Ferguson v. Halsell

47 Tex. 421

• Court: Texas Supreme Court
• Decided: July 1, 1877
• Status: Published

Opinion

Roberts, Chief Justice.

There is but one question in this case, and that is, whether or not the plaintiff below has a good and valid title to the lot for which he has sued, by virtue of a deed executed to him under the following order of the County Court of the county of Wise, to wit :

“Police Court, November-Term, 1871,

November 27,1871.

“ It is hereby ordered by the court, that the district clerk, G-. Salmon, be authorized to make a deed to II. C. Ferguson, for lot-No. 4, in block No. 5, in the town of Decatur, for $75, currency, in full payment for his services that are due him as county attorney, and heretofore allowed by the County Court.”

It is contended that such a. title is defective and void, inasmuch as it is a private sale to him directly by the County Court, and not a sale at public auction, by a. commissioner appointed for that purpose by the County.Court, as required by the general statute regulating the sale of the real estate of the county. It is provided in the statute that “ the County Court may, by an order to be entered in the minutes of said court, appoint a commissioner to sell and dispose of any real estate of the county at public auction; and the deed of said commissioner, made in conformity:to the order of said court, under his proper hand and seal, for and in behalf of the county, duly acknowledged and proven and .recorded, shall be sufficient, to all intents.and purposes, to convey to the.purchasers all-the right, .title, and interest, and estate whatever, which the county may have in and .to .the .premises .to be conveyed.” (Paschal’s Dig., art. 1052.) Although this statute - is permissive in its terms, yet it is the only mode expressly pointed out in the general laws of the State by.which the County Court can divest the county of its title to its real estate. No special law, as applicable to this particular case, has been referred to. The general doctrine is, that as the County Court is the agent of the county, in its corporate capacity, it .must conform to the mode prescribed for its action in the exercise of the powers confided to it. The prescribing of a mode of exercising a power by such subordinate agencies of the Government has often been held to be a restriction to that mode.

The following authorities may be referred to in support of the views here presented:

A corporation must act in the mode provided for it. (2 Cranch, 150; 3 Wheat., 64; 20 Cal., 96.)

A city corporation, with power to let out work upon notice, must give the notice; otherwise, the tax to pay for it cannot be collected. (18 Wis., 92.)

Municipal corporations are but agents, and persons dealing with them must know their powers. (20 Md., 1.)

Contracts with corporations should be made in the mode pointed out in the charter. (Dill, on Munic. Corp., 387.) Otherwise they will not be binding. (Ang. & Ames on Corp., 9th ed., 253.)

These general authorities will suffice to show that appellant’s title was not well founded, and that the court did not err in sustaining exceptions to the petition setting it up.

Judgment aeeirmed.