author: ARCHER, Chief Justice. HUGHES, Justice

text:
    SOUTH MAIN STATE BANK, Appellant, v. The STATE of Texas et al., Appellees.
    No. 11053.
    Court of Civil Appeals of Texas. Austin.
    March 6, 1963.
    Rehearing Denied March 27, 1963.
    Vinson, Elkins, Weems & Searls, James Greenwood, III, and Dave McNeill, Jr., Houston, for appellant.
    Will Wilson, Atty. Gen., F. C. Jack Goodman, Asst. Atty. Gen., Austin, Butler, Bin-ion, Rice & Cook, William E. Wright, Houston, Earnest Morgan, U. S. Atty., William O. Murray, Jr., First Asst. U. S. Atty., San Antonio, Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Joseph Kovner, Fred E. Houngman, Washington, D. C., for appellees.
   ARCHER, Chief Justice.

This appeal is from a judgment of the Trial Court in a garnishment proceeding, unfavorable to appellant.

The State filed suit on May 1, 1961 against Refinery Construction Company for delinquent unemployment taxes, and obtained a judgment on June 14, 1961.

On the same day the suit was filed the State instituted this garnishment suit against Rohm & Haas Company, which filed its answer admitting an indebtedness to Refinery Construction Company in an amount of $26,146.89, and impleaded the United Stat.es, South Main State Bank, W. D. Gunnels Company, and other named creditors no longer parties to the suit.

The Bank intervened, alleging that it had an assignment of accounts receivable from' Rohm- & Haas Company involving the same money garnished, and claimed the entire amount. The United States intervened by virtue of tax liens placed of record May 22, 1961. The Gunnels Company intervened on the basis of a judgment obtained against Refinery Construction Company. 1 !

The suit was tried before the Court without a jury and judgment was rendered' in favor of the United States for its full claim of $10,782.29, in favor of the State for its claim of $6,251.95, in favor of the Bank, for $6,057.47 and in favor of Gunnels for $1,-763.66 and an attorney’s fee of $850.00 to Rohm & Haas.

Findings of facts and conclusions', of, law were requested and made by the Trial Court. Briefly the fact findings at issue in this case are that the funds impounded is a sum of money accruing to Refinery Construction Company from Rohm & Haas Company, for labor performed or material furnished, on a private construction contract.

That the assignment executed by Refinery Construction Company in favor of South Main State Bank, as indicated, was an attempted assignment of “account”', or “account receivable” under Article 260 — 1, and does not describe the land upon which thé improvements were to be constructed.

The appeal is by the Bank alone, and is founded on seven points assigned as error, and are that the Court erred in failing to find that the appellant is entitled to a priority over the claims of appellees, in refusing to find as a fact that the accounts receivable assigned to the Bank by the Refinery Construction Company were accounts then due and owing from Rohm & Haas to Refinery Construction Company under the terms of a contract performed in Harris County, in holding as a matter of law that the Bank had no lien on the accounts, in finding as a matter of law that, even as between Refinery Construction Company and the Bank, the assignments were invalid, in holding as a matter of law that the Bank'was only a general creditor of Refinery Construction Company, in holding that the United States has a first and prior lien on the accounts by virtue of its tax lien, and in holding that the State as a matter of law by virtue of its Writ of Garnishment has a lien on the funds, secondary only to that of the United States.

Appellant contends that it is entitled to the entire fund now in the registry of the Court, originally in the hands of Rohm & Haas and was owed to Refinery Construction Company for work done in the latter’ part of 1960 and early part of 1961, and was due and owing as of March 25, 1961, and the right to all of such money was assigned to the Bank by Refinery Construction Company to secure its indebtedness to the Bank, by successive assignments executed on January 7, January 19, and Márch 25, 1961, and the specific invoices assigned were listed.

By the assignment of January 7, 1961 there was due the Refinery Construction Company under invoices to Rohm & Haas dated January 5 and 6, 1961, a total of $27,-002.63 and were assigned to the Bank as security for indebtedness of Refinery Construction Company to the Bank including $30,102.50 advanced on January 7, 1961. Subsequent assignments were made to the Bank, and additional advances were made, arid all were properly filed in the County Clerk’s office in Harris County.

On March 25, 1961, a note for $31,612.49 was executed by the Refinery Construction Company to the Bank. Some payments were made on this note before the State filed the suit and had secured the issuance of the Writ of Garnishment.

The appellees take the position that the judgment is correct and supported by the law and the facts in this case, and say that the controlling question is whether or not under Section 1 of Article 260 — 1, V.A.C.S., the appellant Bank has an assignment of the garnisheed funds.

Appellee, United States, says that the Federal Tax Lien arose from unpaid assessments made by the District Director of Internal Revenue, against the Refinery Construction Company for withholding taxes assessed for the 4th quarter in 1960 in the amount of $567.72, and for the 1st quarter in 1961 in the amount of $12,377.91, which amount was subsequently reduced by set off to the balance of $10,782.29, and that the liens were perfected and are entitled to priority over other adverse claims against the property of the delinquent tax payer as of the date they arose, and cite: United States v. City of New Britain, Conn., 347 U.S. 81, 74 S.Ct. 367, 98 L.Ed. 520. Glass City Bank of Jeanette, Pa. v. United States, 326 U.S. 265, 66 S.Ct. 108, 90 L.Ed. 56. Michigan v. United States, 317 U.S. 338, 63 S.Ct. 302, 87 L.Ed. 312. United States of America v. George F. Miller, et al., Tex.Civ.App., Austin, 331 S.W.2d 436, certiorari denied, 364 U.S. 880, 81 S.Ct. 168, 5 L.Ed.2d 102.

We will consider what is called the controlling question in this appeal, which is: Were the assignments of accounts receivable invalid because they failed to describe the land upon which improvements had been erected, and did not conform to the express wording of Article 260 — 1, requiring the description of the land to be in the assignment.

Article 260 — 1, V.A.C.S., Section 1, defines “account” or “account receivable” as meaning an existing or future right to the payment of money presently due, or to become due, and is followed by phrases (a), (b), (c) and (d) down to the word assign- or; and continues “account” or “account receivable” shall not include any sum of money accruing to a contractor for labor performed, or material furnished on any public or private construction contract unless the assignment properly describes the land upon which the improvements are to be constructed and such assignment filed in the office of the County Clerk of the County wherein the land lies, which assignment shall not be effective prior to such filing.

There can be no question but that the money sought to be assigned was money accruing to a contractor for labor performed or material furnished on a private construction contract.

Holland Howell, President of Refinery Construction Company, testified in part as follows:

"Q Mr. Howell, in what type of business was Refinery Construction Company engaged?
“A Industrial construction business.
“Q Can you tell us more about it, what that business was?
“A Construction work in the refineries, chemical and petrochemical plants in the Houston area.
“Q Well, what would your accounts receivable consist of?
“A Moneys due for payment of work performed at these industries.
“Q In other words, all your accounts receivable would be for labor or material ?
“A Yes.
“Q * * * How did this indebtedness of Rohm & Haas Company to Refinery Construction Company arise?
“A From services performed.
“Q What were the services?
“A Construction work in their plant at Deer Park.
“Q At Deer Park?
“A Yes.
“Q What type of construction work was that, was there performed?
“A Oh, setting equipment, installing pipe, digging and setting foundations. Work of that nature.
“Q And this construction was performed on property of Rohm & Haas ?
“A Yes.
“Q On land — •
“A * * * owned by Rohm & Haas Company, yes.
■“Q Was this construction a fixed installation ?
■“A Yes. Yes, it was a permanent installation.
■“Q Mr. Howell, I understand from your previous testimony here that all of the money evidenced by the assigned accounts offered in evidence by South Main State Bank was for labor performed or material furnished by Refinery Construction Company under its construction contract with Rohm & Haas?
•"A Yes.”
The assignments read in part:
“ASSIGNMENT AND NOTICE OF ASSIGNMENTS OF ACCOUNTS
(Pursuant to Article 260-1, Revised Statutes of Texas)
“* * * Assignor warrants that ■each of the said accounts receivable is an ‘account receivable’ within the mean- . ing of that term as set forth in Article 260-1, Revised Statutes of Texas.”

There were other warranties by the as-signor which we do not copy herein, the last line of which reads:

“Notice of this assignment is hereby given pursuant to Article 260-1, Revised Statutes of Texas.”

There was no description of the land involved in the construction contract in the assignments. The money sought to be assigned was not brought within the definition of an “account” or “account receivable” as defined in the 1957 amendment, and only by describing the land can such money be included as an “account” or “account receivable”, and be assignable under the Statute.

Seligmann v. Hill & Combs, a Partnership, et al., Tex.Civ.App., 338 S.W.2d 178, er. ref., n. r. e.

We do not believe that appellant’s assignment was protected under the statute and was ineffective to defeat the attachment of the fund in question by garnishment and subsequent interpleader through the actions of the parties, and appellant was merely a general creditor entitled to a pro rata share of funds disbursed to the impleaded general creditors.

We believe that the Trial Court’s judgment was correct, and in addition to the cases hereinabove mentioned we cite the case of Parker Square State Bank et al. v. Triangle Supply Company et al., Tex.Civ.App., 364 S.W.2d 418 and the authorities therein cited, in which case the Court reviewed the authorities and the development of the law of assignments and set out the amendments, and there is no need to restate such herein, and we believe such holding to be correct.

The judgment of the Trial Court is affirmed.

Affirmed.

HUGHES, Justice

(dissenting).

Assuming that the assignment to the South Main State Bank of Houston was not in proper form to be filed, I believe that our decision should be controlled b.jr the judgment of the Supreme Court in Quinn v. Dupree, 157 Tex. 441, 303 S.W.2d 769, In .the recent case of Parker Square State Bank v. Triangle Supply Co., 364 S.W.2d 418 cited to us by Appellees, and relied upon in .the majority opinion, Judge Grissom, for the- Eastland Court, in referring tp. Quinn states :■ “The opinions do not disclose whether notice of the assignment was re-, corded. Article 260 — 1 was not mentioned. If-the'assignment’’was recorded our interpretation of the statute would require 'the judgment rendered by the Supreme Cohrt.”,' the inference being that if ,the assignment was not filed, the judgment was erroneous. I have examined the record in such case and it does not appear therefrom that the notice of the assignment to the, Pittsburgh National Bank by Quinn of all sums of money due' him under his contract with' Loné Star Steel Company was filed in compliance with and in order to make it a protected assignment under the provisions 'óf Art.. 260 — 1; V.A.C.S. Without proof -of such, the case must have been determined under principles of general law. The assignment .to the Pittsburgh bank was dated January 6, 1954. Writs of garnishment were sued out by creditors of Quinn against Lone Star March 6, 1954, and on April 5, 1955, under which money owing by Lone Star to- Quinn was impounded. The Supreme Court held that the assignment to the bank prevailed over the subsequent-garnishments. The Supreme Court did nqt mention Art. 260 — 1 in its opinion. Neither was such Article mentioned in the briefs of the parties in that case. In my opinion there was no necessity to mention süch Article in that case. It was simply not involved. No, one claimed to have a. “protected assignment” under that Article; hence, there was no need to discuss it.

It is my opinion that Appellees here, and the Trial Court, have read into the statute provisions and a meaning which it does not contain and which, in fact, it actually and,affirmatively refutes. Such statute has been read and construed as if it provided that all assignments not coming within its provisions are void, and that all assignments coming within its provisions and notice of which is not filed, as required by the statute are also void. Nothing could be further from the facts. There simply are no such provisions in the statute. -This Act is not a “no action shall be brought” statute like the Statute of Frauds, Art. 3995, V.A.C.S. The statute gives full protection to those assignments which come within its terms and as to which compliance with the statute has-been made. It goes no further. It does not- invalidate any assignment.

Sec. 2 of the Act defines a protected assignment. It is an assignment in writing of an account as defined in the Act, fully describing it, and by filing for record the notice of assignment.

Sec. 6 of the Act prescribes the protection afforded by taking and filing notice of an- assignment as authorized by Sec. 2. Such Section provides, inter alia, that no prior or subsequent assignee of the assignor “hblding an assignment not protected” shall “have, or be deemed to have acquired, any right in the account or accounts so assigned or'in the proceeds thereof, or in any obligation substituted therefor, superior to the rights therein of the assignee named in such .prior protected assignment.” .(Italics added)

This language certainly is not susceptible to the construction that unprotected assignments are void, that no rights are vested thereunder. It simply provides for a priority in favor of a protected assignee. The rights of an unprotected assignee are clearly recognized to the extent that they exist but are inferior to the rights of the protected assignee.

Sec. 1(1) (d) of the Act defining an “account” in construction contracts and providing that the “land upon which the improvements are to be constructed” should be described in the assignment of the account also states “which assignment shall not be effective prior to such filing.” Since Art. 260 — 1 is a notice statute and does not purport to change or create any rules of substantive law, it is my opinion that the last phrase of (d), supra, means only that such assignment shall be ineffective as notice unless prepared and filed as required by the Act.

The Dallas Court of Civil Appeals in Asch v. First National Bank in Dallas, 304 S.W.2d 179, writ ref., n. r. e., rendered similar judgment in a situation exactly paralleling the one found in Quinn v. Dupree, supra, the only difference being that in Asch it affirmatively appeared that the prior assignment of an account had not been filed. This unfiled but prior assignment was held superior to subsequent garnishments.

The Court in Asch did not mention Art. 260 — 1, although by reference to the fact that the assignment had not been filed it is a fair assumption, I believe, that the attorneys, as well as the Courts, were fully aware of its existence.

I repeat that there was no occasion for anyone connected with Asch to mention Art. 260 — 1. It was not involved. It had no bearing on the rights of the parties.

In Tezel & Cotter v. Roark, 301 S.W.2d 179, San Antonio Civil Appeals, writ ref., n. r. e., the Court simply enforced Art. 260 — 1 to protect an assignee who had complied with its terms. The same Court performed an identical service in Scarborough v. Victoria Bank & Trust Co., Tex.Civ.App., 250 S.W.2d 918, writ ref.

In Seligmann v. Hill & Combs, Tex.Civ.App., 338 S.W.2d 178, writ ref., n. r. e., the same Court merely held that the funds in controversy were not within the terms of a prior filed assignment; hence, there was no assignment.

The same Court in Keeran v. Salley, Tex.Civ.App., 244 S.W.2d 663, writ ref., held that an instrument stating that the assignor “has assigned or intends to assign one or more accounts to” the Bank without designating specific accounts or contracts assigned or to be assigned was insufficient and even though filed as required by Art. 260 — 1 did not give the Bank priority over a subsequent garnishment of accounts accruing to the assignor after the date and filing of the assignment. The Court held that filing notice under the statute was not authorized and was not notice for the reason that Art. 260 — 1, as it then read, limited the notice under it to accounts due or to become due under existing contracts. Since there were no existing contracts when the assignment was executed, filing the assignment gave no protection to the assignee.

While the Court, in Salley, did not discuss the validity of the assignment apart from Art. 260 — 1, if it had done so it would, no doubt, have concluded that it was invalid as between the parties.

In McKneely v. Armstrong, 109 Tex. 363, 210 S.W. 192, the Court held that an assignment of wages in any employment for any employer was void.

In Globe Indemnity Co. v. West Texas Lumber Co., Tex.Civ.App., 34 S.W.2d 896 (1930) this Court held:

“Future earnings or profits under a contract not yet made have no potential existence, and any attempt to assign them is void.” We followed this decision in Vilbig v. State, Tex.Civ.App., 318 S.W.2d 10, writ ref., n. r. e.

In the Victoria Bank case, supra, the Court stated, in reference to Art. 260 — 1, in its original form, that “From the wording of the act itself it appears that its purpose was to encourage accounts receivable financing. * * * A change is made in the common law rule as to priority of assignments of accounts. This was accomplished by a setting forth of a method whereby a notice of assignment could be filed in a public place and thus become 'protected assignment.’ ” (Italics added.) I completely embrace this pronouncement.

The ■ emergency clauses in the original and in the amending Acts confirm the purpose, stated by the Court, for which this statute was enacted. This purpose does not include enlarging the rights of creditors to a priority status over prior but unfiled assignments of accounts. The Court, in Victoria, also very correctly notes the permissive nature of the Act, reflected by the use of the word “may” in Sections 2 and 3 of the Act, by stating that notice of assignment “could” be filed.

Sec. 6 of Art. 260 — 1, provides, in part, that as to a person, in good faith, taking a protected assignment “all creditors of, and all subsequent assignees, purchasers and transferees of or from the assignor shall be conclusively deemed to have received notice of such assignment dating from the time of filing. (Italics added)

In Mitchell, Gartner & Thompson v. Young, 135 S.W.2d 308, Fort Worth Civil Appeals, writ ref., the Court construed Art. 6636, V.A.C.S. which provided for the transfers of judgments by filing a written transfer among the papers of the case. The statute further provided, “When said transfer is duly acknowledged, filed and noted as aforesaid, the same shall be full notice and valid and binding upon all persons subsequently dealing with reference to said cause of action or judgment, whether they have actual knowledge of such transfer or not.”

Involved was a contract between a prior but unfiled transfer of a judgment and subsequent garnishments. In holding that the owner-transferee of the judgment was entitled to priority the Court stated:

“In speaking of such assignments as the one before us we find the following language in Vol. 5 Tex.Jur., page 29, para. 23: ‘The purpose of this statute is merely to furnish parties dealing with the cause notice of the assignments, and it is not intended that it should affect the validity of any sale of a cause of action, or any part thereof, or the sale of a judgment.’
[4] We do not believe that Art-6636, R.C.S., was enacted to protect either an attaching creditor or a garnishing creditor. When a creditor sues out a writ of attachment, or of garnishment, he does so at his peril. He simply takes his chances of attaching property that may or may not belong to his-debtor, or of garnishing funds that may or may not belong to his debtor.
[5] If Young had filed his assignment among the papers in the suit filed1 by D. H. Purvis & Son against Anderson et al., that would not have added validity to his assignment, and his failure to do so would not detract from its validity.”

This opinion is, to me, very persuasive-authority for concluding that Art. 260 — 1 means what the Court stated it meant in Victoria, supra, and that it was not enacted! for the benefit of creditors of the assignor..

It is elemental that failure to register or-ílle an instrument required or authorized to be filed for the purpose of giving notice-is not rendered void between the parties by such failure. Chattel Mortgages, 12 Tex.Jur.2d Sec. 30, p. 41.

It is also settled beyond question, except such as may be raised by Art. 260 — 1, that an assignment of debt or fund supported by a valuable consideration has priority over subsequent attachment or garnishment for a debt of the assignor. Assignments, 6 Tex.Jur.2d Sec. 49, p. 439.

It is my opinion that the pledge to the South Main State Bank should be honored and granted priority over the claims of Appellees. I respectfully dissent.

      . The 1957 amendment to Art. 260 — 1 provides that an account shall not include money accruing to a contractor for labor performed or material furnished on any public or private construction contract unless the assignment “properly describes the land upon which the improvements are to be constructed.” The emergency clause to this amending Act provides, in part, “The fact that the present definítion of- ‘account’ or ‘account receivable’ prevents contractors from obtaining in-, terim financing by pledging accounts receivable” etc. (Italics added.)
      . The language of the amendment an the use of the word “interim”, in the emergency clause supports the position of Appellant that if the improvements contracted for were complete when as-.si'gnmént of money due under the contract was made, then there was no necessity to describe the land on which improvements had already been constructed in the assignment.

      . The Trial Court concluded as a matter of law that the Bank assignments were of “no force or effect whatsoever” even as between the assignor and assignee.

      . Ch. 293, p. 463, Acts 49th LegReg.Sess.1945; Ch. 305, p. 822, Acts 54th Leg.Reg.Sess.1955; Ch. 348, p. 818, Acts 55th LegReg.Sess.1957.

      . Sec. 2, “may be protected”; Sec. 3, “may be filed.”


source: Caselaw Access Project

author: FRASER, Justice.

license: Public Domain

text:
    Edna H. REITER et al., Appellants, v. COASTAL STATES GAS PRODUCING COMPANY et al., Appellees.
    No. 5513.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 20, 1963.
    Rehearing Denied April 3, 1963.
    Strickland, Wilkins, Hall & Mills, Mission, Turner, Rodgers, Winn, Scurlock & Terry, Dallas, W. P. Hardeman, Houston, L. A. Thompson, Tulsa, Okl., for appellants.

      Ewers, Toothaker, Ewers, Elick, Jones & Abbott, Cox & York, McAllen, W. L. Matthews, San Antonio, of counsel, Malcolm McDermott, McAllen, Ralph T. Raw-lins, Edinburg, of counsel, for appellees.
   FRASER, Justice.

This is a trespass to try title suit instituted by Edna H. Reiter and husband, C. S. Reiter, and Pan American Petroleum Corporation against Coastal States Gas Producing Company, Donna Irrigation District, Hidalgo County No. 1 in Hidalgo County, Texas, and C. O. Foerster, Jr., to recover the west .8 acre out of a six-acre tract located in Hidalgo County, Texas. Shortly before the trial the defendant, C. O. Foerster, Jr., conveyed his interest to Pan American Petroleum Corporation. He filed a disclaimer and was dismissed from the case.

The case was tried before the court without a jury. A take-nothing judgment was rendered against the appellants on July 19, 1960, and the appellants, within the time and in the manner required by law, perfected their appeal to this court.

The parties stipulated that La Blanca Agricultural Company was the common source of title. Appellants claim a fee simple title from this common source, and contend that all the appellees ever had was a mere easement, if anything, and that even so the easement or canal site lay within the confines of the land claimed by appellants. Appellees contend that they had an outright reservation, rather than just an easement, originating from the same common source of title, and that such reservation for right of way for canal purposes actually was intended to, and does lie west of the six acres owned and claimed by appellants. Appellees maintain that the right of way or canal was planned, reserved and actually constructed and lay, and still lies, within Block 224 of the Engelman Resubdivision of Blocks 223-224-225-226B, La Blanca, Donna Irrigation District, Hidalgo County, Texas. Appellees include a map within their brief illustrating this point. Both sides claim title through various provisions^ of the statute of limitations. Mrs. Reiter leased her property, to-wit, the six-acre tract which she had received from her father, for oil and gas; and after gas was found on the piece of ground originally used as a right of way by the Donna Irrigation District, this lawsuit resulted. The actual chain of title in each instance is not particularly complicated or voluminous. The actual location of the s/io of an acre in dispute here, and the type of ownership— to-wit, easement or fee simple — seems to comprise the main reason for this controversy.

Appellants brought their suit in trespass to try title after the Donna Irrigation Dis-tict, hereinafter referred to as “Donna”, executed an oil and gas lease to the land formerly used by them as right of way, comprising a strip about three miles long and 150 feet wide. As above stated, appellants claim in their lawsuit that the trial court erred in granting a take-nothing judgment because the strip leased by Donna actually lay within the six-acre tract owned by appellants; and secondly that, in any event, regardless of where it was, only an easement had emanated from the common source of title, and Donna could not have owned the land in fee, regardless of where it was located; and finally, appellants contend that they had established title by limitations under the ten-year phase of the statute of limitation law.

We believe that appellee’s first counter-point is well taken and decisive of this lawsuit. This point urges that because appellants and their claimed predecessor in title made the map of “Engelman Resub-division of Blocks 223-224 — 225-226B, La Blanca” which includes Lot 4, Block 223, a part of their title in various instruments, and as such, descriptive of the six-acre tract claimed by them, that they thereby announced and ratified that this map, with this description of Lot 4, Block 223, is the proper description, and properly describes the location and dimensions of Lot 4, Block 223, the property claimed by appellants. Massey v. Lewis, Tex.Civ.App., 281 S.W.2d 471 (N.R.E.). Appellees also urge that the Engelman map speaks as an ancient document, inasmuch as it was recorded in 1924 and meets the qualifications for such distinction, and cite McCormick & Ray Texas Law of Evidence, section 1375, p. 204. The chain of title is not very long. It was in 1924 that one T. L. Humble received a deed to the six acres in question from J. C. En-gelman, Inc., and about twenty years later, to-wit, in 1944, deeded the same tract to his daughter, Edna H. Reiter who, in 1947, executed an oil and gas lease covering the six-acre tract, which lease was assigned and transferred until it came to ownership in one of the appellants herein. Appellees point out that the mineral lease executed by Edna H. Reiter et vir, December 14, 1947, states as follows:

“ * * * being the North (6) six acres, more or less, out of Block 223, same being Lot #4 of the Engelman Resubdivision of Blocks 223-224 — 225-226B, La Blanca Subdivision *

also, that an assignment of this lease used the identical descriptions, and then a Unit Designation by Western Natural Gas Company used substantially the same description, to-wit: * * * being all of Lot 4 in Block 223 of the Engelman Resubdivision * * * ”; and an assignment by Western Natural Gas also described the property as Lot 4, Block 223 of the Engelman Resub-division. It will therefore be seen that four instruments, executed by appellant Edna H. Reiter and her successors in title to the oil and gas, referred to the land owned by her as Lot 4, Block 223 of the Engelman Re-subdivision. From the map above referred to, reproducing this subdivision, it is clear that the canal strip lies west of Lot 4 and is actually between Blocks 223 and 224. Ap-pellees further point out that the on-the-ground dimensions of this lot, portrayed by their exhibit in their brief add up to an acreage of 5.99917, and call our attention to the fact that this is about as close to six acres as land measurements can come. This point is presented to urge that Lot 4, as laid out and described in the Engelman map or in the map of Engelman Resubdivision, comprises, within a minute fraction, the six acres mentioned in the original deeds; whereas, if the canal strip is included, appellants would have just about half an acre too much. Appellants argue that the map hereinabove referred to was actually made or filed several months after the deed to T. L. Humble by J. C. Engelman, Inc., in 1924. However, we do not think this disposes of the legal theory that when parties have, by their conveyances or assignments, definitely referred to a certain map," and especially one that bears the dignity of an ancient document, they have thereby ratified, adopted and announced that this map shows and proves where their property is, and thereby accept its definition and description as being descriptive of the confines and location of the property claimed. There is also testimony by E. W. Watts that he, as a construction contractor, along with his brother took a contract in 1917 for the building of this northern part of the Donna canal extending up between Blocks 223 and 224, the canal having been staked off by engineer Clark, and that their work was completed in 1919. We think, therefore, without going into further review of the arguments of counsel and testimony, that although T. L. Humble, the original grantee of the actual six-acre tract, actually received his deed several months before the Engelman map was dated and recorded, it must be noted that the description in the deed was to the north six acres of Block 223, and this appears verified by the Engelman map filed several months later and now in evidence. After Humble conveyed this property to his daughter by a description which again refers to Lot 4, Block 223, the daughter, Edna H. Reiter — in 1947, some twenty years later — executed an oil and gas lease using the description that appellees claim fixes her title as described by the Engelman map. This description has been set forth earlier in this opinion, and is found in the oil and gas lease described in appellees’ brief as “P’s. Ex. 11”. We therefore hold that the description of the six-acre tract owned by-Mrs. Reiter was the one appearing in the Engelman map because the description fits this map precisely, both as to dimensions and acreage, excludes the canal strip, and finally Mrs. Reiter herself used the identical description and reference to the Engelman map in her execution of the oil and gas lease, which description was precisely followed in one instance, and substantially followed in two other assignments of said lease. Our holding is based, also, on this act of acceptance and ratification of the thirty year old map by appellants, and their adoption of it as a proper description of the land they own. This lot and block came out of the agreed source of title — the La Blanca Agricultural Company.

Appellants contend that Donna never had anything but an easement and therefore did not have any ownership of the strip in question. Appellees answer, and we think successfully,- that the original deed from the source of title speaks of reservations of strips of land — one, for example, in 1912 to Mr. Beamer, who transferred it back and then was again the grantee. These early conveyances of the large tract within which the land in controversy is situated, we think, upon study, adequately portray an intention on the part of the grantor to reserve strips of land for canal purposes, describing them as rights of way. The word “easement” creeps into various other documents later, but we think, on the basis of the holding and language in Texas Electric Ry. Co. v. Neale, 151 Tex. 526, 252 S.W.2d 451, wherein the court says as follows:

“In the use of the words 'right of way* in the two paragraphs the purpose for which the land is conveyed, the use to be made of it, is indicated. This fact, however, does not change the effect of the conveyance, for the declaration in a deed of the purpose for which land is conveyed or the use to be made of it does not impose a condition upon the title granted; nor does it operate to limit the grant to a mere easement.”

that in the original grants by the agreed source of title, both the canal and the rights of way were conveyed and reserved according to the particular instrument involved; as, for example, in a deed from La Blanca to A. F. Hester, in 1904, the language appears: “all those tracts or parcels of land situated in the County of Hidalgo, State of Texas * * *” (a following paragraph says) “the canal, laterals and flumes and right of ways therefor now existing on the following lands, and also any further rights of way that may be required for the purpose of building, extending and maintaining canals, laterals and flumes for the purpose of irrigation, on, across, along and around the following described tracts or parcels of land, to-wit: * * * ” This and similar language appearing in various instruments executed by the agreed source of title indicate clearly to us that they intended to, and did, grant and/or reserve strips of land for rights of way to be used as canals. It must be borne in mind that they were not here, so far as the record shows, dealing with a foreign agency or company wishing to put a pipeline or canal across their property and wanting an easement for that purpose. As the record clearly indicates, they were trying to build up a subdivision or area for irrigation and were obviously trying to-protect the right of their future operators or owners to have free access to put canals where they needed to; and in some later deeds they actually and carefully reserved definite canal routes and sites. We therefore must reject appellants’ position and point, that all appellees ever had was an easement title. Finally, in the conveyance by La Blanca to J. T. Beamer, their intention is clearly shown when they expressly waive and except a certain number of acres wherein is constructed the main canal of the La Donna Canal Company, and state that it is expressly reserved and excepted from such conveyance. Appellees contend that this language shows the clear intention of the agreed source of title, along with other similar documents.

Appellants also contend that they have successfully shown a ten-year limitation title. It has been well settled that to successfully assert such title possession must be actual, visible, continuous, notorious, distinct and hostile, and of such a character as to indicate an unmistakable assertion of claim of exclusive ownership by the occupant. State v. Heard, Tex.Civ.App., 199 S.W.2d 191, aff’d. 146 Tex. 139, 204 S.W.2d 344. Appellees contend that the record shows that there was no tenant on this tract for a period of six weeks, running from January 5, 1953 to February 14, 1953,. which is within the ten-year period. Appellees also contend that various tenants couldn’t have helped perfect limitation title because they were only given the right to work Lot 4, Block 223, by Humble and Mrs. Reiter and their representative, D. O. States. Appellees quote Williams v. Fuerstenberg et al., Tex.Com.App., 23 S.W.2d 305, as holding that a tenant cannot assist in the building of a limitation title for a landlord beyond the actual land leased; if he uses other land he is a mere trespasser and guilty of a tortious act that does not help the landlord’s claim to such land outside of the original lease or area. It is also true that one who seeks to establish limitations title has the burden of proof. We feel that the nature of the occupancy of several tenant farmers, plus the six-week gap during the ten-year period, defeat the attempt to claim such title. In fact it is stated that Wesley Van Matre, one of the tenants, claims that he pastured some stock on the Donna canal strip, but did so with the permission of the Donna District. We think, therefore, that appellants’ attempt to establish ten-year title by limitation was insufficient to meet the strict requirements of the statutes thereunto appertaining.

In conclusion, we feel that we must hold that the location of appellants’ property was admitted, accepted, ratified and defined by the Engelman map, which has been in legitimate existence and on record since December 30, 1924. Further, that appellees’ title was not, as urged by appellants, a mere easement, but a reservation of strips of land to be used for canal purposes. Therefore, Donna actually owned the land rather than an easement over the same. Further that appellants were not successful in their contention for title by limitation.

For the above reasons, appellants’ points are overruled and the judgment of the trial court is affirmed.


author: PHILLIPS, Justice.

text:
    The UNIVERSITY OF TEXAS, Appellant, v. Charlie JOHNSON, Sr., Appellee.
    No. 11077.
    Court of Civil Appeals of Texas. Austin.
    March 13, 1963.
    Rehearing Denied April 3, 1963.

      Waggoner Carr, Atty. Gen., Fred D. Ward, Asst. Atty. Gen., Austin, for appellant.
    Jack Garey, Austin, for appellee.
   PHILLIPS, Justice.

This is a workman’s compensation case where the sole question on appeal is the method of computing the claimant’s average weekly wage under Article 8309, subd. 1, Vernon’s Ann.Civ.St. as amended.

There is no dispute over the facts and we will state them from appellant’s brief. The suit was for total and permanent incapacity under the workman’s compensation statutes. Charlie Johnson, Sr., an employee of the University of Texas, brought suit on August 3, 1962, alleging that he had incurred an accidental injury which had rendered him totally and permanently incapacitated. The sole defendant in the case was the University of Texas, a self-insurer.

A jury trial resulted in a verdict entitling the plaintiff to a judgment of total and permanent incapacity. The court rendered judgment based upon the compensation rate of $31.85, all past due and future compensation and for hospital expenses. This appeal is based only on the computation of plaintiff’s average weekly wages, or more specifically his rate of compensation, and does not involve the merits of the case.

; Appellant contends that since appellee?s ■wages were known for the entire year immediately preceding his injury, that the correct method of computing his average weekly wage was to divide his knowfi yearly wage by fifty two, pursuant to Subsection 5 of Section 1 of Article 8309, V.C.S.

Appellee contended that the correct method was to take his average daily wage of $9.20, agreed to by both parties, multiply by three hundred and divide such figure by fifty-two, pursuant to Subsection 1 of Sec. 1, Art. 8309. The trial court applied the latter method.

This Court holds that the trial court was correct in applying Subsection 1 of Sec. 1, ■Art. 8309 as the method of computing ap-pellee’s compensation rate whether under the act as originally passed or as amended.

It was the obvious intention of the Legislature in enacting the compensation law to provide compensation to injured employees for loss of their earning capacity and that an employee’s compensation should be measured by what he could earn in his employment prior to his injury.

- Appellee worked for a daily wage based on an hourly rate. The undisputed testimony was that while generally his work week consisted of five days, he did work six days on occasion. With this class of wage-earner, the cases are uniform in applying the formula set out in Subsection 1 of Section 1, of Article 8309 where the injured employee has worked substantially the whole of the year immediately preceding the injury whether for the same employer or not. In this situation, his average annual wage shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed. The total arrived at by this method is then divided by fifty two which method is prescribed both in the article as originally enacted and as amended. Travelers Insurance Co. v. Dycus, Texas Supreme Court, 352 S.W.2d 458; Associated Indemnity Corp. v. McGrew, 138 Tex. 583, 160 S.W.2d 912; Federal Underwriters Exchange v. Guest, Tex.Civ.App., writ dismissed, 129 S.W.2d 708.

The cases cited by appellant fall into either of two categories. One, where the injured claimant was working for a fixed monthly salary. In these cases, the court took the annual salary and divided by fifty two. See Texas Employers Insurance Association v. Clack, 134 Tex. 151, 132 S.W.2d 399, Texas Employers’ Insurance Association v. Hierholzer, Austin Civ.App., 207 S.W.2d 178. The other class of cases cited to us by appellant is where the injured claimant had worked greatly in excess of the statutory three hundred days and to limit the computation of his rate to three hundred days would be manifestly unjust. In these cases the court applied Subsection 3 of Section 1 or Article 8309. See Texas Employers’ Insurance Association v. Storey, Com.App., 17 S.W.2d 458; Southern Underwriters v. Stubblefield, Tex.Civ.App., 130 S.W.2d 385.

Appellant argues that in the cases where the court applied Subsection 1 of Section 1, Art. 8309 the annual wage was not stated. It was not stated as it was not necessary to the decision where the claimant is a worker paid on a daily basis. His total earnings for any one month, and consequently any one year, are not fixed. To use appellant’s method of computation with this class of claimant would not show what he could earn in his employment prior to the injury and is not the method that the law envisions.

Affirmed.

      . Article 8309, Sec. 1, Y.O.S. was amended in 1959 requiring in - Subsection 1, that the injured employee shall have worked for the same employer at least 210 days to be eligible for compensation under the provisions of this subsection. It was agreed between the parties that the claimant here satisfied this requirement.


author: ANDERSON, Presiding Judge.

text:
    Dorothea L. HENSON, (Plaintiff) Respondent, v. Marshall F. HENSON, (Defendant) Appellant.
    No. 31114.
    St. Louis Court of Appeals. Missouri.
    March 19, 1963.
    Motion for Rehearing or for Transfer to Supreme Court Denied April 10, 1963.

      Kent E. Karohl and Richard M. Stout, St. Louis, for appellant.
    F. G. Armstrong and Hamilton & Armstrong, St. Louis, for respondent.
   ANDERSON, Presiding Judge.

This is an action brought by Dorothea L. Henson against her divorced husband, Marshall F. Henson, to recover payments alleged to be due under a written agreement entered into between the parties at the time of their divorce. The case was tried to the court and resulted in a finding and judgment for plaintiff in the sum of $4,840.00. From this judgment defendant has appealed.

In 1951, plaintiff brought a suit for divorce against defendant. This suit was filed in the circuit court of St. Louis County. On December 28, 1951, plaintiff and defendant entered into an agreement part of which forms the basis of this suit. The relevant portions of this agreement are as follows:

“WHEREAS, a petition for divorce has been heretofore filed on behalf of plaintiff; and
“WHEREAS, defendant has filed an answer herein, and
“WHEREAS, both parties hereto desire to forever settle any property differences which each may have against the other;
“NOW THEREFORE, after having heard the evidence and the Court seeing fit to grant a Decree of Divorce to plaintiff, IT IS AGREED BY AND BETWEEN THE PARTIES HERETO, as follows:
“1. Plaintiff is to have the care, custody and control of Harry Elmer, William Marshall, Dorothea Kay, Mary Frances and Betty Joe, the minor children of both parties, with the right of defendant to have and see said children at all reasonable times and more particularly on alternate Saturdays and Sundays from 2:00 o’clock P. M. on Saturday to 6:00 o’clock P. M. on Sundays, until the further order of the Court.
******
“3. Defendant is to pay to plaintiff as and for the support and maintenance of the three youngest children, Dorothea Kay, Mary Frances and Betty Joe, the sum of FORTY ($40.00) Dollare per month for each child, payable semimonthly until they attain their majority, or until the further order of the Court.
“4. Defendant is to pay to plaintiff as and for support and alimony the sum of Fifty ($50.00) Dollars per month until plaintiff remarries, or until the further order of the Court.
“IT IS FURTHER AGREED by both parties hereto that the real estate belonging to both parties, now located at 8529 Church Bell Lane, in the Township of Jennings, County of St. Louis, State of Missouri, shall be transferred and placed in the name of plaintiff, Dorothea L. Henson, and that defendant shall continue to make all payments on the Deed of Trust now on said property, with the understanding that should plaintiff remarry then said property shall be sold and the equity divided between both parties hereto and all future payments on said First Deed of trust are to cease as of the date of said marriage.”

After the execution of the foregoing agreement, and on the same day, to-wit, December 28, 1951, the Court granted plaintiff a divorce. By its decree the court granted plaintiff custody of the five children, with visitation rights to defendant, and the “sum of $50.00 per month for alimony” and the further sum of $120.00 per month for the support of the three younger children, payable semi-monthly, all in accordance with the stipulation filed.

The decree made no mention of that portion of the agreement relating to real estate. However, in compliance with said agreement, the defendant conveyed his interest in the real estate to plaintiff.

The deed of trust mentioned in the agreement was executed by the parties on May 26, 1949 to secure a note payable to Pine Lawn Bank and Trust Company in the sum of $7,300.00 with interest at 4)4%, the principal and interest payable in monthly installments commencing on the first day of July 1949, with final payment of principal and interest, if not sooner paid, due June 1, 1974.

In 1956 plaintiff filed in the divorce case a motion to correct the judgment therein nunc pro tunc, by including therein the provisions of the settlement agreement relating to the real estate and payments on the deed of trust by defendant. There was also a prayer in said motion for an increase in the allowance per month for the support of the children from Forty ($40.00) Dollars per month, for each child, to Fifty-Five ($55.00) Dollars per month, for each child, and a reasonable allowance for attorney’s fees for the prosecution of said motion. On September 14, 1956 the court entered its order denying that part of plaintiff’s motion which prayed for a correction of the judgment nunc pro tunc, but sustained said motion in so far as it prayed for an increase in the allowance for the support and maintenance of the children and for attorney’s fees. By said order the allowance for the support of the children was fixed at $50.00 per month for Betty Jo, Mary Frances, and Dorothea Kay; an attorney’s fee in the sum of $100.00 was allowed, and alimony of $55.00 per month was allowed plaintiff.

On October 29, 1959, plaintiff executed a warranty deed conveying her interest in the property in question to her son Marshall W. Henson. On the same day defendant and his second wife also executed a warranty deed to the real estate to the son Marshall W. Henson. On the deed executed by plaintiff there are affixed federal documentary stamps in the amount of $8.80. There was no consideration for the deed from defendant. The son also testified that he was holding' the title to the property for the benefit of his mother; that the purpose of the transfer of the title to him was to enable him to use his credit to refinance the mortgage; to stop foreclosure and to refinance the property so that his mother could keep it; that after the conveyance to him the property was refinanced and that his mother actually was making the payments on the new debt; and that his intention was that the property, when it was paid for, should belong to his mother.

On May 19, 1960 the defendant was a bankrupt in the United States District Court for the Eastern District of Missouri. Plaintiff’s claim was listed as an unsecured claim in the schedules filed in that proceeding. On September 1, 1960, defendant received his discharge in bankruptcy.

Appellant’s first point is that he was released from the payment of the debt, imposed upon him under the separation agreement, by his discharge in bankruptcy.

In support of this contention it is urged that the part of the agreement which gave rise to plaintiff’s claim was a property settlement and not one for maintenance and support. The Bankruptcy Act (11 U.S.C.A. § 35) provides that a discharge in bankruptcy shall release the bankrupt from all his provable debts except certain enumerated ones including “* * * for alimony due or to become due, or for maintenance or support of wife or child, * * * (11 U.S.C.A. § 35, p. 271.) No exception is made by said section for a liability incurred in effecting a property settlement, but where the agreement is substantially for alimony, maintenance or support, it has been held or recognized that the obligation thereunder is not dischargeable in bankruptcy. And this is so even though property rights are adjusted between the parties for the purpose of furnishing that support. Poolman v. Poolman, 8 Cir., 289 F.2d 332; Lyon v. Lyon, 115 Utah 466, 206 P.2d 148; Blair v. Blair, 44 Cal.App.2d 140, 112 P.2d 39; Battles v. Battles, 205 Okl. 587, 239 P.2d 794; In the Matter of Alcorn, Bankrupt (D.C. Cal.), 162 F.Supp. 206; Remondino v. Re-mondino, 41 Cal.App.2d 208, 106 P.2d 437; In re Ridder, 2 Cir., 79 F.2d 524, 103 A.L.R. 719. The fact that the agreement is called a property settlement and referred to as such in the divorce decree is immaterial, it being the substance of the contract which controls the determination of the intent of the contracting parties. Lyon v. Lyon, supra; Egbers v. Northern Pacific Ry. Co., 98 Wash. 531, 167 P. 1073; Blair v. Blair, supra; Battles v. Battles, supra; In re Alcorn, supra. And it is not only alimony and maintenance in conventional form, (viz. monthly sums paid to the wife), that is excluded from the provision for discharge, but all obligations for maintenance and support of the wife or child, whether denominated alimony or maintenance by the statute or created by agreement of the parties. It follows then that the real issue in the case at bar is whether the agreement which the parties entered into was in reality an agreement for support and maintenance instead of an attempt to settle property rights.

A case very much in point on the issues raised in the case at bar is Poolman v. Poolman, supra. In that case the parties entered into a separation agreement on November 25, 1957, in contemplation of a divorce, to settle their property rights and “all right of support and maintenance” of the wife and rights growing out of the marriage relationship. Under this agreement the husband agreed to pay the wife $50.00 per week for the support and maintenance of their three children, the amount to be diminished as they became emancipated or reached their majority, and to cease when they all reached that status; the wife was to have the home which the parties owned, subject to a deed of trust securing a joint note; the husband agreed to convey his interest in this property to the wife and to make payments on the deed of trust. On November 27, 1957 Mrs. Poolman was granted a divorce. Pool-man defaulted in the payment of the installments under the deed of trust, and his divorced wife borrowed money and paid them. On September 16, 1959, she obtained a judgment against Poolman for the amount she had paid, then garnisheed his wages. On September 17, 1959, Poolman filed a petition in bankruptcy scheduling the judgment as an unsecured provable debt. He also scheduled the balance due on the note, $5,967.12, secured by the deed of trust.

Poolman thereafter obtained a discharge from his provable debts, and then brought this proceeding to secure a release of the garnishment, and to restrain his divorced wife from further proceeding in the state court on the judgment growing out of his default in making installment payments on the trust deed. The District Court enjoined Mrs. Poolman as requested, holding that the debt evidenced by the state court judgment was not within Section 17 of the Bankruptcy Act and was dischargeable. The Court of Appeals reversed the decision. The Court said:

“We are convinced, however, that the state court judgment evidenced a liability for ‘maintenance or support of wife or child’ within the meaning of Section 17 of the Bankruptcy Act, and was not a dischargeable debt. It is safe to say that the obligation to maintain and support a family includes the obligation to keep a roof over their heads. It is obvious that that is what the bankrupt undertook to do when he agreed to keep up the installment payments on the trust deed upon the home in which his divorced wife and his children were to live.
* * * * * *
“Our conclusion is that the state court judgment debt, which was based upon the bankrupt’s contractual obligation to make payments on the trust deed encumbering the home occupied by his divorced wife and children, was not dis-chargeable in bankruptcy and was not affected by the bankrupt’s discharge.” (289 F.2d 332, 1. c. 335.)

In Lyon v. Lyon (1949) 115 Utah 466, 206 P.2d 148, it was held that the trial court did not err in ruling that even though a divorce decree provided for a property settlement in accordance with the stipulation of the parties, which among other things, provided that the husband pay a mortgage on certain property owned by the parties, such property settlement was really an award for support and maintenance of defendant’s wife “in the nature of alimony”, and therefore the obligation thereunder was not discharged in bankruptcy. The court stated that a property settlement of 15/16 in favor of the wife and 1/16 to the husband was highly unusual; that the wife was well past middle age and could not reasonably be expected to find employment of the type for which she had been trained; and that the facts that the husband was to pay off the mortgage on the home, pay alimony in gross in monthly installments of $50.00, and carry insurance on his own life with his former wife as beneficiary, and that she received nearly all of the household furniture, all pointed to the idea of support.

After reviewing the facts in this case, and the law as announced in the foregoing cases, it is our opinion that the trial court did not err in refusing to rule that the agreement in question was a property settlement and that the debt sued on was discharged in the Bankruptcy proceeding.

The agreement provided for alimony for the wife in the sum of $50.00 per month, $40.00 per month for the maintenance of three of the five children of the parties, and the conveyance to plaintiff of the home in which the parties had lived, and where it could reasonably be inferred the wife and children then resided. There was a provision for payment of the mortgage installments on the property and a stipulation that if the wife remarried the payments would cease and the property would be sold and the proceeds of the sale divided equally between the parties. No other property of any kind was dealt with, nor was there any release by the wife of any rights in the husband’s other property. It seems to us to be clear that the purpose of the portion of the agreement with respect to the real property was to furnish a place where the wife and five children might live and, in reality, was a contract for support and maintenance of the wife and children and not one to settle property rights as between the husband and wife.

It is next urged that the circuit court of St. Charles County did not have jurisdiction of the subject matter for the reason that it was an attempt to secure support and maintenance through an independent action which is not permissible where another court has made an award for alimony and support. There is no merit to this contention. The provisions of the separation agreement with respect to the real estate and the payment of the installments on the deed of trust were not incorporated in the decree. Under such circumstances there was no merger of defendant’s obligation under said agreement with the decree of divorce. 17A Am.Jur. § 907, and for that reason suit was properly brought on the agreement. 17A Am.Jur. § 920, p. 106. Our conclusion is that the circuit court of St. Charles County had jurisdiction over the subj ect matter of this suit.

Finally it is contended that defendant was released from his obligation to pay the installments due by reason of the transfer of the title to the property by the parties to their son, thus putting it beyond plaintiff’s power to fulfill her obligations under the contract. There is no merit to this contention. Defendant had already breached the contract, and for that reason had no right to complain of a possible future breach by the plaintiff. 17 C.J.S. Contracts § 458, pp. 943-945. Furthermore, it does not appear that plaintiff put it beyond her power to perform her obligations which would arise in the event of her remarriage.

The title to the property is held for the mother as appears from the son’s uncontra-dieted testimony, and a reconveyance could be had if necessary for performance by plaintiff of her duties under the contract.

We find no error in the record. The judgment appealed from is affirmed.

WOLFE, J., concurs.


author: WOLFE, Acting Presiding Judge.

text:
    James PEARSON, (Plaintiff) Respondent, v. ALLIED FINANCE COMPANY, (Defendant) Appellant.
    No. 31225.
    St. Louis Court of Appeals. Missouri.
    March 19, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied April 10, 1963.

      Murray Steinberg, Richard Marx, St. Louis, for appellant.
    Patrick A. Marcella, St. Louis, for respondent.
   WOLFE, Acting Presiding Judge.

This is an action in replevin. The defendant Allied Finance Company took possession of an automobile under a chattel mortgage, and the plaintiff, from whom it was taken, replevined it from the Finance Company. Upon trial to the court there was a finding and judgment for the plaintiff. The judgment gave the plaintiff possession of the car and $50.00 damages. In due time thereafter, the defendant filed its motion for a new trial, which was overruled, and within time thereafter the defendant appealed.

The facts of the matter are that the plaintiff agreed to buy a used 1960 Chevrolet from the Page-Way Motors, Inc. On April 18, 1960, he gave the Page-Way Motors, Inc. an automobile in trade, for which he was allowed $150.00, and he paid the balance of the purchase price in cash. Pie was told by the salesman for the Motor Company that the company did not have the title then, but that it would be mailed to him. The plaintiff was given a bill of sale, but never received title to the car, although he made repeated requests for it. On October 30, the automobile was taken from in front of plaintiff’s home by agents of the Allied Finance Company. The plaintiff, upon learning who had taken the car, brought the replevin action here under consideration against the Allied Finance Company.

The Finance Company claims the title and right of possession of the car by reason of a chattel mortgage. The facts as they relate to this mortgage are that on April 12, 1960, the Allied Finance Company loaned $14,635 to Page-Way Motors, Inc. to enable it to pttrchase five automobiles. At the time that the Allied Finance Company made the loan to Page-Way Motors, Inc., it was given an Illinois title to the Chevrolet in question, assigned by Beach & Herring Motors Sales of Mur-physboro, Illinois, to Page-Way Motors, Inc. On April 18, 1960, Page-Way Motors, Inc. signed a note for the sum loaned, secured by a chattel mortgage on five cars, including the Chevrolet in question.

The President of the Finance Company testified that it was agreed that the Finance Company would hold Page-Way Motors, Inc.’s titles to the cars, and that when a sale was made the Page-Way Motors, Inc. would pay off the amount of the mortgage that covered the particular car sold before the Finance Company would give Page-Way Motors, Inc. its title to such car. The companies were located close together; Page-Way Motors, Inc. was at 7001 Page Boulevard in St. Louis, and the Finance Company at 7007 Page Boulevard. The mortgage in question was never recorded.

It is a rule of law that in replevin the plaintiff’s right to recover must rest upon the strength of his own claim to the property, and not upon the weakness of the defendant’s right to it. Pearl v. Interstate Securities Co., 357 Mo. 160, 206 S.W.2d 975; Foulke v. McIntosh, Mo.App., 214 S.W.2d 735; Bordman Investment Co. v. Peoples Bank of Kansas City, Mo.App., 320 S.W.2d 72. To apply this rule to the facts before us, we must examine the strength of plaintiff’s claim to the car. Section 301.210, subd. 4, RSMo 1949, V.A. M.S., provides that it is unlawful “to buy or sell in this state any motor vehicle or trailer registered under the laws of this state, unless at the time of the delivery thereof, there shall pass between the parties such certificate of ownership with an assignment thereof, as herein provided, and the sale of any motor vehicle or trailer registered under the laws of this state, without the assignment of such certificate of ownership, shall be fraudulent and void.”

This provision is applicable to automobiles titled or purchased in other states and brought to Missouri to be sold, as was the Chevrolet here in question. Bordman Investment Co. v. Peoples Bank of Kansas City, 320 S.W.2d 72, 1. c. 77, supra; Lebcowitz v. Simms, Mo.App., 300 S.W.2d 827; Craig v. Rueseler Motor Co., Mo.App., 159 S.W.2d 374; Mackie and Williams Food Stores v. Anchor Casualty Co., 8 Cir., 216 F.2d 317.

It is therefore apparent that although Page-Way Motors, Inc. had a valid Illinois title assigned to it, no valid sale could be made by Page-Way Motors, Inc. without assigning a title to the purchaser. G. F. C. Corporation v. Nesser, Mo.Sup., 273 S.W.2d 264. This was not done, and under the statute quoted the sale was void and the plaintiff had no title to the car. Kelso v. Kelso, Mo.Sup., 306 S.W.2d 534, 71 A.L.R.2d 258; Bordman Investment Co. v. Peoples Bank of Kansas City, supra; Albright v. Uhlig, Mo.App., 315 S.W.2d 471.

As stated, the trial court held for the plaintiff. The plaintiff below, and the respondent here, relies upon the case of Hadley v. Smith, 268 S.W.2d 444, by the Springfield Court of Appeals. That case was not a possessory action, hut a suit in tort for damages to an automobile. The tort feasor questioned the plaintiff’s title to the car, and the court held that the plaintiff was in legal possession, and that the defendant who had wrongfully damaged the car could not question the plaintiff’s right to recover for the wrong done.

While the Hadley case was not a possessory action, it is true that one with a special property interest in a car can maintain an action in replevin against one without any right, such as a mere trespasser. Pearl v. Interstate Securities Co., 357 Mo. 160, 206 S.W.2d 975, supra; Rankin v. Wyatt, 335 Mo. 628, 73 S.W.2d 764, 94 A.L.R. 941. It is appellant’s contention that such a situation is not before us because it claims possession under its mortgage on the car, and the mortgage was signed by Page-Way Motors, Inc.

This mortgage was executed on April 18, 1960, which is the same day that the purported sale was made to Pearson, the plaintiff. The record does not show which came first on that day, the sale or the execution of the mortgage. Page-Way Motors, Inc. had purchased the car out of the state. The only evidence of title it had, or could have had, at the time of the execution of the mortgage was an Illinois title to the Chevrolet duly assigned to it. Page-Way Motors, Inc. therefore had a good title to the automobile, and it was lawful for it to mortgage it to the defendant. There is no statutory requirement as to the transfer of title certificates in connection with mortgages on automobiles, hut the mortgagor must have a legal title for the mortgage to constitute a lien on the car mortgaged. Pearl v. Interstate Securities Co., supra.

The mortgage was a binding instrument between the mortgagor who had title and the mortgagee whose loan was to the title holder. The material facts of this case up to this point are closely similar to those in the case of Bordman Investment Co. v. Peoples Bank of Kansas City, 320 S.W.2d 72, supra. In that case an assigned Kansas certificate of title was made to an automobile dealer who made a loan and executed a mortgage in order to purchase the car, and the mortgagee held the title so assigned. The mortgage so given was held good against a subsequent mortgage executed by one who had no certificate of title.

There is, however, one material difference between the facts before us and the facts in the Bordman case. The mortgage held good in that case was recorded, and in the case before us it was never recorded. The statute as it relates to unrecorded mortgages on chattels is Section 443.460. It provides that where the property mortgaged is left in possession of the mortgagor, such mortgages, unless recorded or filed in the office of certain recorders of deeds, are not valid against “any creditors who acquire a lien by judicial proceedings or subsequent purchasers, mortgagees, en-cumbrancers and pledgees on such personal property”. The matter before us resolves itself into the question of whether or not the plaintiff comes within the word “purchaser” as used in the statute. The word “purchaser” has been defined in 73 C.J.S. 1257, as follows:

“The word ‘purchaser,’ like the word ‘purchase,’ has two well-defined meanings, and when employed in its broad sense, referring to the acquirement of title, it includes everyone who obtains title otherwise than by descent * * *. However, as commonly employed and as ordinarily used, the term has a more restricted meaning, and a ‘purchaser’ is understood to be one who obtains through negotiation or the like, for a consideration; and in this sense it includes every person to whom any interest or estate is conveyed for a valuable consideration.”

In construing a conveyance of an interest in real estate, our Supreme Court stated that a purchaser “might be one who took by gift or a will”. Carson v. Lee, 281 Mo. 166, 219 S.W. 629, 1. c. 632. More in point, however, is the case of National Refining Co. v. United States, 160 F.2d 951, wherein the Circuit Court of Appeals, Eighth Circuit, construed the provisions of 26 U.S. C.A. Int.Rev.Code, § 3672. The Code provided that a lien for taxes shall be invalid “as against any mortgagee, pledgee, purchaser, or judgment creditor” until notice is recorded. In that case the Government was seeking to enforce a tax lien against funds owing to a tax debtor who had assigned the funds owing him to the National Refining Co. in payment of a pre-existing debt. The court held (1. c. 955): “We think it is safe to say that one who, for a valuable present consideration, acquires property or an interest in property is a "‘purchaser’ within the meaning of 26 U.S. C.A. Int.Rev.Code, § 3672.”

This also appears to be a definition suitable to the word as used in Section 443.460, where the Legislature voided an unrecorded chattel mortgage as to “any purchaser”. Since the plaintiff paid the purchase price ■for the car, the question that then arises is whether or not the plaintiff acquired .any interest in the automobile. The case ■of Pearl v. Interstate Securities Co., 357 Mo. 160, 206 S.W.2d 975, 1. c. 978 and 979, considered facts where a sale was made and a certificate of ownership had not been properly assigned to the buyer. It was held in that case:

“* * * even though plaintiff did not have the legal title, he could recover from one without any right if he could show that he had a special property or interest in the cars which gave him the right to the possession thereof. * * * Certainly he had acquired a sufficient equitable interest to have had the right to compel his assignors to complete the transfer of legal title to him, unless they saw fit to return the purchase price and rescind the sale.”

This case was later followed by the Supreme Court in Peper v. American Exchange Nat. Bank in St. Louis, 357 Mo. 652, 210 S.W.2d 41.

Section 301.210 RSMo 1949, V.A.M.S., makes no distinction between a defective transfer of a certificate of ownership and no transfer of the certificate. We therefore hold that under authority of the Pearl case, supra, the facts here presented show that the plaintiff acquired an interest in the automobile. It was a possessive interest sufficient to constitute him a purchaser within the meaning of the mortgage statute in question. The court therefore properly gave judgment for possession to the plaintiff.

Defendant-appellant raises a question as to the admissibility in evidence of the bill of sale given to Pearson, the plaintiff-respondent, by Page-Way Motors, Inc. It is contended that the bill of sale is “hearsay evidence”. The obvious absurdity of this contention relieves us from a further consideration of it. It is also contended that a photostatic copy of the cashier’s check given Page-Way Motors, Inc. is not the best evidence. Whether it is or is not is wholly immaterial, as there is sufficient evidence without the check itself that Pearson purchased the automobile from Page-Way Motors, Inc. in accordance with the terms of the bill of sale.

Another point raised by the defendant is that the court erred in awarding $50.-00 damages because there was no evidence of damages. There was evidence that the car, when taken by the defendant, had some shoes and other articles in the trunk. There is no showing as to the value of the articles or that they were not still in the trunk when the plaintiff replevined the car. The court therefore erred in awarding damages to the plaintiff.

By reason of the conclusions we have reached above, the judgment is affirmed as to the award of possession to the plaintiff, but reversed and remanded for a new trial on the question of damages only.

JACK P. PRITCHARD and J. MORGAN DONELSON, Special Judges, concur.

RUDDY, P. J., and ANDERSON, J., not participating.


text:
    Robert C. REIS, Adm., CTA DBN of the Estate of John F. Knoepfler, Deceased, (Plaintiff) Appellant, v. TRAVELERS INDEMNITY COMPANY, a Corporation, Home Indemnity Company, a Corporation, and John F. Mulligan, Adm. of the Estate of Robert M. Zeppenfeld, Deceased, (Defendants) Respondents.
    No. 31243.
    St. Louis Court of Appeals. Missouri.
    March 19, 1963.
    R. C. Reis, St. Louis, for appellant.
    Evans & Dixon, John F. Evans, St. Louis, for respondents.
   WOLFE, Acting Presiding Judge.

This is an action brought in an effort to set aside a final settlement approved in the Probate Court in the estate of John F. Knoepfler, deceased. The action further seeks to recover from the two indemnity ¡companies, which are named as defendants, certain sums claimed due the Knoepfler estate from the executor now deceased. A motion to dismiss the petition was filed by all defendants and sustained by the court. From the judgment of dismissal the plaintiff prosecutes this appeal.

Omitting the caption and signature, the petition in question is as follows:

“Plaintiff for his cause of action against the defendants herein named, states and alleges:
“1. That he is the duly appointed and acting administrator CTA DBN of the Estate of John F. Knoepfler, deceased, having been appointed by the Probate Court of the City of St. Louis on the 23rd day of June, 1960.
“2. That John F. Knoepfler died on the 6th day of March, 1950, and on the 23d day of March, 1950, Robert M. Zeppenfeld was appointed and qualified as Executor of the Estate of John F. Knoepfler, and that said Robert M. Zeppenfeld died on the 3d day of August, 1959 and was at that time the acting Executor of said estate; that defendants Travelers Indemnity Company, a corporation, and the Home Indemnity Company, a corporation, were ■and are sureties on the bond of Robert M. Zeppenfeld as Executor of the Estate of John F. Knoepfler.
“3. That John F. Mulligan was appointed Administrator of the Estate of Robert M. Zeppenfeld for the sole purpose of filing a settlement to death in this estate.
“4. That Robert M. Zeppenfeld, acting as Executor of the above estate, on the 4th day of September, 1951, filed with the Probate Court his proof of notice of final settlement to the September Term, 1951, but thereafter failed and refused to file his final settlement, although cited to do so by the Court, until the 20th day of March, 1958.
“5. That from the 2d day of Jnne, 1950, and throughout the time that said Robert M. Zeppenfeld acted as Executor of the above estate, he withdrew and used for his own purposes funds of said estate.
“6. That on May 8, 1958, after filing his final settlement, Robert M. Zeppen-feld received from the Clerk of the Circuit Court of the City of St. Louis a check in the amount of $52.00, representing a refund due the above estate, and fraudulently converted this sum to his own use and did not report the receipt of the same to the Probate Court.
“7. That the above referred to fraudulent acts of Robert M. Zeppen-feld were a breach of trust; that a final settlement and distribution could have been made by the Executor in 1951 after filing the proof of notice of final settlement, but the closing of the estate was necessarily delayed by the Executor’s unreasonable refusal to make his final settlement, and as a result the interested parties suffered a loss in the following respects:
“(a) Additional charges for bond premiums and safe deposit vault rentals were incurred by the estate for the additional years the estate was kept open.
“(b) Additional costs were incurred by the estate as attorney fees and court costs resulting from an action to remove the Executor and the subsequent appeal from the order removing the Executor.
“(c) Loss of earnings on the assets of the estate used by the Executor and on the assets he failed to invest.
“8. That by concealing from the Probate Court of the City of St. Louis his fraudulent acts and breaches of trust, the said Robert M. Zeppenfeld induced the Probate Court to enter a judgment approving his final settlement on the 10th day of June, 1958.
“9. That because of his fraudulent acts the Executor forfeited his right to the sum of $2254.70 for which he took credit as Executor’s compensation.
“10. That the plaintiff does not have an adequate remedy at law.
“WHEREFORE, plaintiff asks the court to order and decree that the Probate Court’s judgment of June 10, 1958, approving the final settlement of Robert M. Zeppenfeld in the above estate, be set aside and held for naught, and the Court order and decree that the Estate of Robert M. Zeppenfeld and his sureties be surcharged for the costs of the bond premiums and safe deposit vault rentals incurred after the year 1951, for costs and attorney’s fees incurred as a result of the action to remove the Executor, for interest on any sums found to be used by the Executor for the time so used, for interest on the estate funds not invested, and for the sum for which the Executor took credit in his final settlement as compensation, along with the costs of this action.”

The defendant Administrator filed a motion to dismiss the petition, asserting that the petition failed to state a cause of action. The defending Indemnity Companies also moved to dismiss the petition, on the ground that it failed to state a cause of action and that the matters set forth in the petition had been finally adjudicated in the Probate Court. Other grounds were advanced in both motions, but as the appeal may be disposed of upon the ground that the petition fails to state a cause of action, other grounds of the motion will not be set out.

The jurisdiction of a court of equity may be invoked to set aside a judgment obtained by fraud. The fraud in such cases must relate to the manner in which the judgment is obtained, and not to the propriety of the judgment itself. As stated in Hockenberry v. Cooper County State Bank, 338 Mo. 31, 88 S.W.2d 1031, 1. c. 1036:

“A judgment cannot be set aside on the ground of fraud unless it is shown that fraud was practiced in the very act of obtaining the judgment; that the fraud went to the manner in which the judgment was procured rather than operating upon matters pertaining to the judgment itself; that the fraud prevented the unsuccessful party from presenting his case or defense; or that the fraud otherwise went to extrinsic, collateral acts or matters not before the court for examination or determination in the suit or proceeding in which the judgment was rendered. * * * Such a proceeding cannot be used to obtain a further hearing upon matters, which were or could have been brought before the court to make a case or defense, either because the parties found further evidence bearing upon the truth or falsity of the testimony there, or because the parties neglected to litigate such matters in the original case. ‘Courts of equity do not grant such relief for the purpose of giving the defeated party a second opportunity to be heard on the merits of the case.’ ”

This was again stated in Reis v. LaPresto, Mo.Sup., 324 S.W.2d 648. See, also, Venegoni v. Giudicy, Mo.App., 238 S.W.2d 17. If the foregoing were not the rule, litigation could be protracted to an absurd extent.

All of the alleged irregularities which Zeppenfeld is said to have committed were subject to the scrutiny of the Probate Court at the time the final settlement was presented, except for the refund of court costs which occurred after the approval of the settlement. This does not concern us for it had nothing to do with' the approval of the final settlement, and money coming into the hands of the Executor after settlement may of course he recovered by action in the Probate Court. Section 473.600 RSMo 1959, V.A.M.S.

The petition quite obviously seeks to set aside the final order of the Probate Court approving the final settlement. It then seeks to litigate matters that should have been presented to the Probate Court at the time the final settlement was approved. The only allegation relating to the judgment is the averment, in paragraph 8, “that by concealing from the Probate Court of the City of St. Louis his fraudulent acts and breaches of trust, the said Robert M. Zep-penfeld induced the Probate Court to enter a judgment approving his final settlement on the 10th day of June, 1958.” The allegations set out in paragraphs 5, 6, and 7 of the petition, if sufficient to constitute fraud, do not charge fraud upon the court.

In passing upon the sufficiency of the petition to state a cause of action, the facts alleged are taken to be true. This is such an established rule that no citation of authorities is necessary. The rule, however, relates only to the facts pleaded, and not to the pleader’s conclusion. Miller v. Ste. Genevieve, Mo.Sup., 358 S.W.2d 28; Lewis W. Thompson & Co. v. Conran-Gideon Special Road Dist., 323 Mo. 953, 19 S.W.2d 1049; Bernhardt v. Long, 357 Mo. 427, 209 S.W.2d 112.

The facts of an alleged fraud must be pleaded, and the allegations of the petition here considered, as they relate to any fraud upon the court, fail to state facts from which it may be concluded that the matters complained of were not before the court. There are no facts pleaded to support the conclusion that matters were concealed from the court. We must therefore disregard the conclusions pleaded and hold that the petition fails to state a cause of action. Miller v. Ste. Genevieve, supra; Lewis W. Thompson & Co. v. Conran-Gideon Special Road Dist., supra; Bernhardt v. Long, supra.

We find that the Chancellor properly dismissed the petition as it states no cause of action, and the judgment is affirmed.

J. MORGAN DONELSON and JACK P. PRITCHARD, Special Judges, concur.