text:
    ROOT et al. v. TOMBERLIN et al.
    No. 2488.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 12, 1931.
    Rehearing Denied March 5, 1931.

      Sayles & Sayles, of Abilene, and Cyrus B. Prost, of Eastland, for appellants.
    Wagstaff, Harwell, Wagstkff & Douthit, of Abilene, and Coree, Odell & Allen and Chas. L. Morgan, all of Port Worth, for appellees.
   WALTHALL, J.

C. M. Root and S'. M. Root, partners, composing the firm of Root Drilling Company, brought this suit against J. L. Tomberlin, Paul Yitex, Leigh Taliaferro, and L. H. Wentz, to recover a balance of a debt of $4,-050.50, with interest thereon, alleged to be due plaintiffs for work done and materials furnished in drilling a test well for oil and gas under a written contract of date April 8, 1927. The contracts referred to in the pleading were made parts of the findings of the court and herein fully stated. Plaintiffs allege, in substance, that Tomberlin for himself and 'his assigns, Wentz, as assignee of an undivided half interest in the oil and gas leasehold estate in the land on which the test well was to he drilled and as copartner with Tomberlin in the prosecution of the enterprise or business of drilling such test well, entered into said written contract with plaintiffs for the drilling by plaintiffs for Tomber-lin and Wentz of said test well; that Wentz became and was a partner with Tomberlin in drilling said well and as such partner became and was jointly liable with Tomberlin to plaintiff under said drilling contract; that as security for a part of the amount payable plaintiffs under said, contract, there was transferred and delivered to plaintiffs the written 'obligation of Yitex, known as the purchase letter, to pay $3,500; Taliaferro was the agent of Wentz, but if not such agent, he (Taliaferro) was personally liable to the plaintiffs.

Pleadings of the plaintiffs and'the defendants are lengthy, and as the trial resulted in a question solely of partnership between Tom-berlin and Wentz, and of Wentz’s liability as such, we need not state the pleadings more than to say that Wentz filed a general denial, and specially denied any partnership relation with Tomberlin in the matters here involved. The case was tried to the court without a jury, and the court, having found that no partnership relation was created between Tomberlin and Wentz in the matters about which the suit was brought, entered judgment as between- plaintiffs and all defendants other than Wentz, from which no appeal is prosecuted.

The court entered judgment that plaintiffs take nothing as to Wentz, and from that part of the judgment solely, plaintiffs prosecute this appeal.

The matters of contract between the par-. ties' and made the "basis of this plaintiff’s cause of action and of defendant Wentz’s ground of defense are stated in the trial court’s findings of fact. While the matters found are of great length and much of it might have been omitted, if closely analyzed, we have thought best to copy the court’s findings here. The findings are as follows:

“Bindings of Pact.
“1. On March 25th, 1927, written agreement was made between J. L. Tomberlin and the Amerada Petroleum Corporation whereby such Corporation agreed to assign to Tomber-lin Oil and gas leases covering certain lands in Jones County, Texas, including the S. W. ⅜ of the S. W. ¾ of Section 37, Block 16, T. & P. R. R. Co: upon which Tomberlin agreed to drill a well to a depth of 2500 feet, unless oil and gas in paying quantities was found at a lesser depth. Tomberlin agreeing to spud in and commence actual drilling of such well by April 10, 1927. Assignment of oil and gas lease was made by the Amerada Petroleum Corporation to Tomberlin on April 5th, 1927.
“2. Negotiations between J. L. Tomberlin and the Root Drilling Company, a partnership composed of plaintiffs C. M. Root and S. M. Root, for the drilling of the well in controversy, extended over a period of about thirty days, during which tíme J. L. Tomberlin and S. M. Root went to Cisco, Texas, to see the Amerada Petroleum Corporation, who extended the time for the commencement of the well for about thirty days from April 10, 1927.
“3. It was first agreed between J. L. Tom-berlin and the Root Drilling Company that such Company would drill the well as a turnkey job, but Tomberlin was unable to furnish the money or purchase orders to pay for same and such first agreement was cancelled and on April 8th, 1927, the following written agreement was made:
“ ‘Drilling Contract.
“ ‘This agreement made this 8th day of April, 1927, by and between J. L. Tomber-lin, party of the first part, and Root Drilling Company, party of the second part, witness-eth:
“That the party of the second part hath covenanted and agreed with party of the first part, his successors or assigns, that it will drill for said party of the first part a certain well for the purpose of’ obtaining petroleum oil or natural gas, to be known as well No. 1 on the farm of J. L. Hendricks, located in the Southwest corner of Section 37, Block 16, T & P R. R. Oo. lands, Jones Oounty, Texas.
“ ‘That party of the second part agrees to (fumtish a complete National Drilling ’ Machine, together with all necessary tools, machinery, equipment and appliances for the drilling of said well. The party of the second part also agrees to furnish fuel, water, labor and everything necessary to drill and complete said well to a depth of 2500 feet, unless oil or gas is found in paying quantities at a lesser depth.
“ ‘The party of the first part agrees to pay party of the. second part for the drilling of said well the sum of $9,600.00 which shall be in full payment for the drilling of said well to the depth of 2500 feet and shall include payment of everything necessary to drill the well, including the plugging of said well and pulling the casing in accordance with the regulations set out by the railroad commission of the State of Texas.
“ ‘Party of the first part will not be responsible and will not have to pay for any shut down time or delay for any reason except for delay on delivery of pipe. Said pipe to be in good order and acceptance to party of the second part.
“ ‘Party of the second part will carry compensation insurance as required by law and will furnish party of the first part with evidence that the policy is in force at the time of the beginning of the drilling of said well.
“ ‘Party of the first part agrees to place in escrow in the Abilene State Bank purchase orders amounting to $8,500.00 which are hereby accepted by the party of the second part as security for the amount of said contract as above mentioned, and the balance of $1,-100.00 to be placed in escrow before well reaches 1000 feet.
“ ‘In witness whereof the parties have hereunto set their hands and seal, this the 8th day of April, A. D. 1927.
*• ‘J. L. Tomberlin
“ ‘Party of the First Part
“ ‘Root Drilling Company
“ ‘By S. M. Root
“ ‘Party of the Second Part
“ ‘Witnesses:
“ ‘Mary Bryan
“ ‘J. H. Maxey’
“4. The following written purchase order or agreement was placed by J. L. Tomberlin in escrow with the Abilene State Bank:
“ ‘L. H. Wentz (Oil Division)
“ ‘April 14, 1927.
“ ‘Jess Tomberlin,
“ ‘419 Alexander Bldg.,
“ ‘Abilene, Texas.
“ ‘Dear Mr. Tomberlin:
“ ‘Subject to the conditions stated below, we agree to purchase from you, and, by your acceptance and signature of this letter, you agree to sell to us oil and gas leases on the following described land:
N. ½ — NE ⅛ Sec. 20 80 acres
S. y2 — SE ½ Sec. 20 80 acres
SW ¼ — NE ¼ and NW ¼ — S’E ⅛
Sec. 20 80 acres
N ½ of E 80 acres of W ½ of See.
20 40 acres
E 80 acres of N. 160 acres of L. H.
Lee land in Section 21 80 “
W ⅛-NW ¼ Sec. 36 80 “
NW ½ — SW ⅛ Sec. 36 40 “
SW ¼ — NE ⅛ and NW ¼— SE ⅛ 40 “
See. 36 80 “
S ½ — SE ½ Sec. 36 80 “
Total 640
“ ‘Also an undivided one-half interest in the oil and gas lease on the S. W. ,⅛ Sec. 37.
“ ‘All being located in Block 16, T. & P. R. R. Survey Jones County Texas.
“ ‘(1) You are to drill a well, to be located 150 feet North of the center of the south line of the southwest quarter of the southwest quarter of Section 37, Block 16. This well to be. drilled to a depth of 2500 feet, unless oil in paying quantities is encountered at a lesser depth. This well is to be drilled free of cost or liability to L. H. Wentz.
“ ‘(2) In ease production in commercial quantities is encountered in the test well on the 40 aepes (SW ¼-SW 14 Sec. 37), we are to be free of expense or liability until the well is shown to be a commercial producer, at which time you are to execute with us a joint operating contract,” and the forty acres owned jointly shall be operated by L. H. Wentz.
“ ‘(3) You are to deliver to us valid assignments of oil and gas leases on all of the acreage above described, the leases to have at least four years in which to remain in force, to be on the Producer 88 form, and to carry no unusual clauses, drilling obligations, or rental in excess of $1.00 per acre per year.
“ ‘(4) You are to furnish abstracts of title and to satisfy such title objections as may be raised by our attorney.
“ ‘(5) The total consideration to be paid to you is the sum of six thousand dollars ($6000.-00) which shall be due and payable to you upon the completion of the test well to a depth of 2500 feet, or the completion of the well as a commercial producer, and upon the acceptance of title to the above described acreage by our attorney.
“ ‘If the above conforms to your understanding, kindly indicate your agreement and acceptance of same by signing this letter and returning to Box 1002, Eastland, Texas.
“ ‘L. H. Wentz (Oil Div.)
“ ‘By [signed} Leigh Taliaferro
“ ‘Accepted: J. L. Tomberlin.’
“5. The form of the ‘Humble Joint Operating Contract’ referred to in paragraph (2) of the above agreement between L. H. Wentz , and J. L. Tomberlin is a contract between the owner of an undivided interest in an oil and gas lease as First Party and the Humble Oil & Refining Company, the owner of the remaining undivided interest in the same oil and gas lease as Second Party and provides:
“ T. Second party shall have exclusive charge, control and supervision of all operations of every kind to be conducted on said land for the development, production, treating, handling and marketing of oil, gas and other minerals therefrom, as well as the payment of rentals, royalties, taxes and other charges which may arise or become due.
“ ‘II. Second Party shall charge to joint account (which shall be borne by the parties hereto in proportion to the interest of each in the lease as is above set forth) all costs and expenses incurred in connection with the operation of said premises as herein contemplated, including all labor directly employed in connection with the operation of said property ; all materials, supplies and equipment, including rentals on all trucks, drilling rige, tools, pipe, etc., let to joint account for use in connection with the operation of said property, at the current prevailing rental charge by Second Party to its own or other joint leases, said trucks, rigs and other rented property to he returned by-joint account in the same condition as when received, reasonable wear and tear excepted; miscellaneous field expenses apportionable in connection with operations on the above described property ; all charges for fuel, water, power, teaming and other services incurred in connection with the operation of said premises as herein contemplated, such charges to be made only for actual services rendered and at the current customary rates prevailing in the field; losses, damages or liabilities sustained or incurred in connection with the operation of said property; expenses of marketing the products; rentals, royalties and other items payable under the terms of the lease covering said land; gross production, ad valorem and other taxes and governmental charges-; workmen’s compensation, liability, fire, wind, tornado and other insurance premiums paid. Used materials removed from the premises, whether upon abandonment or currently in course .of operation, if taken over by Second Party as its own, shall be credited to joint account at the current prevailing discounts used by Second Party upon removal of such materials from its own and other joint properties operated by it. Upon final abandonment of the premises, at the request of First Party materials and equipment removed therefrom may be divided in kind and each party hereto receive its proportion thereof.
“ ‘An annual inventory shall be made of the physical equipment on the premises of which First Party shall be given notice and opportunity to be represented. On the basis of this inventory adjustments shall be made. By failing to participate in the taking of such inventory after notice, First Party thereby concedes the correctness of the inventory made.
“ ‘Second Party shall keep an accurate record of all joint accounts hereunder, showing the costs and expenses incurred and charges made and all credits and returns made and received, which shall be available at all reasonable times for the examination and inspection of First Party and his or its duly authorized representatives. First Party shall also have access at all reasonable times to the well and production records and reports relating to said premises.
“ ‘Within one month after the close of each calendar month, Second Party shall furnish to First Party a statement of investment and expenses incurred and credits and receipts during such calendar month.
“ ‘III. First Party agrees to pay Second Party at Houston, Texas, First Party’s proportionate part of all costs and expenses incurred against and charges made to joint account by Second Party in connection with the operation of said lease hereunder based on First Party’s interest in the premises, as above set forth.
“ TV. Second Party shall have charge and control of the marketing of all oil, gas and other minerals produced from said premises and accruing to the parties hereto and, upon the sale of same, shall pay or credit to First Party as herein provided, the proceeds in proportion to First Party’s interest in the premises.
“ ‘Second Party may apply the proceeds accruing to First Party hereunder on indebtedness in favor of Second Party by reason of expenses incurred and charges made for joint account in connection with the operation of said property.’
“6. Assignment dated April 13, 1927, was made by J. L. Tomberlin to L. H. Wentz of an undivided half interest in the oil and gas lease covering the S'. W. ¾ of the S. W. ¾ of Section 37, Block 16, T. & P. R. R. Oo. land in Jones County, Texas, on which the well was to be drilled.
“7. The Hoot Drilling Company drilled the well to a depth of more than 2500 feet and complied with all of their obligations set ■out in their drilling contract, but have not been paid a balance due them thereunder of $4050.50.
“8. The drilling of such well was not commenced until after the date of the purchase order or agreement between L. H. Wentz and J. L. Tomberlin and all labor and material' were performed and furnished after such date. Neither C. M. Root nor S. M. Root saw such purchase order or agreement or knew of the provision therein that the well was to be drilled free of costs and liability to L. H. Wentz until after this suit was filed, which was long after the completion of the well. The well was drilled to completion on September 2nd, 1927, as a dry hole and never produced oil or gas.
“9. The following correspondence was had between Root Drilling Company and L. H. Wentz’s agents:
“ ‘May 17, 1927.
“ ‘Mr. L. H. Wentz,
“ ‘Ponca City, Oklahoma.
“ ‘Attention Mr. Leigh Taliforo:
“ ‘We are drilling a well for J. L. Tomber-lin in Section 37 block 16 T & P Railway Company lands, Jones County, Texas, and to secure the payment of the drilling contract Mr. Tomberlin has placed a purchasing order from you dated April 14, 1927, calling for the payment of $6000.00 in escrow in the Abilene State Bank at Abilene, Texas. Said escrow being signed by J. R. Tomberlin and Root Drilling Company. The $6000.00' to he placed to the Root Drilling Companies account when paid by your Company.
“ ‘In paying this purchase order please make check payable to the Abilene State Bank as per escrow agreement.
“ ‘Tours very truly
“ ‘Root Drilling Company
“ ‘ALA-b By '-,-’
“ ‘Address all communications to L. H. Wentz
—Oil Division.
“ ‘May 19, 1927.
“ ‘Root Drilling Company,
“ ‘Eastland, Texas.
“‘Gentlemen: Attention: Mr. A. L. Agate.
“ ‘Replying to yours of May 17 relative to payment of purchase order given to ' J. L. Tomberlin for acreage in Jones County, contingent upon the drilling .of a well.
“ ‘Any assignment of this purchase order, would have to be made by Mr. Tomberlin as we would have no legal authority to make transf er without his written .consent.
“ T suggest that you take this matter up with Mr. Ed Owen at our Eastland Office.
“ ‘Tours very truly,
“ ‘LT-c [Signed] Leigh Taliaferro
“ ‘CC to Mr. Ed W. Owen.
“ ‘Exchange Nat’l Bank Bldg.,
“ ‘Eastland, Texas.’
“ ‘L. H. Wentz (Oil Division)
“ ‘Ponca City, Okla.
“ ‘Address all communications to L. H. Wentz-Oil Division
“ ‘Texas Office
“Exchange National Bank Bldg.
“ ‘Eastland, Texas.
“ ‘May 21, 1927.
“ ‘Root Drilling Company
“ ‘Eastland, Texas.
“ ‘Gentlemen:
“ T received this morning a copy of your letter 'of May 17th, addressed to L. H. Wentz, Ponce City, regarding the J. L. Tomberlin Purchase Order; also, a copy of letter from Leigh Taliaferro to you dated May 19th, in regard to the same matter.
“ ‘This is to advise that the total amount due on the Tomberlin Purchase Order is , $5,250.00, instead of $6,000.00. We shall have to have an order from Mr. Tomberlin regarding the place and manner of making payment, consequently, if this order has been assigned to you, you should have Mr. Tomberlin send written notice to this office.
“ ‘May we take this opportunity of advising you that any communication along this line should be addressed to the Eastland Office.
“ ‘Tours very truly,
“ ‘L. H. Wentz (Oil Division).
“ ‘By Ed. W. Owen [Signed]’
‘“EWO:CMS.
“10. Out of this $6,000.00 named in the L. H. Wentz-J. L. Tomberlin purchase order or agreement, $5,250.00 thereof was paid to Root Drilling Company and applied as a credit on their drilling contract.
“11. The 40 acre tract upon which the well' was drilled is designated on the map of this drilling block as ‘J. L. Tomberlin & Wentz’. The log of this well designates this well as ‘J. L. Hendricks' No. 1-L. H. Wentz and J. L. Tomberlin.’ ”

Opinion.

Appellants’ suit is based upon the proposition that the facts found by the com-t show that Wentz and Tomberlin were partners in the drilling of the test well, at the time the drilling contract sued on became effective by delivery, and that Wentz, being a partner with Tomberlin, was liable to appellants for the balance due thereon. Appellants submit that the provisions used in the purchase order letter, “this well is to be drilled free of cost or liability to L. H. Wentz,” and, “we are to be free of expense or liability until the well is shown to be a commercial producer,” limit the liability as between themselves, Wentz and Tomberlin; the provisions do not have the effect of freeing Wentz from liability to appellants as creditors of the partnership of Wentz and Tom-berlin.

We have stated at length the contracts between Tomberlin and the Amerada Petroleum Corporation, whereby that corporation agreed to assign to Tomberlin the land in controversy upon which Tomberlin agreed to drill a well to a depth of 2,500 feet unless oil and gas in paying quantities was found at a less depth. We have also stated the provisions of the drilling contract between Tomber-lin and appellants in which Tomberlin agreed to pay appellants the sum of $9,600 for the drilling of the vyell, and in which Tomberlin agreed to place in escrow purchase orders amounting to $8,500 accepted by appellants, as security for the amount to be paid for the drilling of said well. In discharge of the agreement Tomberlin placed in escrow the purchase order of Wentz above stated. The purchase order, briefly stated, provides that, subject to the conditions, Wentz agrees to purchase from Tomberlin oil and gas leases on the lands described; also an undivided one-half interest in the oil and gas lease on the 40 acres on which the well was to be drilled. The conditions briefly stated are: (1) Tomberlin was to drill a well, its location stated; its depth 2,500 feet unless oil in paying quantities is encountered at a lesser depth; the well to be drilled free of cost to Wentz. (2) -In case production in commercial quantities is encountered in the test well, Wentz “to be free of expense or liability until the well is shown to be a commercial producer, at which time you (Tomberlin) to execute with us (Wentz) a joint operating contract (stating the form of the Humble Joint Operating Contract), and the 40 acres owned jointly shall be operated by L. H. Wentz.” (3) Tomberlin to deliver to Wentz assignments of oil and gas leases on the other lands mentioned. (4) Tomberlin to furnish satisfactory abstracts of title. (5) “The total consideration to be paid to you is the sum of $6,000.-00, which shall be due and payable to you upon completion of the test well to a depth of 2500 feet, or the completion of the well as a commercial producer, and upon the acceptance of title to the above described acreage by our .attorney.” The above was accepted by Tomberlin, and assigned by Tomberlin to appellants and placed in escrow. Tomberlin assigned to Wentz an undivided half interest in.the oil and gas lease on the 40 acres on which the test well was to be drilled. Appellants did not see the Wentz purchase order until after this suit was filed. Appellants drilled the test well to a depth of more than 2,500 feet, and there was a balance due them on the drilling contract of $4,050.50. On his purchase order Wentz paid to Tomberlin $750, and paid to appellants $5,250, on the completion of the test well. The sum of $4,050.50 sued for is the unpaid balance of the contract price for digging the test well.

Appellee, in his counter propositions, submits that the purchase order or contract between himself and Tomberlin did not create a partnership; that an agreement dependent upon a contingency or condition does not create a copartnership unless and until the happening of the contingency or the fulfillment of the condition; that in this instance the future relationship between appellee and Tom-berlin depended upon oil in paying quantities being encountered in the test well; and that the well was completed as a nonproduccr and the project was abandoned. Tomberlin and appellee never entered into the operating contract contemplated by the purchase order in which they were to share in the profit and loss according to their interests.

Under the facts stated Wentz and Tomber-lin jointly owned the 40 acres on which the test well was put down, but the joint ownership alone did not constitute the mining co-partnership such as Wentz and Tomberlin had in contemplation. That is evident from the written purchase order or agreement, in ■ which it is expressly agreed that in case production of oil in commercial quantities is encountered in the test well in which Wentz had acquired his interest, Wentz and Tomberlin were then to execute the operating contract. The contingency upon which the operating contract was to be executed never happened and the operating contract was never executed. No contract was executed between Wentz and Tomberlin, and there was no condition under which they could operate their joint interest from which a profit and loss could be made.

In Wagner Supply Co. v. Bateman, 118 Tex. 498, 18 S.W.(2d) 1052, 1055, the Supreme Court said:

“The rule is that a mining partnership arises by operation of law where co-owners work a mine.”

Here there was no mine to work, only a mine in contemplation.

In 47 O. J. p. 640, par. 1, it is said that no definition of a partnership seems more accurate and comprehensive than that of Chancellor Kent, as follows:’

“A contract of two or more competent persons to place their money, effects, labor and ■skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss in certain proportions. In general the courts have agreed upon the essentials as therein stated.”

With us an agreement to share in losses is not essential to a partnership, sharing in profits being sufficient. Cothran v. Marmaduke, 60 Tex. 370. As said in Story on Partnership, “He who is to take a part of the profits shall, by operation of law, be made liable to losses to third person's.” Here there is no sharing of profits, no community of power of management of the joint interest, except as the parties had in contemplation on the happening of production of oil in the test well, which never occurred. Hence, Wentz; and Tomberlin never at any time placed their joint interest in the lease in any business or operation to realize a profit. We have concluded that the facts do not show a partnership, and that Wentz, never having assumed any existing liability, was not liable for any balance due appellants.

The trial court was not in error in his conclusion.

The case is affirmed.


source: Caselaw Access Project

author: LESLIE, J.

license: Public Domain

text:
    SPENCER et al. v. TEMPLE TRUST CO.
    No. 810.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 13, 1931.
    Rehearing Denied March 27, 1931.
    See also 36 S.W.(2d) 604, 606.
    Vickers & Campbell and Lockhart, Garrard & Brown, all of Lubbock, for appellants.
    Jno. B. Daniel, of Temple, and Roscoe Wilson, of Lubbock, for appellee.
   LESLIE, J.

The appellee, Temple Trust Company, brought this suit in the district court of East-land county against various defendants: J. E. Spencer, alleged to reside in Eastland county, Tex.; W. E. Spencer, Lubbock county; Dora Pettit Barnes and husband, H. M. Barnes, Lubbock county; Herbert Pettit, Roosevelt county, N. M.; John Pettit and Robert Pettit, Hockley county; Alton Pettit, Bailey County, and Winnie Pettit, Collings-worth county, Tex.

The suit was on a note for $3,200 and some interest notes in connection therewith, all of which were alleged to be secured by a deed of trust on 160 acres of land situated in Lubbock county, Tex., signed by W. E. Spencer and wife. The appellants Dora Pettit Barnes and husband, H. M. Barnes, Herbert Pettit, John Pettit, Alton Pettit, Winnie Pettit, and Robert Pettit, in due time filed a plea of privilege in compliance with the statute, claiming their privilege to be sued in Lubbock county,- where some- of them resided, and where the land on which a lien was sought to be foreclosed in suit was situated, and prayed that the cause be transferred to a - district court of Lubbock county or some other county in Texas where one or more of these defendants reside.

Temple Trust Company In due time filed a controverting affidavit to said plea of privilege, and omitting formal parts it undertakes to maintain venue in Eastland county on the following grounds only:

‘‘(I) The other defendants in this cause are W. E. Spencer, who resides in Lubbock County, Texas, and J. E. Spencer, who is a resident of Eastland County, Texas, the county in which this suit was filed and is now pending; that service has been regularly had on both said W. E. Spencer and J. E. Spencer; that J. E. Spencer is a joint maker of the note sued on, has an interest in the tract of land sought to be foreclosed on, and is a necessary party to this suit.

“(2) Since there are more than two defendants to this cause of action who reside in different counties and since one of the defendants, X E. Spencer, is a resident of Eastland County, Texas, and is a necessary and indispensable party to this suit, this court has unquestionable venue under the provisions of section 4 of art. 1995, of the Revised Civil Statutes of the State of Texas.”

It is conceded that none of these appellants reside or have resided in Eastland county, Tex.

The appellants filed a pleading in response to the controverting affidavit, urging a general demurrer and special exceptions thereto. This was overruled and upon a hearing the plea of privilege was also overruled. This appeal is prosecuted from that judgment.

In the outset the appellees object to a review of the action of the trial court by this court because no assignments of error were filed in said cause in the trial court and none appear in the transcript of the record or in the briéf of appellants, and no fundamental error being apparent on the record, this court is without authority to review the record or to do other than to affirm the judgment of the trial court.

There are no assignments of error in the briefs and evidently- none were filed in the trial court. Therefore this court’s consideration of the action of the -trial court must be based upon the presence of fundamental error, if any, committed by the trial court in the rendition of the judgments appealed from. The ruling upon the general demurrer is fundamental and it must be considered on appeal whether or not error is assigned. Beldon v. McColl (Tex. Civ. App.) 21 S.W.(2d) 87; Dulin v. Fain et al. (Tex. Civ. App.) 22 S.W.(2d) 707; Ickert v. Minor et al. (Tex. Civ. App.) 22 S.W.(2d) 741; Briley v. Hay (Tex. Civ. App.) 13 S.W.(2d) 997; Driscoll et al. v. Shaw (Tex. Civ. App.) 24 S.W.(2d) 1106; Duckworth v. Dallas Levee Imp. Dist. (Tex. Civ. App.) 11 S.W.(2d) 263.

Since it is imperative that this court look to the pleadings and judgment, and especially the controverting affidavit, to ascertain the presence, if any, of fundamental error, we have done so, and it is apparent that the allegations of the controverting affidavit as above set forth in no respect meet the requirements of that provision of article 2007, Revised Civil Statutes, which says:

“If the plaintiff desires to controvert the plea of privilege, he shall within five days after appearance day file a -controverting plea under oath, setting out specifically the fact or facts reUed upon to 'confer venue of such cause on the court where the cause is pending.” (Italics ours.)

The controverting affidavit does not refer to the plaintiff’s original petition, nor does it attempt to make it a part thereof. It is therefore not aided by the allegations of the petition, and in reaching our conclusions we are required to look to the controverting plea alone. Lawless v. Tidwell (Tex. Civ. App.) 24 S.W.(2d) 515; McLeroy v. Thrift, Inc., (Tex. Civ. App.) 22 S.W.(2d) 497.

By reference to the controverting affidavit it is apparent -that it does not comply with said statute by specifically setting out the fact or facts relied upon to confer (as against appellants) venue of such cause on the district court of Eastland county where the cause is pending. Conceding, but not deciding, that for the purposes of this controverting plea, it sufficiently sets up as against the Spencers a cause of action maintainable in Eastland county, it clearly appears that such plea shows no cause of action whatever against the appellants Pettits et al., and therefore could not show a cause of action in which J. E. Spencer, residing in Eastland county, could be joined along with -the appellants as either a proper or necessary party. The insufficiency of the allegations of the controverting affidavit to establish the venue of this suit in Eastland county as against these appellants is clearly shown by the following authorities: Cook v. Guzman (Tex. Civ. App.) 19 S.W.(2d) 855; Thompson v. Trentham (Tex. Civ. App.) 17 S.W.(2d) 130; Coalson v. Holmes, 111 Tex. 502, 240 S. W. 896; World Co. v. Dow, 116 Tex. 146, 287 S. W. 241; Greenville Gas & Euel Co. v. Commercial Finance Co., 117 Tex. 124, 298 S. W. 550, 551; Jacobson v. Berwick (Tex. Civ. App.) 289 S. W. 1035; Shelton v. Thomas (Tex. Civ. App.) 11 S.W.(2d) 254; Grogan-Coehran Lbr. Co. v. McWhorter (Tex. Civ. App.) 4 S.W.(2d) 995.

For the reasons assigned the judgment of the trial court is reversed, and -the cause remanded with instructions to the trial court to order the transfer of the cause-to Lubbock County, Tex.


text:
    SPENCER et al. v. TEMPLE TRUST CO.
    No. 809.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 13, 1931.
    Rehearing Denied March 27, 1931.
    See, also, 36 S.W.(2d) 606.
    Vickers & Campbell and Lockhart, Garrard & Brown, all of Lubbock, for appellants.
    Jno. B. Daniel, of Temple, and Roscoe Wilson, of Lubbock, for appellee.
   LESLIE, J.

The opinion in the case of J. E. Spencer et al. v. Temple Trust Company (Tex. Civ. App.) 36 S.W.(2d) 602, this day decided, disposes of all the question's presented by this appeal. It follows that the judgment of the trial court in the instant case is reversed, and the cause remanded with instructions to the trial court to order the transfer of the cause to Lubbock county. It is so ordered.

On Rehearing.

This appeal involves the ruling of the trial court on the issues arising upon the controverting affidavit to a plea of privilege. This is a companion case to 810, 811, and 812, 36 S. W.(2d) 602, 605, and all were disposed of at a former day of this term by an opinion and judgment reversing the judgment of the trial court and ordering The said causes transferred to the district court of Lubbock county, Tex., for trial on their merits.

A motion for rehearing is presented in each of said causes, and while, they involve the same facts, it is insisted that, inasmuch as an opinion was by this court written in cause No. 810, and the others disposed of in accordance with the same, that this court did not particularly consider the record made below in this cause, which, was the one in fact tried below and in which a full record was made.

In the original disposition of this appeal we did not overlook the particular features of this record to which our attention is now directed. It is here 'contended by the appel-lee, Temple Trust Company, that the opinion (handed down in this case merely makes reference to and adopts the opinion handed down on the same day in cause No. 810, J. E. Spencer et al. v. Temple Trust Company, by this court, and that there is a ditt'erence in the record of the cases in that the “replication of appellee or its amended controverting affidavit was not brought forward in the transcript in Cause No. 810.” We therefore reexamine the record in this cause, with the view of determining whether or not we erred in the original disposition of the same.

In appellee’s motion for rehearing it concedes the insufficiency of its original controverting affidavit in this language:

“It is admitted that the controverting affidavit of the appellee, standing alone, is insufficient to show a cause of action against the appellants maintainable in Eastland County, but when taken in connection with all the pleadings filed in connection with the plea of privilege, a cause of action is shown against them.”

It then proceeds to state that the answer of the appellants to the controverting affidavit contained (a) general demurrer, (b) three special exceptions, (c) a general denial, and (d) a special answer, from which lengthy quotations are made of allegations of fact deemed to aid and support the plaintiff below in presenting and making out a cause of action properly maintainable in Eastland county against all of the defendants, and especially the appellants herein. In connection with the allegations of said special answer so quoted, a particular reference is made to the copy of a judgment obtained by appellants against appellee in the district court oí Lubbock county.

We do not understand that the appellee is in any way benefited by the matters thus appearing in appellants’ special answer. Pacts there alleged cannot be taken as admissions in favor of the cause asserted by the plaintiff below, nor in aid of its allegations. As noted above, the answer of defendants below to plaintiffs’ controverting affidavit consisted of general demurrers, special exceptions, and a general denial. As said in First State Bank of Loraine v. Jackson (Tex. Civ. App.) 13 S. W.(2d) 979, 981:

“But it is well established that a general denial puts in issue all the material allegations ,of plaintiff’s petition, except, of course, such as are required to be traversed by a special pleading, and, where an answer contains a general denial, statements in a separate plea in the same answer cannot be used as evidence'to establish-any of the allegations in plaintiff’s petition. Silliman v. Gano, 90 Tex. 637, 39 S. W. 559, 40 S. W. 391; Hynes v. Packard, 92 Tex. 44, 45 S. W. 562; Hines v. Warden (Tex. Civ. App.) 229 S. W. 957; Dallas Ry. Co. v. Warlick (Tex. Civ. App.) 268 S. W. 512; Walker v. Rogers (Tex. Civ. App.) 10 S.W.(2d) 763; Townes Texas Pleading, p. 369.”

The same principle has application to the pleadings presenting issues in pleas of privilege. •

While admitting the total insufficiency of appellee’s controverting affidavit to show cause of action maintainable in East-land county, and seeking to build up and strengthen the same in the manner above indicated, by having reference to the allegations, etc., found in defendants’ special answer, it is also the contention of the appel-lee, plaintiff below, that its replication to the appellants’ answer to controverting affidavit sufficiently sets out “the fact or facts relied upon,” required under article 2007 of the Revised Civil Statutes to show a cause of action properly maintainable in Eastland county. Its contention thus made is succinctly stated in its brief in this language: “The replication to appellants’ answer, which is nothing more than an amended controverting affidavit, sets forth as the ‘fact or facts relied upon,’ ” etc. Then follows a statement of such matters appearing in this pleading, and deemed sufficient to . confer venue of the cause. If this pleading, as insisted by ap-pellee, be regarded as “an amended controverting affidavit,” it is very clear that the original controverting affidavit becomes an abandoned pleading and should be so regarded. So viewing the same, and measuring the allegations of the amended controverting affidavit by the statutory requirements (article 2007, R. C. S.), we are of opinion that it is even more insufficient than the original controverting affidavit in setting forth “the fact or facts relied upon to confer venue of said cause on the court” in the county where- the same was filed. It does not allege that J. E. Spencer or any of the other defendants resided in Eastland county.

For these and the reasons set forth in our original opinion the motion for rehearing is overruled.

We recognize the rule that, under certain facts, a judgment reversing the judgment of the trial court in a plea of privilege case may be followed by a mere remand of the cause to the trial court for further proceedings thereon, but a careful consideration of the pleadings and the facts appearing in this record leads us to the conclusion that this and its companion eases should, as heretofore directed, be transferred to the district court of Lubbock county, in accordance with our original opinion. It will also be economy in time and cost to the litigants.

The motions in this and all companion cases will be overruled.


text:
    J. E. SPENCER et al., Appellants, v. TEMPLE TRUST CO., Appellee (two cases).
    Nos. 811, 812.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 13, 1931.
    Rehearing Denied March 27, 1931.
    See, also, 36 S.W.(2d) 604, 606.
    Vickers & Campbell and Lockhart, Garrard & Brown, all of Lubbock, for appellants.
    Jno. B. -Daniel, of Temple, and Roscoe Wilson, of Lubbock, for appellee.
   LESLIE, J.

The opinion in the case of J. E. Spencer et al. v. Temple Trust Company (Tex.Civ.App.) 36 S.W.(2d) 602, this day decided, disposes of all the questions presented by this appeal. It follows that the judgment of the trial court in the instant case is reversed and the cause remanded, with instructions to the trial court to order the transfer of the cause to Lubbock county. It is so ordered.


text:
    SPENCER et al. v. PRESBYTERIAN BOARD OF MINISTERIAL RELIEF AND SUSTENTATION et al.
    No. 830.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 13, 1931.
    Rehearing Denied March 13, 1931.
    See, also 36 S.W.(2d) 604.
    Lockhart, Garrard & Brown and Vickers & Campbell, all of Lubbock, forUppellants.
    Jno. B. Daniel, of Temple, and Roscoe Wilson, of Lubbock, for appellees.
   LESLIE, J.

This is a companion suit to that of J. E. Spencer et al. v. Temple Trust Company (Tex. Civ. App.) 36 S.W.(2d) 602, this day decided. It is the same character of suit. The appel-lees, Temple Trust Company et al., brought this suit in the district court of Eastland county against various defendants: J. E. Spencer, alleged to reside in Eastland county, Tex.; W. E. Spencer, Lubbock county; Dora Pettit Barnes and husband, PI. M. Barnes, Lubbock county; Herbert Pettit, Roosevelt county, N. M.; John Pettit and Robert Pettit, Hockley county; Alton Pettit, Bailey county; and Winnie Pettit, Collingsworth county, Tex.

The suit was on a note for $5,000 and some interest notes in connection therewith, all of which were alleged to be secured by a deed of trust on 320 acres of land in Lubbock county, Tex. The appellants Dora Pettit Barnes and husband, H. M. Barnes, Herbert Pettit, John Pettit, Alton Pettit, Robert Pettit, and Winnie Pettit, in due time filed a plea of privilege in compliance ■with the statute, claiming their privilege to be sued in Lubbock county, where some of them resided, and where the land on which the lien was sought to be foreclosed was situated, and prayed that the cause be transferred to a district court of Lubbock county, Tex., or some other county in Texas where one or more of these defendants resided. The appellees in due time filed a controverting affidavit to said plea of privilege, and undertook to maintain venue in Eastland county on the following grounds:

“(1) The other defendants in this cause are W. E. Spencer, who resides in Lubbock County, Texas, and J. E. Spencer, who resides in Eastland County, Texas, the county in which this suit was filed and is now pending; that service has been regularly had on both the said W. E. Spencer and J. E. Spencer, and the said J. E. Spencer, W. E." Spencer, Dora Pettit Barnes, John Pettit, Alton Pettit, Winnie Pet-tit, Robert Pettit and Herbert Pettit are the joint owners of the tract of land on which plaintiffs seek to foreclose their liens, and that each of said defendants is a necessary party to this suit.
“(2) Since there are more than two defendants in this cause of action, residing in different counties, and since one of the defendants, J. E. Spencer, is a resident of Eastland County, Texas, and is a necessary and indispensable party to this suit, this court has unquestionable venue under the provisions of sec. 4, art. 1995, of-the Revised Civil Statutes of 1925. * * * ”

It is conceded that none of these appellants reside or have resided in Eastland county, . Tex.

The appellants filed a pleading in response to the controverting affidavit, urging a general demurrer and special exceptions thereto. This was overruled, and upon a hearing the plea of privilege was also overruled. This appeal is prosecuted from that judgment.

The- appellants’ first proposition is as follows:

“Since the statutes make a plea of privilege prima facie proof of the defendant’s right to be sued in the county of his residence, a controverting affidavit to a plea of privilege must allege facts conferring venue in the county where the suit is filed, ⅜ * ⅜ and failing in this, such controverting affidavit is insufficient, and the plea of privilege should be sustained.”

We sustain the above proposition for the same reasons and upon the'same authorities which prompted this court to hold in said companion case that the trial court committed fundamental error in overruling the plea of privilege in that case.

In the instant case reliance for holding venue in Eastland county is rested upon the allegations : (1) “The defendants named in the suit were joint owners of the several tracts on which appellees have liens;” (2) “that the1 defendants resided in various counties of the state, and that J. E. Spencer was a resident of Eastland County.”

The total insufficiency of the allegations in the affidavit to meet the requirements of the statute appears in this: Conceding such joint ownership in the land, it is conceivable that defendants could be such, or tenants in common, and that one or more of such owners may have mortgaged their, interest in the lands and suffered a foreclosure of the lien, 'or be about to do so. But that situation alone would not make the other joint owners either proper or necessary parties to the foreclosure suit and subject them to litigation in the courts of a county other than that in which they reside. Something more than joint ownership is essential. Further, the mere allegation of joint ownership, if material, is not supplemented by the “fact or facts” disclosing any liability on the part of appellants for the obligation forming the basis of the suit. The affidavit does not affirmatively set forth the facts of liability on the part of J. E. Spencer, much less such facts as involve liability of .these appellants.

As observed, the petition is no part of the controverting affidavit, which merely refers to a foreclosure “suit” pending. The affidavit does not set up or undertake to reproduce the facts constituting the grounds of liability possibly alleged in the plaintiffs’ petition against these defendants or either of them. It alleges each of the defendants to be a necessary party to the suit, but that is a mere conclusion and without value. The controverting affidavit states no facts showing the character of the lien, whether vendors, mortgage, deed of trust, or of any other nature ; who executed same; what character of an obligation it was designed to secure; or that these appellants had in any way become bound under the terms of the instrument creating the lien, or the obligation it secures. In fact there is no allegation that the note sued on and the lien being foreclosed were ever executed by J, E. Spencer. These are additional considerations requiring the sustaining of the proposition in this particular case.

By the second proposition the appellants contend that the appellees failed to discharge the burden of proof upon them, in that they failed to establish liability against the resident defendant, J. E. Spencer, and also showed no character of liability on the part of the appellants entitling the suit to be maintained in Eastland county.

We have examined the testimony and are of opinion that this proposition should be sustained. The note sued on was not introduced in evidence, no deéd of trust was introduced, and it appears that neither the note nor the deed of trust is signed by J. E. Spencer, the resident defendant.

If we can know from this record that any one of the defendants ever executed the note and deed of trust sued on — a fact not alleged by the affidavit nor disclosed by the testimony — neither of such instruments having been introduced at the trial, nevertheless I. B. Spencer did not sign and execute either, he having prior thereto' transferred his interest in the land to W. E. Spencer, who apparently executed both such instruments. Although J. E. Spencer state'd at the trial that he was a partner of W. E. Spencer at the time of the loan, received his share of the benefits of same, and considered, himself liable on the obligation sued on, thus acquiescing in a theory of liability against himself, which would have the legal effect, if any, of holding venue in Eastland county, nevertheless it is quite certain that the appellees had in fact no cause of action whatever against J. E. Spencer on the note. ,

Negotiable Instruments Act (article 5932, § 18, R. S. 1925): “No person is liable on the instrument whose signature does not appear thereon. * * * ” Sanger v. Warren, 91 Tex. 472, 44 S. W. 477, 66 Am. St. Rep. 913; Dominion Oil Co. v. Pou (Tex. Civ. App.) 253 S. W. 317; Williams v. Kincannon et al. (Tex. Civ. App.) 265 S. W. 925, 927.

Under similar circumstances it was said in the Kincannon Case, supra: “No recovery could be had against him on said notes, even if they had been given in furtherance * * * of a partnership of which he was a member.”

Not being liable, J. E. Spencer’s voluntary admission of liability in the suit could not fix the liability of these appellants to be sued in Eastland county. As said in Oakland Motor Car Co. v. Jones (Tex. Civ. App.) 29 S. W.(2d) 861, 865:

“The rule has therefore become well established, as to this exception, that the plaintiff must both allege and prove the facts showing a bona fide cause of action against the resident defendant, which is of such a nature as that an out-county defendant claiming his privilege to be sued elsewhere is properly joined in the same suit.” .

In such cases coming under subdivision 4, art. 1995, R. S., the burden is upon the plaintiff to allege and prove a cause of action against the resident defendant, and its nature is such that the out-county defendants are either necessary or proper parties. T. P. Moor & Co. v. American Indemnity Co. (Tex. Civ. App.) 280 S. W. 342.

The authorities cited in this and the previous opinion support the same proposition.

' Por the reasons assigned the judgment of the trial court is reversed and the cause remanded, with instructions to the trial court to •order the transfer of the cause to Lubbock county, and it is accordingly, so ordered.


text:
    J. E. SPENCER et al., Appellants, v. MISSOURI STATE LIFE INSURANCE CO. et al., Appellees (two cases).
    Nos. 831, 833.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 13, 1931.
    Rehearing Denied March 27, 1931.
    Lockhart, Garrard & Brown and Vickers & Campbell, all of Lubbock, for appellants.
    Jno. B. Daniel, of Temple, and Roscoe "Wilson, of Lubbock, for appellees.
   LESLIE, J.

The opinion in the ease of J. E. Spencer et al. v. Presbyterian Board of Ministerial Relief and Sustentation et al. (Tex. Civ. App.) 36 S. W.(2d) 606, this day decided, disposes of all the questions presented by this appeal. It follows that the judgment of the trial court in the instant case is reversed and the cause remanded, with instructions to the trial court to order the transfer of the cause to Lubbock county. It is so ordered.


text:
    J. E. SPENCER et al., Appellants, v. MISSOURI VALLEY COLLEGE et al., Appellees.
    No. 832.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 13, 1931.
    Rehearing Denied March 27, 1931.
    Lockhart, Garrard & Brown and Vickers- & Campbell, all of Lubbock, for appellants.
    Jno. B. Daniel, of Temple, and Roscoe "Wilson, of Lubbock, for appellees.
   LESLIE, J.

The opinion in tbe case of J. E. Spencer et al. v. Presbyterian Board of Ministerial Relief and Sustentation et al. (Tex. Civ. App.) 36 S. W.(2d) 606, this day decided, disposes of all tbe questions presented by this appeal. It follows that the judgment of the trial court in the instant case is reversed "and the cause remanded, with instructions to the trial court to ■order the transfer of the cause to Lubhock county. It is so ordered.


author: LESLIE, J. ■

text:
    J. E. SPENCER et al., Appellants, v. Mrs. Edna Phelps STRAIGHT et al., Appellees.
    No. 834.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 13, 1931.
    Rehearing Denied March 27, 1931.
    Lockhart, Garrard & Brown and Vickers & Campbell, all of Lubbock, for appellants.
    Jno. B. Daniel, of Temple, and Roscoe Wilson, of Lubbock, for appellees.
   LESLIE, J. ■

Tbe opinion in tbe case of J. E. Spencer et al. v. Presbyterian Board of Ministerial Relief and Sustentation et al. (Tex. Civ. App.) 36 S.W.(2d) 606, this day decided, disposes of all the questions presented by this appeal. It follows that the judgment "of the trial court in the instant case is reversed and the cause remanded, with instructions to the trial court to order the transfer of the cause to Lubbock county. It is so ordered.


text:
    J. E. SPENCER et al., Appellants, v. CITIZENS’ SAVINGS BANK & TRUST CO. et al., Appellees.
    No. 835.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 13, 1931.
    Rehearing Denied March 13, 1931.
    Lockhart, Garrard & Brown and Vickers & Campbell, all of Lubbock, for appellants.
    Jno. B. Daniel, of Temple, and Roscoe Wilson, of Lubbock, for appellees.
   LESLIE, J.

The opinion in the case of J. E. Spencer et al. y. Presbyterian Board of Ministerial Relief and Sustentation et al. (Tex. Civ. App.) 36 S.W.(2d) 606, this day decided, disposes of all the questions presented "by this appeal. It follows that the judgment of the trial court in the .instant case is reversed and the cause remanded, with instructions to the trial court to order the transfer of the cause to Lubbock county. It is so ordered.


text:
    J. E. SPENCER et al., Appellants, v. CITIZENS’ SAVINGS BANK & TRUST CO. et al., Appellees (two cases).
    Nos. 836, 837.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 13, 1931.
    Rehearing Denied March 27, 1931.
    Lockhart, Garrard & Brown and Vickers & Campbell, all of Lubbock, for appellants.
    Jno. B. Daniel, of Temple, and Roscoe Wilson, of Lubbock, for appellees.
   LESLIE, J.

The opinion in the case of J. E. Spencer et al. v. Presbyterian Board of Ministerial Relief and Sustentation et al. (Tex. Civ. App.) 36 S.W.(2d) 606, this day decided, disposes of all the questions presented by this appeal. It follows that'the judgment of the trial court in the instant case is reversed and the cause remanded, with instructions to the trial court to order the transfer of the cause to Lubbock county. It is so ordered.


author: LEVY, J.

text:
    McBRIDE et ux. v. FREEMAN et al.
    No. 3960.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 10, 1931.
    Rehearing Denied Feb. 26, 1931.
    Wm. V. Brown, of Texarkana, for appellants.
    S. I. Robison, of Texarkana, for appellees.
   LEVY, J.

Arch Freeman brought the suit against Robert McBride and his wife to recover on a note and for foreclosure of a mechanic’s lien. On January 7, 1926, Robert McBride and his wife entered into a written contract with A. T. lies to build and complete a house according to plans and specifications agreed upon on a certain lot in Texarkana. The consideration was to be $800 in full payment for the labor and material used. The note was drawn up for $800 and delivered to A. T. lies, payable to him or his order. The contract was duly acknowledged in the form-required by law by McBride and his wife and was filed for record on January 22, 1926. A. T. lies, failing to obtain the finances expected, by written assignment duly acknowledged, assigned the contract <and indorsed the note to Arch Freeman, a contractor. A. T. lies then continued to work on the building as a workman in the employ of Arch Freeman.

The appellants- pleaded that the lo.t Was homestead, and that the mechanic’s lien contract was void because it was not executed before the labor, and materials were furnished. They further pleaded that the contract was not performed in accordance with its terms and there was only part performance in the building and construction of the house. By cross-action the appellants sought to recover (1) $500 ias damages for failure to complete the contract; and (2) $1,-400 for alleged conversion of certain personal property. The case was submitted to the jury upon special issues. The jury made the findings: (1) A portion of the 'house was constructed prior to the execution of the mechanic’s lien contract; (2) the value of the labor and materials paid for and used by appellees in the building was $378.81; (3) $450 was the value of the personal property taken by appellee. Judgment was entered for the plaintiff for the $378.81, with interest and attorney’s fees, and with foreclosure of the mechanic’s lien, and in favor of the defendants against the plaintiff for $450 for conversion. The court denied the defendants’ claim for damages for failure to complete the house. The judgment is not complained of so far aS the evidence is concerned.

The principal complaint of the appellant is that the contract lien was void because the property was homestead and the contract was not made until after some of the material had been furnished to build the house. The appellants pleaded that the lot was homestead. The evidence as given by the appellants, though, was very brief. Robert McBride said: “I was building the house to live in, it was (to be) my home.” Virginia McBride, the wife, testified, “At the time they were building the house we live in now, we were living on the Mays place. I wasn’t around there when the 'house was being built, I was out on the Mays place.” The Mays place was a farm. There is no evidence of any use or occupation of the lot by appellants prior to the time the present house was placed there. The above-quoted evidence is all the evidence bearing upon t'he question of homestead. In view of the evidence, it must be presumed, as urged by the appellee, that the trial court found as a fact that there was no homestead right involved in the case. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W. (2d) 1084; Lucas v. Thompson (Tex. Com.App.) 29 S.W.(2d) 1024, 1025.

Appellants further complain that it was error to allow a recovery to be had by appellee as of “a quantum meruit for the labor and material furnished,” when not pleaded by appellee. The appellants themselves pleaded and claimed that there was a partial performance only of the contract by the appellee. It is inferable that upon this plea the issue of partial performance was submitted by the court to the jury for finding thereon. The court submitted to the jury the question: “What do you find from a preponderance of the evidence was the value of the lumber, labor, and other materials furnished or paid for by Mr. Arch Freeman in the construction of the building in question?”' The jury’s answer was: “$378.81.” The judgment as entered, being in keeping with the above finding of the jury, would be referred for support to the pleading of appellants. The assignment of error, therefore, would not warrant reversal.

We have considered the remaining assignments of error and think they should be overruled. The appellee in this case has made a motion to dismiss the appeal for want of compliance with statutory provisions. We think the motion should be overruled.

The judgment is affirmed.

On Motion to Dismiss Appeal.

Statement.

The appellees make a motion to dismiss this appeal, which was prosecuted under affidavit of inability to pay' costs in lieu of bond. The appellees brought the suit and recovered a judgment against Robert McBride and wife, the defendants in the case, in the district court of Bowie county, Tex. Bowie county was the residence of all the parties to the suit, both the defendants and plaintiffs. The defendants’ motion for a new trial was 'overruled on July 16, 1930, and they gave notice of appeal from the judgment. Thereafter on July 29,’ 1930, the defendants, McBride and wife, made and signed an affidavit reciting, among other things, that they desired to prosecute ah appeal to the Court of Civil Appeals from the judgment rendered in the district court, and that they were unable to pay the costs of the appeal or any part thereof and were unable to give security therefor. The affidavit was made before the county judge of Bowie county, Tex. The county judge made and officially signed, omitting the formal parts, the following:

“I do hereby certify that the said Robert McBride and Virginia McBride, defendants in the above and foregoing styled cause, numbered 828, pending in the District Court of Bowie County, Texas, appeared before me, and that after being by me duly sworn, that I took the proof of the facts stated in the above and foregoing affidavit in lieu of an appeal bond, and that after said proof was reduced to writing, the said Robert McBride and his wife, Virginia McBride, each subscribed and swore to the same before me; and I further certify that upon the evidence and the proof adduced, I find as a fact that the defendants, Robert McBride and wife, Virginia McBride, and each of them, are unable to pay the costs, or any part thereof, and are unable to give security therefor.
“Witness my hand and seal of office this 29th day of July, A. D. 1930.”

On July 30, 1930, the appellants filed the affidavit with the above certificate of the county judge attached thereto, with the district clerk of Bowie county, Tex. The district court of Bowie county, in which the judgment was rendered, was in continuous session from May 12, 1930, to August 30, 1930, when it was finally adjourned for the term. No contest was ever filed by any officer of the court, or party to the suit, or by any other person, to the affidavit so made by appellants of their inability to pay the costs.

Opinion.

The appellee contends that the appellate court has not jurisdiction of the cause sought to be appealed, because under the terms of the statute the county judge was without any authority to hear proof and miake his certificate to the affidavit, the district court that tried the case being in session and not having adjourned for the term. The statutory provision authorizing the appeal without giving the security otherwise required in the form of a bond reads: “Art. 2266. Party Uñadle to Give Cost Bond. — « Where .the appellant or plaintiff in error ⅛ unable to pay the costs of appeal, or give security therefor, he shall nevertheless be entitled to prosecute his appeal; but, to do so, he shall make strict proof of his inability to pay the costs, or any part thereof. Such proof shall be made before the county judge of the county where such party resides, or before the court trying the case, and shall consist of the affidavit of the party stating his inability to pay the costs; which affidavit may be contested by any officer of the court or party to the suit, whereupon the court trying the case, if in session, or the county judge of the county in which the suit is pending, shall hear evidence and determine the right of the party to his appeal.” This statute has been applied in numerous eases to various state of facts, and it would serve no purpose in referring to such cases. It is only, necessary to consider whether or not the special facts of the present appeal are within the terms of the statute. The statute evidently contemplates, and means to say, as is necessarily implied from what is expressed, that, if the affidavit of poverty be not “contested by any officer of the court, or party to the suit,” then and in such event the authority and the tribunal jurisdiction to approve and make certificate to an affidavit of poverty would rest in either “the County Judge of the county where such party resides,” or “the court trying the case,” according as the party in the particular case might select to promote his convenience. Such is the construction of the article in the following cases under facts like the present appeal. Gates v. Union Terminal Co. (Tex. Civ. App.) 288 S. W. 483; Cox v. Gafford (Tex. Civ. App.) 26 S.W.(2d) 412. In this case the affidavit and certificate of the county judge were duly filed in the court trying the case and within the time required to perfect the appeal. Wooldridge v. Roller, 52 Tex. 447, and other cases.

In .the case of Rollins v. Hickey Estate, 30 S.W.(2d) 599, decided by this court, it was intended by this court to stress the insufficiency of the affidavit in describing the judgment rendered and to give that as the principal reason for dismissing the appeal. We therefore desire to now limit and confine the ruling in that case to the above ruling pointed out in order that that case may not appear in apparent conflict with our present Tuling.

The motion is overruled.


author: WALTHALL, J.

text:
    ODOM v. PERRY et al.
    No. 2508.
    Court of Civil Appeals of Texas. El Paso.
    March 12, 1931.

      W. B. Silliman, of Port Stockton, for appellant.
    R. D. Blaydes, of Port Stockton, for ap-pellees.
   WALTHALL, J.

Juanita B. Perry, joined pro forma by her husband P. A. Perry, brought this suit against A. J. McKean, Prank Baker, and Worth Odom to recover for rentals on lands. The suit is based upon the following contract:

“State of> Texas, County of Pecos ' “This contract made and entered into this 14th day of April A.. D. 1927 by and between MeKeán and Baker (a firm composed of A. J. McKean and Prank Baker) herein called Pirst Parties, and Worth Odom, herein called Second Party and Prank Perry, herein called Third Party, Witnesseth:

“That whereas, Pirst Parties have recently purchased from Third Party 12,800 acres of land out of Third Party’s ranch in Eastern part of Pecos County, Texas, but title has not yet been perfected and passed from Third Party to Pirst Party, and whereas, Pirst Parties ar.e desirous of leasing to Second Party said lands for a certain term and for a certain consideration and on certain conditions, all of which has been agreed upon between Pirst Parties and Second Party, and,
“Whereas, part of the consideration moving from Second Party to Pirst Parties for said lease, will be the making of certain improvements on said lands, and whereas, it is desired and has been agreed to by all the parties hereto, that the said Second Party shall make said improvements pending the delivery of title and possession from Third Party to Pirst Parties and that Second Party shall be fully protected in the making .and erecting of such improvements on said lands, now,
“Therefore, it is agreed between all the parties hereto, that the said Second Party herein shall begin at once the erection of a ranch house of three rooms and porch; also a concrete tank with concrete bottom, 35 feet in diameter, with walls 6 ft. high, and such concrete troughs as second party may deem necessary and advisable; and also about four miles of wolf proof fence; and any other improvements on said ranch as may be deemed/ necessary by second party up to and so that the total amount of all said improvements so erected by second party shall not exceed the sum of $3200.00 total cost; said improvements to be located and made on sites selected by and satisfactory to second party herein, and to be begun at once and prosecuted with’ reasonable diligence till completed.
“It is agreed between Pirst Parties and second party that if and when the title to said lands, so purchased by Pirst Parties from Third Party, is delivered to and accepted by Pirst Parties, they, Pirst Parties, will make and enter into a lease contract with second party, containing all the unusual conditions and stipulations contained in a grazing lease contract, to run for a term of five years, and providing for a consideration of 50⅜ per acre per annum for and covering all the lands so purchased by Pirst Parties from third party, and providing that said rentals shall be paid each six months in advance. The terms of said lease shall begin when the improvements that are to be erected by second party hereunder have been completed. The erection of the $3200.00 worth of improvements by second party, as herein provided for, shall be applied. as the payment of rentals on said lease for the first six months in advance.
“Third party, as the present holder of the title to said lands so sold by him to Pirst Parties, joins in this contract for the express purpose ot protecting second party in the costs of the erection of said improvements and third party here and now agrees that if, for any reason, his contract of sale of said lands to Pirst Parties herein, should not finally be consummated by delivery of title and possession to said first parties, then third party will either carry out the contract of first parties herein with second party, by leasing said lands to second party for the same terms and conditions and on the same consideration as herein has been agreed to by first parties, or will pay to second party the actual cost of the erection of such improvements not to exceed $3200.00 and that second party shall have a lien against said improvements and said lands to secure the payment to him of the costs of such improvements. .
“The lands mentioned in and covered by this contract are the lands sold by third party to Pirst Parties herein.
“It is agreed that from and after the time said improvements are completed by . second party; in case title has not been perfected and said lands delivered by third party to first parties, but the deal between third party and first parties is then still pending Pirst Party shall be liable to third party for the rents on said lands-at the rate of 50⅜ per acre per an-num from the date said improvements are so completed until the title and possession of said lands is finally delivered by Third Party to Pirst Parties, provided said title is finally delivered to first parties; in the event said title to said lands is never delivered by third party to first parties, then second party shall be liable to third party for the use of said lands from and after the time said improvements are so completed at the rate of 50⅜ per acre per annum, and in case third party should elect to repay second party for said improvements instead of making the lease contract as above mentioned, said rentals so owing by second party to third party shall be applied as a credit paid by third party on the $3200.00 that he is to pay to second party for said improvements.
“We the parties hereto, each for himself, binds himself, his heirs, executors and administrators to carry out the intent and spirit of this contract.
“Executed in duplicate the day and date first above written.
“[Signed] A. .T. McKean
“Prank Baker
“Worth Odom
“Prank A. Perry
“The Pirst National Bank of Del Rio, Texas, as one of the Lien Holders against said lands, hereby agrees to the terms of the above contract.
’ “Date 4/22, 1927.
“The Pirst Nat’l Bank of Del Rio, Texas.
“By R. Hunnicutt,
Vice-President.”

On the 15th day of April, 1929, P. A. Perry assigned to Juanita B. Perry all of his interest in the contract and in said assignment authorized her to collect all unpaid rentals prior to such assignment and to retain same as her separate estate.

The trial was had on plaintiff’s first amended original petition, filed on December 10, 1929, by which amendment defendant Worth Odom was made a party to the suit; McKean .and Baker’s first amended original answer; and the original and supplemental answer of Worth Odom.

Plaintiff alleged that under the terms of said contract defendants jointly and severally agreed to a grazing lease rental on the 12,800 acres of land described in the lease at the rate of 50 cents per acre until title to said lands were perfected and title passed to defendants. That under the provisions of said written contract as mutually modified only as to time of entry, defendants, their servants and assigns, went into possession of said lands for grazing purposes on June 20, 1927, and remained in possession until the passing of title to defendants, on July 11, 1928, and made payments of the rentals for said period of time except for the time intervening between said June 20, 1927, and August 24, 1927, for which time defendants have refused to pay rentals; said unpaid rentals for said intervening time amount to $960; that said sum was due under said modified written contract to said Perry and his assigns, on said 24th day of August, 1927, about which date plaintiffs understood and allege said improvements (referred to in the lease) were- completed; plaintiffs attach a copy of the lease contract to the petition and make it a part thereof; that said possession and use of said premises as alleged occurred on June 20, 1927, at -which time, and before said improvements were completed, Worth Odom, acting for himself and the other defendants, requested permission to take possession of said lands to graze his sheep thereon, which request was granted.

Plaintiffs state the legal effect of said contract, demand and refusal to pay, and pray for judgment.

Worth Odom answered by general demurrer, special exception and plea of the statutes of limitation of two years, and general denial.

Judgment having been rendered that plaintiffs take nothing as to McKean and Baker, we need not state their answer.

Worth Odom, by supplemental answer, adopted certain pleadings of defendants Mc-Kean and Baker, but we think we need not state such adopted pleading, but will refer to such if necessary. The case, on all questions of fact and law, was'submitted to the court. The court overruled all of defendant’s exceptions and pleas and rendered judgment in favor of plaintiffs and against Worth Odom in the sum of $341.33, being the rentals and interest thereon from June 20 to August 24, 1927, and with interest thereon from August 24, 1927, from which judgment Odom prosecutes this appeal.

Opinion.

The trial court made and filed no findings of fact.

Appellant filed assignments of error, and thereunder presents several propositions, and discusses them under one statement and argument. The points submitted, briefly stated, are that the record does not show any obligation of Worth Odom to lease lands from plaintiffs, or to pay rents to either of them; that if the petition and evidence does show such obligation to pay rent from June 20 to August 24,1927, such obligation is barred by the statute of limitation of two years; that the- only obligation of Odom to pay rent to Perry was on the contingency that the sale of -the land by Perry to McKean and Baker should not be consummated, and then only after the improvements were completed, and such sale having been consummated, no obligation on the part of Odom to pay rent to Perry is shown; if any obligation of Odom to pay rent to Perry is shown, such obligation did not arise under the written contract pleaded, and such claim for rent would be on a quantum meruit, and would be barred by the statute of limitation; that if any rent was payable, it was payable to the First National Bank of Del Rio, and a settlement of all refits claimed having been made with said bank for Perry, Perry has no claim for rents; that plaintiff’s suit is not based on a parol contract or quantum meruit but on an alleged modification of tlie written lease contract, and plaintiffs cannot recover on tlie parol agreement by implication to pay rent.

It seems clear that plaintiffs would have no claim against Odom for rent under the terms of the written contract except upon the contingencies provided in the contract. The written contract, as we view it, is not, as between McKean and Baker and Prank Perry, a present contract to pay rentals on the land. After reciting that McKean and Baker had purchased the lands from Perry, but title had not passed, all parties had agreed that Odom should make certain improvements on the lands pending the delivery of title and possession by Perry to McKean and Baker, and for Odom’s protection, the contract as between them provides: That if and when, the title to said lands as purchased by McKean and Baker from Perry is delivered to and accepted by McKean and Baker, McKean and Baker will then make and enter into a lease contract with Perry containing all the usual conditions and stipulations contained in a grazing lease contract, stating the term of years, the rentals per acre, and when paid and the lands to be leased.

The contract states the express purpose of entering into it to be to protect Worth Odom in the costs to him in the erection of the improvements provided for in the contract. To protect Odom the contract provides, in substance, that in the event the contract between McKean and Baker and Perry should not be consummated, then Perry would either lease the lands to Odom on the same terms as provided in the contract with McKean and Baker, or pay Odom for his improvements. Another contingency is provided in the written contract, to the effect that when Odom has completed the improvements and Perry has not perfected his title and delivered the lands to McKean and Baker, and the deal for the lease is still pending, McKean and Baker shall then and thereafter be liable to Perry for rentals as stated in the contract, until the title and delivery of possession of the lands is effected. The written contract then provides that should title to the lands never be delivered by Perry to McKean and Baker, in that event Odom would become liable to Perry for rentals from and after the time the improvements. are completed.

The record shows that none of the contingencies provided for in the written contract ever happened. The title to the lands was perfected and possession of the lands delivered to McKean and Baker.

Plaintiff’s petition recites: “That under the provisions of said written contract as mutually modified only as to time of entry the defendants and their servants and assigns went into possession of all said lands for grazing purposes on the 20th day of June, 1927, and remained in possession thereof until the passing of title papers to said property to defendants which occurred on or about June 11th, 1928, and made payment of said grazing,lease rentals for said period of time except for the time intervening between June 20th, 1927, and August 24th, 1927, the time sued for, stating the amount, and which sum was due under said modified written contract to said Perry and his assigns, on said 24th day of August, 1927, about which date plaintiffs understood and allege said improvements were completed.”

The evidence sufficiently shows that on the 20th day of June, 1927, Odom was in possession of the lands for the purpose of erecting said improvements, and thereafter remained in possession. On the issue of a mutual modification of the written contract the evidence shows the following:

Prank Perry testified: “As .to what was said to me by the defendant, Odom, with reference to the taking of possession, he just said, ‘all right’. That’s what he said. He did ask me to get possession of that property. Prior to the time that he actually took possession he said he had two bunches of sheep coming in and- he would have to have the ranch before the improvements could be complete, and I told him that didn’t make me feel bad, and when we got the south pasture fenced on the 20th of June I told him it was his, and I didn’t have it after that. He was in charge of the work of improvements. Yes, they had then begun. He said he wanted possession at the time he asked it because he had sheep coming in and he had to take care of them. (After stating some conversation as to the sheep and the short range, not material, the witness said — ) And I told him I was turning the place over to him, and I wouldn’t have anything to do with it, and I have not been on the place since, only to visit him. He has said something to me with reference to whether he talked to either Baker or McKean about it. * * * As to what Odom said to me that Baker and McKean had told him prior to the actual possession, he said nothing.”

■Witness said that some time after the sale was made, “he (Odom) then told me that Prank Baker had told him to go ahead and take possession of the place, and he would take care of the payments for his servicés and overseeing the improvements' on the place. * * * Nothing was said about that written contract at that time. Nothing was said as to how much he was going to pay me. Nothing was said about how many sheep he would put on it. I don’t know that there was any things said about how much acreage he was going to put them on, but we both had the' same place in mind — he surely wasn’t going to put them over on mine.. He actually took possession of the east part of the ranch — that’s the part which is in this contract. * * * About the last of May or the first of June Worth Odom came to me and asked me if it was all right for him to go ahead and put his sheep in there, and I stated that I told him it was, that I wouldn’t complain about it, or something like that. I didn’t make any new contract with Odom at all, just told him he could turn his sheep in there. That’s what happened between me and Mr. Odom at that time and that’s all that happened.”

Without quoting the evidence, it is sufficient to show that Worth Odom had talked with Baker about putting the sheep in the pasture, and that Baker had told Odom to go ahead, that it was all right, and that he (Baker) “would pay that additional rental, as and for the services Odom was rendering to him (Baker) in overseeing the 'making of improvements which the contract.called for.”

There is no question but that a written contract may be modified and changed as to its provisions, and that the old contract may even be abrogated and substituted by a new contract. The only question presented here is as to whether the evidence shows that the written contract was so changed oí modified as to make Odom liable to Perry for the rentals for the time from June 20 to August 24, 192T. If he is liable, it must arise by reason of the change or modification of the written contract. He was not liable by reason of the happening of any contingency under the written contract.

The evidence does not show that he expressly or by implication agreed to pay the rental, but rather that McKean and Baker would pay the rental for service rendered them. If, as pleaded by plaintiffs, the effect of the modification was only to advance the time of entry into possession, Odom not being liable under the written contract, there is nothing under the evidence to make him liable under the written contract by entering into possession earlier than was contemplated under the written contract.

If it could be held that the evidence shows by implication that a rental was to be paid, beginning with the possession on the 20th of June, it would seem that the liability for the rental, if any, would be owed by the ones who would be liable under the written contract, as under plaintiff’s theory 'the modification just advanced the time of entry with no other effect.

As we view it, no liability for rental is shown as to Odom either under the written contract or under the contract as modified.

For the reason stated, the case is reversed and judgment here rendered for Odom.


author: RYAN, O. CURETON, C. J.

text:
    BAKER v. WEST et al.
    No. 5239.
    Supreme Court of Texas.
    March 4, 1931.
    Fogle & Gentry, of Houston, for plaintiff in error.
    Hill & Harvey, of Houston, for defendants in error.
   RYAN, O.

On May 1, 1920, L. E. Norton conveyed lots 16 and 17, in block 35, of Houston Heights addition to the city of Houston, to E. B. Ramsey, by general warranty deed in which a vendor’s lien was reserved to secure payment of the purchase money evidenced by promissory note for $800 payable in monthly installments of $15 each, and interest, beginning June 1, 1920. This deed was filed for record in Harris county on March 26, 1925.

On July 7, 1915, Mollie Baker recovered judgment in the county court at law of Harris county against E. B. Ramsey, for the sum of $268.79, with interest thereon, and caused an abstract thereof to be recorded in the judgment records of said county and properly indexed, on July 14, 1915. An execution was issued on said judgment within twelve -months from its rendition.

No question is raised as to the sufficiency of said judgment or the proper record and indexing of the, abstract thereof.

On June 9, 1925, an alias execution issued on said judgment was levied on the lots in controversy and sold at sheriff’s sale on July 7,1925, to said Mollie Baker for $50, of which amount the sum of $12.50 was paid as costs, and the sqm of $37.50 was credited on the judgment. On July 8, 1925, the sheriff executed and delivered a deed conveying said property to her.

On November 16, 1922, the city of Houston recovered judgment against Henrietta Ramsey, E. B. Ramsey, N. T. Masterson, and B. E. Norton, for the sum of $106.24, due on that and other land, as delinquent taxes for the year 1921, together with costs of court, foreclosure of the city’s táx iien; the sum of $13.-63 being decreed and foreclosed against the two lots, involved in this suit.

Under proper order of salé issued by virtue of said judgment, levy thereof, and sale thereunder, the sheriff, on March 6, 1923, executed to Olay Tallman deed to all the estate, right, title, and interest of Henrietta Ramsey, E. B. Ramsey, L. E. Norton, and H. T. Masterson in and to the land involved in this suit and the other land described in said tax judgment. Tallman’s bid was $138.37, which was paid in cash.

On March 14, 1924, Tallman conveyed all the land so purchased by him at said tax sale to H. O. West, and he, on August 22, 1925, convened the same to Vernon Hall.

On May 1,1925, H. O. West filed suit in the district court of Harris county, in trespass to try title against Henrietta Ramsey, E. B. Ramsey, and L. E. Norton, to recover the lots involved in this suit, and recovered judgment therefor on January 6, 1926, which judgment has never been set aside or appealed from.

Mollie Baker was not a party to the suit or judgment for taxes referred to above, nor was she a party to the suit or judgment in the action of trespass to try title of West v. Ramsey et al., also above referred to.

On February 18, 1926, Mollie Baker filed this suit in the district court of Harris county, against H. O. West, "Vernon Hall, P. Harvey, and Levi Mason and Alice Mason, his wife, for the recovery of said property, and alleged, in addition to the usual averments in trespass to try title, that the claim of defendants is by virtue of foreclosure of said tax lien and their purchase thereunder, at which time she had a valid and subsisting judgment lien upon said land and premises, against E. B. Ramsey, under whom the defendants claim, but such claim of defendants was subsequently acquired and is subordinate to her rights; that she foreclosed her lien and the property was sold thereunder and purchased by her. She further alleged a tender to defendants of an amount of money in excess of that which they are alleged to be entitled to by reason of their purchase under said tax judgment, and a willingness and offer to pay, and a tender in court, of such sum of money as defendants may be so entitled to.

The trial court, upon plaintiff’s motion, dismissed as to Levi Mason and wife, Alice Mason, and after trial without a jury, rendered judgment denying plaintiff any recovery against the remaining defendants, either of the property or the right to redeem same from said tax sale.

The trial court found that after plaintiff, Mollie Baker, obtained the sheriff’s deed under execution based on her judgment against E. B. Ramsey, she tendered to defendants herein the sum of $13.63 with interest thereon from November 16, 1922, sufficient to cover the taxes, penalties, and costs adjudged in said tax suit to be a lien on the two lots involved in this suit.

The trial court concluded that while the judgment lien of plaintiff attached to the interest of E. B. Ramsey in the two lots involved, upon the execution and delivery of the deed from Norton to him, said judgment lien was subject to the vendor’s lien and superior title reserved in Norton by said deed; that said judgment and vendor’s liens and superior title were all subordinate to the city of Houston’s subsequently accrued tax lien, the judgment of foreclosure thereof, and sheriff’s sale thereunder to Tallman, and thereby there became vested in Tallman, all the title and' interest of Ramsey as well as the superior title reserved in Norton, and therefore the judgment in the action of trespass to try title by West against Ramsey and Norton vested in West every character of title and interest held by them in said lots.

The trial court further concluded that while Mollie Baker, as the holder of said judgment lien against Ramsey, had the right to redeem from the tax sale within two years from the date of sale to Tallman, this right of redemption was lost after the lapse of such two years; that her claim is founded, not on the judgment lien, but on the sheriff’s deed to her dated July 8, 1925, under her judgment against Ramsey, but this claim was so acquired after the filing and during the pen-dency of the trespass to try title suit-of West v. Ramsey et al., and she was therefore a pendente lite purchaser and concluded by the judgment rendered in that suit vesting in West the title to said. lots.

The trial court also concluded that the tender made by Mollie Baker in her pleadings covered only the tax judgment and not the indebtedness secured -by the vendor’s lien retained in the deed from Norton to Ramsey, and because the plaintiff, Mollie Baker, did not so redeem within two years from the tax sale, and did not offer to perform Ramsey’s executory contract of purchase from Norton, and because her claim is based on the sale to her pending the suit of West v. Ramsey et al., she is not entitled to recover.

This judgment was affirmed by the Court of Civil Appeals, 7 S.W.(2d) 634. Writ of error was granted by the Supreme Court, and on recommendation of the Commission of Appeals, the judgment of the Court of Civil Appeals was affirmed. 16 S.W.(2d) 254.

Subsequently, on motion for rehearing, such judgments were set aside and disposition of the cause retained by the Supreme Court.

Opinion.

When L. E. Norton, on May 1,1920, conveyed the two lots in controversy to E. B. Ramsey, the judgment lien of Mollie Baker attached thereto, to the extent of Ramsey’s interest therein, and subject to the vendor’s lien and superior title retained by Norton to secure the unpaid portion of the purchase price. Rev. St. 1925, art. 5449; Diltz v. Dodson (Tex. Civ. App.) 207 S. W. 356; McKamey v. Thorp, 61 Tex. 648; Barron v. Thompson, 54 Tex. 235; Willis v. Downes (Tex. Civ. App.) 46 S. W. 920; Matula v. Lane, 22 Tex. Civ. App. 391, 55 S. W. 504.

Such judgment lien, being properly of record, was notice to the city of Houston of Mollie Baker’s claim when the city afterwards filed its tax suit, as well as notice to purchasers under the city’s judgment that she asserted such claim. She was a necessary party to foreclosure of the city’s tax lien before she could be barred thereby. She was not made a party to the city’s tax suit, and therefore was not bound or concluded by it, nor was she a party to or bound by the judgment in the trespass .to try title suit. The known owner or claimant is entitled to his day in court and to be heard in defense of his rights. Scales v. Wren, 103 Tex. 304, 127 S. W. 164; Green v. Robertson, 30 Tex. Civ. App. 236, 70 S. W. 345 (writ of error denied); Lippincott v. Taylor (Tex. Civ. App.) 135 S. W. 1070, 1071 (writ of error denied).

The tax judgment in question here was held void in Davis v. West (Tex. Civ. App.) 5 S.W. (2d) 870 (writ of error denied), a suit involving other property than that in controversy here, but included in the same tax judgment and in the same order of sale and sheriffs deed to Clay Tallman. Obviously, if Mollie Baker had been made a party to the suit in trespass to try title filed by West against Henrietta and E. B. Ramsey and L. E. Norton, she could have urged the invalidity of the tax judgment and the proceedings thereunder, including the sheriff’s deed to Talknan and his conveyance to West, as was successfully done by Davis in Davis v. West, and doubtless with the same result.

We therefore conclude that no rights, as against plaintiff in error, accrued to defendants in error by reason of the judgment in the tax suit and sale thereunder, or by reason of the judgment in the trespass to .try title suit styled H. O. West v. Henrietta Ramsey et al.

The Court of Civil Appeals based their af-firmance of the judgment below on the propositions :

(1) That Mrs. Baker’s title originated with the sheriff’s sale to her, under her judgment against Ramsey, on July 7, 1925, and such sale having been made after West’s suit in trespass to try title against Henrietta and E. B. Ramsey and L. E. Norton had been filed on May 1, 1925, she is concluded as a lis pendens ■purchaser from or under E. B. Ramsey after the commencement of such trespass to try title suit, under the provisions of article 7391, Rev. St. 1925, which reads as follows:

“Any final judgment rendered in any action for the recovery of real estate shall be conclusive as to the title or right of possession established in such action upon the party against whom it is recovered, and upon all persons claiming from, through or under such party, by title arising after the commencement of such action”;

And (2) that her only remedy, but which was lost to her, after the commencement and during the pendency of West’s trespass to try title suit against her judgment debtor, was the .right to foreclose and sell the lots under her judgment lien by a separate and independent proceeding of her own, though the right to have intervened and have her judgment lien established against the successful party to the West-suit seems to be conceded.

Mrs. Baker’s lien and claim against any real estate owned or claimed by Ramsey, and which eventuated in her title through the sheriff’s sale under her judgment against Ramsey, originated, not with the sheriff’s sale, but with the fixing of her judgment lien which attached to Ramsey’s interest in the property in question, on May 1, 1920, when Ramsey acquired such interest from Norton.

It is the settled rule in this state that a judgment lienholder is not required as his only remedy, to file an independent suit to enforce or foreclose such judgment lien. Hikes v. Bank (Tex. Civ. App.) 273 S. W. 957. As said by Judge Boyce in Ives v. Culton (Tex. Civ. App.) 197 S. W. 619, 621, “such lien could be foreclosed either by execution sale or by decree of foreclosure in a suit brought for that purpose.” The judgment there entered was affirmed by the Supreme Court on recommendation of the Commission of Appeals. 229 S. W. 321.

In passing upon this question, Judge Gould said in Lynn v. Le Gierse, 48 Tex. 138: “A judgment creditor may cause his execution to. be levied on land fraudulently conveyed by the debtor', and if he himself becomes the purchaser at the execution sale, he may then bring his suit to have the fraudulent conveyance set aside, and recover the land. True, he may, if he sees fit, first institute his suit to have the conveyance declared fraudulent, and the land subjected to his execution; but his right to proceed to levy and sell, in the first instance, is firmly established.”

Judge Bonner, in Wallace v. Campbell, 54 Tex. 87, cited and approved Grace v. Wade, 45 Tex. 522, as authority for the proposition that a judgment lien against a debtor is superior to an unrecorded legal title of which the judgment creditor had no notice, and, as the creditor’s rights are fixed by the lien, this will support the title derived .through the subsequent sale under execution though the judgment creditor himself may have become the purchaser and have credited the amount of his bid upon the execution.

It is argued here that because Mrs. Baker credited the amount of her bid on her judgment against Ramsey, though she paid the costs in cash, she was not an innocent purchaser for value; the authorities holding to that rule are not applicable to the facts here, because the claim of West under the city’s tax judgment did not accrue until many years after Mrs. Baker’s judgment lien accrued, and the sheriff’s sale thereunder reverted back and as of the accrual of such judgment lien. As between Mrs. Baker and Ramsey, the judgment debtor, she paid value by crediting the amount of her bid on the judgment; her claim rests upon being a lien creditor and not a purchaser — a distinction drawn under our statute as held in Ayres v. Duprey, 27 Tex. 606, 86 Am. Dec. 657; Wallace v. Campbell, supra.

“It would be an idle ceremony if the plaintiff, on buying at a sale for his benefit, should be required to actually hand oyer to the sheriff the money, to be returned at once. The receipt of the plaintiff acquits the sheriff equally with his bringing into court the proceeds of sale with the execution under whieh they are made.” Blum v. Rogers, 71 Tex. 668, 9 S. W. 695, 597.

It follows therefore that the title of Mrs. Baker was not acquired pendente lite the trespass to try title suit of West v. Ramsey, and not having been made a party thereto she is not bound by the judgment therein, which means that she is not thereby barred of her right to redeem from or satisfy the balance legally due on the indebtedness evidenced by the promissory note given by E. B. Ramsey to L. E. Norton, and secured by vendor’s lien retained by the latter.

The purchaser under the city of Houston’s tax judgment was charged with notice of Mrs. Baker’s antecedently recorded judgment lien and that she was not barred of her right to redeem from the city’s tax claim, because she was not a party to the city’s tax suit and her right of redemption therefrom was not foreclosed thereby. McDonald v. Miller, 90 Tex. 309, 39 S. W. 89.

We hold that the legal title is shown to be in Mrs. Baker, subject to whatever amounts may be shown to be legally due on the vendor’s lien and on the tax lien as above stated, for the collection and enforcement of which the holders thereof have their proper remedies.

The judgments of the district court and of the Court of Civil Appeals are therefore reversed, and the cause remanded for another trial in accordance with this opinion.

CURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court and judgment will be entered in accordance therewith.