285 S.W. 340
FREESTONE COUNTY 
v. 
McKINNEY et al.*
(No. 2647.)
Court of Civil Appeals of Texas. Amarillo.
April 14, 1926.
Rehearing Denied May 26, 1926.
Page 341
        Appeal from District Court, Clay County; Vincent Stine, Judge.
        Suit in trespass to try title by Freestone County against C. E. McKinney and others, in which the 
named defendant was granted a severance. Judgment for defendants, and plaintiff appeals. Reversed and 
remanded.
        T. H. Bonner, of Fairfield, W. W. Ballew, of Corsicana, Geo. W. Fryer (of Bonner, Bonner & Fryer), of 
Wichita Falls, Wantland & Glasgow, of Henrietta, and J. S. Dickey, of Wichita Falls, for appellant.
        Thompson, Knight, Baker & Harris, of Dallas, Weldon & McDonald, of Wichita Falls, and Benson & 
Benson and Chancellor & Bryan, all of Bowie, for appellees.
        JACKSON, J.
        This is a suit in trespass to try title instituted by Freestone county, the appellant, in the district court 
of Clay county against several hundred defendants to recover four leagues of land.
        C. E. McKinney, one of the defendants, and appellee here, was granted a severance by the court, 
and answered disclaiming as to all the lands in controversy save and except 40 acres described in his 
answer, and pleaded not guilty, and valuable improvements in good faith. The case was tried before the 
court without the intervention of a jury, and judgment rendered denying appellant a recovery of said 40 
acres of land, and discharging appellee with his costs.
        The appellant rested after introducing in evidence the patent from the state of Texas, dated January 
19, 1855, and recorded in the deed records of Clay county, granting to it for school purposes the four 
leagues of land described in its petition.
        The appellee introduced in evidence a certified copy of a plat approved by and recorded by order of 
the commissioners' court of appellant county, subdividing said four leagues of land into blocks, which were 
numbered, and upon said plat is block No. 63; an order of said court fixing the price per acre and the 
terms and conditions upon which the blocks were to be sold to purchasers, which authorized O. C. Kirven, 
county judge of appellant county, to negotiate the sale of the county's lands and make, execute, and 
deliver to purchasers proper deeds thereto for the consideration and upon the terms and conditions 
provided in said order; a deed dated January 13, 1879, from O. C. Kirven, county judge, as attorney in 
fact of Freestone county, conveying block 63 to J. H. Wakefield in accordance with said order for a 
consideration of $70.87 cash paid, the receipt of which was acknowledged, and a note for $707.63, 
executed by the grantee in said deed and payable to Freestone county on January 13, 1889, with interest 
at the rate of 10 per cent. per annum from date, payable annually; an order of said court dated February 
15, 1879, acknowledging the receipt by the county of the cash consideration recited
Page 342
in the deed, and approving the report of the sale of this and other lands.
        Appellee then introduced a connected chain of title from J. H. Wakefield down to himself covering the 
40 acres of land involved in this appeal. He introduced in evidence from the office of the state 
superintendent of public instruction a certified copy of a report of the permanent school fund of said 
county, made by the treasurer thereof to the commissioners' court, by whom the report was approved, 
and which was filed in the office of the state superintendent. This report states it is for the scholastic year 
beginning July 1, 1888. He offered a similar report by the county treasurer of Freestone county, made to 
and approved by the commissioners' court, of the permanent school fund for the scholastic year, 
beginning, it states, September 1, 1889, and ending August 9, 1890, and was on file with the state 
superintendent of public instruction.
        The findings of fact filed by the trial court, in so far as they are necessary to a consideration of this 
appeal, are, in effect, that the state of Texas patented four leagues of land for school purposes to 
Freestone county; that the commissioners' court of said county approved a plat subdividing said four 
leagues into blocks, which were numbered, one of which was block No. 63; that by proper order of said 
court, O. C. Kirven, the county judge of the county, was authorized to sell and convey for it block No. 63 
for $2.25 per acre upon the terms set forth in the order; that block 63 was sold and conveyed by O. C. 
Kirven, as attorney in fact for the county, by virtue of said order and in accordance with the terms and 
conditions thereof, to J. H. Wakefield by deed dated January 13, 1879, for a consideration of $70.87 in 
cash, and the execution and delivery of the promissory note of the grantee for the sum of $707.63, of 
even date with said deed, bearing interest at the rate of 10 per cent. per annum, payable annually, and 
due January 13, 1889; that a lien was retained in the deed to secure the payment of said note according 
to the face and tenor thereof; and that appellant county received and accepted the consideration for said 
land recited in the deed; that the 40 acres of land involved in this appeal was a part of block 63, and that 
the appellee has title thereto by reason of a connected chain of title from J. H. Wakefield to himself; that 
the vendor's lien note given by J. H. Wakefield, payable to Freestone county, as a part of the 
consideration for block 63, had been paid in full to the county; that appellee and his predecessors in title 
have made valuable improvements upon said 40 acres of land of the reasonable cash market value of 
$1,900; and that the value of said 40 acres was enhanced by the improvements placed thereon in the 
sum of $1,900.
        The trial court concluded as a matter of law that the deed from Freestone county to J. H. Wakefield 
constituted a valid sale of block No. 63, subject to the vendor's lien contained in the deed to secure the 
purchase-money note in the principal sum of $707.63, due January 13, 1889; that Freestone county 
ratified the sale by the receipt and acceptance of the purchase price; that the defendant C. E. McKinney is 
the owner of said 40 acres of land; that the vendor's lien retained by Freestone county in the sale of block 
63 to J. H. Wakefield has been paid, satisfied, and discharged; and that appellant should be denied a 
recovery of said land.
        Appellant contends that inasmuch as the suit is one in trespass to try title, with no facts alleged 
entitling appellee to equitable relief, he having answered only by plea of not guilty and valuable 
improvements in good faith, thus admitting possession, that the patent from the state to Freestone county 
was prima facie proof of its legal title, and the court committed error in denying it a recovery because 
appellee failed to show any title to the land, either legal or equitable.
        Under this record the title to the land involved passed to J. H. Wakefield, appellee's remote 
predecessor in title (King County v. Martin [Tex. Civ. App.] 173 S. W. 960; Gallup v. Liberty County, 57 
Tex. Civ. App. 175, 122 S. W. 291; Carter-Kelly Lumber Co. v. Angelina County, 59 Tex. Civ. App. 310, 
126 S. W. 293; Matagorda County v. Casey, 49 Tex. Civ. App. 35, 108 S. W. 476; Leon County v. Vann, 
86 Tex. 707, 27 S. W. 258), subject only to the lien retained by the county to secure the payment of the 
purchase money evidenced by note (Rooney v. Porch [Tex. Com. App.] 239 S. W. 910, and authorities 
cited).
        Neither party pleaded title specially, nor alleged independent equities; hence, under the plea of not 
guilty, appellee was authorized to prove any fact, except limitation, that would defeat appellant's right to 
recover. Wittbecker v. Walters, 69 Tex. 470, 6 S. W. 788; Kauffman v. Brown, 83 Tex. 41, 18 S. W. 425; 
McKamey v. Thorpe, 61 Tex. 648; Key v. Jones (Tex. Civ. App.) 191 S. W. 736; Birge-Forbes Co. v. 
Wolcott (Tex. Civ. App.) 176 S. W. 605; Parker v. Schrimsher (Tex. Civ. App.) 172 S. W. 165; Pierce v. 
Texas Rice Development Co., 52 Tex. Civ. App. 205, 114 S. W. 857.
        Appellant presents, as error, the action of the trial court in admitting in evidence, over its objection, 
certified copies of the annual reports made by the county treasurer of Freestone county to the state 
superintendent of public instruction, giving the status of the permanent county school fund of appellant 
county for the years beginning July 1, 1888, and September 1, 1889, respectively. The objections are that 
the purported reports are not properly certified; do not describe the land; could not affect the school fund; 
not the best evidence; not binding on the county; and were immaterial.
Page 343
        Chapter 7 of the Acts of 1888 (Gammel's Laws of Texas, vol. 9, p. 1004), made it the duty of the 
county treasurer of the county to report to his commissioners' court the disbursement of the school fund, 
state and county, and, after such report had been examined and approved by the commissioners' court, to 
immediately transmit a copy of such report, "including a statement of the status of the permanent county 
school fund, certified to by the county clerk, to the superintendent of public instruction at Austin."
        The copies of these reports offered in evidence were certified by the county treasurer and approved 
by the commissioners' court of Freestone county, but do not appear to have been certified to by the 
county clerk before being transmitted to the superintendent's office; however, it appears that these 
reports were forwarded to and were filed with the state superintendent and accepted as a compliance with 
the law, and therefore became archives of his office. Under article 3694, V. S. C. S., and the conditions 
revealed by this record, it is our opinion that there was no reversible error in admitting them in evidence. 
Magee et al. v. Paul et al., 110 Tex. 470, 221 S. W. 254; State v. Sais et al., 60 Tex. 87; Stone Land & 
Cattle Co. v. Boon, 73 Tex. 548, 11 S. W. 544; Zettlemeyer v. Shuler, 52 Tex. Civ. App. 648, 115 S. W. 
78; Lewis et al. v. Harrison et al. (Tex. Civ. App.) 229 S. W. 691.
        However, these reports are entitled to little, if any, consideration in determining whether or not the 
note involved in this controversy had been paid. The first report shows that the permanent school fund 
belonging to appellant county consisted of 480 acres of unsold land, $500 invested in United States bonds, 
$4,000 in county bonds, $22,902.56 represented by "purchase notes," or a total of $29,432.96, in 
addition to the 480 acres of unsold land. The second report shows that the 480 acres of unsold land had 
been disposed of between the time of making the first report and the making of the second report; that it 
had on hand $500 invested in Texas bonds, $4,000 in county bonds, no "purchase notes," and $18,327.59 
in cash — a total of $22,827.59. Whether the 480 acres of unsold land was disposed of for cash or credit, 
or what became of the proceeds thereof, is not revealed. No information is given as to what was done with 
the United States bonds, or how the Texas bonds were acquired; no facts disclosed as to why the 
permanent school fund of the county in the first report was $29,432.96 in addition to the 480 acres of 
unsold land, and only $22,827.59 without any land at the time the second report was made the following 
year. These reports are so meager, so incomplete, and so full of discrepancies that, without some 
explanation from additional records or otherwise, they are not sufficient to show the payment of the note 
involved in this controversy.
        The appellant challenges, as error, the action of the trial court in denying it a recovery, asserting 
that the transaction by which J. H. Wakefield, appellee's predecessor in title, acquired the land, 
constituted at most but an executory contract of sale, the superior title remaining in the vendor county, 
and, inasmuch as limitation did not run against the county for its school land or for the proceeds thereof, 
and no laches can be imputed to it, the finding of the court that the note had been paid and the lien 
discharged is without evidence to support it.
        Appellee, in reply to this proposition, contends that the presumption of payment raised by the lapse 
of time is a rule of evidence operating independently of any statute of limitation, and applies to the 
payment of the purchase-money note taken by the county and the lien given to secure its payment, and, 
together with the other evidence, is conclusive against appellant, because this presumption of payment 
arising from the lapse of time was not rebutted by any testimony.
        "The statute of limitations is to be distinguished from what is known as presumption of payment 
arising from lapse of time. This presumption is an artificial and arbitrary rule of the law derived by analogy 
from the English statute of limitations. It originated in equity, but was afterwards incorporated into the 
common law. It is a mere rule of evidence, and is subject to rebuttal, whereas the statute of limitations 
makes the lapse of time a positive and absolute legal bar." 37 C. J. 685.
        "A sharp distinction must be drawn between the length of time which operates as a bar to a claim 
and that which is only used by way of evidence of payment. The former is conclusive, the latter 
presumptive. The former says the statute of limitations provides that this action may not be maintained 
after a certain number of years and, therefore, the plaintiff must fail; the latter says this is a stale claim, it 
is 20 years old, and before the plaintiff can succeed, he must rebut the presumption of payment which the 
law raises." Jones' Commentaries on Evidence, vol. 1, par. 66.
        For additional authorities, see 16 Eng. Ruling Cases, p. 311, American notes.
        The Supreme Court of the United States, speaking of statutes of limitation, says:
        "They do not confer any right of action. They are enacted to restrict the period within which the 
right, otherwise unlimited, might be asserted. They are founded upon the general experience of mankind, 
that claims which are valid are not usually allowed to remain neglected. The lapse of years without any 
attempt to enforce a demand creates, therefore, a presumption against its original validity, or that it has 
ceased to subsist. This presumption is made by these statutes a positive bar; and they thus become 
statutes of repose, protecting parties from the prosecution of stale claims, when, by loss of evidence from 
death of some witnesses, and the imperfect recollection of others, or the destruction of documents, it 
might be impossible to establish the truth. The policy of these statutes is
Page 344
to encourage promptitude in the prosecution of remedies." Riddlesbarger v. Hartford Ins. Co., 7 Wall. 386, 
19 L. Ed. 257.
        The close and inseparable relation of the equitable principles based on laches and stale demand, the 
doctrine of presumption of payment from the lapse of time, and the statute of limitations, how and to 
whom applied, must be kept in mind in determining the sufficiency of the evidence in this case. The long 
lapse of time is a circumstance from which payment may be inferred, and a debt that has been due and 
unclaimed for a period of more than 20 years, unless the delay is justified by some existing condition, is, 
between citizens generally, presumed in law to have been paid independently of, or without any, statutory 
period of limitation, and, unless the presumption is rebutted by testimony, it is conclusive. Greenleaf on 
Evidence (13th Ed.) vol. 1, par. 39; 30 Cyc. 1275; Jones' Commentaries on Evidence, vol. 1, § 65; Weems 
v. Masterson, 80 Tex. 45, 15 S. W. 590; Mills v. Alexander, 21 Tex. 154; Mensing v. Fidelity Lumber Co. 
(Tex. Civ. App.) 194 S. W. 208; Milwee v. Phelps, 53 Tex. Civ. App. 195, 115 S. W. 891; Buckley v. 
Runge, 57 Tex. Civ. App. 322, 122 S. W. 597; Fulshear v. Deadman et al. (Tex. Civ. App.) 154 S. W. 616.
        The appellant is subject to the same rules of evidence and legal presumptions as control in suits 
between private individuals (Leake v. City of Dallas [Tex. Civ. App.] 197 S. W. 472; In re Ash's Estate, 
202 Pa. 422, 51 A. 1030, 90 Am. St. Rep. 658; Elliott Williamson, 11 Lea [Tenn.] 38), except as the effect 
of such presumptions is limited by the well-settled rule which prevents the imputation of laches to the 
government on account of the negligence of its officers and agents, and except as the effect of such 
presumptions is modified by the Constitution and law of this state, under which appellant, relative to the 
subject-matter of this suit, enjoys immunity from limitation and adverse possession.
        "As a general principle, laches is not imputable to the government. This doctrine is one of public 
policy and is based on the assumption that the officers of the government may be so busily engaged in 
the ordinary affairs of state as to neglect a vindication of its interest in the others." 10 R. C. L. p. 401.
        "While the contrary has sometimes been held, yet, by the weight of authority, the defense of laches 
is not available against the government, state or national, in a suit by it to enforce a public right or to 
protect a public interest, or, as the rule is sometimes expressed, the laches of its officers or agents will 
not be imputed to the government." 24 C. J. p. 217.
        "The doctrine that laches is not imputable to the government was a controlling reason for the rule 
that limitation did not apply to the state, unless it was included. The considerations of wise public policy 
which were supposed to uphold this doctrine rested upon the theory that the head of the government was 
engrossed with the cares and duties of state, and that the public should not therefore suffer by reason of 
the negligence of its servants. Discussing this question, the Supreme Court of the United States use this 
language: `In a representative government, where the people do not and cannot act in a body, where 
their power is delegated to others, and must of necessity be exercised by them, if exercised at all, the 
reasons for applying these principles is equally cogent.' U. S. v. Thompson, 98 U. S. 489 [25 L. Ed. 194]. 
The principles referred to were embodied in the maxim to the effect that no time runs against the 
government. It is upon this principle, applicable alike to all governments necessarily acting through 
numerous agents, and essential to the preservation of the interests and property of the public, that the 
statute of a state prescribing periods of time within which rights must be asserted are held not to embrace 
the state itself unless expressly designated." Brown v. Sneed et al., 77 Tex. 471, 14 S. W. 248.
        There are many conditions which relieve against laches: Ignorance of rights; ignorance of a fraud 
perpetrated; the relation of trustee and cestui que trust, so long as the relation exists; infancy; mental 
unsoundness; coverture; and many others. Pom. Eq. Jur. (4th Ed.) vol. 4, p. 1447 et seq.; Hill et al. v. 
Moore, 85 Tex. 335, 19 S. W. 162.
        Notwithstanding these well-founded and long-established principles, the people of Texas, in order to 
safeguard the lands donated by the state to the counties for educational purposes from injudicious 
disposition, and to protect the proceeds of the sales thereof from unwise investment, and prevent any 
right thereto from maturing by limitation or adverse possession, and to create and maintain a permanent 
school fund, adopted article 7, § 6, of the Constitution of the state, which reads:
        "All lands heretofore or hereafter granted to the several counties of this state for educational 
purposes, are of right the property of said counties respectively, to which they were granted, and title 
thereto is vested in said counties; and no adverse possession or limitation shall ever be available against 
the title of any county. Each county may sell or dispose of its lands, in whole or in part, in manner to be 
provided by the commissioners' court of the county. Actual settlers, residing on said lands, shall be 
protected in the prior right of purchasing the same to the extent of their settlement, not to exceed one 
hundred and sixty acres, at the price fixed by said court, which price shall not include the value of existing 
improvements made thereon by such settlers. Said lands and the proceeds thereof, when sold, shall be 
held by said counties alone as a trust for the benefit of public schools therein; said proceeds to be 
invested in bonds of the United States, the state of Texas, or counties in said state, or in such other 
securities and under such restrictions as may be prescribed by law; and the counties shall be responsible 
for all investments; the interest thereon and other revenue, except the principal, shall be available fund."
Page 345
        If such conditions as enumerated above — mental unsoundness, minority, etc. — excuse private 
individuals from the charge of laches, one element of which may be stale demand, long lapse of time, then 
it must follow that the same conditions will relieve such private individuals from the presumption of 
payment arising from lapse of time; hence, the county, to which no laches can be imputed, in a suit to 
recover its school land or the proceeds thereof, and, under the constitutional provision, supra, would not 
be bound by the presumption of payment, at least, to the extent of private individuals who could not 
justify, by some equitable excuse, and therefore the rights of appellant are to be tested, not alone by the 
length of time that has elapsed, but its status as a litigant must be considered, and, when this is 
considered, laches is eliminated, because it is exercising a function of government (Jernigan v. Finley, 90 
Tex. 212, 38 S. W. 24), and when laches is eliminated, lapse of time is a circumstance of little, if any, 
probative force.
        Appellant filed its original petition in this case in the district court on October 8, 1923. The note 
executed by J. H. Wakefield to the county, secured by the lien, was due and payable January 13, 1889. 
These dates disclose that more than 35 years elapsed after the maturity of the debt before the filing of the 
suit in trespass to try title. The patent introduced in evidence vested the title in the county. The appellee, 
to defeat this title, offered in evidence the proceedings of the commissioners' court and the deed from the 
county to J. H. Wakefield, which deed disclosed the vendor's lien note for the sum of $707.63, secured by 
the lien retained therein for the payment thereof; and the record fails to disclose any release of such lien. 
There is no testimony that any record or records have been lost or destroyed, or that the witnesses who 
could give evidence of these transactions have died or disappeared. Many of the deeds by which appellee 
connects himself with the title of J. H. Wakefield are quitclaims only. No additional weight is added to the 
circumstance of long lapse of time by the presumption that the officers to whom the handling of the 
permanent school fund is intrusted did their duty, for the same law that imposes on them the duty of 
collecting this debt charges them with the duty of making a record of such collection, and no record of 
such collection was made. There are no equities in behalf of appellee that would add additional force to 
the presumption of payment from long lapse of time. The Constitution of the state advised him that the 
land could not be acquired by adverse possession, nor the payment of the purchase-money note defeated 
by limitation. The law charged him with notice that laches could not be imputed to the county. The deed 
records of the county where the land is situated informed him that no release had been secured 
evidencing the payment of the note and the discharge of the lien. Under these facts, he could not claim as 
an innocent purchaser.
        Appellee's counter proposition involving the question of improvements in good faith are, in our 
opinion, settled adversely to his contention by the case of Talley v. Lamar County, 104 Tex. 295, 137 S. 
W. 1125, and the constitutional provision quoted.
        On account of the insufficiency of the testimony, the judgment is reversed and the cause remanded.
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Notes:
* Writ of error granted October 20, 1926.
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