Citations
- 4 Tex. Civ. App. 653
Full opinion text
GARRETT, Chief Justice.
The city of Goliad, formerly the town'of Goliad, brought this suit against R. N. Weisiger and S. P. Weisiger to-recover of them certain lands, a part of the four leagues of land conceded to the town of Goliad. The petition alleged title in the town of Goliad, and pleaded the original charter of said town and the various amendments thereto, showing the trusts for which said land was held, and alleged that the claim of the defendants rested solely upon a judgment of the District Court of Goliad County in their favor, in a suit wherein the town of Goliad and others were plaintiffs against the same defendants.
When this case was called for trial the defendants presented a demurrer to the petition, that the matter in controversy was res adjudicata, and that plaintiff’s cause of action was a stale demand. The demurrers were sustained, and judgment was rendered for the defendants.
The facts presented by the petition and exhibits thereto attached may be briefly stated as follows:
The town of Goliad received from the Republic of Texas a grant of four leagues of land, which constitute the town tract; and the town of Goliad, and the towns of Victoria and Gonzales, were chartered by the same act, passed February 5, 1840. Laws of 4th Cong., pp. 276-279.
By the ninth section of that charter, the town council was authorized “ to sell and alienate any portion of the lands owned by said corporation, and appropriate the proceeds thereof to the erection of a jail, court house,. and clerk’s office, and the remainder of such proceeds of said sales shall be appropriated for the purposes of education within said town, and for no other purpose; ” and in 1848 a separate charter was granted to the town, the corporate limits were made the same as the boundaries of the four leagues that had been granted, and by section 12, the town council, in conjunction with the County Court, was empowered to sell any lots within the corporation to which there was no legal claimant or title, and to collect debts and forfeitures due the town, to be appropriated to the erection or repair of a court house or jail, etc., and-to the establishment of a public school for the town.
In 1852 the charter of Goliad was again amended by the Legislature, and by the ninth section thereof it was provided, that “the common council may acquire and hold any property for public uses, and may improve, sell, or otherwise dispose thereof at pleasure; it may collect the prices of any land of said town sold by the corporate authorities since the autumn of 1846, or may acquire the title and control of any part thereof from any purchaser, by compromise or other legal means, or may refund the price with interest on failure of title, and so act under future sales; and may sell at public auction, on sixty days notice in some newspaper published in this State, any portion that may at the time be unsold of the land heretofore conceded to said town by the late Republic of Texas, except such parts as may hereafter be necessary for a public square, a public cemetery, a court house, a jail, public market, and public highways.” And then, after providing for the erection of a jail, court house, etc., out of the proceeds of the former sales and future sales of lands, it is further provided, that “ the remainder of the proceeds of such sales, if any, with the unsold parts of said trust land, shall be held, sold, exchanged, or otherwise used by the common council for the purposes of education within said town, and for no other purpose; and said corporation, as a trustee for the proper disposal of said land and its proceeds, to accomplish the purposes aforesaid, shall be answerable in the District Court of Goliad County at the suit of any party interested.” Acts 1852, p. 87.
By Act of the Legislature of August 13, 1870, this ninth section of the charter was further amended, and after making, in substance, the same provisions in regard to the erection of a jail and court house as is made in the above copied act, this amended section provided, that “the remainder of said lands, or the proceeds of sales of said lands, shall be held, sold, exchanged, or otherwise used and disposed of by the common council for the purpose of repairing the streets, building bridges, and enclosing the court house square and cemetery, and for -such other purposes within the corporate limits of said town as may be deemed necessary and proper by said town council.”
In the year 1874 there were pending in the District Court of Goliad County ten suits against sundry persons to recover certain lands “theretofore claimed and disposed of” by “Paine Female Institute” and