source: Caselaw Access Project

author: PHILLIPS, C. J.

license: Public Domain

text:
    AVERY v. COOPER et al.
    (No. 2712.)
    (Supreme Court of Texas.
    Dec. 15, 1915.)
    Schools and School Districts <@=^103 — Taxing Powers — Valuation oe Property.
    Under Rev. St. 1911, art. 2862, providing that an independent school district, when a majority of its board of trustees so determine, may have its taxes assessed and collected by the county assessor and collector, with the proviso that the property of such districts having their taxes so assessed and collected shall not be assessed at a greater valuation than for county and state purposes, such an independent district, having an assessor and collector of its own, could assess property for purposes of school taxation at a valuation other than that made by the county assessor, the proviso of the article being without application to an independent district with its own assessor and collector, while article 2827, originally section 57 of Acts 29th Leg. c. 124, providing a complete system of public free schools, has been amended (Act 31st Leg. c. 12) to eliminate its proviso that, in all assessments to support the public free schools, all property shall be assessed at the valuation fixed for state and county purposes, leaving the section applying only to common school districts, and not to independent school districts.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 114, 115, 117, 240-245, 252; Dec. Dig. <®^103.j
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Suit by J. W. Avery against W. D. Cooper and others, trustees of the Brookshire Independent School District, to restrain the collection of taxes. Judgment in favor of plaintiff was reversed by Court of Civil Appeals (168 S. W. 412), and plaintiff brings error.
    Affirmed.
    Hanney & Hanney, of Hempstead, and J. V. Meek, of Houston, for plaintiff in error. J. D. Harvey, of Houston, for defendants in error.
   PHILLIPS, C. J.

The suit was instituted by J. W. Avery, as plaintiff, to restrain the trustees of the Brookshire independent school district, in Waller county, and the assessor and collector of taxes for such independent school district, W. D. Cooper, from the enforcement and collection of certain taxes levied for the year 1913 by the trustees upon his property for such school purposes. The assessment of the property made for the benefit of the school district was at a higher valuation than that made by the county assessor and approved by the county commissioners’ court for state and county purposes. The only question in the case is whether the independent school district in the collection of its taxes was bound by the valuation placed upon the property for state and county purposes.

So far as the record discloses the school district in question is one of the character defined and possessing the powers granted by article 2851, Revise.d Statutes 1911. Suet a district constitutes an independent school corporation, invested with the authority to levy and collect taxes and issue bonds for school purposes, within the limitations imposed by law, and to have its own assessor and collector of taxes. By article 2862 it is given the right, when a majority of its board of trustees so determine, to have its taxes assessed and collected by the county assessor and collector. There is a proviso in this latter article which declares:

“That the property of such districts having their taxes assessed and collected by the county assessor and collector shall not be assessed at a greater value than that assessed for county and state purposes.’’

The only provision of law which attempts to limit the assessment of property in such an independent school district for taxation for the benefit of the district to the valuation fixed for state and county taxation purposes is found in this proviso, and the operation of the proviso is by its terms plainly limited to such only as have their taxes assessed and collected by the county assessor and collector. The allegations of the petition disclose that the Brookshire independent school district had its own tax assessor and collector, and had not sought to have the taxes in question assessed or collected by the county officials. The proviso in article 2862 is therefore without application to the assessment complained of, and the district was accordingly not bound by the valuation fixed by the county officials in its assessment of the plaintiff’s property.

If the law is such as to thus permit the assessment of property within such an independent school district for its taxation purposes at a higher valuation than for state and county purposes, it is a matter for the Legislature and not the courts. The legislative history of the subject reveals that under the law, as it now stands, the purpose was to leave such independent districts, in their proper assessment of property for taxation, unrestrained by the valuation imposed by the county officials in their assessment for state and county purposes, except in those instances where the taxes for the district are assessed and collected by the county assessor and collector. The present articles found in the statutes relating to the public free schools of the state are, in the main, taken from the act of 1905, comprising chapter 124 of the Acts of the Twenty-Ninth Legislature, pages 263-311. The purpose of that act was to provide for a.complete system, and it is shown to have been a comprehensive law. Section 57 of the act was in relation to the special tax authorized to be imposed for the benefit of common school districts, and contained a proviso:

“That all property assessed for school purposes shall be assessed at the rate of value of property as said property is assessed for State and county purposes.”

It likewise contained a second proviso, reading:

“That in all assessments of property for taxing pnrposes under this hill, all property shall be assessed at the valuation fixed for said property for State and county purposes.”

Because of this second proviso in section 57 it was held by the honorable Court of Civil Appeals for the Third District in Gulf, Colorado & Santa Fe Railway Company v. Blum Independent School District, 143 S. W. 353, in which a writ of error was denied, that the assessments by independent school districts could not exceed the valuation fixed for state and county purposes. By the Act of the Thirty-First Legislature, chapter 12, pages 17-23, this section was amended so as to eliminate the second proviso it originally contained, and as thus amended it constitutes present article 2827. It applies only to common school districts, and has no relation to independent school districts. The purpose of the repeal of that proviso was manifestly to free independent school districts of the general limitation it imposed, and to permit their exercise of the independent authority in the assessment and collection of taxes for such school purposes conferred by articles 2851, 2853 and 2861, unaffected by the valuation of such property as fixed by the county officials for state and county purposes, except where their taxes are assessed and collected by the county assessor and collector, as provided in article 2862.

The honorable Court of Civil Appeals has properly determined the case, and its judgment, reversing the order of the district judge granting the injunction, vacating such order and rendering judgment for the defendants, is accordingly affirmed.
      ©soFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: YANTIS, J.

text:
    WEATHERSBY v. TEXAS & OHIO LUMBER CO.
    (No. 2425.)
    (Supreme Court of Texas.
    Dec. 15, 1915.)
    1.CORPORATIONS <@=>448 — Contracts op Promoters — Liability op Corporation — Consideration.
    Where a promoter of defendant lumber company agreed to pay intervener $8,000 for 80,000 shares of the stock of another lumber company which he owned and to protect intervener against loss as an indorser or guarantor upon any of the notes, accounts, or obligations of the lumber company the shares of which were sold, intervener in his turn agreeing to release a tract of land from the option he held on it and to permit the owner to convey direct to the lumber company buying plaintiff’s stock, a subsequent contract by defendant corporation reciting the former contract and reiterating its terms was supported by consideration.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1709, 1789-1792; Dec. Dig. <@=> 448.]
    2. Corporations <§^>448 — Promoters—Unauthorized Contract — Ratification.
    Where the promoter of a lumber company before incorporation contracted with a stockholder in a second company that, if he would release an option which he had on lands so that the owner might convey to the company to be formed, it would pay him $8,000 for his stock in the second company and guarantee him from liability on paper, etc., of the second company which he had indorsed, such promoter’s contract being made without authority from the directors of the company to be formed, and not being within the scope of his apparent authority, but such company after organization taking and retaining the land which was acquired through the contract, without offering, in the plaintiff’s suit to enforce the provision guaranteeing him from liability, to surrender the land, the first company was liable on the unauthorized contract of its promoter as having ratified it, since, on the doctrine analogous to that of ratification, it could not affirm the contract in part and repudiate it in part.
    [Ed. Note — For other cases, see Corporations, Cent. Dig. §§ 1709, 1789-1792; Dec. Dig. <@=> 448.]
    3. Corporations <@=>448 — Promoters — Promoter’s Contract — Company’s Notice op Teems — Sufficiency op Evidence.
    In an action against a lumber company on a contract made by its promoter before incorporation, evidence held to show that the company, when buying land from a third person, had notice of the provisions of the promoter’s unauthorized contract with the plaintiff, who held an option on such land, among which was one that the company should guarantee the plaintiff against liability on a second company’s paper, which the plaintiff had indorsed, in return for the release of his option, so that the owner of the land could convey to the company.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1709, 1789-1792; Dec. Dig. <S=> 448.]
    4. Corporations <@=>428 — Officers—Imputation of Knowledge of President.
    Where the president of a lumber company had actual knowledge of all the provisions of a contract purporting to be made on the company’s behalf before incorporation by its promoter, who was entirely without authority in the premises, and such president had acquired such knowledge while engaged in the furtherance of the business of the company, and while he was its acting president, such notice was imputable to the company, so that it could not accept the benefits of the contract without ratifying it as a whole, though if the president had acquired the notice while acting for himself in his private affairs it would not have been imputed to the company.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1748-1761; Dee. Dig. <@=>428.]
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Suit by R. L. Weathersby, intervener, against the Texas & Ohio Lumber Company. Judgment for defendant (146 S. W. 243), and plaintiff brings error.
    Reversed, and judgment rendered.
    Crook, Lord, Lawhon & Ney, of Beaumont, for plaintiff in error. W. W. Blake and Rio Blake, both of Jasper, for defendant in error.
   YANTIS, J.

R. L. Weathersby owned 80,-000 shares of stock in the Jasper County Humber Company, which, was in the hands of a receiver. He was an indorser on two notes which it owed to W. W. Willson, in the aggregate sum of $3,503.96. He filed a plea of intervention in a receivership suit which was pending against the Texas & Ohio Lumber Company, in which he asked for judgment in his favor against the said Texas & Ohio Lumber Company for the said sum, alleging that said company purchased from him an option which he owned to purchase from George N. Smalley 3,743 acres of timber land in Jasper county; and that as a part consideration for the purchase of his said option said Texas & Ohio Lumber Company agreed and contracted to protect him against the payment of said notes; and that when he caused the owner of said land, George N. Smalley, to deed it to the Texas & Ohio Lumber Company, it took said land charged with a lien in his favor to secure said protection; that he had been sued by said Willson on said notes, and a judgment had been rendered against him for the said amount; and that he had paid and discharged said judgment. In his plea of intervention he asked for judgment in his favor against the Texas & Ohio Lumber Company in said amount, with interest thereon, and for a foreclosure of said lien on the said 3,743 acres of land.

The receiver answered said plea of intervention by denying any contractual relationship between the Texas & Ohio Lumber Company and Weathersby. He alleged that the 3,743 acres of land was purchased by Apple-gate, and the deed was taken in his name as trustee for the Texas & Ohio Lumber Company; that a cash payment was made by the promoters of the Texas & Ohio Lumber Company; that the contract to hold the in-tervener, Weathersby, harmless, by reason of his having to pay off the said notes, was sign■ed without the authority of the board of directors of the Texas & Ohio Lumber Company, and without any knowledge on their part of the conditions of such contract.

The district court rendered judgment against Weathersby. He appealed to the honorable Court of Civil Appeals for the First District, where the judgment of the trial court was affirmed. A writ of error was granted by this court upon the view that the Texas & Ohio Lumber Company was bound by the contract of its promoters to protect Weathersby against liability on said notes. We will now consider this question, which is the only one presented for decision.

The undisputed evidence shows that in April, 1906, A. P. Laughlin, and several other parties, acting together, had in contemplation and were arranging for the organization ■of a lumber company corporation, which, when organized, would purchase timber lands to be used in the operation of the business of said corporation. The corporation was organized and chartered in June, 1906, and said Laughlin was elected its president, and H. D. .Applegate was elected its vice president. Prior to the actual organization of the corporation, among the lands Laughlin contemplated buying for the prospective corporation was 3,743 acres of timber land in Jasper county, which was owned by one George N. Smalley. Laughlin engaged one H. D. Apple-gate, afterwards vice president of the Texas & Ohio Lumber Company, as a promoter for the prospective company, and directed him to contract for the purchase of this tract of land for such company. However, he could not purchase the land direct from Smalley, as he ascertained, for the reason that Weathersby held a legal contact with said Smalley which gave said Weathersby an option to purchase said land, and said option had not expired. So that Applegate and Laughlin ascertained that they could only secure said land by purchasing said option from Weathersby, or by contracting with him to waive said option in their favor. Accordingly, on April 25, 1906, said Applegate, the promoter of the prospective corporation, made a written contract with said Weathersby, through the latter’s agent, John H. Kirby, by the terms of which Weath-ersby agreed to release his option on the land in their favor, and that Smalley should convey the land direct to said Applegate as trustee for his said associates and the prospective corporation. In this contract the consideration moving to Weathersby was the purchase from him by Applegate and his associates of 80,000 shares of the capital stock of the Jasper County Lumber Company, which said Weathersby owned, at its par value of $8,-000, which was to be paid in cash; and, further, that said Weathersby would be protected by said Applegate and said prospective corporation against loss as an indorser or guarantor upon any of the promissory notes, accounts, or obligations of the Jasper County Lumber Company, which was in the hands of a receiver. In obedience to said contract, said Weathersby did procuré said George N. Smalley to convey by deed said land to said Applegate, which deed was executed, but not delivered, on June 8, 1906, but was delivered after the execution of the contract of September 18, 1906, which was of the following nature; It was executed by the Texas & Ohio Lumber Company, by A. P. Laughlin, president. It was also signed by H. D. Apple-gate and A. P. Laughlin individually. By its terms it confirmed said contract of April 25, 1906, which was made by said Applegate and said Kirby, as agent for Weathersby. Said new contract of September 18th recited that the one of April 25th had been made, and named the consideration which was to be received by Weathersby as stated above, and recited that through said contract of April 25th Weathersby had promised to deliver a deed to said land to the Texas & Ohio Lumber Company, and that said lumber company was now desirous of having said deed from Smalley, the owner of said land, delivered to it, and it then in said September contract agreed to pay to Weathersby all the considerations recited in said April contract, including the protection of Weathersby against paying the said notes; said Septem-oer contract reciting a lien on said land to secure Weathersby against liability on said notes. This contract of the Texas & Ohio Lumber Company of September 18th was made long subsequent to the organization of the corporation, .whose charter was secured in June, 1906, and when said contract was made Laughlin and Applegate were its duly elected and acting president and vice president, respectively.

The deed to the Smalley land at the date of the execution of the said September contract had not been delivered to Applegate by Weathersby, or his agent, Kirby, who had refused to deliver it until such time as the Texas & Ohio Lumber Company itself would become responsible to Weathersby for the considerations mentioned. After the execution of this September contract, Kirby delivered the deed to Applegate, and thereafter Applegate conveyed the land to the Texas & Ohio Lumber Company.

There is no merit in the contention made by the Texas & Ohio Lumber Company, defendant in error, or its receiver, that there was no consideration for the September contract. The consideration was plainly expressed therein. It stated, in substance, that in order to secure the deed to the said land the Texas & Ohio Lumber Company agreed to pay to Weathersby, the plaintiff in error, the considerations mentioned and promised in the April contract, expressly agreeing to protect him against liability on the notes referred to, which were the foundation of the judgment secured against Weathersby, on account of which the latter sues herein. When the deed was delivered to Applegate, the $8,000 cash consideration was paid to Weathersby, and only that portion of the consideration mentioned in said contracts which provided protection to Weathersby against the payment of said notes was left outstanding, and this was assumed to be cared for by the Texas & Ohio Lumber Company. This was ample consideration to support the contract; and as soon as it was agreed by the Texas & Ohio Lumber Company to pay said considerations, Kirby, the agent for Weathersby, delivered the deed to Applegate, the promoter, who then conveyed the land to the Texas & Ohio Lumber Company, in accordance with the general understanding, when each of said contracts was executed.

It is contended, however, that the Texas & Ohio Lumber Company was not bound on said contract of September 18th, because it is denied that Laughlin, its president, had authority from the board of directors to execute it. It is true the evidence shows that Laughlin had not been authorized by the board of directors to make this contract, and we will consider the question whether the Texas & Ohio Lumber Company is bound by its provisions from that viewpoint. That is, that Laughlin, when he executed said contract, exceeded his authority as president of the corporation. We will assume, also, that he did not act within the apparent scope of his authority, because there is evidence in the record that when he signed said September contract as president of the Texas & Ohio Lumber Company he stated to the interested parties that the board of directors had not authorized him to make the contract. But there still remains the fact that the Texas & Ohio Lumber Company took and retained the land under this contract and the April contract made for its benefit by its promoters,', and that it is still holding and claiming said land which was acquired through the provisions of said contract without offering in this suit to surrender said land. We do not think there can be any sound reason for sustaining the position thus occupied by it, which, in effect, would mean that it could receive the benefits of these contracts made by its promoters for it and at the same time refuse the burdens imposed upon it by the contract. The title to this land it acquired through the provisions of said contracts, and it is by the force of the provisions contained in said contract that it still holds and claims the land. Under such circumstances, equity would not allow it to refuse to pay the consideration promised by its promoters in said contract, for in good conscience it should not be permitted to keep the lands and at the same time refuse to pay for them. When the Texas & Ohio Lumber Company asserts title to said lands, it affirms the validity of said contract through whose provisions they secured said title. It cannot affirm the contract in part and repudiate it in part. It cannot accept its benefits and reject its burdens; and having affirmed the portion of the contract favorable to it, which it did in accepting and holding the lands, equity estops it from denying any portion of the contract, and especially that portion which provides for the consideration to be paid to Weathersby for securing the title thereto.

The question involved is not a new one. It has been directly passed upon by this court in the case of Weatherford, M. W. & N. W. Ry. v. Granger, 86 Tex. 350, 24 S. W. 795, 40 Am. St. Rep. 837. Judge Gaines, then associate justice, gave careful and exhaustive consideration to the identical question involved here. In that case he said:

“It is also generally held that contracts by promoters, made on behalf of the corporation, within the scope of its general authority, may be adopted by the latter after its organization. Some of the courts say they may be ratified; but ratification presupposes a principle existing at the time of the agent’s action, and it seems to us, therefore, that the term is not applicable in its technical sense. McArthur v. Printing Co., 48 Minn. 319, 51 N. W. 216 [31 Am. St. Rep. 653]; Spiller v. Skating Rink Co., 7 Ch. Div. 368. With the exception of the law courts of England, the rule is also very generally recognized that if a contract be made on behalf of a corporation by its promoters, and the corporation, after its organization, with a knowledge of the facts, accept its benefits, it must take it with its burdens; and, if the other party has performed the stipulation binding upon him, it may be enforced as against the corporation. * * *
“When the promoters of a railway company have agreed with a landed proprietor, through whose estates the road is projected to run, to take the requisite quantity of his land at a stipulated price, and after the corporation is formed it takes the land, it is certainly equitable that the company should be made to pay the agreed compensation; and the doctrine is recognized in many English equity cases. * * *
“Having exercised rights and enjoyed benefits secured to it by the terms of a contract made by its promoters in its behalf, a corporation should be held estopped to deny its validity. Again, where the promoters of a corporation have made a contract in its behalf, to be performed after it is organized, it may be deemed a continuing offer on part of the other party to the agreement, unless withdrawn by him, and may be accepted and adopted by the corporation after such organization; and the exercise of any right inconsistent with the nonexistence of such contract might be deemed conclusive evidence of such adoption.”

In the case of Texas Western Ry. Co. v. Mary F. Gentry, 69 Tex. 632, 633, 8 S. W. 98, Judge Gaines again gave consideration to this question, and the following excerpt from his said opinion is directly decisive thereof. He says:

“But it is further insisted that the resolution, as a contract to issue bonds secured by a mortgage, was void, because it was never authorized or ratified by a two-thirds vote of the stock of the corporation, as required by our statute (Rev. Stats, art. 4220). There is some conflict among the authorities upon the question of the validity of the contract of a corporation, when made in excess of its powers. When the contract is executed and the corporation has received the benefit, the weight of authority seems to be that the corporation should be held estopped to deny its authority to make it. Jones v. Guaranty Company, 101 U. S. 622, 25 L. Ed. 1030; National Bank v. Matthews, 98 U. S. 621, 25 L. Ed. 188; Railway Company v. McCarthy, 96 U. S. 258, 24 L. Ed. 693; Whitney Arms Company v. Barlow, 63 N. Y. 62, 20 Am. Rep. 504; Perkins v. Railroad Company, 47 Me. 573, 74 Am. Dec. 507; Ossippee, etc., Manufacturing Company v. Canney, 54 N. H. 295; Rutland, etc., Railroad Company v. Proctor, 29 Vt. 93; Monument National Bank v. Globe Works, 101 Mass. 57, 3 Am. Rep. 322; Attleborough National Bank v. Rogers, 125 Mass. 339; Oil Creek Railroad Company v. Pennsylvania Transportation Company, 83 Pa. 160; Bank v. Hammond, 1 Rich. Law (S. C.) 281; City Fire Insurance Company v. Carrugi, 41 Ga. 660; Southern Life Insurance Company v. Lanier, 5 Fla. 110, 58 Am. Dec. 448; Littlewort v. Davis, 50 Miss. 403; Underwood v. Newport Lyceum, 5 B. Mon. (Ivy.) 129, 41 Am. Dec. 260; Hays v. Galion, etc., Gas Company, 29 Ohio St. 330; State Board v. Citizens’ Street Railroad Company, 47 Ind. 407, 17 Am. Rep. 702; Darst v. Gale, 83 Ill. 136; Thompson v. Lambert, 44 Iowa, 239; Foulke v. San Diego, etc., Railroad Company, 51 Cal. 356. The rule is correctly stated in a recent work on Estop-pel: ‘When a contract has in good faith been fully performed and nothing remains to be done by * * * the party seeking relief, and all the shareholders have acquiesced in its performance, the plea of ultra vires or mere want of power is not available by the corporation in an action brought against it for not performing its portion of the contract. 2 Herman on Es-toppel and Res Judicata, § 1179, and the numerous cases there cited. There are some decisions which hold that a contract by a corporation ultra vires is wholly void and cannot be enforced, either by or against it. But if the contract be within the general scope of the corporate authority, and the prohibition be merely against the mode of its execution, it is valid as against the corporation which has received its benefits in favor of a party who has fully complied with the obligations on his part. In the case before us the railroad company had power to make a mortgage; but the statute provides it must be authorized by a vote in meeting of two-thirds in value of the stockholders. This provision is evidently for the protection of the latter. It seems from the evidence in this case that the defendant corporation was organized for the purpose of extending and operating the railroad acquired, or then about to be acquired, by Gentry. It is fully shown that it made the purchase, promised the bonds and mortgage as a part of the consideration for the property, and had operated the road for about three years when this suit was brought. It does not appear that it ever had any other assets save the property so acquired and a short extension of the line. Under these circumstances, the corporation must be held estopped to deny the want of assent of its shareholders. The promise to make a mortgage under these circumstances is deemed in equity equivalent to a mortgage as between the original parties to the transaction. * * * ’ ”

It is contended that the Texas & Ohio Lumber Company had no notice of the terms of the contracts of April 25th and September 18th, and that for this reason said company would not be bound by the provisions of said contracts, or estopped from holding the land without paying all of the consideration to Weathersby provided in. said contracts. But we think the undisputed evidence shows that the Texas & Ohio Lumber Company did have such notice, both actual and constructive. After its incorporation it complied with every provision in the contracts except the one which exacted of it to hold Weathersby harmless on these two notes. It paid the cash consideration of $8,-000 for the stock which Weathersby owned in the Jasper County Lumber Company. This was one of the provisions in the contract. It paid the note of I-Ieiseg & Norvell, which was one of the provisions mentioned in the contract. It accepted the deed from Weathers-by which was one of the provisions in the contract. It is inconceivable that the company would have voluntarily paid out such large sums of money to comply with some of the provisions of the contract without ascertaining all of the provisions of the contract, for certainly they would not have undertaken to comply with any of the provisions in the contract without intending to comply with all its provisions, for it knew that it could not secure the benefits to itself which it desired, namely, the deed, unless it complied with the entire contract. It knew that to comply with some of the provisions would not entitle it to the deed. In addition to this, the undisputed evidence shows that Daughlin, the president of the Tesas & Ohio Lumber Company, had actual Knowledge of all of the provisions of the contract of April 25th, and of the contract of September 18th, because he directed Applegate to make the former, and had in person made and executed the latter, and must have been familiar with its contents. In each instance he acquired notice and information of all of the provisions in said contract while engaged in furthering the business of the Tesas & Ohio Lumber Company, in the first instance before the company was organized, and in the latter instance several months after it was chartered, and while he was its acting president. Having acquired such notice and information while attending to business for the benefit of the Tesas & Ohio Lumber Company, the notice he had as its president was imputed to the said company. If he had acquired this notice while acting for himself in his own private business affairs, it would not be imputed to the Texas & Ohio Lumber Company; but, since he acquired the notice while transacting business for the lumber company, such notice was, in law, imputed to the company. Teagarden v. Godley Lbr. Co., 105 Tes. 616, 154 S. W. 973.

We conclude that the judgment of the Court of Civil Appeals, and of the district court, should be reversed, and judgment should be here rendered in favor of plaintiff in error, R. L. Weathersby, in the sum of $3,503.96, with interest thereon at the rate of 8 per cent, per annum from and after the 17th day of May, 1907, together with all costs incurred by him in the district court, as well as in the Court of Civil Appeals, and in this court, and that he have a foreclosure of his said lien upon said 3,743 acres of land in Jasper county, Tes., covering the full amount of said indebtedness; and it is, accordingly, so ordered.
      <gs»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MILLER et al. v. VANCE.
    (No. 2757.)
    (Supreme Court of Texas.
    Dec. 15, 1915.)
    Schools and School Districts <®=j103 — Taxation — Equalizing Board.
    Rev. St. 1911, art. 2862, provides that when the trustees of an independent school district prefer to have the taxes of their district assessed and collected by the county assessor, they shall be assessed by such officials at no greater value than that assessed for county and state purposes, while article 2853 charges independent school districts with all the duties of city councils as to taxation. Article 945 provides that cities shall have a board of equalization, which article 947 declares shall raise to a proper figure the valuation of all property which the board is satisfied is valued too low. Held, in view of article 965 declaring that such board shall take an oath to discharge all its duties, a board of equalization for an independent school district is unnecessary where the taxes are collected by the county officials, as the board would only have power to reduce the assessed valuation to that fixed by the county officers or below it.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 114, 115, 117, 240-245, 252; Dee. Dig. <S=>103.]
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Suit by J. R. Vance against A. B. Miller and others. A decree for defendants being reversed on appeal to the Court of Civil Appeals (170 S. W. 838), defendants bring error.
    Judgment of Court of Civil Appeals reversed, and that of District Court affirmed.
    S. W. Pratt, of Stanton, and Royall G. Smith, of Colorado, Tex., for plaintiffs in error. Charles Gibbs and Earl Anderson, both of Midland, W. T. Daniel, of Merkel, and Charles Rogan, of Austin, for defendant in error.
   PHILLIPS, C. J.

The plaintiff below was the present defendant in error, J. R. Vance, who instituted the suit against A. B. Miller, the tax collector of Martin county, and the other defendants as trustees of the Stanton Independent School District, to enjoin the collection of taxes which the defendants were claiming as due the school district for the year 1913. The district judge granted the plaintiff a temporary injunction in chambers, but on the trial it was dissolved. The honorable Court of Civil Appeals reversed the judgment on Vance’s appeal, remanding the case because the district, itself, had not been made a party to the suit, but holding that the taxes were not subject to be lawfully collected because the trustees had not provided, a board of equalization for the district. The writ of error was granted upon this latter holding, and it presents the principal question to be determined.

Stanton is the county seat of Martin county, incorporated for school purposes only under chapter 16, title 48, Revised Statutes of 1911. The district had no assessor or collector of taxes for the year 1913, but had employed the tax assessor of Martin county, J. E. Henson, to assess, and A. B. Miller, the tax collector of the county, to collect, its taxes for that year. No separate board of equalization for the district was provided. The county tax assessor assessed all the property in the school district for the district at the same time he assessed the same property for the state and county, but in making the assessments for the district did not take separate renditions. He submitted his assessments to the commissioners’ court of the county sitting as a board of equalization, and it equalized the assessments and renditions as thus made. It notified the plaintiff of the change made in the valuation of his property, and he appeared before it and was heard in relation thereto. The trustees of the district accepted the equalization made by the commissioners’ court.

It is declared, by artidle 2S62, chapter 16, title 48, that when a majority of the board of trustees of an independent school district prefer to have the taxes of their district assessed and collected by the county assessor and collector, they shall be assessed and collected by such county officials and turned over to the treasurer of the district. This article contains a distinct proviso to the following effect:

“That the property of such districts having their taxes assessed and collected by the county assessor and collector, shall not be assessed at a greater value than that assessed for county and state purposes.”

Article 2853 of the same chapter provides:

“The trustees elected in accordance with the preceding article shall be vested with the full management and control of the free schools of such incorporated town or village, and shall in general be vested with all the powers, rights and duties in regard to the establishment and maintaining of free schools, including the powers and manner of taxation for free school purposes that are conferred by the laws of this state upon the council or board of aldermen of incorporated cities and towns.”

It is under this article that the contention is made that the duty of providing a board of equalization for the district imperatively rested upon the trustees, notwithstanding the use by the district of the county officials for the purpose of assessing and collecting its taxes, and the inhibition of article 2862 that, under such a condition, the property within the district could not be assessed for district taxation at a higher valuation than for state and county purposes.

The design of the equalization of tax assessments is to prevent the subjection of property to disproportionate, and therefore unequal, taxation. It is a quasi judicial proceeding. Its nature implies untrammeled authority to bring all property affected by the tax to the same relative standard of value. The members of whatever body is charged with the duty, act upon their own judgment of what' is equal and just. There can be no equalization of values which accords with their judgment, or which fulfills their duty, unless they have the power to both raise and lower assessments as in the just exercise of their discretion they may deem proper. The law, therefore, in its provision for a board of equalization in matters of taxation contemplates, and contemplates only, a body clothed with the authority which the nature of the proceeding requires. It cannot be supposed that it would countenance as a board of equalization in such matters, a body denied the power of equalizing values by raising assessments in proper cases. A board divested either of the authority to lower or to raise. values within reasonable limits, as its judgment might direct, is stripped of the discretion which it is presumed to exercise, and for whose exercise it is created; it is shorn of the substance of the power which its function presupposes; and its duty is reduced to the adoption of values otherwise determined. It is a misnomer to denominate such a body a board of equalization. It is a contradiction to charge it with any such duties. There could be no reason for its creation.

Where an independent school district has its taxes assessed by the county assessor, the effect of article 2862 is to deny authority anywhere for the assessment of property for school district purposes at a higher valuation than it is assessed for state and county purposes. An independent board, therefore, sitting for the district would have been without power to raise any valuation, as fixed for such latter purposes which it deemed too low. Its authority would have extended no further than assessment at either a less or at the same valuation. It could have lowered values, but in no event have raised them beyond the amount determined by the county officials. It would have been permitted to exercise its own discretion with respect to such valuations as in its opinion the county officials had not fixed too high, but would have been forbidden to use its judgment in respect to those which it believed such officials had fixed too low. It would have been able, in other words, “to equalize” values only by reducing them to the state and county valuation, or fixing them at a less figure.

This is the condition in which such a board would have found itself in an attempt to exercise its functions. And this, notwithstanding its members would have been required to take an oath to faithfully and impartially discharge all duties incumbent upon them by law as such board (article 065); and although a distinct duty imposed by law upon such a board is “to raise to a proper figure the valuation of all such property as the board is satisfied is valued too low” (article 947).

Independent school districts which do not have their taxes assessed by the county assessor are clearly obliged to provide a board of equalization before which the citizen is entitled to appear and be heard upon any assessment of his property. But the law does not require the .doing of a vain thing. The creation of a board which is powerless to equalize values by raising them, as well as by lowering them, in proper eases, is a vain act, because the equalization of such values in any legal sense requires the exercise of authority, which, in the establishment of such a board, is denied.

The limitation expressed in the proviso of article 2862 very plainly evidences, we think, an intention on the part of the Legislature that as to districts having their taxes assessed by the county assessor the commissioners’ court of the county, in sitting as a board of equalization for state and county taxation purposes, should act for them as well. The maximum valuation beyond which no property may be assessed for such district, is that which is to be determined by the commissioners’ court of the county as the result of its equalization of values for state and county purposes, and could be fairly determined in no other way. It would seem, therefore, that the grant to that body of the ultimate authority of fixing the maximum valuation at which property may be assessed for such districts, necessarily implies the duty of acting for the district, as well, in the process of equalization by which such valuation is determined, and would likewise seem to pretermit all necessity for a further or additional equalization. There can be no doubt of its being a competent body for the purpose, and of its affording every means for a valid assessment of the property.

If the establishment of independent boards of equalization in such districts had been in contemplation, it is to be presumed that the Legislature would have left them with independent powers. There could have been no reason for the enactment of the proviso in article 2862 if the creation of independent ooards in such districts had been intended; nor could there be any reason for having an independent board in such a district unless it was clothed with independent powers.

To hold that article 28513 requires the establishment of independent boards of equalization in such districts, is to give it a construction which, in effect, converts it into a law for which there is no reason and could be no reason, since such a board in such a district is powerless to equalize the values of the property proposed to be taxed. Such a construction ought not to be indulged. It is our opinion, therefore, that it was not necessary for the trustees of the district, having, as it did, its taxes assessed by the county assessor and being accordingly subject to the proviso in article 2862, to provide a district board of equalization, and their failure to do so did not affect the validity of the tax.

The omission of the tax assessor to take assessments for the district upon separate rendition sheets was, at most, an irregularity which afforded no ground for the injunction. Rhomberg v. McLaren, 2 Tex. Civ.App. 301, 21 S. W. 571.

There is no issue as to the facts in the ease; the questions involved being purely questions of law. The judgment of the Court of Civil Appeals is reversed, and the judgment of the district court is affirmed.
      <§s»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    CURRY v. MARSHALL.
    (No. 494.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 24, 1915.
    Rehearing Denied Dec. 16, 1915.)
    1. Public Lands <&wkey;173 — School Lands— Failure to Repurchase — Resale — Fixing Day — Duty of Land Commissioner!.
    Where the purchaser of school land, forfeited for failure l'o pay interest as provided for by Rev. St. 1911, art. 5423, failed to exercise his repurcht.se right after having given notice to the Commissioner of the General Land Office, as provided for by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5423a, it was the Commissioner’s duty in reselling the land under Rev. St. 1911, art. 5423, providing for such resale under that section or any future law, to fix a day for such resale at a date not less than 90 days after the 'expiration of such repurchase period on analogy to his duty so to do in the case of canceled leases provided for by Rev. St. 1911, art. 5408, and the provision of the last-named section placing expired leases on the open market at the date of their expiration has no application.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. &wkey;173.]
    2. Public Lands &wkey;>173 — School Lands — Failure to Repurchase — Resale—Application to Purchase — Validity.
    Where in an action of trespass to try title it appeared that plaintiff bought public free school land, but failed to meet interest when clue on the unpaid balance of the purchase price, whereupon the land was declared forfeited by the Commissioner of the General Land Office, who informed the county clerk of such failure; that thereupon plaintiff advised the Commissioner of his intention to repurchase under his right so to do within 90 days provided for by Vernon’s Sayles’ Ann. Civ. St. 1914, § 5423a; that the board of appraisers appraised the land and notified plaintiff, who failed to exercise his repurchase right within 90 days; that some months later the Commissioner published and sent out his list of free school land, in which was listed the land in question as coming on the market at a day fixed at three months after the issuance of the list; that on the day preceding the day fixed for the sale the Commissioner approved the previous classification and appraisement, and mailed a copy thereof to the county clerk, who received it on the morning of the day set for the sale; that on the previous day plaintiff had filed an application to purchase the land, and after the day set for the sale plaintiff and defendant each on the same day filed applications to purchase, and the land was subsequently awarded to defendant, who had made the high bid; that more than 90 days after the date set for the sale and after the award to defendant, plaintiff filed still another application, which was rejected because of the award to defendant — held, that the land did not automatically come on the open market upon the expiration of the 90-day repurchase period entitling plaintiff to an award as first applicant under his application made on the day previous to the day fixed for the sale.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. &wkey;173.]
    3. Public Lands <&wkey;173 — Repurchase — Privilege — Nionexercise—Resale—Fixing Day — Proper Time.
    The Land Commissioner was not compelled to name a day for such resale after the expiration of plaintiff’s repurchase period not less than 90 days after the receipt of notice by the county clerk of the reclassification and reap-praisemcnt of such land, since, the land being already classified and appraised at the time of the expiration of plaintiff’s repurchase period, it was not necessary, on analogy to the provision of Rev. St. 1911, art. 5408, for notice to the clerk of the cancellation of leases and the sotting of a day not less than 90 days thereafter for the filing of purchase applications, that a reclassification and reappraisement be made and the clerk notified thereof.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. <@=»173.]
    4. Public Lands <&wkey;173 — Forfeiture — Resale — Rejected Application — Trying Title.
    Since the law does not fix any definite date when school land, offered for sale after failure to exercise a repurchase privilege, will come on the market, but gives the Land Commissioner power to fix a day, plaintiff was not entitled to an award on his last-made application for the purchase of such land, since, if the date set by the Commissioner was legal, such application came too late, and, if illegal, it stood on no better footing than the application of defendant, to whom, the land was awarded.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. &wkey;173.]
    Appeal from District Court, Midland County; S. J. Tsaacks, Judge.
    Action by A. F. Curry against Elmer Marshall. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Chas. Gibbs, of Midland, for appellant. J. M. Caldwell, of Midland, for appellee.
   HIGGINS, J.

Curry brought this suit in trespass to try title to recover section 46 in block 39, township 4 south, Texas & Pacific Railway Company original grantee, situate in Midland County. The case was tried before the court upon an agreed statement of facts. The agreed facts were embodied in findings of fact filed by the trial court. From same it appears that the facts material to a consideration of the questions presented are as follows:

On July 27, 1901, the land in controversy was duly classified as grazing land, and ap praised at $2 per acre by the Commissionej of the General Land Office, and thereafter., on July 1, 1909, the same was by him reappraised at $3, which reappraisement was duly entered by the county clerk of Midland county. The land, being public free school land, was regularly sold and awarded to Louis A. Smith on February 23, 1910, by the Commissioner of the General Land Office for the sum of $6.22 per acre. A. F,Curry by conveyance became the owner oí the same, subject to the payment of the unpaid purchase money due the state, and up on the record of the General Land Office he was regularly substituted as the purchaser thereof. He continued to own same until the forfeiture of his purchase as hereinafter stated. The interest installment upon the purchase money due the state by Curry falling due November 1, 1912, not being paid, the Commissioner of the General Land Office on July 12, 1913, forfeited the sale to Curry for his failure to pay such interest, and forthwith gave notice thereof to the county clerk of Midland county. Within 30 days from tlie date the clerk received such notice Gurry advised the Land Commissioner that he desired to repurchase the land, exercising his preference right so to do under chapter 160, General Laws 33d Leg. (Reg. Sess.) p. 336 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5423a-5423f). The board of appraisers appraised the land at $4 per acre, and on September 21, 1913, notified Curry thereof. Curry failed to exercise his right to repurchase the land within 90 days from the date he received notice of such ap-praisement. On May 19, 1914, the Land Commissioner published and sent out his list of free school land on the market and coming on the market from July 1, 1914, to December 31, 1914, which list contained the land in controversy, advertising the same as grazing land, appraised at $4 per acre, and as coming on the market August 20, 1914. On August 18, 1914, the Land Commissioner approved said classification and appraisement, and mailed a copy thereof to the county clerk of Midland county, fixing August 20, 1914, as the date upon which the land would come on the market, which classification and appraisement was received hy the clerk on August 20, 1914, at 7:45 a. in., and was duly filed and entered in compliance with the law on said date. On August 19, 1914, Curry filed in the General Land Office his application. to purchase the land at $4 per acre, which application was accompanied by the obligation, in regular form, and the cash payment required by law in such cases. This application was rejected by the Commissioner as being premature. On August 21, 1914, Curry and Elmer Marshall, the appellee, each filed applications to purchase the land, Curry bidding $4.10 per acre, and Marshall $4.50 per acre, each of said applications being made in the form prescribed by law. The cash payment required by law accompanied the application made by Marshall, as well as the said application made by Curry. Marshall’s said application to purchase was accepted and the land awarded to him October 15, 1914. On October 5, 1914, the said application of Gur-ry theretofore filed on August 21, 1914, was rejected. On November 30, 1914, Curry filed in the General Land Office another application to purchase the land at $4 per acre, which application was in the form prescribed by law, and was accompanied by the cash payment required in such cases, and on December 7, 1914, this application was rejected because of the previous sale to Marshall. Within 90 days after the date of the award of said land to him, Marshall filed his affidavit of settlement, as required by law. No point is made as to other facts contained in the court’s findings, and it is unnecessary to state same.

Upon the facts found, the court rendered judgment in favor of Marshall. Curry makes two contentions in the case, the first being stated in his brief as follows:

“First. That the land was not upon the market subject to sale until the expiration of 99 days from the date, to wit, August 20, 1914, that the clerk received the notice from the Land Commissioner replacing said land upon the market to open bidders, and therefore appellant’s application, filed on November 30, 1914, should have been accepted.”

And in support of this contention he submits the following proposition:

“Where, under the Preference Right Act of 1913, state school lands are forfeited for failure to pay interest, and the owner thereof at the date of the forfeiture fails to exercise his right to repurchase within ninety days after notice of classification and appraisement of his land, the Land Commissioner is required to place said land upon the open market by notifying the county clerk of that fact, and fixing a date not .less than 90 days thereafter on and after which applications to purchase may be filed.”

Appellant’s second contention is that:

“At the expiration of 90 days from the date he was notified of the revaluation placed upon said land by the said land board, he having failed to exercise his preference right to repurchase within said time, the land came upon the open market, and therefore appellant’s application first filed in the Land Office should have been accepted.”

It is thus noted that the substance of appellant’s contention is:

First. That the land was not upon the market subject to sale until 90 days after the county clerk received on August 20, 1914, the classification and appraisement of the land made by the Land Commissioner on August 18, 1914; therefore the application of Marshall filed August 31, 1914, was premature, and conferred no title, and appellant’s application filed on November 30, 1914, after the expiration of such 90-day period, should have been accepted by the Commissioner and the land awarded to him.

Second. If the land was upon the market subject to sale prior to the expiration of said 90-day period, then it was so upon the market on August 19, 1914, when Curry’s first application was filed, and the same should have been awarded to him thereon, he being the first applicant.

Article 5423, Revised Statutes (referring-to unpaid purchase-money obligations covering school land purchases), provides that, upon default in payment of any interest installment upon any obligation then unpaid, the Commissioner of the General Land Office should indorse on such obligation “Land forfeited,” and cause an entry to that effect to be made on the account kept with the purchaser, and thereupon the land would be forfeited to the state, and should be resold under the provisions of that chapter or any future law. By virtue of this article section 46 became subject to resale to any qualified purchaser, but its status in this respect was subject to the contingency that it would be withdrawn from sale if Curry, within 30 days after receipt by the county clerk of the notification of such forfeiture, should notify the Land Commissioner of his wish to repurchase the land. Act April 18, 1903 (chapter 160, General Laws 33d Legislature, p. 336), being articles 5423a to 5423f, Sayles’ Revised Statutes 1914. Under tbe provisions of tbis act, Curry notified the Commissioner of the General Land Office of his desire to repurchase, and thereby the land was withdrawn from the market, and a preference right to repurchase the same was created in his favor, which right continued in existence until 90 days after September 21, 1913, upon which date Curry was notified of the reappraisement of the land made by the board of appraisers.

Having failed to consummate a repurchase within the time limited, Curry’s right lapsed on December 20, 1913, and the land again became subject to sale to any qualified purchaser, and under the fourth section of the act mentioned, it then became the duty of the Land Commissioner to place the land on the market for sale as is provided by law for the sale of leased land. The manner of placing leased land upon the market is governed in part by article 5408, Revised Statutes, which has reference to the publicity to be given by the Commissioner of leased land which is to be sold. It requires the Commissioner to give notice to the county clerk of the expiration date of leases, which notice is to be given 90 days before the date of expiration. When a lease is canceled for any cause, the land is not subject to sale for 90 days thereafter, and the Commissioner is required to give notice to the county clerk of such cancellation, and to fix a date not less than 90 days thereafter on and after which applications to purchase may be filed. All notices of expirations and cancellations are required to be recorded. The Commissioner is required to adopt such means as may be at his command that will give the widest publicity as to when land will be on the market for sale by reason of a lease expiration; such publicity, when practicable, to be given 90 days in advance of the expiration. Upon the cancellation of a lease the same publicity to the fact was to be given as with reference to publicity of expirations.

It is to be noted in the case of a canceled lease that the Land Commissioner by this article is given the authority to defer until a future day the date upon which the land would come upon the market so as to afford him an opportunity to give due publicity of the fact that the land is subject to resale. In the case of a lease expiration no such authority is given, and the land is upon the market at the date of expiration, but due publicity of this fact is obtained by the requirement that the Commissioner shall give the county clerk previous notice of the expiration date, and|adjopt suidh means as may be at his command so as to .give the widest publicity as to when the land will be ton the market by reason of the lease expiration, which previous notice to the clerk and publicity is to be given 90 days, when practicable, in advance of such expiration.

It is manifest that the provisions of article 5403 relating to the publicity features to be given in the case of lease expirations can have no application. If it be held that Curry’s land was upon the open market, subject to sale at the expiration of his 90-day preference right period, it would be impossible to give any publicity whatever to such fact, and prospective purchasers could have no advance notice that the land would come upon the open market. The Land Commissioner could not foresee, and would not be authorized to assume, that the land would not be repurchased by Curry. He therefore could not give advance notice to the clerk and adopt other means of publicity if the land be regarded as coming upon the open market and subject to sale to the first qualified purchaser, after the expiration of Curry’s 90-day period on December 20, 1913. We think it manifest that the provisions of article 5408 relating to lease expirations can have no application. On the contrary, to give practical effect to the publicity features required by the article, it must be held that the Commissioner was authorized and required to proceed in the manner provided in lease forfeitures. He was therefore authorized to defer until a future day the date upon which the land was to come upon the market and be resold. We think this date must be fixed not less than 90 days after December 20, 1913 ; that the expiration date of Curry’s preference right period should be considered as corresponding to the cancellation date of a canceled lease. In both instances this is the date upon which the land is freed from outstanding claims, and, in an inchoate sense, becomes subject to sale.

Thus the Commissioner is afforded an opportunity to give the publicity required by article 5408 of the fact that the land will be upon the market at a future date. So we conclude the Commissioner was authorized to fix a date upon which the land would come upon the market. It appears that he did this 90 days prior to the date he designated by publishing and sending out on Hay 19, 1914, a list of land on the market and to come upon the market, which list contained the Curry land, classified, appraised, and advising that it would come on the market August 20, 1914. This being true, the land was not in any event upon the market until the date designated, and the applicatiop of Curry filed August 19, 1914, was prematurely made, and was properly rejected by the Commissioner. Article 5408 Revised Statutes: Erp v. Robison (Sup.) 155 S. W. 180; Adams v. Terrell, 101 Tex. 331, 107 S. W. 537; Boswell v. Terrell, 97 Tex. 259, 78 S. W. 4; Willoughby v. Townsend, 93 Tex. 80, 53 S. W. 581; Ford v. Brown, 96 Tex. 537, 74 S. W. 535.

Passing now to the publicity required to be given by the Commissioner in case of canceled leases, it is observed that article 5408 requires that:

(1) “When a lease is for any cause canceled, he shall notify the county clerk of that fact and fix a date not less than 90 days thereafter on and after which applications to purchase may be filed.”
“Immediately after the cancellation of a lease or leases the Commissioner shall proceed to give publicity to the fact, the same as is herein required with reference to publicity of expiring leases.”

As to the second requirement, it is obvious that due publicity was given by the publication of May 19, 1914. While this was some time subsequent to the expiration of Curry’s preference right period, it must be assumed that it was the earliest it was practicable to make the publication; and, in any event, such delay in making the publication would not affect the validity of the award to Marshall.

As'to the first requirement, it can mean no mord in this case than that the Commissioner, upon the expiration of Curry’s preference right period, should have notified the county clerk of the fact that Curry had not exercised his right to repurchase, and fixed a date not less than 90 days thereafter on and after which applications to purchase might be filed. The land being already classified and appraised, it was immaterial whether or not a reclassification and reappraisement was made and notice thereof given to the clerk. Such classification and appraisement had been made prior to the sale to Smith in 1910. Under the law a reclassification and reappraisement was not necessary. There is therefore no merit in appellant’s contention that the Commissioner could not name a day upon which the land would come upon the market less than 90 days after the county clerk had received notice of the reclassification and reappraisement of Curry’s lands.

Whether or not the validity of the designation of August 20, 1914, as the day upon which the land would come upon the market was affected by the failure of the Commissioner to give 90 days’ previous notice to the county clerk of the fact that Curry had not exercised his right to repurchase, and of the day which he designated as the date upon which the land would again come upon the market, is of no consequence, so far as concerns Gurry’s right to recover herein. In any event, he could not recover. This is apparent when we consider that the law does not undertake to fix any definite date when the land will come upon the market; it is the Commissioner who fixes the same. He fixed August 20, 1914, and, if he did not lawfully so designate same, because of his failure to give at least 90 days’ previous notice to the .county clerk, of the reclassification and reappraisement, and of the fact that August 20th was the date upon which the land would come upon the market, then no date has ever been lawfully designated. In the case of a canceled lease the land does not come upon the market, except upon the date designated by the Commissioner, and that is the rule which must be applied in this case. If such be the case, then Curry’s application, filed November 30, 1914, could have no higher standing than Marshall’s, filed August 21, 1914. They both must rest upon the Commissioner’s designation of August 20th as the date on and after which the land would be upon the market. Curry must recover upon the strength of his own title, and his right under his last application must necessarily be affected with any vice which would inhere in Marshall’s title by reason of any informality upon the Commissioner’s part in designating August 20th. We do not desire to be in any wise understood as intimating that such date was not lawfully designated, and the land lawfully placed upon the market on said date. We are simply holding that, if it was lawfully done, then the land was properly awarded, and title passed to Marshall upon his application filed August 21st, his bid being higher than the Curry bid of same date, and, upon the other hand, if the designation was not lawfully made, then any right under Curry’s application of November 30, 1914, would necessarily be affected with any vice inherent in the Marshall title, and, since Curry must recover upon the strength of his own title, judgment was properly rendered against him from this viewpoint of the case.

Affirmed.
      d&wkey;For other oases see same topic ana KEY-N1S&BER in all Key-Numberad Digests and Indexes


author: HODGES, J.

text:
    BROOM et al. v. PEARSON et al.
    (No. 1499.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 8, 1915.
    Rehearing Denied Nov. 25, 1915.)
    1. Tkespass to Try Titus <@=538 — Burden of Proof.
    Where, in an action of trespass to try title by cotenants against the grantee of their cotenant, plaintiffs, connected their title with the agreed common source, the burden was placed on defendant to show that plaintiffs’ title had been parted with or lost.
    [Ed. Note. — For other cases, see Trespass to-Try Title, Cent. Dig. § 53; Dec. Dig. <§=38.]
    2. Tenancy in Common <@=>35 — Sale by Co-tenant — Interest of Grantee.
    The purchaser of a specific portion of common property from only one of the cotenants acquires only the undivided interest of his grantor where the sale is without the consent or subsequent acquiescence of the other coten-ants.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. § 27; D'ec. Dig. <@=35.]
    3. Partition <@=77 — Actual Partition — Rights of Purchaser from Cotenant.
    When such nonconveying cotenants seek partition, the purchaser has an equitable right to have the lands described in his deed set apart to him, where this can be done without injury to the rights of plaintiffs.
    ■ [Ed. Note. — For other cases, see Partition, Cent. Dig. 211-223; Dec. Dig. <@=77.]
    4. Tenancy in Common <@=35 — Sale by Co-tenant — Division of Property — Conduct —Inference.
    Where joint owners of real estate so deal with the common property as to give rise to the inference that they have agreed upon a division, the purchaser from only one will be given the benefit of that inference, and will be protected accordingly.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. § 27; Dec. Dig. <@=35.]
    5. Partition <@=5 — Parol Partition — Sale by Cotenant — Consent—Estoppel.
    One joint owner may part with his interest in the common property by simply consenting to a transfer made exclusively by his co-tenant and thus become estopped from thereafter disturbing; the purchaser, since parol partitions are valid under the laws of Texas.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 13-17; Dec. Dig. @=55.]
    6. Trespass to Try Title <@=41 — Evidence —Sale by Cotenant.
    In an action of trespass to try title by cotenants against grantees of their cotenant who conveyed without their consent, evidence held insufficient to show a subsequent acquiescence by plaintiffs in the sale so as to estop them from asserting title as against such grantees.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. <S= 41.]
    7. Tenancy in Common @=>35 — Sale by Co-tenant — Subrogation to Rights of Grantor.
    Where cotenants owned several parcels of land, and one tenant sold a specific piece without the consent of, or an accounting to, the others, and such others subsequently sold other common parcels in the same manner, the grantee of the first selling tenant was not entitled to be subrogated to the rights of his grantor in such other parcels so as to hold his purchase as against the other tenants, since he bought at his peril, and must be satisfied with the title acquired.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. § 27; Dec. Dig. <@=35.]

      S. Judgment <@=248 — Scope oe Relief — Limitation by Pleading.
    In an action to try title by cotenants against the purchaser under an unauthorized sale of common land by their cotenant, plaintiffs are restricted to relief as to their undivided interest in the land described in their petition only, and not as to other parcels concerning which the petition was silent.
    [Ed. Note — For other cases, see Judgment, Cent. Dig. § 434; Dec. Dig. <@=248. ]
    Appeal from District Court, Rusk County; R. T. Brown, Special Judge.
    Action by P. B. Broom and others against John Pearson and others in trespass to try title. From judgment for defendants, plaintiffs appeal.
    Reversed and remanded.
    J. H. Turner and T. J. Arnold, both of Henderson, for appellants. John R. Arnold and J. W. MeDavid, both of Henderson, for appellees.
   HODGES, J.

This is an action of trespass to try title, instituted by the appellants against the appellees to recover 200 acres of land described as a part of the west half of the Francis Hamilton survey, situated in Rusk county. The appellees answered by a ploa of not guilty, general denial, and the three, five, and ten year statutes of limitation. The suit was originally instituted in 1902. The first trial resulted in a judgment-in favor of the defendants in the suit on their plea of limitation. An appeal was prosecuted from that judgment, which finally reached the Supreme Court, where the judgment was affirmed as to one of the original plaintiffs, who is not now a party to this appeal, and reversed and remanded as to the other plaintiffs. The grounds upon which that reversal was predicated are fully set forth in Broom v. Pearson, 98 Tex. 469, 85 S. W. 790, 86 S. W. 733. The Supreme Court remanded the case for a trial upon its merits. The second trial, from which this appeal is taken, was upon special issues, and also resulted in a judgment in favor of the defendants below.

The facts found by the jury, and other facts about which there is little or no, controversy, are substantially as follows: The land involved is a part of a tract of 600 acres originally granted by the state to Francis Hamilton, who died in 1838, leaving a widow, Caroline Hamilton, and two children, Mary L. and J. D. Hamilton. Some time after the death of Hamilton his widow married W. C. Davis, by whom she had four children, James, who died unmarried in. 1863, Permelia, now Mrs. Broom, Elizabeth, who died in 1898, leaving children, Thomas, who is still living, but whose interest was disposed of in the other appeal. Caroline Hamilton-Davis died in 1852. In 1853 her son by tbe former marriage, J. D. Hamilton, died without having been married. The Hamilton survey seems to be treated as having been the separate property of Francis Hamilton, which, upon the death of both parents, vested exclusively in the two Hamilton children. It is conceded that after the death of J. D. Hamilton his interest passed by inheritance, one-third to his sister Mary L., and one-sixth to each of his half-sisters and half-brothers. The plaintiffs in this suit are Permelia Broom, formerly Permelia Davis, and the children of Elizabeth Compton, formerly Elizabeth 'Davis. During the minority of Mary D. Hamilton W. C. Davis, her; stepfather, was appointed her guardian, and he in 1855, under an order of the probate court, sold the west half of the Hamilton tract, which includes the land sued for. In that proceeding the land was treated as belonging exclusively to Maíy D. Hamil.ton, and she received and appropriated the entire proceeds of the sale. J. H. Cameron, under whom the appellee Pearson claims, became the purchaser, and paid a consideration of $600. The jury found that Cameron bought without actual notice of any rights of ownership in the appellants; that he and those who claim under him purchased in good faith, and from time to time have made valuable improvements upon the property, and have been using and claiming it adversely for more than 40 years. In 1858, and after her marriage with one Hudson, Mary D. sold the remainder of the 600-acre tract for $1,000. About the same time she also sold 680 acres located by virtue of a certificate granted to her father. During her lifetime Caroline Hamilton-Davis owned a tract of 300 acres of the Smith survey, which she and her second husband, W. C. Davis, occupied as a homestead till the time of her death. In addition to this she owned in her separate right a half interest in 1,280 acres of land situated in Cooke county. She died leaving a will which bequeathed the 300 acres of land above referred to, and some personal property, to her “husband, W. C. Davis, and the heirs of her body.” This will, however, was never probated, but was recorded as a deed in the office of the county clerk of Rusk county, and seems to have been recognized by the parties as a valid disposition of the property. W. C. Davis survived his wife, married a second time, and became the father of another set of children. He died in 1900. In 1870 the three surviving Davis children conveyed the 300-acre homestead to their father, W. C. Davis, in consideration of a cash payment of $400, and with the understanding that at his death he would will the property back to them. Davis occupied the premises and appropriated the rents and benefits during his lifetime, and at his death left a will devising the property to the children of his first marriage. At the time of the transfer made by the Davis children to their father they did not know that they were entitled to any interest in the 600-acre tract which, had been sold by their half-sister, Mary B. Hamilton; and Mary B. Hamilton, who was then Mary B. Hudson, had never claimed any interest in the 300-acre homestead. Mary B., after a second marriage to one Hunter, died in 1899, leaving several children. Some time after her death those children instituted a suit against the appellants, or, rather, the Davis children, for an interest in the 300-acre tract. That suit was settled by an agreed judgment in favor of the defendants, the Davis children. The evidence further shows that in 1869 the Davis children conveyed whatever interest they inherited from their mother in the Cooke county lands; that Mary B. Hamilton received of property belonging to appellants out of the estate of J. D. Hamilton 90 acres of land, a portion of the 600-acre tract, which is valued at $240.

Upon these facts the court filed the following conclusions as the basis of a judgment for the appellees:

“(1) That Mary B. Hamilton received the benefit and disposed of the entire interest owned by her full brother, J. D. Hamilton, in the 600 acres known as the Francis Hamilton survey, and that plaintiffs herein, Mrs. Permelia Broom and the heirs of Mrs. Compton, as half-sisters of said J. D. Hamilton, own an undivided interest in said land by inheritance.
“(2) That the plaintiffs in this suit have therefore received, appropriated, and converted to their own use the entire undivided interest of Mary B. Hamilton owned by her in the 300-acre tract of land known as the Caroline Hamilton-Davis tract.
“(3) That the interest received by plaintiffs in the Caroline Davis 300-acre tract, in which Mlary B. Hamilton had an undivided interest and which interest was appropriated by plaintiffs, offset and is equal to the undivided interest which the plaintiffs have in the 600-acre Francis Hamilton survey, which said plaintiffs inherited from their half-brother, J. D. Hamilton, and which was disposed of and appropriated by their half-sister, Mary B. Hamilton.
“It is therefore ordered that judgment be rendered for the defendants herein.”

When the appellants connected themselves with Francis Hamilton, the agreed common source, they thereby established a prima facie right to recover in this suit to the extent of the interest shown. The burden then rested upon the' appellees to show that this title had been parted with, or in some manner lost, before they wore entitled to a judgment. The legal conclusion of the trial court is that by their sale of the 300-acre homestead tract, in which Mary B. Hamilton as a joint owner had an interest equal in value to the interest of the appellants in the Hamilton tract, the appellants were now estopped from- claiming any interest in the Hamilton tract which had theretofore been conveyed by Mary B. Hamilton. When J. H. Cameron, under whom the appellee Pearson claims, purchased the west half of the Hamilton 600 acres, Mary B. Hamilton and the Davis children were tenants in common of about 2,220 acres of land, divided into four different tracts as follows: 600 acres in IRiusk county of the Francis Hamilton survey; 680 acres in Cooke county located by virtue of a certificate issued to Francis Hamilton; 300 acres in Rusk county of the Smith survey, the separate property of their mother, Caroline Hamilton; and 640 acres of the Busk survey in Cooke county, also the separate property of their mother. The evidence shows that Mary B. Hamilton sold the first two tracts mentioned, aggregating 1,280 acres, and received as the consideration therefor $2,600; that she also sold her interest in the 640 acres in Cooke county inherited from her mother. The most that can be claimed is that the Davis children appropriated her interest in the 300-acre homestead tract in Rusk county. Without attempting to state the interests of the respective owners in these different tracts with mathematical accuracy, it is sufficient to say that the evidence shows that at least 12 years before the sale of the 300 acres by the Davis children Mary B. Hamilton had disposed of property belonging to them which greatly exceeded in value her interest in this homestead tract. If the appellants can, in a suit of this character, be called upon to account for what they had sold of the common property belonging to Mary B. Hamilton, and have the strength of their title tested by the amount they had appropriated from the proceeds of such sale, it is difficult to see why all the conveyances of Mary B. Hamilton and all of the money received by her were not also taken into consideration by the court in passing upon the equities of the parties.

But we are of the opinion that the trial court erred in applying that rule to the facts of this case. A purchaser of a specific portion of the common property from only one of the joint owners acquires no interest in any of the property except that which is embraced in his deed; and, when his purchase is without the consent, or subsequent acquiescence, of the other co-owners, he takes only the undivided interest of his grantor. This doctrine is too well established to call for the citation of precedents. When the nonconveying cotenant seeks the partition, the purchaser has an equitable right to have the lands described in his deed set apart to him, provided this can be done without injury to the rights of the other 'cotenant. Arnold v. Cauble, 49 Tex. 527; Wilson v. Helms, 59 Tex. 680; Gray v. Cockrell, 20 Tex. Civ. App. 324, 49 S. W. 247. This is as far as the courts have ever gone, so far as we have been able to ascertain, where the facts do not show a concurrence by other cotenants in the conveyance. It is true that, when the joint owners so deal with the common property as to give rise to the inference that they have agreed upon a division, a purchaser from only one will be given the benefit of that inference and protected accordingly. Since parol partitions are valid runder 'the laws of this state, one joint owner may part with his interest in the common property by merely consenting to a transfer made exclusively by his coten-ant, and thus become estopped from .thereafter disturbing the purchaser.

Whether or not such consent has been given is a question of fact to be determined from the evidence. In the case before us the land in controversy was conveyed by the guardian of Mary L. Hamilton during the minority of all the joint owners. No consent or acquiescence at that time can be inferred; neither was there anything done at the time of that sale that can be relied upon to estop the Davis children from thereafter asserting their title to an interest in the land then conveyed. If they are to be estopped or held as having consented to the conveyance by the guardian of Mary L. Hamilton, it must be on account of their subsequent dealings with property in which Mary D. had an interest—the 300-acre tract. The evidence shows that they were not aware of their ownership of an interest in the land conveyed to Cameron till a short time before the bringing of this suit, and about 30 years after their sale of the 300-acre homestead to their father. There is no basis in such evidence for the inference that the Davis children consented to the sale of their interest in the Hamilton tract, or treated that sale as a virtual partition in which they acquiesced. The evidence further shows that the appellants never conceded that Mary L. Hamilton owned any interest in the homestead tract sold by them. Their contention was that their mother had disposed of it by her will, and that they had the exclusive right to sell it. It further appears that Máry L. Hamilton never asserted any claim in that tract during her lifetime, but that her children sued to recover an interest after her death, and were defeated. Upon what ground they lost does not appear.

The purchaser from Mary L. Hamilton cannot claim subrogation to any rights she might have held regarding other and different tracts of land. Let us suppose that after the sale of the Hamilton tract to Cameron the Davis children, while still holding and claiming all of the 300 acres, had brought suit against the purchaser for their interest. Could the latter defend by saying that the Davis children held other lands owned by his grantor, and compel them to resort to those lands for satisfaction? We know of no instance where the courts have gone that far in protecting the purchaser of specific portions from a tenant in common. The most such a purchaser could claim would be to have the land purchased set apart to him in the division sought, provided that could be done without injury to the Davis children. The purchaser bought at his peril, and must be satisfied with the title he acquired at the time. He did not become invested with any equities that would authorize him to compel the partition of other lands or the adjustment of other equities between the co-tenants in order that he might hold his purchase. If in the ease supposed the purchaser from Mary L. Hamilton would have no legal.right to force the Davis children to resort to other lands owned in common for satisfaction, he certainly cannot compel them in this instance to account for the proceeds of a sale of those other lands. Neither can he rely for an estoppel upon the claim which they asserted to other lands, to which the title of Mary L. Hamilton was disputed. Their sale of other common property can be used by him only for the purpose of showing acquiescence in his purchase, or as evidence of a parol partition. If it is not sufficient for these purposes, it constitutes no defense.

According to our view, this case was tried and disposed of upon the wrong theory. Under the evidence as it is here presented, the appellants are clearly entitled to recover an undivided interest in the land sued for, measured by the extent of their inheritance. Why they never embraced in this suit all of the Hamilton 600-aere tract is not shown. Their recovery, however, must be limited to their undivided interest in the land described in their petition. They cannot recover more as compensation for land which they may lose in that portion of the tract not embraced in their petition. In the partition which may follow the appellee Pearson is entitled to have that portion of the land sued for upon which his improvements are situated set apart to him, if this can be done without injury to the rights of the appellants. He, of course, is also enti-tied to tlie benefit of all tbe interests winch the appellants did not assert.

The judgment is therefore reversed, and the cause remanded, in order that the land may be partitioned, and that the appellee Pearson may have such judgment as he is entitled to against his warrantor, and other issues of fact determined.
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