, Stracener, and Neill, and others acting therewith, are not loyal members of said farmers’ union and are not entitled to any part of said fund.
“Eleventh. That there are large numbers of loyal members of said district union; that plaintiffs are entitled to the custody of said funds for distribution among said loyal members, and bring this suit for themselves and for all other loyal members of said district union.
“Twelfth. That defendants Witt, Stracener, and Neill, with other persons, have taken possession of said warehouse, placed an agent in charge of same and refuse to allow plaintiffs to have control or possession thereof, to which they are entitled as officers and representatives of said district union. .
. “Thirteenth. On information and belief, plaintiffs allege that on the first Saturday in October, 1913, defendant Neill attended the regular district meeting of said district which met with the Jewell Local, and, though he was not a member of the said farmers’ union, insisted on participating in the business of said meeting, by some irregular means had possession of the secret password of said union, and refused to leave, and did participate in said meeting over the protest of the loyal members. That Kokomo, the local union of which said defendant had been a member, had withdrawn from said county and state union, had surrendered its charter, and said Neill was not and is not a member of said union. That on the 1st of November, 1913, at a meeting of the Gorman District Union at Gorman, Tex., said defendant Neill was again present, was in possession of the sesret password of the union, and by his conduct in voting as a representative of the Kokomo Local, which local had theretofore surrendered its charter and was not entitled to participate in said meeting, created much disturbance; said Neill at said time not being a member of said Farmers’ Union of Texas, but having withdrawn therefrom and claiming to be the president of another organization known as the Farmers’ Educational & Fraternal Union. That the purpose of said Neill was and is to create dissension in and disturb the orderly proceedings of said district meetings, and plaintiffs fear he will continue to so act, and there is no way for plaintiffs to prevent said Neill from entering said meetings except by physical violence, unless an. injunction be granted restraining him from participating in said district meetings and from using said secret password.
“Fourteenth. That plaintiffs as officers of said district union, and for themselves as loyal member's thereof, and for all other loyal members of said district union, being entitled to possession and control of said warehouse, property, and money, and owning an interest therein, have no adequate remedy at law and will be greatly damaged, and the affairs of said union will suffer great injury unless relief be granted in equity.
“Wherefore, premises considered, plaintiffs pray for writs of injunction restraining defendant Continental State Bank from paying out said money without further order from this court, restraining defendants Witt, Stracener, and Neill from in any manner interfering with plaintiffs’ control and possession of said warehouse, and requiring said defendants to restore possession thereof to plaintiffs requiring defendant Stracener to at once deliver to plaintiffs all books and papers and property and the constitution and by-laws of said district union in his possession, or to deliver same into the custody of this court; restraining defendant Neill from using the secret password of said Farmers’ Educational & Co-operative Union and from interfering in any way with or participating in said district meetings; that said injunction be made perpetual; for citation and on hearing for judgment for possession and control of all of said property, for costs of suit, and for such other and further relief, special and general, in law and in equity, to which they may be entitled.”

Upon the presentation of said petition to the district judge, the court granted a temporary writ of injunction restraining defendants “from in any manner disposing of the property described in said petition,” and further ordering notices to be issued to defendants citing them to appear at a later day of the term to show cause why the permanent injunction prayed for should not be granted. Defendants Witt, Stracener, and Neill filed their answer as follows:

“Now comes the defendant, and demurs to the plaintiffs’ petition, and says that the same shows no cause of action, and of this the defendants pray the judgment of the court.
“Now comes the defendants and denies all and singular the allegations, contained in the plaintiffs’ petition and demands strict proof of the same.
“First. The defendants deny the facts, stated in paragraph 5 of the plaintiffs’ petition, and expressly say that the said facts are not true. On the contrary, the plaintiffs allege that the property, described in paragraph No. 5 of the plaintiffs’ petition, is the property of the Gorman District Farmers’ Educational & Cooperative Union of America, composed of the following local unions: Gorman Local No. 1771; Kokomo Local Union No. 665; Willow Branch Local Union No. 989; New Hope Local Union No. 933; Hay Local Union No. -; Desdemonia Local Union No. 1443; Howard Local Union No. 948; Jewell Local Union No. -; Indian Mountain Local Union No. -; Rock Ridge Local Union No. -; Grandview Local Union No. 776. That the said Gorman District Farmers’ Educational & Co-operative Union of America are now in the possession and control of said property, and have been since the said lots were purchased. That the defendants W. S. Witt and G. R. Stracener, the president and secretary, respectively, of the said Gorman District Farmers’ Educational & Co-operative Union of America, is now in possession of the said property, and holding the same in trust for the owners of the same, and the defendants pray, that, upon final hearing of this petition, the defendants be quieted, in their title and possession of the said property, and that the plaintiffs be perpetually enjoined from the interfering with their title or possession of the said property.
“Second. That the plaintiffs are not entitled to the assets, which are in the possession of W. S. Witt and G. R. Stracener, but the said assets are held by G. R. Stracener, who is holding the said assets for the use and benefit of the members of the Gorman District Farmers’ Educational & Co-operative Union of America, composed of the locals, above enumerated, in paragraph 1 of this answer, and the defendants pray that their title and possession of the said assets be quieted, and that the plaintiffs be perpetually enjoined from in any manner interfering with the said assets or disturbing the defendants, in their title and possession of the same.
“Third. The defendants expressly deny that the plaintiffs are entitled to the annual profits, which may arise from the warehouse, and the property described in paragraph 5 of the plaintiffs’ petition, and of this the defendants pray the 'judgment of the court.
“Fourth. The defendants expressly deny that the said G. R. Stracener is threatening to pay the funds which are in his possession to any person who is not entitled to receive the same, but, on the contrary, the said G. R. Stracener is holding the said funds, in trust, for the use and benefit of the owners of the same, and he prays that the plaintiffs be perpetually enjoined from in any manner interfering with the said funds, and with his possession of the same, and of this the defendants pray the judgment of the court.
“Fifth. That the facts stated in the tenth paragraph of the plaintiffs’ petition is not true.
“Sixth. The defendants deny that the plaintiffs are entitled to the possession of the funds described in the plaintiffs’ petition, either for their own use- or for the use of others, and of this the defendants pray the judgment of the court.
“Seventh. The defendant D. J. Neill expressly denies that he ever was unlawfully in possession of the password of the Farmers’ Educational & Co-operative Union of America, but he was, up to January 1, 1914, lawfully in possession of the password of the Farmers’ Educational & Co-operative Union of America, but since the 1st day of January, 1914, the said D. J. Neill had not been in possession of the password of the said Farmers’ Educational & Co-operative Union of America, and he has not since the said 1st day of January, 1914, sought or attempted to use the said password, and is not seeking to intrude on any meeting or lodge, where he is not entitled to go, and has never done so; wherefore, he says that the plaintiffs are not entitled to an injunction, and of this the said Neill prays the judgment of the court. The defendants pray that.this cause he heard on its merits, and that the relief hereinbefore besought be granted, and for cost of suit and general and special relief.”

Later plaintiffs filed their first supplemental petition in way of replication, as follows:

“Come now the plaintiffs and file this their first supplemental petition in reply to the original answer of defendants, and for such replication say:
“(1) That they deny the allegations contained in the first paragraph of said answer, and say that the facts in regard to said property are these: That deed to the land on which said warehouse is located was originally made to the Gorman District Union, composed of the locals named in said paragraph, but that at the time of the execution of said deed the order known as the ‘Farmers’ Union’ was doing business in Texas under the name of the Farmers’ Educational & Co-operative Union of America, and that on the 16th day of November, 1910, after having taken a referendum vote of all the local unions in Texas, and a majority having voted therefor, the name of said Farmers’ Union in Texas was changed to the Farmers’ Educational & Co-operative Union of Texas, and on said date a charter was granted by the state of Texas, that the locals composing the Gorman District Union voted for or participated in said vote, and that thereafter on July 12, 1912, said district union passed a resolution to obtain a charter under said state organization, and that on August 18, 1912, said charter was duly issued to the district union, and it has been acting theieunder since said time, and that said district union by resolution duly passed on November 8, 1912, changed the word ‘America’ in its by-laws to the word ‘Texas,’ and that by constitution and by-laws the executive committee and officers of said, district union had and have charge and control of said warehouse and property, and that in law and in equity said property should remain in control of plaintiffs, and that there is no Farmers’ Union of America doing business in Texas except through the said Texas Union.
“(2) Plaintiffs say from the facts stated, not only are they entitled to the control and possession of said property, but title to the same should be vested in them as trustees, so that they may carry out the objects and purposes of said union.
“(3) Wherefore, they pray as in their original petition, and for title to said property, and for general and special relief.”

The defendant the Continental State Bank of Gorman filed its answer denying the allegations contained in paragraph 7 of plaintiffs’ original petition, denying that there had been any money deposited in said bank by the said G. K. Stracener as the agent of the Farmers’ Educational & Go-operative Union of Texas, which for brevity, we will hereafter style the F. E. & C. U. of T., or of the Gorman District, but admitting that there had been deposited by said Stracener on January 17, 1914, $196.65, and that said amounts stood in said bank to the credit of the said G. B. Stracener. The defendant bank further alleged that it had paid out no money belonging to the F. E. & C. U. of T., and that since January 17, 1914, it had paid out no money belonging to the said G. R. Stracener. It further prayed that evidence be heard upon the issue involved and upon judgment of the court that, if it be found that said money so deposited to the credit of said G. R. Stracener belonged to said Gorman District F. E. & C. Ü. of T., the defendant bank be permitted to deposit said amount of money with the clerk of the court, etc.

Upon these pleadings, trial was had before the court and judgment rendered dissolving and vacating the temporary writ of injunction theretofore granted, and denying the permanent writ of injunction prayed for, and adjudging costs of suit against the plaintiffs, and from this judgment the plaintiffs appealed.

Plaintiffs and defendants each filed their briefs in this court Plaintiffs assigned error as shown by assignments 1 to 12, inclusive. The court filed his findings of fact and conclusions of law, which findings of fact are as follows:

“Findings of Fact.
“(1) I find: That on April 14, 1907, the following was issued to certain parties for a district union to be known and designated as ‘Gor-man District No. 105,’ located at Gorman, East-land county, Tex., to wit: ‘Charter. In things essential, unity; and in all things charity. The Farmers’ Educational & Co-operative Union of America. To All unto Whom These Presents Shall Come — Greeting: Know ye, that the Farmers’ Educational & Co-operative Union of America, by virtue and authority in its officers, vested by charter from the state of Texas, duly filed in the office of the Secretary of State in compliance with law, have this day granted and do hereby grant to W. O. Bussell, Prest., R. J. Gallaohon, Vice Prest., C. J. Watson, Sec. & Treas. Gormam M. A. Dorman, Chap., G. C. Tarrange, D. K. Earl Muncill, Cond., and their successors, this charter for a district union to be known and designated as Gorman District Union No. 105, located at Gorman, Eastland county, fully constituting them a district union of the Farmers’ Educational & Co-operative Union of America, with full powers to perform all the duties and ceremonies appertaining to the same, whilst they conform to the rules and usages of the order. In witness whereof we have caused this to be signed by our president and secretary, with seal affixed, and indorsed by the organizing officer, at’ Dallas, Texas, this the 14th day of April, A. D. 1907. B. F. Chapman, Secretary. D. J. Neill, Organizing Officer. E. A. Calvin, President. [Seal, affixed.]’ And that under said charter an association of persons, designating themselves as the Gorman District Union of the Farmers’ Educational & Co-operative Union of America, met at stated intervals in the town of Gorman, Eastland county, Tex., carrying on certain secret fraternal work and transacting business that was incident or pertaining to such union.
“(2) That on August 31, 1906, antedating said last-mentioned charter, J. M. Hirst and wife, E. A. Hirst, sold and conveyed, under general warranty deed, the following property situated in Eastland county, Tex., being lot No. 3, in block No. 13, in the town of Gorman, to the Gorman District, Farmers’ Educational & Co-operative Union of America, composed of the following local unions, to wit: Gorman Local Union No. 1771; Kokomo Local Union No. 665; Willow Branch Bocal Union No. 989; New Hope Bocal Union No. 933; Hay Bocal Union No. -; Desdemonia Bocal Union No. 1443; Howard Bocal Union No. 948; Jewell Bocal Union No. -; Indian Mountain Bocal Union No. -; Rock Ridge Bocal Union No. -; and Grandview Bocal Union No. 776. The granting clause in said deed being as follows; ‘Have granted, sold and conveyed and by these presents, grant, sell and convey, unto the said Gorman District, the Farmers’ Educational & Co-operative Union of America, composed of the above-named local unions,’ etc. ‘To have and to hold the above-described premises, together with all and singular the rights and appurtenances, thereto in anywise belonging, unto the said Gor-man District, Farmers’ Educational & Co-operative Union of America, composed of the above-named local unions, their heirs and assigns forever, and we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said Gorman District, Farmers’ Educational & Co-operative Union of America, composed of the above-named local unions, their heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.’ Which deed was duly acknowledged by said grantors and was filed for record in Eastland county, Tex., on May 5, 1908, and recorded in Volume 73, pages 2 and 3, of the Deed Records of Eastland County, Texas.
“(3) That the consideration in the above deed was the sum of $25 cash, and a note for $300, which was executed by said Gorman District Union, and all of the above consideration was advanced and paid by defendants, who-thereafter were reimbursed by said Gorman District Union of the Farmers’ Educational & Co-operative Union of America; a vendor’s lien being retained in said deed, and there having been nothing introduced in evidence in this case to show the said vendor’s lien had ever been released of record.
“(4) That the following is the constitution and by-laws of said Gorman District Union, to wit:
“ ‘Constitution and by-laws of the Gorman District Union No. 105, of the F. E. & C. U. of A., adopted in regular session at Gorman, Texas, January 12, A. D. 1907:
“ ‘Preamble.
“ ‘1. This district union was organized to gather the various local unions that we may be better prepared to meet and demand our just rights, and to conduct our business in accordance with the golden rule, “Do unto others as we should have others do unto us,” thus building up a brotherhood that will recognize and respect the rights of all men.
“ ‘2. The Gorman District Union Warehouse was built by and for the Gorman District Union and is now owned and shall be by the same. We desire to conduct the business of the warehouse and cotton yard upon the general principals of equal rights to all, special privileges to none.
“ ‘3. After having paid the many assessments to all gates, bridges and middlemen, we now propose to own our own toll gates, and bridges, and build in the near future a direct road to the consumer of our raw materials so that the producer may receive more for his labor, and the consumer of the manufactured articles pay less for what he uses.
“ ‘Constitution and By-Eaws.
“ ‘Section 1. The Gorman District Union shall be composed of its oificei’s, which shall be, one president, one vice president, one secretary, one treasurer, one lecturer, one chaplain, one doorkeeper, one conductor, and an executive committee of five and one delegate from each ten members in good standing and a majority fraction thereof, and one delegate at large from each local union. The delegates from two-thirds of local unions which constitutes the district union, shall constitute a quorum to do business.
‘Section 2. The executive committee of said district union shall have charge of the warehouse and cotton yard business as directed by said district union from time to time.
“ ‘Section 3. The duties of said officers shall be the same as in the state union where it can be applied to district business.
“ ‘Section 4. The Gorman Warehouse shall be built and cotton yard arranged by and for the Gorman District Union of the F. E. & O. U. of A. of Eastland County, Texas.
“ ‘Section 5. And shall be built on the certificate and donation plan. All donations will be thankfully received and used in the construction of same. All money loaned to said district un-ioa by members belonging to said local unions of said district union, shall receive a warehouse certificate or receipt that shall stand against said warehouse and cotton yard until same shall have been redeemed and fully paid without interest.
“ ‘Section 6. All dividends accruing in the district treasury above running expenses, shall be and is hereby set aside for the purpose of redeeming said certificates, or receipts, and each person so holding a certificate or receipt shall receive their per cent, according to the amount loaned said district union.
“ ‘Section 7. After all certificates or receipts shall have been paid or redeemed and canceled, each and all members belonging- to the Gorman District Union of the F. E. & C. U. of A. No. 705, in good standing and patronize the yard, shall have an equal share in said warehouse and cotton yard in every respect, and shall share their part of said dividends when they accrue in said district treasury at the end of each cotton season in each year, if not otherwise ordered by said district union.
“ ‘Section 9. All members of the various locals constituting said district union are earnestly solicited to give said warehouse and cotton yard their entire patronage, thereby manifesting strict fidelity to their obligations, as well as true loyalty, to their noble order, such fidelity and loyalty will also greatly enhance the financial interests of all affiliated and tend to give general if not complete satisfaction.
“ ‘Section 10. Also, when cotton is being stored for better prices, it shall be stored in said warehouse or cotton yard and the members thereof shall comply with the rules and regulations that may be established by said District Union from time to time.
“ ‘Section 11. It is hereby provided that this constitution and by-laws may be amended by the said district union when in legal session to do business, provided it shall be recommended by a two-thirds vote of the local unions constituting the said district union.’
“(5) That said Gorman District Union built upon said lot a warehouse, the money being advanced by the defendants, and was thereafter reimbursed to them by said Gorman District Union, all of whieh occurred prior to any connections the plaintiff thereafter had with said Gor-man District Union.
“(6) That on November 16, 1910, there was filed in the Secretary of State’s office at Austin, Texas, the following charter, to wit:
“ ‘State of Texas, County of Tarrant. Be it known: that we, the undersigned citizens of Texas, hereby make application to the state of Texas, for a charter for the following purposes and as follows, to wit: First. The name of this corporation shall be the Farmers’ Educational & Co-operative Union of Texas. Second. The purpose of this corporation shall be the organization of farmers to protect themselves in their pursuits. Third. The place where its business shall be transacted shall be at Fort Worth, Texas, and at such other places in the state of Texas, as shall be determined upon by its executive committee. Fourth. This corporation shall exist for a period of fifty years. Fifth. The number of its directors shall be five and for the first year shall be as follows; whose respective places of residence respectively follow their names: F. I. Townsend, Snyder, Texas. M. O. Fields, Lott, Texas. T. B. Taylor, Gouldbusk, Texas. J. P. Lane, Gallatin, Texas. W. D. Lewis, Topsey, Texas. Sixth. There shall be no capital stock of this corporation. Witness our hands at Fort Worth, Texas, this the 15th day of October, 1910. F. I. Townsend. M. 0. Fields. W. D. Lewis.
“ ‘State of Texas, County of Tarrant.. Before me, the undersigned-authority, on this day personally appeared F. I. Townsend, M. 0. Fields, and W. L>. Lewis, known to me to be the persons whose names are subscribed to the foregoing' instrument and each acknowledged to me that ho had executed the same for the purposes and considerations therein expressed. Given under my hand and seal of office, this the 15th day of October, A. D. 1910. W. R. Parker, Notary Public, Tarrant County, Texas.’
“Endorsed: ‘Filed in the office of the Secretary of the State this 16th day of November, 1910, W. B. Townsend, Secretary of State.
“ ‘Department of State. I, W. B. Townsend, Secretary of State, of the state of Texas, do hereby certify that the foregoing is a true copy of the charter of the Farmers’ Educational & Co-operative Union of Texas, with the indorse-ments thereon, as now appears of record in this department. In testimony whereof, I have hereunto signed my name officially and caused to be impressed hereon the seal of state at my office in the city of Austin, Texas, this the 17th day of November, A. D. 1910. [Seal.]. W. B. Townsend, Secretary of State.’
“(7) That on the top page 108 of the minute book of said Gorman District Union, there appears the following, which was introduced in evidence, to wit: ‘Resolution No. 2. We, your committee, recommend to get a new charter for the district union to do business under. Carried.’ But in this connection I find that there was no evidence introduced to show whether the same was business transacted at a regular meeting of said Gorman District Union, whether said union was in session at such time, or whether there was a quorum present, or whether the same was in any way binding upon the said Gorman District Union; there being nothing to show that the said minute was ever, in any way, approved, acted upon, or ratified by said Union.
“(8) That from said minute book, on top qf page 16, there was introduced in evidence the following: ‘Resolution No. 8. Whereas, the Gorman District Union has adopted the new charter, we recommend the word America be changed to Texas in the by-laws of our district union and adopt same and change No. from 102 to 22. Carried.’ But in this connection I find that there was nothing introduced in evidence to show that the same was passed at an authorized meeting of said Gorman District Union, or whether there was a quorum present, or whether it was the regular order of business, or whether it was in any way ever read, approved, or in any way ratified or acted upon by the said Gorman District Union.
“(9) That on the 18th day of August, 1912, a charter was issued, as follows, to wit: ‘Charter. In things essential, unity, in all things, charity. The Farmers’ Educational & Co-operative Union of Texas. To All Unto Whom This Presents Shall Come, Greeting: Know ye, that the Farmers’ Educational & Co-operative Union of Texas, by virtue of authority in its officers, vested by charter from the state of Texas, duly filed in the office of the Secretary of State in compliance with law, have this day granted and do hereby grant unto G. B. Neill, Jr., president, R. K. Lee, vice president, G. R. Stracener, secretary and treas., Gorman, Texas, R. Rasco, chaplain, W. O. Russell, lecturer, W. L. Wood, D. K. J. S. Fonville, conductor, W. S. Witt, M. T. Harrell, J. M. Mannry, W. T. Geriigan, G. M. Sullivan, ex committee., and their successors, this charter, for a district union to be known and designated as Gorman District Union No. 21, located in Eastland county, Texas, fully constituting them a district union of the Farmers’ Educational & Cooperative Union of Texas, with full power to perform all duties and ceremonies appertaining to the same, whilst they shall conform to the rules and usages of the order. In witness thereof, we have caused this to be signed by our president and secretary with seal affixed and indorsed by J. L. Armstrong-, state organizer, at Fort Worth, Texas, this the 18th day of August, A. D. 1912. C. Smith Secretary. Peter Radford, President. -, Organizing Gfficer. [Seal affixed.]’
“(10) That the following, constituting the constitution and by-laws of the Farmers’ Educational & Co-operative Union of Texas, was introduced in evidence, to wit:
“ ‘Constitution and By-Laws.
“ ‘The name of this organization shall be the Farmers’ Educational & Co-operative Union of Texas, and shall work under a charter of corporation procured from the Secretary of State of the State of Texas. The Farmers’ Educational & Co-operative Union of Texas, shall remain a part of the Farmers’ Educational & Cooperative Union of America, incorporated under the laws of Texas, September 17, 1902, and .shall pay dues to the said F. E. & C. Ü. of A. in accordance with the provisions of the constitutions of said organization. This constitution is for the government of the Farmers’ Educational & Co-operative Union of Texas, and all its local, district and county unions.
“ ‘The local secretary-treasurer, shall send county and state dues and fees, to the county secretary-treasurer. The county secretary-treasurer shall send state dues and fees, to the secretary-treasurer of the Farmers’ Educational & Go-operative Union of Texas; the state secretary-treasurer shall send the quarterly password to the county secretary-treasurer, who shall furnish said password to the local secretary-treasurer entitled to the same. The state secretary-treasurer shall pay all national dues out of the state dues therefore, exempting the local membership from the payment of same.
“ ‘(24) It shall be the duty of the secretary of each local union to notify quarterly the secretary of the Farmers’ Educational & Cooperative Union of Texas, of all dues paid to the county secretary. Any local union failing to do so, shall forfeit its charter, and can only be reinstated by paying up all past dues.
“ ‘(28) A charter is the authority under which a union does its work, and it is the duty of the president to see that the charter is present when the union is opened for business.
“ ‘By-Laws. (1) Each delegate to any union shall present written credentials from the secretary-treasurer of his union.’
“(11) I find that the said district union of the Farmers’ Educational & Co-operative Union of America at Gorman, Tex., never did at any time surrender its "said charter dated April 14, 1907, but still has the same, and there is nothing in evidence showing that any demand has ever been made upon said Gorman District Union to surrender the same.
“(12) That there is nothing in the charter granted by the state of Texas, to the Farmers’ Educational & Co-operative Union of Texas, or in the charter thereunder granted by the said Farmers’ Educational & Co-operative Union of Texas, to said Gorman District Union, or in the constitution and by-laws of the Farmers’ Educational & Co-operative Union of Texas, or in the constitution and by-laws of the said Gorman District Union, that would give the said Farmers’ Educational & Co-operative Union of Texas any interest in or control over its said property at Gorman, Tex., either real or personal, or would permit the said Farmers’ Educational & Co-operative Union of Texas to take charge of same under any circumstances or conditions, or would in any way cause the same to revert to the said Farmers’ Educational & Co-operative Union of Texas.”

In appellant’s first assignment of error they urge that the court erred in not rendering judgment for plaintiffs for possession and control of the warehouse property described in plaintiff’s petition, and in their second assignment of error, which two assignments will be considered together, they urge that the court erred in not rendering judgment for plaintiffs for possession and control of the books, constitution, and bylaws of the Gorman District Union described in plaintiffs’ petition supporting each assignment by a proper proposition and statement.

We are of the opinion that both assignments should be sustained. The uneontro-verted evidence shows: First, that the F. E. & C. U. of A. was incorporated under the laws of Texas, September 17, 1902 (Statement of Facts, p. 6). Second, that the deed from J. M. Hirst and wife, E. A. Hirst, to the' Gorman District, F. E. & C. U. of A., which deed conveyed the lot and parcel of land upon which the warehouse was subsequently built, was executed August 31, 1906, and that the recitations in said deed show that property therein mentioned was conveyed by the grantors to the Gorman District, F. E. & C. U. of A., as shown by the court’s findings (paragraph 2). Third, that on April 14, 1907, said F. E. & C. U. of A. granted and issued a private charter to W. O. Russell, president, and others, for a district union to be known and designated as Gorman District No. 105, located at Gorman, Eastland county, Tex. (Findings of Fact, par. 1). Fourth, that on October 10th W. D.. Lewis and others applied for a charter for the F. E. & C. U. of T.; that on November 17th thereafter said charter was granted by the state of Texas (Statement of Facts, pp. 1, 2). Fifth, that the change in the name from the F. E. & O. U. of A. to the F. E. & O. U. of T. was ratified by a majority vote of all the local unions in Texas upon a referendum vote, and that thereafter, July 12, 1912, the Gorman District Union passed a resolution to obtain a charter under the state organization; said charter being issued by the said state organization August 18, 1912. Sixth, that on November 8, 1912, said Gorman District Union amended its by-laws and constitution so as to limit the right of members to share in the proceeds derived from the conduct of the cotton yard to those members who were in good standing and patronized the cotton yard, and also substituting the word “Texas” for “America” in the name of said Gorman District Union, and changing .the number from “105” to “21.” It is true that the court finds in his findings of fact, paragraphs 7, and 8, that said two resolutions were not shown to have been passed at authorized meetings, or that a quorum was present, or whether it was the regular order of business, or whether they were ever read or approved, or in any manner ratified and acted upon by the said Gorman District Union, yet the testimony of G. R. Stracener, who is the defendant in this suit and was the secretary of the Gorman District Union at the time of the entries aforesaid in said minutes and kept the minutes of these meetings, shows that these minutes were correctly kept, and therefore the recitations in said minutes and their force and effect should be most strongly construed against the defendants. Therefore this court would be justified in concluding that all necessary and legal requirements had been complied with to give such resolutions legal and binding effect. We are further induced to believe from the record that thereafter the Gor-mon District Union acted under and by the authority of .the charter granted it by the state organization; for, while the court found in his findings of fact, paragraph 11, that the district union “never did at any time surrender said charter dated April 14, 1907” (the charter issued by the national organization), “but still has the same,” etc., yet the application by the district union for a charter from the state organization, and the acceptance thereof by the district union, was, in effect, a repudiation and surrender of the charter theretofore granted by the national organization. This is upon the same principle that the acceptance of another office by an officer, inconsistent with the one previously held, and his qualification therein, would be deemed ipso facto a resignation of and from the office previously held by him. It would require no formal repudiation or surrender of such charter to the national organization on the part of the district union, but the acceptance of and the operation under the charter from the state organization would constitute such repudiation and surrender of the charter theretofore issued by the national organization.

Since the appellants, i. e., M. R. Brooks, J. A. Blackwell, Fayette. Wetherman, W. I. Tyrone, and J. W. Pulley, are shown by the evidence to be the duly and legally elected executive committee, and since it is shown that under the constitution and by-laws of said Gorman District Union No. 105, F. E. & G. U. of A., adopted in regular session at Gorman, Tex., January 12, 1907, and thereafter adopted, or at least treated as adopted, and acted under as the constitution and by-laws of the Gorman District Union No. ,21, F. E. & O. U. of T., with certain specified changes and amendments, it seems to us that as such they still have the legal authority to have charge of and control of the affairs 'of said warehouse and cotton yard, except “as directed” (otherwise) by said district union from time to time. It is not shown that said district union has directed otherwise, or that it has vested the authority to have charge and control of said warehouse and cotton yard in any other person or persons than the executive committee aforesaid.

We do not wish to be understood as saying that any legal title to any of the property described in plaintiffs’ petition is vested in such executive committee, but just the right to exercise the control and management thereof while the members of said executive committee hold said office and until otherwise directed by said Gorman District Union. The question of title to any of the property mentioned in plaintiffs’ petition is not involved in this suit and is not intended to be determined by this court.

The judgment is reversed, and judgment here rendered for appellants.

On Motion for Behearing.

In their motion for rehearing appellees strenuously insist that this court erred in its original opinion in the following particulars, to wit; First. In considering appellants’ first and second assignments, because they are top general. Second. In reversing and rendering this cause, because the evidence is conflicting. Third. Because the record shows that the evidence in behalf of appellees was not fully developed on the trial, they having introduced no testimony. Fourth. In the finding of the fact by this court that “the change in-the name from the F. E. & O. U. of A. to F. E. & O. U. of T. was ratified by a majority of all the local unions of Texas, upon a referendum vote.” Fifth. In holding, in substance, that the acceptance of a charter from the F. E. & 0. U. of T. was a repudiation and surrender of the charter theretofore obtained from the F. E. & C. U. of A.

Taking these specifications in reverse order, we still adhere to the holding that the acceptance of a charter under the Texas organization was, in effect, a surrender of the charter granted by the national organization. The state organization had been formed as an intermediate body between the national organization and the local unions, and had been accepted by the national organization as such, and paid dues to the national body, and was supported by dues paid to it by the various local unions. A “charter” is the authority by virtue of which an organized body acts, and, in case of any conflict arising out of the exercise of the functional authority granted by two charters, certainly the last charter accepted would prevail.

As to the finding by this court that the change in name “had been ratified by a majority vote of all the local unions, etc.,” W. D. Lewis, president of the F. E. & 0. U. of T., testified that the constitution of said Texas organization, containing the change in name, had been adopted by the entire membership of the state (S. F. p. 4), and that “this printed copy of the constitution and bylaws is the law that governs the local, county, and district unions in Texas” (S. F. p. 6). This evidence as to the adoption of the new constitution and by-laws was, as far as we have been able to determine, uncontroverted.

As to the alleged error of this court in reversing and rendering judgment, rather than in reversing and remanding for new trial, because the appellant introduced no evidence in .the court below, as complained of in the third specification in motion for rehearing, there is nothing in the record to show that defendants in the court below had any evidence which they were denied the right to introduce. They filed no motion for continuance, or at any time indicated the existence of any evidence not given on the trial. One of the principal witnesses for the plaintiffs was G. B. Stracener, one of the defendants, whom the defense had ample opportunity to cross-examine, and the process of the court was open to the defense to secure any other testimony desired. That the evidence upon some matters was conflicting, as alleged in the second specification, would not make improper a judgment by this court which .rendered judgment for appellants, if such action was sufficiently supported by uncontroverted evidence upon the material issues, or by the allegations in the verified pleadings of plaintiffs and not denied by defendants’ answer.

Plaintiffs alleged in their verified petition that the plaintiffs were the duly elected and acting officers or directors of the Gorman District Union of Texas, and that certain named plaintiffs constituted the executive committee, who, as such, were entitled to the custody and control of the described property and the funds arising by reason of the operation of the warehouse, and that plaintiffs were the legal custodians of the books, papers, etc., belonging to said district union; and there is no dispute that there was a bylaw to that effect.

The plaintiffs and the defendants are members of the same organization. If that organization obtained a charter, which was improper, and is attempting to exercise, through the plaintiffs, rights and powers under and by virtue of that charter, defendants are in no position to complain, since as members of the corporation they are bound by its terms, as also by its by-laws under which plaintiffs claim. It is not contended that the plaintiffs have violated any of the by-laws of the organization or any of its charter provisions, nor that the plaintiffs were not elected in accordance with its bylaws, nor that by the terms of the by-laws plaintiffs are not given right of possession and control of the property for which the plaintiffs sue. In the absence of such showing, the acts of the organization through the plaintiffs, as its officers, are binding upon the defendants. This conclusion of itself furnishes a sufficient reason for a reversal of the judgment, and the question here discussed, we think, is sufficiently raised under appellants’ twelfth and thirteenth assignments of error, wherein complaint is made of the action of the court in overruling appellants’ motion for a new trial, one of the grounds of which presents, substantially, that question, irrespective of the first and second assignments mentioned in the original opinion.

The motion is overruled.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    KING COUNTY v. MARTIN.
    (No. 8044.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 21, 1915.
    Rehearing Denied Jan. 9, 1915.)
    1. Public Lands &wkey;>173 —School Lands — Vacating Sales — Admissibility — Sub-bounding Conditions.
    In a suit to set aside a sale of school land on the ground of fraud, evidence that the interest charged on the deferred purchase money was less than was the usual rate in such cases was not admissible, where it was not first shown that the surrounding conditions were the same.
    [Ed. Note. — Eor other cases, see Public Lands, Cent. Dig-. §§ 544-551; Dec. Dig. &wkey;173.]
    2. Appeal and Eekob <&wkey;232 — Review — Presentation in Court Below.
    Where evidence was rejected on one objection, the ruling cannot on appeal be justified on another ground not raised.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1351, 1368, 1426, 1430, 1431; Dec. Dig. <i&wkey;232.]
    3. Public Lands <&wkey;173 — School Lands — Adequacy op Pbice — Evidence.
    In a suit to set aside a sale of school land, evidence that the interest charged on the deferred purchase money was less than usual is admissible to show adequacy of price.
    [Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. &wkey;173.]
    4. Public Lands t&wkey; 173 — School Lands — Sales — Vacation.
    A sale of school land will not be set aside because of a mere inadequacy of price.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. &wkey;173.]
    5. Appeal and Ebeor &wkey;>1170 — Review — Harmless Error.
    In a suit to sot aside a sale of school land, the erroneous exclusion of evidence showing inadequacy of price should be disregarded, under court rule 62a (149 S. W. x), where there was like evidence of similar import.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. &wkey;1170.]
    6. Public Lands <&wkey;173 —School Lands — Setting Aside Sale — Actions—Evidence.
    In a suit to set aside a sale of school lands, evidence held to warrant a finding that a better price could not have been obtained, and that the price charged was not inadequate.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544 — 551; Dec. Dig. <&wkey;>173.]
    7. Trial <&wkey;350— Special Findings.
    Special findings on evidentiary matters are not required.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-S33; Dec. Dig. <¿»350.]
    8. Trial <&wkey;351 — Special Findings.
    In a suit to set aside a sale of school land for fraud and inadequacy of price, the court refused to submit special issues whether the commissioners’ court sold the land without investigating its character, or without advertisement, and with notice that it could be sold upon better terms. Special issues whether the sale was made with fraudulent understanding, whether a better price could have been obtained, and whether the price charged was inadequate, were submitted. Held, that the special issues requested went merely to evidentiary matters, being substantially covered by the issues submitted, and hence the refusal was not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 829, 834-839; Dec. Dig. &wkey;351.]
    9. Public Lands <&wkey;173 — School Lands— Sales — Vacation.
    Though the commissioners’ court in selling school land fraudulently intended to favor the purchaser, that fact does not warrant a vacation of the sale, where the county received full value and was in no way injured.
    [Ed. Note. — For other cases, see Public Lands, • Cent. Dig. §§ 544-551; Dec. Dig. &wkey;173.]
    10. Public Lands <&wkey;173 — School Lands— Sales — Commissioners’ Court — Powers —“County.”
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1365, declaring that “counties” are bodies politic and corporate, with power to sue and be sued, the commissioners’ court of a county may ratify a sale of school land, which the court might originally have made, and such ratification cures defects in the original sale.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. &wkey;H73.
    For other definitions, see Words and Phrases, First and Second Series, County.]
    11. Vendor and Purchaser <&wkey;43 — Fraudulent Sales — Vacation oe.
    That a sale was induced by the purchaser’s fraud does not render it ipso facto void, and the vendor may thereafter affirm it.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 67, 68; Dec. Dig. <&wkey;> 43.)
    Appeal from District Court, Jones County; John B. Thomas, Judge.
    Action by King County against George B. Martin. ‘From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Walter S. Pope, of Jefferson City, Sporer & McClure, of Jacksboro, and Carrigan, Montgomery & Britain, of Wichita Falls, for appellant J. M. Carter, of Aspermont, Browne & Hawkins, of Paducah, Chapman & Coombes, of Anson, Fires & Diggs, of Childress, and Stephens & Miller, of Ft. Worth, for appel-lee.

       Por opinion on motion for rehearing, see 173 S. W. 1200.

   CONNER, C. J.

Briefly stated, this suit was instituted by King county to set aside, on the ground of fraud, a sale and conveyance of four leagues of King county school lands for $1 per acre on 20 years’ time, with interest at the rate of 3 per cent, per annum, made on the 16th day of February, 1899. The case was submitted to a jury upon special issues, and upon the receipt of the verdict the court rendered a judgment in appellee’s favor upon the answers, and King county appeals.

The plaintiff’s petition is quite lengthy, but in substance it was alleged that J. M. Martin, the then county judge, and appellee, George B. Martin, conspired together to secure the sale under an agreement between them that George B. Martin should purchase the land with the aid and assistance of J. M. Martin, and that the purchase should inure to the joint benefit of both of the parties. It was also alleged that the character and quality of the land had been misrepresented to the commissioners’ court, which representations, through the influence of said J. M. Martin, induced the commissioners to join in the sale. It was further alleged that the sale had been made hurriedly, without advertisement, without giving others an opportunity to buy, and for a grossly inadequate price, by reason of all which it was charged that the act of the commissioners was fraudulent and the sale of no validity. The defendant Már-tin denied the allegations of fraud and misrepresentations.

The first special issue submitted to the jury, and which embodies the principal ground of fraud having support in the evidence, reads as follows:

“Special Issue No. 1. At the time that the commissioners’ court of King county entered the order of February 16, 1899, making the sale of the land in controversy to Geo. B. Martin at a ?1 per acre on 20 years’ time, with interest at the rate of 3 per cent, per annum, was there an agreement and mutual understanding between the defendant, Geo. B. Martin, and J. M. Martin, county judge, that the defendant, Geo. B. Martin, should take or hold said lands for the benefit of himself and the said J. M. Martin, or that the said J. M. Martin should have some interest in said lands, or the profits or proceeds which might be realized on said lands by the said Geo. É. Martin?”

To this issue the jury answered, “No.”

The remaining special issues with the answers thereto that we deem controlling are the third and sixth, reading as follows:

“Special Issue No. 3. State whether the commissioners’ court of King county on February 16, 1899, by the use of ordinary care and diligence, could at that time have sold the King county school lands for a better price than $1 per acre on 20 years’ time at 3 per cent, interest per annum?”

To this issue the jury answered, “No.”

“Special Issue No. 6. What was the market value of the land in controversy, per acre, on or about the 16th day of February, 1899, when sold on 20 years’ time at 3 per cent, interest per annum?”

To which issue the jury answered, “$1 per acre.”

Without observing the order of the presentation of the assignments, we will first state that appellant offered as a witness J. M. Martin, who testified in accord with the ground of fraud recited in the court’s first special issue, but appellee, George B. Martin, categorically denied any agreement of the kind, and denied that J. M. Martin was interested in any way in the sale or in any proceeds that might arise therefrom, and it is not contended on this appeal that the answer of the jury to said first special issue can be set aside for want of evidence to support it. The verdict, however, in answer to the third and sixth special issues, above presented, is so attacked, and it becomes necessary for us to notice, which we will do briefly, the testimony relating to these issues.

W. M. Lay testified:

That he had known the King county school lands since 1887, and knew the market value of the same in the year 1899; that “the market value of such lands at that time was from 75 cents to $1 per acre”; that the King county school land, as compared with other lands in that county, is about an average of all the land in the county as a whole; and that “the market value of lands of average quality in Lamb county, Tex., in the year 1899, was from 75 cents to $1 per acre.”

On cross-examination, among other things, he said:

“I do not know whether King county could have sold these lands to other parties, if they had been properly advertised the time they were sold to George B. Martin or not, had other parties been given an opportunity to bid, at more than $1 per acre on 4.0 years’ time, with interest at 3 per cent, per annum, but I do not think so. * * * Part of the land is good, and part of it is sand. * * * The price of $1 per acre, which I have stated these lands were worth, was upon the usual terms of sale, which was on from 20 to 40 years’ time at 3 per cent, interest. There were no lands selling in that country at that time for cash. * * * I do not know what these lands were leasing for at the time Martin bought them, but three cents per acre per year was the usual price.”

J. W. Puckett testified:

That he knew the King county school lands in Lamb county and had known them for about 15 years; that he owned lands in Bailey, Lamb, and Cochran counties, and was familiar in a general way with all these lands; that “I know the market value of King county school lands in Lamb county in 1899, and the market value of the same was from 75 cents to $1 per acre. Some parts of the land are sand hills, and other parts are firm lands; but, taking the entire country over, I would say that the King county school lands are about the average, and I know what the market value of lands of average quality in Lamb county in the year 1899 was, and the value of such lands was from 75 cents to $1 per acre.”

The witness’ testimony showed that he had been on the land a number of times, including the year 1889, saying that “I ranched adjoining Janes Bros.,” who had the King county school lands leased. He further stated:

“I do not think it is a fact that these lands could have been sold for more than $1 per acre prior to 1899, as I have no knowledge of any lands in that country selling for more than $1 per acre prior to or during 1899. * * * The land was worth the price I mentioned on long time, with low interest, because no lands were selling for cash. In offering the lands for sale, the length of time in which the purchase money was to be paid, and the terms of sale, the rate of interest, would affect the price per acre for which the lands could be sold. At the time these lands were sold to George B. Martin in 1899, I think they were leasing for three cents per acre.”

L. T. Lester testified:

“I have had quite a bit of experience in dealing with lands in the western part of the state of Texas since the year 1890 up to the present time. I know the King county school lands located in Lamb county well, and have known them since 1897. I would say the southwest part of the land is very hard, smooth, grass land, with some lakes, and the southeast part is very broken, and .the northeast and northwest parts extend into the sand hills and is very sandy and some extensive sand hills. I worked cattle over the land during 1897 to 1899, and I know the market value of the lands in 1899. It was from $1 to 75 cents per acre. I bought the Crosby county school lands in 1898, paying $1 per acre for. same on 20 years’ time, at 5 per cent, interest, payable annually.”

L. G. Wilson testified:

That he knew the King county school lands, and had known them about 15 years, and that “we ranched on the adjoining lands for a number of years. I know what the market value of said land, taken as a whole, was in 1899, and it was about $1 per acre. * * * I should think that land that was sold on 20 years’ time, with no cash payment, but with the provision that the interest shall be payable annually and sold at 5 per cent, interest, would bring a lower price than if the same land was sold at 3 per cent, interest, and that it would affect the price some. I cannot say what would have been the difference in price of King county school lands in 1899, where the interest charged was 6 per cent., and where the interest charged was 3 per cent., interest payable annually, and the principal not to be paid for 20 years, but the land would be worth some more at 3 per cent, than at 6 per cent. I have never heard of any individual or any of the organized counties of Texas selling their lands on 20 years’ time with as low a rate of interest as 3 per cent. * * * ”

He further stated that the lands to which he referred were leased at from 2% to 3 cents per acre at the time they were sold to George B. Martin in 1899.

T. W. Morrison testified:

That he'had known the King county school lands about 25 years, had ranched in Lamb county for about 15 years, and further that “it is hard to say what the market value of lands in Lamb county were at that time. I know what lands were selling for in 1899. This land was not worth more than $1 per acre in 1S99. * * * Interest on deferred payments on lands purchased from the state and counties has been from 3 to 5 per cent. If the rate of interest was 5 to 6 per cent, per annum, the land would be sold for a lower price than it would if the rate of interest were 3 per cent. I have never heard of any individual or any of the organized counties of Texas selling their lands on 20 years’ time with as low a rate of interest as 3 per cent.”

J. H. Slayton testified:

That he was acquainted with the King county school lands and had been for about 23 years; that he had been over it a number of times, as part of it was in a pasture over which he ran cattle; that “the reasonable market value of King county school lands in 1899 was $1 per acre * * * counties and to the state the interest has been from 3 to 5 per cent. If the rate of interest were high, the land would sell for less price. I do not think this land is worth as much as the average tract of land in that country.”

R. O. Ware testified:

That he had known the King county school lands about 20 years, and had been over them a number of times, and further that “I know what the market value of the King county school lands was in 1899, and it was about $1 per acre. This land compares favorably with the average land of that country. * * * I do not think the (they) could have got more than $1 per acre for this land, because as good land could be bought at that price. * * * The rate of interest would make a difference in the price per acre, but I do not know what the difference would be, but in my judgment it would only make a very small difference. I do not recall any sale where any person or county in Texas sold their land on 20 years’ time with only 3 per cent, interest.”

Tom Wilson testified:

That he had known Lamb county, and the King county school lands therein, about 15 years, and had been over it hundreds of times; that he was in the cattle business in 1899, and had been for six or seven years; that “I know the market value of King county school lands in Lamb county in 1899. It was about $1 per acre. * * * These lands had a market value at that time of $1 per acre purchased on time of 40 years, with interest at the rate of from 3 to 5 per cent, on deferred payments. In offering these lands to the public for sale, the length of time and rate of interest the purchase money bore would affect the price per acre the land brought. * * * From ■ counties and from the state it has been the custom to get these deferred payments for from 3 to 5 per cent, interest. I do not recall of hearing of any county or any individual in Texas selling the lands on 20 years’ time at as low a rate of interest as 3 per cent., payable annually.”

J. H. Walker, chief clerk of the general land office, testified that his record showed that in February, 1899, there were about 28,-000 acres of unsold school lands in Lamb county which were priced by the commissioner of the general land office or the Legislature at $1 for dry grazing and $1.50 for agricultural lands; that in the year 1899 the law required the state school land in Lamb county to be sold to actual settlers on condition of three years’ residence; that no leases appear to have been made in Lamb county in 1S99 or 1898, but have been made in some of the surrounding counties at three cents per acre.

J. B. Daniel, a real estate dealer, after having testified to long experience in dealing with real estate in the Panhandle, stated that:

“The market value of land in 1899 was the lowest I have ever known for the past 30 years. W. W. Massie purchased the Lubbock county school land about the year 1898-99 at 75 cents an acre, and it was considered one of the best tracts of land in Bailey county, and was located within 15 miles of King county school lands in Lamb county. I have been over the Lubbock county school land several times that was purchased by Massie, and regard it as four of the best leagues of land in West Texas. County school lands were offered and sold at the same price during these years. There was so little demand for land at the time defendant bought the King county school lands in 1899 that practically every piece of land on the market at that time was offered on very liberal terms. * * * The rate of interest on school lands has been 3 per cent., and on county school lands from 5 to 6 per cent, interest, and on large bodies of private lands the rate has generally been 6 per cent, during the year 1899 to 1913. The rate of interest and terms would more or less influence the purchaser at the time stated, but at the time stated there were but few, if any, cash buyers for land, and it could only be sold on very liberal terms and low rate of interest, as the land could be leased for a period of 5 to 10 years at 3 cents per acre, which made it more desirable to lease than to buy it. I do not know of any sales of county school land having been made by any of the counties at as low a rate as 3 per cent.; the usual rate being 6 per cent.”

J. O. Janes testified:

That he had resided in Lamb county since 1895; that he was a member of a stock raising firm, and not only knew, but had used, the four leagues of King county school lands since 1895 until the defendant Martin took charge of them himself; that the “King county school lands are just plains land, with considerable sand hills and tussock sandy land”; that “the King county school lands were offered for sale to one of the firm of Janes Bros. & Brown some time in the latter part of 1897 at 50 cents per acre.”

The witness stated that he individually was in favor of accepting this offer, but it was declined by the firm, which did, however, accept the proposition to lease it for 2ys cents per acre.” He further testified:

“The market value of King county school lands in February, 1899, was from 50 cents to $1 per acre on long terms, with low rate of interest. King county school lands in February, 1899, were not considered valuable for any purpose, except grazing. I cannot remember the date, but along about 1899 the Deaf Smith county school lands were sold at $1 per acre with 4 per cent, interest on 20 years’ time. These lands were offered to my firm, and they refused to purchase. There was very little land selling in 1S97, and in land deals in West Texas at that time the rate of interest depended upon the amount paid per acre for the land. When the amount paid per acre was high, the rate of interest was low, and when the rate of interest was high, the price per acre was low.”

There was also evidence tending to show that the commissioners’ court had placed the lands upon the market as early as the year 1895, during part of which time it had been advertised in a paper or papers; that at one time a sale had been made at $1.25 per acre but that the sale later failed. The evidence does not show any specific oilier after the failure noted other than that of appellee Martin’s at a higher rate than 75 cents per acre on 20 years’, time at 5 per cent, interest.

On the submission of the ease in argument, and in appellant’s briefs, it is substantially admitted that the evidence supports the finding that the King county school lands had no greater market value than $1 per acre, but for the fact that the rate of interest required of appellee was too low; the contention being, in substance, that the inadequacy of the value, as found by the verdict, finds Its demonstration in the low rate of 3 per cent, interest required of appellee instead of the higher rate alleged to be customary in sales of the kind. We therefore turn aside for the moment to consider another question in the case having relation to the contention noted.

Appellant offered to prove by L. J. Wilson, H. H. Slayton, Tom Wilson, R. W. O’Keefe, and R. C. Ware that on February 16, 1899, the usual and customary interest charged and collected in Lamb and adjoining counties by individuals, where land was sold on deferred payments, was 6 to 8 per cent, per annum. To this evidence appellee objected as “immaterial.” The objection was sustained, and the evidence excluded,, to which error has been assigned. Appellee, in addition to the objection that the testimony thus offered was immaterial, also insists that it has not been made to appear that the 'conditions were similar, and this latter objection seems to be supported by the record; it being undoubtedly true that, before evidence of the character is admissible, it must appear that such are the conditions. City of Ft. Worth v. Charbonneau, 166 S. W. 387; Fidelity Phenix Fire Ins. Co. v. Abilene Dry Goods Co., 159 S. W. 172. But no such objection was made below, and it must therefore be rejected here. The objection that the evidence was “immaterial” certainly seems indefinite, and 'logically it may well be doubted whether, under any circumstances, it is sufficiently specific to require consideration, though possibly it should be held otherwise. T. & P. Ry. Co. v. Gay, 88 Tex. 111, 30 S. W. 543. But, in any event, we are not inclined to uphold it now, for we are of the opinion that the testimony offered was relevant as a circumstance to be considered by- the jury, together with all the other evidence, in determining whether or not the sale to the appellee was for an inadequate price. Carver v. Power State Bank, 164 S. W. 892; Paine v. Argyle Merc. Co., 133 S. W. 895; Kocher v. Mayberry, 15 Tex. Civ. App. 342, 39 S. W. 604. So that we think, in an abstract sense, the ruling was erroneous.

But the further question arises of whether the erroneous ruling is of that character, under all of the circumstances, which requires a reversal of the judgment, and we have concluded that it does not. Rule 62a (149 S. W. x), having with us the force of law, provides that:

“No judgment shall be reversed on appeal on the ground that the trial court has committed an error of law in the course of a trial, unless the appellate court shall be of opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause, and probably did cause, the rendition of an inlproper judgment in the case.”

In determining whether the ruling under consideration falls withiu the spirit of this rule, it may be well to observe that this suit is not one against trustees for damages for a failure to get a higher rate of interest. The proof offered is relevant only as a circumstance on the issue of fraud in the sale by the commissioners’ court of King county. The proof offered only tends to show an inadequacy of price, and the latter fact in turn is but a circumstance to be considered in determining the issue of fraud. We scarcely need to cite authorities for the proposition that something more than a slight inadequacy in price would be necessary to set aside the sale in question. In the light of these suggestions, and of the rule quoted, it seems to us altogether improbable that the error in excluding the testimony offered probably induced an improper verdict or judgment in the case. As will be seen by testimony already quoted, a number of witnesses gave testimony of like import To particularize: Lester testified that in 1898 he bought the Orosby county school land at $1 per acre at 5 per cent, interest. Morrison and Slayton testified that interest on deferred payments on lands purchased from the state and counties had been from 3 to 5 per cent. Ware testified that he had been buying lands in that country for 20 years, and that “between counties or state and individuals the interest was from 3 to 5 per cent, interest.” Daniel testified that “the rate of interest on school lands has been 3 per cent., and on county school lands from 5 to 6 per cent., and on large bodies of private lands the rate has generally been 6 per cent., during the years 1899 to 1913.” . It may almost be sáid that in the section of country where Lamb county is situated, and in the processes of settlement, and where, during the period from 1895 to 1906, the principal business, aside from stock raising, was the purchase and sale of lands, the usual rate of interest on land sales was a part of the common stock of knowledge of the country, and the jury, it seems to us, must be held to have had substantially all of the enlightenment that was embodied in the rejected proof. So that, on the whole, and in the light of the other testimony relating to the values of lands, we do not think, as before stated, that the ruling on the collateral subject now discussed was prejudicial.

We therefore recur to the question of whether the evidence supports the jury’s verdict in answer to the third and sixth special issues, and we can but think that it does. To give a brief résumé of the testimony: Daniel who testified to an experience of some 26 years in the real estate business in Western Texas, and who had sold many large bodies of land in that section, testified that “the market value of land in 1899 was the lowest I have ever known for the past 30 years.” He then mentioned the sale of the Lubbock county school lands about the year 1898-99 at 75 cents an acre, stating that these lands were among the very best of the leagues of land in West Texas, and that practically all lands on the market in 1898-99 were offered on very liberal terms. Lester bought Crosby county school lands in 1898 at $1 per acre at 5 per cent, interest, payable annually. Numerous witnesses gave the value of the lands at the time as from 75 cents to $1 per acre, and Janes testified that the firm of which he was a member refused an offer of the very land in question at 50 cents per acre in the latter part of 1897. Lay said that the price of $1 per acre, which he stated as the value of the King county lands “was upon the usual terms of sale, which was on from 20 to 40 years’ time at 3 per cent, interest,” further stating that he did not think that, if the lands had been advertised at the time they were sold to Martin, and other parties had been given an opportunity to bid, the lands would have brought in more than $1 per acre, with interest at 3 per cent, per annum. As before stated, notwithstanding the fact that the lands had been upon the market for a number of years, no secure bid seems to have been offered higher than the price for which the land was sold to appellee; it appearing that the highest bid that could be said to be pending at the time of the sale to Martin was but 75 cents, with interest at the rate of 5 per cent. We feel unable to say, after a consideration of all of this evidence, that the verdict of the jury, in the particulars under consideration should be set aside.

In the fourth, fifth, sixth, seventh, and eighth assignments of error, complaint is made of the action of the court in refusing to submit special issues requested by appellant. Appellee objects to a consideration of these assignments on the ground that the record fails to show that they were properly excepted to, as provided by the act approved March 29, 1913 (Gen. Laws 1913, p. 113). By a reference to the act it is seen that amended article 1971 provides that the charge of the court shall be in writing and submitted to the respective parties, or their attorneys, for examination and objection, and that the charge and all special charges given by the court shall be read to the jury before the argument of counsel begins. It is further provided in the act that exception shall be taken to the court’s refusal to give special Instructions, and that the court’s ruling shall be regarded as approved, unless duly excepted to. It would therefore seem to be required that all special charges desired by counsel should be requested and acted on by the court before the charge is delivered to the jury, the evident purpose of the law being that counsel, in argument, may understand the precise issues to be determined and the exact principles of the law by which the jury are to be governed; and we find that the bill of exceptions in this case, taken to the action of the court in refusing to submit the special charges under consideration, failed to show the necessary fact that they were prepared, presented to the court, and acted on by it prior to the delivery of the charge to the jury. We would perhaps be justified, therefore, in sustaining appellee’s objections and in refusing to consider the assignments because of the failure noted. See Gulf, Texas & W. Ry. Co. v. Culver, 168 S. W. 514, Ford Motor Car Co. v. Freeman, 168 S. W. 80, Heath v. Huffhines, 168 S. W. 974, and other familiar cases on the same subject. But — and we add this in view of the importance of the case — we think the assignments should be overruled on their merits.

The requested issues, briefly stated, were: First, whether the commissioners’ court knew or were informed that the lands could be sold for a better price or for a higher rate of interest; second, whether the sale of February 16th was made without advertisement and without investigation of the character and value of the lands; third, whether Martin by any means induced the court to so sell the land; fourth, whether the court acted with “the purpose and intent of favoring Geo. B. Martin or in good faith for what it honestly believed were the best interests of the public free schools of King county”; fifth, whether Geo. B. Martin at the time knew the character and quality of the lands ; sixth, whether the commissioners’ court knew or was ignorant of the character of the lands; seventh, whether Geo. B. Martin concealed from the court his knowledge of the character of the land, or whether he fully informed the court as to the character and quality of the same, and whether the court would have agreed to sell him the land at the price had he done so; eighth, whether said J. M. Martin, the county judge, “guaranteed” Geo. B. Martin against any loss; ninth, whether Geo. B. Martin or J. M. Martin induced the commissioners’ court to make the sale without advertisement and without giving other persons an opportunity to purchase, and whether or not the court did so make the sale; tenth, whether the commissioners’ court exercised that degree of care and skill, prudence, and diligence which a man of ordinary care and prudence would have used in his own transactions, under like circumstances; eleventh, whether Geo. B. Martin at the time knew the court had not used such care, prudence, and diligence, and whether, had the commissioners’ court used such care and diligence, they would have been able, within a reasonable time, to havé sold the lands at a higher price at the same rate of interest, or for the same price for a higher rate of interest; twelfth, whether the commissioners’ court hnd “notice” that the lands could probably be sold for a greater price than that for which they were sold; and, thirteenth, whether the commissioners’ court acted in “good faith” in the sale ot the lands.

By a consideration of these special issues, it will be seen that, exclusive of those substantially included in the special issues submitted by the court, they required for the most part findings upon mere matters of evidence. To illustrate: If in fact the commissioners’ court sold the land without investigation of its character, without advertisement, and with notice that the land could have been sold upon more favorable terms, these were mere circumstances tending to support the general issue of fraud, which was the basis of appellant’s action. Special findings upon such evidentiary matter are never required. Cushman v. Masterson, 64 S. W. 1031; Haile v. Johnson, 133 S. W. 1088. In other instances there was no evidence raising the supposed issue. For instance, no evidence is pointed out indicating that the commissioners’ court either knew or were informed that King county could probably sell its lands for more than they were sold for. True, one of the witnesses testified that he mentioned to one of the commissioners a letter written by a party offering to give ?1.25 per acre, but the name of the party was not given. It does not appear that the letter was in the form of a proposition, whether the party was solvent or insolvent, or anything that gave any assurance that the sale could have been so made. Nor is there any evidence tending to show that Geo. B. Martin was either called upon for information or that he concealed from the commissioners’ court his knowledge of the character and quality of the land.

It may be said that the fourth and thirteenth requested issues, involving the question of good faith on the part of the commissioners’ court, could properly have been submitted, inasmuch as it was shown that there was no advertisement of the land immediately preceding the sale to Martin, nor had any 'members of the commissioners’ court making the sale ever personally seen the land, and further that a relatively short time prior to February 16, 1899, the same court had sold the land to Martin at 50 cents per acre on 20 years’ time, with 5 per cent, interest, the sale having been set aside by decree of a district court on the ground that the price for which the land had been sold was inadequate; that, immediately after the abrogation of this sale, the commissioners’ court attempted to sell the land to Geo. B. Martin at 75 cents per acre at 5 per cent interest; and that this attempted sale had never been effectuated by the execution of transfers. This all may tend to show, and we think does tend to show, that the commissioners’ court desired Geo. B. Martin as a purchaser; the desire being explainable perhaps on the theory expressed in one of the commissioners’ court’s orders that Martin was a resident of the county, was well known, and solvent, and that thereby the county would be relieved, of the hazard of litigation. Aside from this, however, there seems but little, if any, evidence of a fraudulent purpose on the part of the commissioners’ court, as a whole, to defraud King county. While it is true there was no immediate advertisement, there had been an advertisement that availed the county nothing; while it also appeared that the members of the commissioners’ court personally knew nothing of the land, there is evidence to the ef-feet that they made inquiries of its character of cowboys and others, including a former county judge, who had visited the land for the purpose of examination. In this view of the evidence, 'and assuming it to be further true, as established by the answers of the jury to the third and sixth issues submitted by the court, that the commissioners’ court, in the sale of the land, got its full market value, and that no diligence on their part would have enabled them to have secured a better price, we fail to see that the intent of the commissioners’ court is material. It is undisputed that the commissioners’ court had the lands on the market for a number of years, and the good faith of the court in so offering the lands for sale is not questioned by any assignment of error or by any evidence in this case. Under the circumstances and findings, therefore, an intent on the part of the commissioners’ court, if conceded to be fraudulent, to favor Geo. B. Martin over another purchaser, could not constitute actionable fraud. Mr. Bigelow says (Bigelow on Fraud, vol. 1, p. 540):

“It was long since laid down that fraud without damage afforded no ground of redress in a suit for damages, and it might be added no ground of defense or of relief in equity, except by way of rescinding an executory contract.”

See Lemmon v. Hanley, 28 Tex. 220; Moore v. Cross, 87 Tex. 557, 29 S. W. 1051; Blair v. Baird, 43 Tex. Civ. App. 134, 94 S. W. 116-all recognizing the principle announced by Mr. Bigelow.

On the whole, wo think it can be truly said that whatever of fraud in this case the circumstances tend to prove was of no real injury to King county.

We have attempted to answer all of the assignments of error presented by appellant, but there is an additional finding on the part of the trial court that it would seem, in any event, answers appellant’s entire case. Appellee pleaded a ratification of the sale of February 16, 1899, and the trial court, in addition to the special issues and answers thereto, incorporated in his judgment the following further finding:

“In addition to the special verdict so found by the jury, the court, from the uncontradicted evidence, finds: That theretofore, to wit, and on the 13th day of August, A. b. 1906, the commissioners’ court of King county, Tex., when there was present all the members of said court, including the county judge, to wit, R. E. Lasater, county judge, E. V. Sellars, J. R. Hailey, J. W. Taylor, and T. B. Masterson, commissioners, passed and caused to be entered on the minutes of said court the following order, to wit:
“ ‘August 13, 1906.
“ ‘Whereas, by a certain order made and entered on the minutes of this court and shown on pages 561 and 562, volume 1, of the minutes of this court, being dated February 16, 1899, this court authorized J. M. Martin to act as a commissioner of King county, Tex., and that he make and execute to Geo. B. Martin a bond for title to four leagues of land situated in Lamb county, Tex., known as the King county school lands, on the terms and for the consideration set forth in said order; and
“ ‘Whereas, on the 2d day of October, 1900, J. M. Martin, as county judge of King county, Tex., did make, execute and deliver to the said Geo. B. Martin a certain warranty deed wherein he eonvej’ed to the said Geo. B. Martin leagues Nos. 230, 231, 232, and 233, Lamb county, Tex., fully described in said deed, which is recorded in volume 1, p. 210, of the deed records of Oastro county, Tex., for the consideration fully set forth in said deed; and
“ Whereas,. King county, by its duly authorized commissioner's’ court, has, with full knowledge of all the facts, continuously recognized said conveyance and transaction since the date of same, and has received the interest which has been paid thereon according to the obligation of said Goo. B. Martin and according, to the order of the commissioners’ court of King county, Tex., authorizing the sale to said Geo. B. Martin; and,
“ ‘Whereas, the said Geo. B. Martin has in all things complied with the terms of his said contract with King county, and of the requirements set forth in said warranty deed so made by J. M. Martin, county judge as aforesaid, to the said Geo. B. Martin:
“ ‘Now, therefore, it is ordered and decreed by the court that the said warranty deed so made by J. M. Martin is hereby in all things ratified a.nd confirmed, and the title to said four leagues of land is considered to have been ever since the delivery of the deed, and is now, in the said Geo. B. Martin, subject to the vendor’s lien retained in said deed to secure the payment of the unpaid purchase money for said lands. And, in order that the record title of the said Geo. B. Martin in and to said lands may be perfected, it is hereby ordered by the court that R. E. Lasater, county judge of this county, be and is hereby fully authorized and empowered to make to the said Geo. B. Martin the deed of this county containing a copy of this order, said deed to be executed and delivered to the said Geo. B. Martin, as a ratification of said deed heretofore made as above set forth, and in consideration of the sum of $1 to be paid by the said Geo. B. Martin.’ ”

It is undisputed that County Judge R. E. Lasater made, executed, and delivered to Geo. B. Martin the ratification deed above authorized; that he made due report thereof, which report was in all things confirmed. It is also undisputed that from February 16, 1899, until the date of the ratification deed above mentioned, and ever since, Geo. B. Martin has duly and regularly paid the interest accruing upon his obligation for the King county school lands, and that such interest has been received and presumably distributed by the commissioners’ court of King county as directed by law. It is further undisputed that the court thus ratifying the original sale of February 16, 1899, was composed of an entirely different membership, and the good faith of this action upon the part of R. E. Lasater and his associated commissioners has not been attacked by any assignment of error. There is evidence also tending to show that, before the ratification order was entered, inquiry was made of the sale in 1899. In view of all which we think it must be held that the original sale to Geo. B. Martin in February, 1899, was in effect relieved of further attack. As between individuals, it cannot be disputed that fraud does not ipso facto render a conveyance effected thereby null and void. The fraud merely affords a ground for the rescission. If the King county school land were originally placed upon the market in good faith, and if, after the sale of 1899 to Geo. B. Martin, the commissioners did in good faith, after such investigation as they saw proper to make, ratify and confirm the warranty, deed made by J. M. Martin, we see no reason why the ratification deed, unimpeached as it is, does not confer full title free from further attack on the part of King county. By the Constitution and laws, absolute title to the lands in question was vested in King county, and King county, and not the members of the commissioners’ court, was, by the terms of the Constitution, made the trustee of the lands and of the funds arising therefrom for the benefit of the public free schools. The law also provides expressly that the counties of this state are bodies politic and corporate, with power to sue and be sued, and such counties act by their several commissioners’ courts and are bound, we think, by the good faith acts of that court when performed within the scope of its authority. That the commissioners’ court of King county had the power to make the sale of the King county school lands, and had the power to direct the execution of a transfer thereto, is not questioned, and we can but think that the execution of the ratification deed by virtue of the ratification order in August, 1906, was within the scope of the powers of the court, and that such deed concludes all inquiry into the validity of the antecedent transactions. See Vernon’s Sayles’ Tex. Civ. Stat. art. 1365; Comanche County v. Burks, 166 S. W. 471; Smith v. Town of Anson, 160 S. W. 114; Gallup v. Liberty County, 57 Tex. Civ. App. 175, 122 S. W. 291; Carter-Kelly Lumber Co. v. Angelina County, 126 S. W. 293; Waggoner v. Wise County, 17 Tex. Civ. App. 220, 43 S. W. 836.

It is accordingly ordered that the judgment below be in all things affirmed.
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