text:
    HOBART MFG. CO. v. JOYCE & MITCHELL et al.
    (No. 11916.)
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 18, 1928.
    Rehearing Denied March 17, 1928.
    1. Chattel mortgages «©=>153 — Judgment for mortgage foreclosure could not be disturbed on appeal because not including personal judgment against defendants who claimed to be innocent purchasers and record did not show mortgage was recorded.
    In suit to hold liable purchasers of bakery machinery on theory that plaintiff held a mortgage on it at time of purchase, held, on appeal, that judgment ordering foreclosure of mortgage, but denying personal judgment against purchasers, could not be disturbed where they had pleaded that they were innocent purchasers for value without, notice of a lien, and the record did not show that the chattel mortgage was actually of record.
    2. Fraudulent conveyances <©=> 182(2) — Purchaser under Bulk Sales Law, failing to comply therewith, becomes liable, not to exceed value of property purchased (Rev. St. 1925, art. 4001).
    Under Rev. St. 1925, art. 4001, known as the “Bulk Sales Law,” a purchaser who fails to comply therewith becomes liable, not to exceed value of property purchased by him.
    3. Fraudulent conveyances «©=>317- — Court may order éale of property purchased in violation of Bulk Sales Law, where purchaser still has it (Rev. St. 1925, art. 4001).
    Under Bulk Sales Law (Rev. St. 1925, art. 4001), the court may order sale of any property received by, a purchaser by virtue of a transfer in violation of such law, where property remains in purchaser’s possession.
    4. Fraudulent conveyances «§=47 — Bulk Sales Law held not applicable to purchase of bakery fixtures and baking ingredients (Rev. St. 1925, art. 4001).
    In creditor’s suit pursuant to the Bulk Sales Law, Rev. St. 1925, art. 4001, against purchasers of bakery from his debtor because Bulk Sales Law had not been complied with, held, that such law was not applicable to the case; baking ingredients not being merchandise, and law not applying to sale of fixtures only.
    5. Fraudulent conveyances «§=47 — Bulk Sales Law does not prohibit transfer of fixtures apart from stock of merchandise (Rev. St. 1925, art. 4001).
    Bulk Sales Law (Rev. St. 1925, .-art. 4001) does not prohibit the transfer of fixtures apart from the stock of merchandise.

      6. Appeal and error <©=>93f (3)— Court of Civil Appeals must, on appeal, where cause wa's tried before court without jury, ascribe to trial court a finding supporting judgment, where evidence was conflicting.
    Where cause is tried before the court without the intervention of a jury, it is Court of Civil Appeals’ duty, on appeal, to ascribe to trial court a finding supporting the judgment below where evidence was conflicting; there being evidence in the record to do so.
    7. Fraudulent conveyances <®=47 — Materials and ingredients used by baker in manufacture of wares held not to constitute “merchandise” (Rev. St. 1925, art. 4001).
    Materials and ingredients used by baker in manufacture of his wares held not to constitute “merchandise,” within meaning of the Bulk Sales Law (Kev. St. 1925, art. 4001); “merchandise” being anything movable customarily bought and sold for profit (citing Words and Phrases, Second Series, “Merchandise”).
    8. Fraudulent conveyances <§=5 — Bulk Sales Law is to be strictly construed (Rev. St. 1925, art. 4001).
    The Bulk Sales Law (Kev. St. 1925, art. 4001), being in derogation of the common law and of the right to alienate property without restriction, is, in view of Rev. St. 1925, art. 4000, to be strictly construed and is not to be extended by construction to situations not clearly intended thereby.
    9. Appeal and error <§=1071 (I) — In suit to collect debt from purchasers of mortgaged property, trial court’s failure to file fact findings and conclusions on request held not ground for reversal, where record showed injury could not have been sustained thereby.
    In suit to collect debt from purchasers of mortgaged property, wherein personal judgment was denied, trial court’s failure to file findings of fact and conclusions of law, on request, held not ground for reversal, where record showed that no injury could have been sustained thereby as uncontradicted evidence showed purchasers did not know of mortgage and evidence did not show mortgage was of record.
    Appeal from Young County Court; W. E. Parsley, Judge.
    Suit by the Hobart Manufacturing Company against Joyce & Mitchell, a partnership, and others. Prom the judgment, plaintiff appeals.
    Affirmed.
    McFarlane & MeEarlane, of Graham, for appellant.
    W. L. Scott, of Olney, for appellees.
   BUCK, J.

The Hobart Manufacturing Company, Incorporated, whose principal place of business is alleged to be at Troy, Ohio, sued Joyce & Mitchell, a partnership composed of T. K. Joyce and T. S. Mitchell, and William Jennings, alleged to reside in Young county, and J. G. Groves, alleged at the time of the suit to reside in Garza county. Eor cause of suit they alleged: That on April 30, 1924, plaintiff and the Olney Steam Bakery, J. G. Groves owner, entered into a written contract, whereby the plaintiffs sold to the Olney Steam Bakery, or Groves, a cake mixer, for the sum of $375. That Groves paid $37.50 cash, which, upon default in the payment of the balance of the purchase price, was to be retained by the vendor as liquidated damages for the use of said mixer. Plaintiff alleged that the contract and chattel mortgage was filed in the chattel mortgage records of Young county. It was further alleged that J. G. Groves sold some interest in the bakery to William Jennings, and he was made a party, but upon hearing it appeared that Jennings was not liable as a partner, and was dismissed from the suit. It was further alleged that subsequently Groves sold the bakery, together with all merchandise and fixtures, to Joyce & Mitchell, and that the mixer was included in the sale. It was alleged that said Groves and Joyce & Mitchell did not comply with article 4001 of the 1925 Revised Civil Statutes, known as the “Bulk Sales Law.” It was further alleged that the defendant Joyce & Mitchell mixed and mingled said stock of merchandise and fixtures with their own goods so that the same could not be identified except as to the mixer above specified, but that the stock of merchandise and fixtures bought by defendant Joyce <& Mitchell from J. G'. Groves was of far greater value than the amount of plaintiff’s debt or the debts due by the said J. G. Groves, or by Groves and Jennings, and the defendant Joyce & Mitchell had sold and converted said merchandise to their own use. Plaintiff prayed that the defendants be cited to appear and that defendant Joyce & Mitchell be required to file an invoice of the'merchandise and fixtures bought by them from the Olney Steam Bakery showing the value of the merchandise and fixtures and of the price paid by the purchasers, and that plaintiff have judgment against defendants for the amount of their debt and interest and attorney’s fees, and for costs of suit.

A judgment by default was taken against J. G. Groves. The defendant Joyce & Mitchell filed an answer, consisting of a general demurrer, and by way of special answer and cross-petition they alleged that they bought no merchandise from said Groves but merely bought said machinery and fixtures, and, if there is and was such chattel mortgage as described in plaintiff’s second'amended petition, and even if same was of record, that said Groves and Jennings represented and warranted to these defendants, in writing, that the mixer in question mentioned in plaintiff’s second amended petition was free from any and all liens, all claims for debt of any kind, and that said defendants paid to said Groves the full fair market value thereof, to wit, the sum of $325, for the said mixer, and in good faith and without notice purchased the same. Wherefore, premises considered, these defendants prayed that the plaintiff take nothing as against them personally, or by reason of said asserted chattel mortgage lien.

Judgment was rendered for plaintiffs by default against J. 6. Groves, and judgment was awarded plaintiff against all the defendants for á foreclosure of the chattel mortgage Ren, the 'court finding that said mixer was in the possession of Joyce & Mitchell, and they were ordered to turn said property over to the officers, pursuant to this order. Failing therein, they are to pay the amount of this judgment. From this judgment the plaintiff has appealed.

Opinion.

The statement of facts fails to show that the chattel mortgage upon which plaintiff sued and sought and secured a foreclosure is of record in Young county. Therefore, by reason of this failure to show that the chattel mortgage was of record, and by reason of the plea of the defendant Joyce & Mitchell that they had no notice of such record, and by virtue of their pleading that no judgment could be rendered against them personally, because they were innocent purchasers for value without notice of any lien, the judgment rendered cannot be disturbed. The appellant relies upon the failure of the Olney Steam Bakery, which will hereinafter be designated by the name of its owner, J. G. Groves, and the defendant Joyce & MitcheU’s failure to comply with the Bulk Sales Law, which reads as follows:

“The sale or transfer in bulk of any part or the whole of a stock of merchandise, or merchandise and fixtures pertaining to the conducting of said business otherwise than in the ordinary course of trade, and in the regular prosecution of the business of the seller or transferor, shall be void as against the creditors of the seller or transferor, unless the purchaser or transferee demand and receive from the transferor a written list of names and addresses of the creditors of the seller or transferor with the amount of the indebtedness due or owing to each and certified by the seller or transferor under oath to be a full, accurate and complete list of his creditors, and of his indebtedness; and unless the purchaser or transferee shall at least ten days before taking possession of such merchandise or merchandise and fixtures, or paying therefor, notify personally or by registered mail each creditor whose name and address is stated in said list, or of which he has knowledge, of the proposed sale and of the price, terms and conditions thereof. Any purchaser or transferee who shall not conform to the provisions of this law shall, upon application of any of the creditors of the seller or transferor become a receiver, and be held accountable to such creditors for all goods, wares, merchandise and fixtures that have come into his possession by virtue of such sale or transfer.”

We doubt if sufficient application was made by plaintiff to bold the purchaser, to wit, Joyce & Mitchell, liable as a receiver or trustee. In Gardner v. Goodner Wholesale Gro. Co., 113 Tex. 423, 256 S. W. 911, by the Commission of Appeals (Opinion by the Court of Civil Appeals being in 247 S. W. 291), it was held that a formal application to a court of competent jurisdiction must be made, and that the allegations in said application must contain a recitation of the material facts sufficient to invoke the equitable powers of the court, and to apprize it that a receivership and adjudication' of the matter is desired as between the purchaser and the various creditors, in accordance with the rules usually governing in an ordinary receivership proceeding. The purchaser under the Bulk Sales Law who fails to comply therewith- becomes liable, not to exceed the value of the property so purchased. If any property received by the purchaser by virtue of the transfer remains in his possession, the court would be authorized to order its sale. The court should then give notice to all creditors to file and prove their claims, as in an ordinary receivership proceeding, barring such claims as might not be filed within a given time. After ascertaining the full amount of the indebtedness due the creditors of the seller and the per cent, each was entitled to, the court should order payment of all creditors pro rata from such funds as might be within the custody of the court, or, in case of wrongful conversion, render such a personal judgment against the purchaser as the rights of the parties and all the circumstances of the case required.

But if mistaken as to the sufficiency of the application, as shown in the petition, we think judgment must be affirmed, because the Bulk Sales Law is not applicable to this case. The evidence shows in the instant case that Joyce & Mitchell paid $4,000 for the bakery and its fixtures, including, as claimed by plaintiff, some flour, lard, and other ingredients to be used in the production of bread, cakes, and other commodities sold by the bakery. The testimony of Joyce was to the effect that in the purchase they received no flour, sugar, lard, and other baking ingredients, and that they had to go and purchase a supply the next morning after the sale was completed; that Grove’s men used all of the ingredients they had on hand the night before the transfer was finally consummated, and that Groves was to receive the benefit of the next morning’s delivery in order to collect their accounts. O. B. Holes, witness for plaintiff, testified that he worked for Groves during the time he owned the bakery and continued working for Joyce & Mitchell. He testified:

“At the time the change was made in ownership I went right on to work. I found some of the same material in the shop, flour, extracts, sugar, malt, lard compound, paper bags, and material of all kinds that was there before the sale. I remember the barrel of lard compound was about three-fourths full; it would weigh full about 400 pounds. I would judge it was there on one just like it and just about as full. There were about six sacks of flour the night before the sale, the same number were there the next night, I couldn’t say it was the same flour; it might have been changed, but it looked the same. There was a half sack of sugar the night before the sale, what looked like the same sack was there the next night and about as full. I could not say it was the same sugar, but it was the same amount. Joyce & Mitchell had a restaurant in the same room we occupied, on the other side in front; everything seemed to be transferred just as it was before the sale and went right on.”

It is only as to whether any of the materials or ingredients for operating the bakery were included in the sale that any material conflict existed between the testimony adduced by plaintiff and defendants. The Bulk Sales Law only affects “a sale of transfer in bulk of any part or whole of a stock of merchandise, or merchandise and fixtures pertaining to the conduct of said business, otherwise than in the ordinary course of trade.” Apparently it does not prohibit the transfer of the fixtures apart from the stock of merchandise. In re Gary (D. C.) 281 F. 218; In re Griffen (D. C.) 289 F. 140; Krower v. Martin (Tex. Civ. App.) 184 S. W. 511. Since there is a conflict upon this issue alone, and the cause being tried before the court, without the intervention of a jury, it would be our duty to ascribe to the court a finding supporting the judgment below, there being evidence in the record to do stf. But a complaint is made that the trial court failed to file findings of fact and conclusions of law.

We are of the opinion that the materials and ingredients used by a baker in the manufacture of his wares do not constitute “merchandise,” as used in the Bulk Sales Law. Such wares were not to be sold in their then condition, but were to be converted into manufactured articles before they were subject to sale. Article 4001, supra, prohibits the sale, without compliance with this act, in bulk, of any part or the whole of a stock of merchandise, or merchandise and fixtures pertinent to the conducting of said business, otherwise than in the ordinary course of trade and in the regular prosecution of the business of the seller or transferor.' As before stated, it does not prohibit the sale or transfer of the fixtures alone. Webster’s Unabridged Dictionary defines “merchandise” as:

“The objects of commerce; whatever is usually bought or sold in trade, or market, or by merchants, wares, goods, commodities.”

2 Bouv. Law Diet. p. 2195, defines “merchandise” as follows:

“A term including all those things which merchants sell, either wholesale dr retail: As, dry goods, hardware, groceries, drugs, etc. * * * It- may be and often is used as the synonym-of ‘goods,’ ‘wares’ and ‘commodities.’ If used ip an insurance policy to describe the goods of a merchant it may very properly be limited to goods intended for sale. If used for the same purpose to describe the goods of a painter, it may be held to cover property intended for use, and not for sale.”

In 3 Words & Phrases, Second Series, p. 371, “merchandise” is defined as:

“Anything movable, customarily bought and sold for profit.”

We do not think that it could be reasonably claimed that a livery stable keeper, or one who dealt in live stock and had on hand hay, corn, and other things which the animals kept used as food, should be held subject to the Bulk Sales Law if he disposed of such foodstuffs without compliance with the law, or that the purchaser could be held personally liable. Nor do we think that one who purchases leather or other material from a dealer in saddles and harness could be held liable under the Bulk Sales Law. See Peter Escalle v. Mark, 43 Nev. 172, 183 P. 387, 5 A. L. R. 1512, and notes thereunder; Smith and Dent v. Boyer and Johnson, 119 S. C. 176, 112 S. E. 71, 41 A. L. R. 1466; Off v. Morehead, 235 Ill. 40, 85 N. E. 264, 20 L. R. A. (N. S.) 167, 126 Am. St. Rep. 184, 14 Ann. Cas. 434; Conn. Steam Brown Stone Co. v. Lewis, 86 Conn. 386, 85 A. 534, 45 L. R. A. (N. S.) 495, a case in point; 27 Corpus Juris, under head of “Fraudulent Conveyances,” p. 878 et seq.

The Bulk Sales Law is “in derogation of the common law, and of the right to alienate property without restriction.” Therefore it is to be strictly construed and is not to be extended by construction to situations not clearly intended thereby. 27 Corpus Juris, 875, § 883.

Article 4000, Rev. Civ. Statutes 1925, provides:

“Every mortgage, deed of trust or other form of lien attempted to be given by the owner of any stock of goods, wares or merchandise daily exposed to sale, in parcels, in the regular course of business of such merchandise, and contemplating a continuance of the possession of said goods and control of said business, by sale of said goods by said owner, shall be deemed fraudulent and void.”'

It is because of this statute and the evident reasons supporting the same that the law was enacted. The Bulk Sales Law was passed primarily to protect the wholesaler or general creditors of merchants. Under the above statute a chattel mortgage or lien cannot be fixed on goods or chattels daily exposed for sale. The statute under discussion is penal in its character, and for that reason should be strictly construed.

In G. H. & S. A. Ry. Co. v. Stewart and Threadgill, 257 S. W. 526, by the Commission of Appeals, it-is held that the failure of the trial court, on request, to file written findings of fact and conclusions of law requires a ’reversal unless the statement of facts or some other part of the record shows- that no injury could have been sustained. Inasmuch as the evidence in the ease fails to show that the chattel mortgage was of record in Young county, and the uncontradicted evidence shows that Joyce & Mitchell did not know of the existence of any chattel mortgage or other lien on the mixer in question, and inasmuch as the court rendered a judgment of foreclosure against all parties defendant, we are of the opinion that the failure of the trial court to file findings of fact and conclusions of law could not affect any rights of the plaintiff below involved in the suit for foreclosure. The plaintiff, in our opinion, secured in his judgment all the relief to which he was entitled. Hence we conclude that appellant here was not injured by reason of the failure of the court to file findings of fact and conclusions of law.

The judgment is affirmed.
      <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    WILLIAMS et al. v. DANIELS et al.
    (No. 11854.)
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 15, 1927.
    Rehearing Denied Nov. 26, 1927.
    1. Trial <®=>I42 — Court may not take question from jury unless evidence is such that ordinary minds will not differ in conclusion drawn therefrom.
    To authorize court to take question from jury, evidence must be of such character that there is no room for ordinary minds to differ as to conclusion to be drawn from it.
    2. Homestead <8=> 129(1) — Where grantor by deed in form, but in fact mortgage conveys homestead, subsequent purchaser must take notice of possessor’s title.
    General rule is that where grantor by deed absolute in form, but in fact a mortgage, conveys homestead which is in fact in grantor’s actual possession at time of subsequent conveyance by his grantee, or subsequent grantee in the chain of title, purchaser under subsequent conveyance must take notice of title under which one in possession is holding.
    3. Homestead <©=3216 — Evidence held for jury on question whether loan company purchasing note had notice of simulated sale of homestead.
    In trespass to try title brought by husband and wife to establish homestead claim, where it was alleged deed had been executed to third party for purpose of borrowing money and that he gave note which was sold by homestead claimants to loan company, evidence held to require submission to jury question whether loan company had notice of simulated character of sale.
    Appeal from District Court, Tarrant County ; Bruce Young, Judge.
    Suit by Ida Williams and husband against M. A. Daniels and others. From a judgment entered in accordance with peremptory instructions, plaintiffs appeal.
    Reversed and remanded.
    Marvin B. Simpson and Leo Brewster, both . of Fort Worth, for appellants.
    L. C. Penry, of Stamford, for appellees.
   CONNER, C. J.

This suit was instituted by Mrs. Ida Williams, joined pro forma by her husband, John T. Williams, against M. A. Daniels, John Tarleton, and the National Loan & Investment Company of Detroit, Mich. The first count of plaintiff’s amended petition, filed' November 10, 1926, upon which the trial proceeded, is in the form of trespass to try title. In a second count she alleged, in -substance, that on the 2d day of December, 1916, and ever since said time, the plaintiffs Ida Williams and John T. Williams had occupied the premises described in the, petition as their homestead; that said property was acquired and paid for wholly out of the separate estate of Mrs. Williams and constituted a part of her separate estate; that there is of record in the deed records of Tar-rant county a deed executed and acknowledged by the plaintiffs on October 1, 1924, purporting to convey to the defendant M. A. Daniels the property in question. It was alleged that said deed was not a valid deed, and that the same was not executed and acknowledged by them, and particularly by the plaintiff Mrs. Ida Williams, in the manner required for a married woman to convey her separate, estate or her homestead; that said instrument was not a bona fide sale of said property, but was a pretended and simulated sale for the purpose of borrowing money on the homestead; that each of the defendants had notice of these facts, or had knowledge of such circumstances as put them on notice, and,- therefore, that the transactions were void under the Constitution of. Texas.

It was further averred that M. A. Daniels and John Tarleton and the National Loan & Investment Company were asserting some right, title, and interest in the described property, by virtue of said illegal deed, and were threatening to dispossess the plaintiffs. It was further charged that the defendants, and each of them, knew thát such transaction was not a bona fide sale, but was a pretended sale for the purpose of borrowing money on the homestead; that if any of the defendants did not have actual knowledge that the transaction was a pretended sale for the purpose of borrowing money, they had notice of such circumstances as would have charged them with notice of the facts. On account of all which, the plaintiffs prayed for judgment for title and possession of the land and the cancellation of the purported deed to M. A. Daniels.

We find no answer by defendants Tarleton and Daniels. The defendant loan and investment company, however, answered by a general demurrer and a general denial, and specially to the effect that it was without knowledge of the facts alleged in the special count of plaintiffs’ petition tending to show that the transaction with Daniels was a simulated one. It averred the facts to be that the defendant Daniels was claiming to own the land described in the petition by virtue of a deed of conveyance from the plaintiffs to him, duly executed and acknowledged as required by law, subject to certain notes for part of the purchase money in said deed described; that at the time of the execution of the deed to Daniels, he, together with his wife, Selma Daniels, executed a note payable to J. T, Williams in the sum of $3,500, which said note J. T. Williams had duly assigned to the loan comx>any in consideration of the sum of $3,500 paid to and for Williams.

It was further specially alleged that the loan company was without notice that the' conveyance to Daniels was in fact and in' truth not a sale of the land as described in the deed; that it had no notice of the homestead character of the land, or of the circumstances attending the execution of the deed, nor did it have knowledge of any facts that would indicate that the deed referred to or that the assignment of the note referred to were other than a bona fide sale and assignment of the note.

By way of cross-action, the defendant filed a lengthy plea, which we think unnecessary to fully develop, but which in substance constitutes a prayer for a foreclosure of its lien, etc.

• The case was submitted to a jury which was peremptorily instructed to find in favor of plaintiffs Ida and John T. Williams against M. A. Daniels and wife, Selma Daniels, for ' title and possession of the premises described in the plaintiffs’ petition, and in favor of the defendant loan and investment company against Daniels, in the sum of $3,960, with interest from February 1, 1926, at the rate of 10 per cent, per annum, together with 10 per cent, of the amount of such principal and interest as attorney’s fees and foreclosure of the lien as prayed for in the^answer of the defendant company,, on the premises described, as against plaintiffs Ida Williams and her husband, John T. Williams, and the defendant M. A. Daniels and wife, Selma Daniels; and return a verdict in favor of John Tarleton against any and all claims made against him by the plaintiffs.

The verdict of the jury was returned, and judgment was entered in accordance with the peremptory instruction of the court, and the plaintiffs Ida Williams and her husband, John T. Williams, have duly prosecuted this appeal from said judgment.

Error is assigned to the action of the court in overruling the plaintiff’s first application for a continuance or postponement of the case. The application was in due form and accompanied by the certificate of a physician, to the effect that Mrs. Williams was sick at home and unable to attend court and testify. We need not, however, discuss the merits of this assignment, in view of the fact that we have concluded that the judgment must be reversed upon another ground, which is presented in appellant’s second assignment of error, to the effect that the evidence tends to show that the deed sought to be set aside by the plaintiffs was not an actual bona fide sale of the property, but was a pretended and simulated sale for the purpose of borrowing money, and that there is some evidence tending to show that the defendant loan and investment company had knowledge of circumstances from which a jury might find that appellant was put upon inquiry, and which, if followed up with reasonable care, would have led to full notice that the property was the homestead of the plaintiffs, and that the deal was not a bona fide sale, but a simulated one for the purpose of borrowing money.

That the purported sale of the property in question to M. A. Daniels by the Williams was a simulated one, for the purpose of borrowing money, is not to be doubted if the testimony relating to the subject is to be believed. M. A. Daniels testified, in substance, that at the time of the conveyance to him he was in Little Rock, Ark.; that he knew nothing about the property and had no purpose to purchase it, but had, without reading, merely executed the papers at the request of J. T. Williams, who was his uncle. The evidence further tends to show that Williams and wife had continuously occupied the premises ■as their homestead, as alleged in plaintiff’s petition. The only seriously contested question, as we understand the record, is whether the loan and investment company had notice of the simulated character of the sale. The contention of appellants is that there is such evidence, or at least that the evidence shows facts of such a character as to put the loan company upon notice of the true character of the transaction with Daniels, and hence that the court erred in giving the peremptory instruction in favor of the loan company as it did. The rule relating to the subject is well established. Our Supreme Court, in Lee v. Railway Co., 89 Tex. 588, 36 S. W. 65, said:

“To authorize the court to take the question from the jury, the evidence must be of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.”

In Mynning v. Railway Co., 64 Mich. 93, 31 N. W. 147, 8 Am. St. Rep. 804, the rule is thus stated: ■>

“If the circumstances are such that reasonable minds might draw different conclusions respecting the plaintiff’s fault, he is entitled to go to the jury upon the facts. The judge takes the case from the jury only when it is susceptible of but one just opinion.”

See Joske v. Irvine, 91 Tex. 575, 44 S. W. 1059.

We have carefully considered the evidence and feel unable to say that it is of such a character under the rule announced as authorized' the court to deprive the plaintiffs of their general right of a trial by jury. The appellees do not question the sufficiency of the evidence to authorize a finding that the sale to M. A. Daniels was a simulated one for the purpose of obtaining money with which Williams desired to extinguish certain mechanics’ and tax liens upon his homestead; and the evidence further shows, in substance, that J. T. Williams, in the effort to secure the money, approached Mr. Tar letón, who testified, so far as we think necessary to state, that he was an abstracter and had been for many years; that he knew John T. Williams and remembered the Daniels and Williams transaction; that he was the attorney for the National Loan & Investment. Company here and passed on titles for them, representing the borrower; that the company took his opinion on titles; that he examined the title to this' land for Mr. Williams or Mr. Daniels ; and that in the matter of closing this loan, the money was sent to him for distribution. He further testified that there were outstanding liens amounting to some $2,000 which' liens he had discharged out of the $3,500 check sent to him by the company, and that: •

“The check shown me for $1,610.50 represents the amount I gave Mr. Williams after paying off these liens and claims that I have testified about. I think the tax money came out of that, or I had advanced that to pay the taxes in closing the deal. With the amount that I gave him in that check and the amount of the liens outstanding against the property, it represents the amount that I got from the company. * * * In the settlement, I accounted for the $3,500.”

On cross-examination he testified:

“I examined the title for the borrower, but I directed the opinion to the loan company. The borrower pays the fees. I first gave a copy of the opinion to the borrower and told him what we needed to clear up the title for the loan. In all the transactions I had in connection with this matter, I dealt with John T. Williams; I don’t recollect calling Mrs. Williams to the phone and talking to her about this matter; I don’t recall saying anything at all to her about it. The abstract showed the title to the property to he in Daniels, but when I first took the matter up, the property stood in the name of Mrs. Ida Williams. I think I had in my possession at that time a deed from Mr. and Mrs. Williams to Daniels. We were buying the note from Mr. Williams. I examined the deed from the Williams to Daniels. After I had paid up all the taxes and other liens, I gave the balance of the money to John T. Williams. The note was payable to John T. Williams. ⅜ * *
“I did not know that this was a simulated transaction for the purpose of borrowing money; all the indications pointed to the fact that the title was regular; I had it certified to by the abstract company. All of my transactions were with Mr. Williams in connection with this matter.
“I never talked with Mr. Daniels to see whether he had bought the property, but the deed was acknowledged showing that he had bought it. I did not know Mr. Daniels, but I Was buying the note that he executed to Mr. Williams. We were buying the note from the man who owned it. Mr. Daniels was the maker of the note which was for $3,500. I had a mortgage in my possession' that Mr. Daniels had signed up to the National Loan & Investment Company. That is one of the instruments that has been introduced in evidence here.
“I cannot state whether the transaction with reference to clearing up the title was before or after the deed was executed from Williams to Daniels; the abstract was brought in for examination, and in the course of the examination the deed was disclosed to me, showing that the property had been sold to Mr. Daniels and the note we were buying was secured by a lien retained in the deed. I cannot say when I first saw the deed. The $3,500 note payable to Williams showed it to be a part of the consideration for the property, and it was signed by Daniels. It did not excite my curiosity to see that Mr. Williams was taking a part of the money and paying off the liens on property that Daniels owned; I did not think there was anything suspicious about that.
“The note belonged to Williams and Daniels ' owned the property, but the transaction had not been formally closed; it was closed with the understanding that these liens would be paid off out of this money, making the $3,500 lien a first lien against the property. I had the Daniels deed before me at the time I examined the title. The note from Daniels to Williams had not been turned over to me when I first started in on the transaction. I don’t think I had seen the note then; I was to take the note up finally when the papers were all turned over to me. The fact that Mr. Williams sold his $3,500 note to me and then took $2,000 of the money, the proceeds from the sale of the $3,500 note, and paid off liens on the property which belonged to Mr. Daniels did not arouse my suspicions or my curiosity, for the reason that it was agreed before we bought the $3,500 note that these debts were to be paid off out of this money. I did not know anything about Daniels 'in this matter. All the information I had about the transaction came from Mr. Williams. I had no occasion to talk to Mrs. Williams, and I had no occasion to talk to Mr. Daniels.”

On redirect examination, he testified, in part:

■ “Williams told me that this loan was procured primarily for the purpose of saving his property from foreclosure under liens and taxes. It came up in the conversation that he was selling it to keep it from being sold under these liens.”

Ob recross-examination, lie said:

“I did not know that this was the Williams homestead; I did not know where they were living at that time.” ■

Mr. J. L. Penry, the general agent for the appellant National Loan & Investment Company, also testified. We think it unnecessary to set out his testimony in full. It will be sufficient to say that he talked with Mr. Williams about the loan; that he knew nothing of the fact that Daniels was a nephew of Williams; that he visited the premises one time during the negotiations and found the blinds down and supposed the house to be vacant ; that he had never heard anything that would cause him to believe that the sale of Daniels was a simulated transaction.

As seen, or as will be seen by a review of the testimony, M. A. Daniels testified that Williams and wife had lived at the same place for many years; the evidence of Mr. Penry shows that some time after the loan was completed his son visited the place and found Mrs. Williams sick in the house, and there seems to be no evidence before us that shows as a matter of fact that the premises in controversy was not the homestead of Williams and wife at the time the appellee company acquired the note in question. We shall therefore assume that the issue of whether or not the property in question was the homestead of Williams and wife at the time of appellee’s acquisition of the note is to be treated as established, or at least that the evidence relating to this issue was sufficient to take the issue to the jury. So, treating the issue of the homestead vel non, the general rule is that where a grantor by deed absolute in form, but in fact a mortgage, conveys a homestead, which is in fact in the grantor’s actual possession at the time of a subsequent conveyance by his grantee, or a subsequent grantee in the chain of title, the purchaser under the subsequent conveyance must take notice of the title under which the one in possession is holding. See Mason v. Olds (Tex. Civ. App.) 198 S. W. 1040, writ refused, and cases therein cited.

In Eylar v. Eylar, 60 Tex. 315, our Supreme Court, in an opinion by Associate Justice Stayton, ingrafted an exception to the general rule stated. It was there held that a purchaser from a vendee whose vendor remains in possession is not bound to inquire further as to the title, when he finds on record in the county a deed from such vendor • conveying title, properly proved up and registered. This rule- was evidently predicated upon the theory that the registration records were the primary source of inquiry, and that where the vendee looked to the record and there found a declaration on the part of the grantor, that the grantee was the absolute owner of the subject-matter of the conveyance, no further inquiry was required. The case of Eylar v. Eylar has been followed a number of times since.

In the case of Moore v. Chamberlain, 109 Tex. 64, 195 S. W. 1135, it was held that where tenants of a grantor were in possession, the general rule put the purchaser upon inquiry, and we have found no case which is in conflict with the ease. In that case, however, the deed of the grantors was of record. See Chamberlain v. Trammell, 61 Tex. Civ. App. 650, 131 S. W. 227. In the case of Bryant v. Grand Lodge Sons of Hermann, 152 S. W. 714, by the Texarkana Court of Civil Appeals, it was held that where an unrecorded deed from the grantor remaining in actual possession was exhibited by the grantee to a proposed purchaser, the purchaser was not required by the general rule to inquire further. A writ of error appears to have been refused in that ease.

In the case before us it must be observed that the deed from Williams to Daniels was not only unrecorded, but was found and exhibited to the appellant’s agents by Williams himself, then in possession, and not by Daniels, the grantee. Indeed, we find nothing in the evidence of Daniels, the named grantee in the. deed from Williams, which shows that he ever saw that deed or that in fact .it was ever delivered to him, or to any other person for him. The evidence discloses no attempt, other than as possibly may be inferred from J. L. Pénry’s testimony, to see or interrogate Mrs. Williams as to whether she was claiming any interest, in the property, and, if so, what interest. So that, under all the circumstances, we do not feel quite able to say that the evidence was of that undisputed character which authorized the court to take all material issues away from the jury. If the jury should find that the circumstances were such as to put appellee upon inquiry as to the true state of the title, then the question would only be whether the inquiry had been prosecuted with reasonable diligence, and, if so, whether it would have brought home to appellee notice of the circumstances as alleged in the plaintiffs’ petition.

We conclude that the judgment below should be reversed and the cause remanded for another trial. In reversing the case, however, we deem it proper to say that the evidence shows that in the purchase of the note given by Daniels to Williams, the appellant company paid off and discharged mechanics’ and ether liens of several thousand dollars which rested -upon the premises in controversy, and we do not wish to intimate in what we have said that appellant in any event is precluded from its right, if any, to be sub-rogated to the title and interest of the owners and holders of such liens so discharged by appellant. See Sanger Bros. v. Ely & Walker Dry Goods Co. (Tex. Civ. App.) 207 S. W. 348.

Judgment reversed and cause remanded.
      @=For otbercases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PANNILL, C. J.

text:
    FATH et al. v. NEWMAN.
    (No. 321.)
    Court of Civil Appeals of Texas. Eastland.
    June 3, 1927.
    Courts ⅞=>120 — District court held without jurisdiction of case involving possession of personal property described as of exactly $500 value (Const, art. 5, § 16).
    Under Const, art. 5, § 16, requiring that amount in controversy must exceed $500 in order to confer jurisdiction on district court, such court was without jurisdiction in case involving title and possession of personal property described in petition and in affidavit for sequestration as of the value of exactly $500.
    Appeal from District Court, Dallas County ; Louis Wilson, Judge.
    Action by C. F. Fath and others against Alice Newman. Judgment for defendant, and plaintiffs appeal.
    Appeal dismissed.
    White & Yarborough, of Dallas, for appellants.
    Jeff D. Stinson, of Dallas, for appellee.
   PANNILL, C. J.

Appellants sued appellee in the district court of Dallas county for the title and possession of certain personal property described in their petition of the total value of exactly $500. Ancillary thereto they caused a writ of sequestration to issue, by virtue of which the sheriff took the property in possession. The affidavit for sequestration alleged the value of the property to be exactly $500. Defendant replevied the property. Upon a trial of the cause judgment was rendered in favor of the defendant, from which an appeal has been taken.

The appeal is dismissed. The district court was without .jurisdiction to hear and determine the cause. In order to confer jurisdiction upon the district court the amount in controversy must exceed $500. Constitution, art. 5, § 16.

No further citation of authorities is necessary.

Appeal dismissed for want of jurisdiction.


author: WALKER, J.

text:
    CONN et al. v. TEXAS & N. O. R. CO. et al.
    (No. 1657.)
    Court of Civil Appeals of Texas. Beaumont.
    March 8, 1928.
    Rehearing Denied March 21, 1928.
    I.Carriers <⅞=»105(2) — Notice of special need for shipment may not be implied from fact that it consisted of cotton seed meal and hulls.
    Notice to railroad of special need of cattle owners for shipment of feed for cattle may not be implied from fact that it consisted of cotton seed meal and hulls.
    2. Carriers «3=» 105 (2) — Railroads held not liable for loss of cattle from delay of shipment of cotton seed meal and hulls, leaving no notice at time of making contract of. special need for feed.
    Where railroads had no notice at time of making contract that cattle owners were in need of shipment of cotton seed meal and hulls to keep cattle from dying, but received notice later, and were not negligent in delivery of feed after it arrived at its destination, held, that railroads were not liable because of delay for special damage resulting from death of cattle.
    3. Damages <§=»23 — To recover special damage for breach of contract, plaintiff, must show . defendant had notice . of special conditions when entering contract.
    In order to- recover special damages for breach of contract, plaintiff must show that at date of contract defendant had notice of special conditions rendering such damage natural and probable result of breach.
    4. Appeal and error <Ste>'843(3)— Court of Civil Appeals need not consider alleged error in excluding evidence, when proof would not render defendant liable.
    Court of Civil Appeals need not consider alleged error in excluding evidence of negligence of defendant, when proof of existence of such negligence would not render defendant liable.
    Appeal from District Court, Harris County; W. E. Monteitb, Judge.
    Action by S. B. Conn and others against the Texas & New Orleans Railroad Company and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    John B. Warren, of Houston, for appellants.
    Garrison & Watson, Andrews, Streetman, Logue & Mobley, and J. R. Andrews, all of Houston, for appellees.
   WALKER, J.

In December, 1924, appellants S. B. Conn, R. M. Curtis, and W. P. Smith, operating a ranch near Camptown, Newton county, Tex., rounded up 400 or 500 head of their cattle at that point for-the purpose of feeding them through the winter. While holding them there for that purpose a heavy freeze came on about the 21st of December, killing more than 150 head of these cattle. On the 3d of December, prior to the freeze, anticipating their need for feed, appellants ordered from the Interstate Feed Company of Fort Worth, Tex., a carload of meal and hulls, which was shipped to Camp-town under bill of lading dated the 11th of December, but was not delivered until the 29th of December, after the death of the cattle. The bill of lading was issued by appellee Texas & New Orleans' Railroad Company, and the shipment was to move over thát road from Dallas to Beaumont; from Beaumont to Mauriceville, a distance of about 20 miles, with the appellee Kansas City Southern Railway Company; from Mauriceville to Gist over appellee Orange & Northwestern; and from Gist to Oamptown over appellee S. & N. Y. Railroad Compan'y. Appellants pleaded that defendants were negligent in the delivery of the feed, and that this negligence proximately caused their damage. Their damages being special, they sought to recover on three grounds: (a) Defendants were notified at or before the issuance of the bill of lading that the feed was intended for appellants, their need of the feed for the use of their cattle, and that the cattle would die if the feed was not delivered at Oamptown within a reasonable time, and that a reasonable time in which to deliver the feed from Dallas to Oamptown was five days, (b) Appellee had such notice from the character of the feed itself, (c) After the shipment and before delivery appellants gave to the agents of certain of the appellees, other than the initial carrier, notice of their special need for the feed and the consequences that would result from delay in its delivery and with such notice appellees were guilty of negligence in tracing and delivering the feed.

The proof is without controversy that no notice was given to the initial carrier, Texas & New Orleans Railroad Company, or to any of the other carriers at or prior to the execution and delivery of the bill of lading. On its face the bill of lading showed that the shipment was received from Planters’ Cotton Seed Products Company; that it was consigned to Interstate Peed Company at Oamptown, Tex., and consisted of 100 sacks of cotton seed meal and 300 sacks cotton seed hulls. Admittedly, appellees had no actual notice at the time of the execution of the contract that the feed was intended for appellants, nor of their special need for it, nor that delay in its delivery might be harmful. That such notice could not be implied from the fact that the shipment consisted of cotton seed meal and hulls was clearly announced by the court in Payne v. Reynolds (Tex. Civ. App.) 239 S. W. 985, on facts on all fours with the facts in this case. It was there said that the shipping agent could just as well have in-' ferred that the shipment was to a retail dealer in such commodities rather than to a feeder. On December 15th, after the execution on the 11th of the bill of lading, it was delivered to appellants, who immediately delivered it to the agent of the S. & N. V. Railway Company, and at that time paid him the freight on the car of feed and made demand for the delivery of the feed and told him the cattle were needing it and of the consequences of the delay in its delivery. The carrier having no notice, express or implied, at the time of the contract, of the circumstances which might cause delay to be specially harmful, and not being negligent in the delivery of the feed after its arrival at its destination, was not liable to appellants for the special damages sued for. The rule was thus stated in M., K. & T. Railway Co. v. Belcher, 89 Tex. 428, 35 S. W. 6:

“The rule seems to be settled that plaintiff, in order to recover special damages for breach of a contract, must show that at the date of the contract defendant had notice of the special conditions rendering such damages the natural and probable result of such breach.”

See, also, Gulf, C. & S. F. Railway Co. v. Gilbert, 4 Tex. Civ. App 366, 22 S. W. 760, 23 S. W. 321; Hassler v. Railway Co. (Tex. Civ. App.) 142 S. W. 629.

That no negligence was shown in the delivery of the feed after its arrival at Camp-town clearly distinguishes this case from Bourland v. Railway Co., 99 Tex. 407, 90 S. W. 483, 3 D. R. A. (N. S.) 1111, 122 Am. St. Rep. 647, wherein liability was predicated on negligence in making the delivery after the shipment arrived at its destination. There is no conflict between the Belcher and the Bourland Cases, but each rests upon Well-recognized legal principles applicable to their peculiar facts. The Bourland Case expressly recognized and reaffirmed the Belcher Case. We refer to these two cases because, as we understand, in Western Union Telegraph Co. v. Hice (Tex. Com. App.) 288 S. W. 175, the Commission of Appeals, section A, recognized a conflict between them, and gave the Bourland Case controlling effect, and pronounced as dicta the holding of the Belcher Case to the effect that notice, to be éffeetual, must be given at. the time of making the contract. The doctrine of the Belcher Case was also condemned as unsound “on principle.” If we correctly construe the Hice opinion, it announces the doctrine that notice given subsequently “in time to prevent injury, if treated with diligence,” may constitute grounds of liability, citing the Bourland Case in support of the proposition. Judge Williams, in the Bourland Case, stated the distinction between it and the Belcher Case in terms so clear that we could add nothing to what he says. I-Ie reaffirmed the Belcher Case and then bottomed the Bourland Case on the duty to deliver the shipment after its arrival at destination. If it is the holding of the Hice Case that notice given to a common carrier after the execution of a contract of shipment and after the shipment had been received for transportation, as was done here, constitutes grounds of liability, “if not treated with diligence,” we most respectfully decline to follow it.- The Supreme Court did not approve the holding, but simply said: “Judgment of the Court of Civil Appeals affirmed” — which was clearly a -correct judgment. It seems to us the Hice Case on its peculiar facts might well have rested on the Bourland Case, without in any way conflicting with the Belcher Case. Anyway, notwithstanding the criticism of the Belcher Case by tbe Hice Case, it was subsequently cited by tbe same section of tbe Commission of Appeals, by Judge Harvey, in Higginbotham v. Kyle (Tex. Com. App.) 294 S. W. 531, in support of tbe proposition:

. That there can be no liability for breach of contract, “unless there exist special circumstances at the time of the execution of the contract, of which the obligor has notice, from which it ought reasonably be foreseen that such a loss would naturally and probably result ,from a breach of his obligation. Hadley v. Baxendale, 9 Ex. 341; M., K. & T. Ry. Co. v. Belcher, 89 Tex. 429, 35 S. W. 6; Pac. Exp. Co. v. Darnell, 62 Tex. 641.”

The Court of Civil Appeals in L. B. Menefee Dumber Co. v. Davis, etc. (Tex. Civ. App.) 294 S. W. 275, cited only tbe Belcher Case in support of tbe following proposition:

“Appellee is seeking in this ease to offset special damages against the claim of appellant, and in order to do so has the burden of showing that at the date of the contract appellant had notice of the_ special conditions rendering such damages the natural and probable result of its breach, under circumstances showing that the contract was to some extent based upon or made with reference to such conditions. M., K. & T. Ry. Co. v. Belcher, 89 Tex. 428, 35 S. W. 6.”

on the statement made by us there was proof of subsequent notice of tbe special conditions creating tbe need for tbe feed, but no negligence on tbe part of appellees in tracing and delivering tbe ear after such notice. Appellants’ evidence on tbe issue of negligence offered by them to sustain that issue was excluded by tbe court, and due assignment is made here of that ruling. It is not necessary for us to discuss the action of tbe court in excluding this testimony, since, as we have just said, bad negligence been shown, it would not have made appellees liable.

Appellees advance other counter propositions to sustain tbe judgment of tbe trial court, which we do not discuss, since we think tbe judgment is correctly affirmed on tbe theory that appellees bad no notice of the special damages claimed at tbe date of tbe contract.

Tbe judgment of tbe trial court is affirmed.
      ®=»For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: STANFORD, J.

text:
    LUMMUS et ux. v. ALMA STATE BANK.
    (No. 648.)
    Court of Civil Appeals of Texas. Waco.
    March 8, 1928.
    I.Judgment <3=>273(8) — 'Court generally determines whether order or judgment sought to be entered nune pro tunc was actually made.
    Ordinarily, where order or judgment is alleged to have been rendered by court, but is not entered of record, and application is presented at a later date to have the order entered nunc pro tunc, court itself will decide the question as to whether it actually made the order.
    2. Judgment <⅜^>273(8) — Trial court on application for entry of order nun pro tune had discretion to submit to jury question whether order was in fact previously made.
    * On application to court to have order entered of record nunc pro tunc as of date of alleged rendition, court had discretion to elect to submit to the jury the issue of fact as to whether he made the order, and his discretion was not subject to revision on appeal.
    3. Acknowledgment <⅜»55 (2) — Certificate of officer to whom married woman appears for acknowledging conveyance is conclusive in favor of innocent purchaser.
    Where married woman, who has with her husband signed conveyance of homestead or separate property, appears before an officer authorized to take acknowledgments for the purpose of acknowledging conveyance, officer’s certificate, which shows full compliance with law, is conclusive upon the married woman in favor of innocent purchasers without notice.
    4. Acknowledgment <⅝=>56 — Married woman, who has made no acknowledgment, is not bound by officer’s certificate, even in favor of innocent purchaser.
    Where married woman does not appear before' officer for purpose of acknowledging execution of deed, and no acknowledgment in fact has been made, and officer’s authority has not been invoked, certificate of acknowledgment, however formal, is not binding upon her, even in favor of innocent purchaser for value.
    5. Homestead ⅞=>119 — Deed of homestead, not actually acknowledged by wife, held void as to alleged innocent purchaser, notwithstanding certificate was filled in without authority by notary presenting instrument for her signature.
    Where notary presented deed to married woman, not for purpose of taking her acknowledgment, but merely to secure her' signature, and she merely signed deed to homestead, thinking it was mortgage, without invoking exercise of notary’s authority, conveyance was void and ineffectual as to both herself and her husband, even as against alleged innocent purchaser for value, though notary subsequently filled in certificate in proper form.
    Error from District Court, Ellis County; Tom J. Ball, Judge.
    Suit by tbe Alma State- Bank against A. J. Lummus and wife, in which defendants interposed a cross-bill. To review a judgment for plaintiff, defendants bring error.
    Reversed and remanded.
    W. D. Colvin, T. H. Collier, and Looney & Stout, all of Ennis, for plaintiffs in error.
    John H. Sharp and Archie Gray, both of Ennis, for defendant in error.
   STANFORD, J.

Alma State Bank, hereafter referred to as the bank, prosecuted this suit against A. J. Hummus and wife, Laura Lummus, for the recovery of a certain house and lot in the town of Alma in Ellis county, Tex., fully described in the bank’s pleading. The bank sought to recover said property by virtue of what purported upon its face to be a warranty deed, duly executed by Lummus and wife, dated January 22, 1922, conveying said property to J. W. Richards, and by deed from Richards to the bank. Lummus and wife contended that said purported deed to Richards was intended as a mortgage; that they understood it to be a mortgage to secure $2,400, which they owed the bank, and that it was so explained to Mrs: Lummus, and at the time she signed same she thought it was a mortgage; that she never acknowledged said instrument, etc. It was admitted that, at the time said instrument was signed, purporting to convey said property to Richards, and by him deeded to the bank, that same was and had for many years been the homestead of Lummus and wife, and they sought in a cross-bill to have said instrument canceled, as a cloud upon the title to their homestead. In response to special issues, the jury found:

“(1) That, at the time A. J. Lummus executed the instrument, purporting to be a deed from himself and wife to J. W. Richards, of date January 22, 1922, he did not believe .said instrument to be a mortgage to secure a debt, and not an absolute conveyance.
“(2) That, at the time Laura Lummus executed the instrument in question, she did not intend and believe the same to be an absolute conveyance of the premises described therein to the bank.
“(3) That, at the time' Laura Lummus executed the instrument in question, she did intend and believe the same to be a mortgage to secure indebtedness of her husband, A. J. Lum-mus, to the bank.
“(4) That A. J. Lummus did represent to his •wife, Laura Lummus, before she executed the instrument in question, that the Alma State Bank was asking that they execute a mortgage on the premises in question to secure the debt he then owed said bank.
“(5) That neither J. W. Richards nor D. B. Munsey caused or requested A. J. Lummus. to represent or explain to his wife, Laura Lummus, that the instrument to be signed by her whs a mortgage and not an absolute deed.
“(6) That the defendant Laura 'Lummus did rely upon the representations made to her by her husband.
“(7) That Geo. W. Collard, the notary public, did not examine the defendant Laura Lum-mus separate and apart from her husband, and he did not explain said instrument (the purported deed) to her, and she did not acknowledge before him that she had executed the same as her act and deed, for the purposes and consideration therein .expressed, and she did not declare that she had willingly signed the same, and that she did not wish to retract it.
“(8) That J. W. Richards did not, by any statement, act, or conduct of his, cause said notary to fail to fully explain said instrument to Laura Lummus, separate and apart from her husband, and to fail to acknowledge to said notary that she had executed said instrument for the purposes and consideration therein expressed, and declare to him that same was her act and deed, and that she had willingly, signed the same, and that she did not wish to retract it.
“(9) That, in the negotiations, as shown by the evidence, between J. W. Richards and the defendant A. J. Lummus, leading up to and culminating in the execution of said instrument, the said J. W. Richards was not acting solely in his individual and personal capacity and interest in making a deal for said premises with A. J. Lummus.
“(10) That the said J. W. Richards, in thp negotiations with A. J. Lummus leading up to the execution of said instrument, was representing the Alma State Bank under instruction of the board of directors or its officers to endeavor to secure better or additional security for the alleged indebtedness of the said A. J. Lummus to said bank.”

In response to special issue No. 2, given at the request of the bank, the jury.found:

“The Alma State Bank was an innocent purchaser for paid value of the land described in the deed from A. J. Lummus and wife to J. W. Richards, without notice that the notary public failed to perform his duty as required by law; and that said deed was intended as a mortgage by the said A. J. Lummus and wife and Ji W. Richards.”

Upon the above findings of the jury, the court entered judgment awarding a recovery of the land to the bank, and refusing Lummus and wife any relief on their cross-bill. Lum-mus and wife, as plaintiffs in error, present the record here for review.

We will first briefly dispose of some preliminary motions. The record discloses that on December 15, 1927, after appeal had been perfected and the record filed in the appellate court, the bank filed a motion in the appellate court to dismiss the appeal, strike out the transcript, statement of facts, and assignments of error, upon the ground that the record failed to show, that the amended motion for new trial by Lummus and wife was ever acted upon and overruled by the trial court. When this motion became known to attorneys for Lummus and wife, said attorneys filed a motion in the trial court, under oath, on January 3, 1928, in due form, alleging that their amended motion for new trial was duly presented to the trial court on May 14, 1927, and that same was by the court on the same date overruled, but that the court had inadvertently failed to enter its order ’so showing, and attached a copy of the order that should have been entered on said date, and prayed that said order then, as of date May 14, 1927, be entered, and requested that the question as to whether the court on said date did announce that he overruled said motion be submitted to a jury. The bank objected to said issue being submitted to a jury. Tbe trial court overruled tbe objections of counsel for tbe bank, and submitted to a jury duly impaneled tbe question as to whether or not tbe trial court did, on May 14, 1927, in open court, state that be overruled defendant’s amended motion for a new trial and failed to note such ruling on bis docket: The jury, after bearing tbe evidence, answered in tbe affirmative; whereupon tbe trial court granted said motion of Lummus and wife, and entered bis order as óf May 14, 1927, overruling their amended motion for new trial, after which Lummus and wife filed in this court a motion for a writ of certiorari to bring to this court a certified copy of said order of tbe trial-court — a supplemental transcript containing said order entered nunc pro tunc, and all proceedings by which same was obtained, being attached to said motion — whereupon tbe bank filed in this court a motion to strike out tbe order entered nunc pro tunc, because, as to whether tbe court overruled said amended motion on May 14th, 1927, was a matter that should have been passed upon by tbe court, and tbe court erred in submitting such issue to a jury. So all of said motions are now before us for decision, and we think their disposition should be determined by a decision of tbe above-suggested question.

Ordinarily, where an order or judgment is alleged to have been rendered by a court, but not .entered of record, and an application is presented to such court at a later date to have such judgment or order entered nunc pro tunc, or as of tbe date same was actually rendered, tbe court decides tbe question as to whether or not be actually made such decision as alleged, because tbe court is usually in position to determine tbe matter from bis own recollection or from some data in tbe record. But tbe court may not remember, and may have no data to refresh bis memory, and such question may become, as we think it did on tbe bearing involved in this proceeding, a question of fact to be decided upon tbe evidence of others, in which case we see no reason why tbe court should not, if be so elects or is requested by a party to tbe proceeding, submit such issue of fact to a jury. It was.at least entirely within tbe province and discretion of tbe court to determine in what manner it would satisfy itself of tbe fact that it did overrule said amended motion for rehearing on May 14, 1927, and is a matter not subject to revision by this court. 42 O. J. p. 506. We grant tbe application by Lummus and wife for cer-tiorari to correct tbe record, and overrule tbe bank’s motion to dismiss appeal, etc., and also its motion to strike out tbe supplemental transcript.

As above stated, tbe jury found that, at tbe time Mrs. Lummus signed tbe purported deed, she did not intend and believe same to be a deed of conveyance to J. W. Richards, but that she did intend and believe tbe same to be a mortgage to secure her husband’s indebtedness to tbe bank. Tbe jury also found that tbe notary, Geo. W. Collard, did not examine tbe wife, Laura Lummus, separate and apart from her husband; that be did not explain said instrument to her; that she did not acknowledge before him that she bad executed the same as her act and deed for tbe purposes and consideration therein expressed; that she did not declare that she bad willingly signed tbe same; and that she did not wish to retract it. In other words, tbe notary made no attempt to take her acknowledgment. Tbe bank makes no objections to tbe above findings on any ground. Tbe undisputed evidence establishes tbe following facts beyond controversy: Prior to and at tbe time tbe purported deed was made to J. W. Richards, A. J. Lummus was indebted to tbe Alma State Bank in tbe sum of at least $2,400. J. W. Richards was cashier of said bank. Tbe board of directors of said bank instructed its cashier, J. W. Richards, to get additional security for tbe A. J. Lummus indebtedness to said bank, and, in pursuance of said instructions, tbe said cashier, as a representative of tbe bank, as found by tbe jury, entered into negotiations with A. J. Lummus, which led up to and culminated in tbe purported deed. Tbe president of the bank wrote said deed to Richards. Tbe deed from Lummus and wife to J. W. Richards recited a cash consideration of $2,400 in band paid to them, but nothing was paid. On tbe delivery of said instrument, J. W. Richards gave his note for $2,400 to tbe bank, and the bank credited same on A. J. Lummus’ indebtedness to tbe bank, and afterwards J. W. Richards deeded said property to tbe bank, which surrendered to him his $2,400 note. As we view tbe case, it is not necessary to decide whether or not tbe bank or Richards was- an innocent purchaser for value.

Under several assignments, plaintiffs in error contend,' in effect, that, where it is shown' that a married woman has not appeared before a notary for tbe purpose of acknowledging tbe execution of a deed purporting to convey her homestead, and no such acknowledgment has in fact been made, she having in no way invoked tbe exercise of such officer’s authority as a notary, tbe certificate of the notary, however formal, is not binding upon her, even in favor of an innocent purchaser for value. It appears from tbe finding of tbe jury to tbe seventh special issue, set out above, that tbe notary did not attempt to take Mrs. Lummus’ acknowledgment to tbe purported deed.

Mrs. Lummus testified, in substance: That her husband bad tried to get her to sign a mortgage twice, and that she refused; that, after tbe second talk, on tbe assurance of her husband that Mr. Munsey would never foreclose, she agreed to sign tbe mortgage; that Mr. Collard came up to their bouse and said, “Here are same papers Mr. Richards wants you to sign, and you sign your name under Jack’sthat she and her husband went into the house to a table and signed the paper; that, as she remembered, Mr. Collard had on his Overshoes, which were muddy, and she did not think that he came into the door; that not a word ^was said to her about the instrument, and when she signed it she thought it was a mortgage, and, if she had not thought so, she would not have signed it.

A. J. Lummus testified, in substance, that Mr. Collard brought the instrument up to the house and said, “Here are some papers Mr. Richards sent up here for you all to sign;” that he and his wife walked into a 10x12 foot room and signed the same in the presence of each other, without so much as reading it; that not a word was said about it after he handed it to them; that, after signing the same, Collard took it back with him.

'George W. Collard testified, in substance, that the paper was delivered to him by J. W. Richards, who told him to go up to Mr. Lum-mus’ and have him and Mrs. Lummus to sign it; that he carried the paper to the house where they were together; that he did not read the paper over to Mr. Lummus or his wife; that he at the time did not know what the paper was; that he did not explain the paper to either Mr. Lummus or his wife; that both Mr. and Mrs. Lummus were in a room about 12x12 feet when they signed the paper, and Mr. Lummus remained in the room while his wife signed the paper. The witness further said:

“I did not make any explanation to either of them what the paper was, as Mr. Richards just handed the paper to me, stating that he had a paper and would like to get me to go up to Mr. Lummus’ and have him and Mrs. Lummus to sign it. * * * Well, in the first place, I asked Mr. Richards did they understand the paper, and he said, ‘Yes,’ they understood it, to go and have them sign it, and so I did not pay any attention to what the paper was — just thinking it was the bank, and Mr. Lummus b.eing an officer (a deputy constable) and Mr. Richards having stated that they understood it — and that is the reason I did not read it over to or explain it to either of them. * ⅜ * I did not ask Mrs. Lummus did she willingly sign the instrument, nor did she state that she did. I did not ask her if she executed it for the purposes^ and consideration therein expressed, nor did she state that she did. I did not ask her if she acknowledged the instrument to be her act and deed, nor did she state that she did. I did not ask her whether she wished to retract it, nor did she state whether she did or not. In fact, I did not say anything to her about acknowledging that instrument, asked her no questions whatever in relation to it, nor did I examine her privily and apart from her husband concerning! the instrument. After the instrument was signed by Mr. and Mrs. Lummus, I brought it back to the bank and. delivered it to Mr. Richards — he being in the bank at the time.”

The notary’s certificate of the acknowledgment of Mrs. Lummus to said instrument, made by the witness George W. Collard as a notary public, is in due and statutory form. However, the evidence of said George W. Collard and Mr. and; Mrs. Lummus, all of which is in line with the finding of the jury and is uncontradicted by any other evidence in the record, shows affirmatively that said notary did not take, nor attempt to take, Mrs. Lummus’ acknowledgment to said instrument. There is no evidence that Mrs. Lum-mus appeared before said notary for the purpose of having him take her acknowledgment or that she in any way invoked his authority as such officer for such purpose, or that she even knew he was a notary. This being true, it necessarily follows the recitations of his certificate as to her acknowledgment are wholly false.

The rule seems to be well settled ⅛ this state that, where a married woman, who has with her husband signed a deed conveying the homestead or her separate property, appears before an officer authorized to take acknowledgments for the purpose of acknowledging such conveyance, and the officer fails to do his duty in taking such acknowledgment, but makes a certificate which shows a full compliance with the law, such certificate is conclusive upon the married woman in favor of an innocent vendee who paid value for it without notice that the officer failed to perform his duty as required by law. Pool v. Chase, 46 Tex. 210; Kocoure v. Marak, 54 Tex. 205, 38 Am. Rep 623; Waltee v. Weaver, 57 Tex. 571. But where it is shown that the married woman has not appeared before the officer for the purpose of acknowledging the execution of the deed, and no acknowledgment has in fact been made, she having in no way invoked the exercise of the officer’s authority in that respect, the certificate, however formal, is not binding upon her, even in favor of an innocent purchaser and for value. Breitling v. Chester, 88 Tex. 586, 32 S. W. 527; Wheelock v. Cavitt, 91 Tex. 679, 45 S. W. 796, 66 Am. St. Rep. 920; Yaseen et al. v. Green (Tex. Civ. App.) 140 S. W. 824 (writ denied); Cosgrove v. Nelson (Tex. Civ. App.) 269 S. W. 891 (affirmed by Supreme Court, 277 S. W. 1118); Putman v. Coleman et al. (Tex. Civ. App.) 277 S. W. 213; People's Gas Co. v. Fletcher, 81 Kan 76, 105 P. 34, 41 L. R. A. (N. S.) 1161, and cases cited. The evidence is conclusive that Mrs. Lummus did not go before the notary for the purpose of acknowledging said instrument, and that the notary did not appear before her for the purpose of taking her acknowledgment, but only, as testified by him, to secure her signature to said instrument. The evidence is also conclusive that the exercise of his authority as a notary was in no way invoked by Mrs. Lummus in respect to taking her acknowledgment, and that he did not in fact .attempt to take her acknowledgment, as found by the jury and admitted by the notary. Said deed was wholly void as to Mrs. ¿ummus, and ineffectual as a conveyance even if Richards and the bank were innocent purchasers for value, and said deed being void and conveying no title as to the wife, and the property being the homestead, it conveyed no title as to either the. husband or wife. Stallings v. Hullum, 89 Tex. 431, 35 S. W. 2; Martin v. Astin (Tex. Com. App.) 295 S. W. 584. We sustain the above assignments. We think the trial court should have instructed a verdict for plaintiffs in error.

It not appearing conclusively that the matter here discussed was by the pleading and evidence fully developed, we will remand the case.

Reversed and remanded.
      <S=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    GUTHRIE et al. v. BURCHFIELD.
    (No. 9100.)
    Court of Civil Appeals of Texas. Galveston.
    Feb. 22, 1928.
    Rehearing Denied March 29, 1928.
    1. Brokers <⅜^>40 — Showing broker was procuring cause of sale does not render owner liable for commission to mere volunteer.
    A showing that a real estate broker was the procuring cause of a sale of land does not create agency for owner, or render him liable for commission, if broker was a mere volunteer.
    2. Brokers <S=>8(3) — Evidence held insufficient to show agency for married woman on theory land was sold by broker with her acquiescence.
    In" action against a married woman for commission on sale of her one-fourth interest in land, where her husband, in dealing with broker, had no authority to contract for payment of commissions by her, evidence held insufficient to show agency of broker on theory that land was sold by him with her acquiescence after her knowledge that broker had rendered service in connection with the sale.
    Appeal from District Court, Harris County; Ewing Boyd, Judge.
    Action by. W. G. Burchfield against Yerna C. Guthrie and husband. From a judgment for the plaintiff, defendant named appeals.
    Reversed, and rendered for the defendant named.
    Eulbright, Crooker & Freeman and M. C. Chiles, all of Houston, for appellant.
    Baker, Bottz, Parker & Garwood and St. John Garwood, all of Houston, for appellee.
   GRAVES, J.

Appellant, Yerna C. Guthrie, wife of Thomas H. Guthrie, challenges, as being unsupported by the evidence, a recovery of $1,875, or 5 per cent, upon the amount involved, awarded the appellee herein — pursuant to a jury’s verdict upon special issues —as a commission for having as a real estate agent procured the sale for her of her one-fourth interest in the Ruby-Colby 100 acres of land on the Houston Ship Channel to the Carnegie Steel Company for $37,500.

A careful study of the record and statement of facts convinces this court that the position is well taken and should be sustained.

We think it conclusively appears from the body of the evidence as a whole that, in so far as the sale of Mrs. Guthrie’s interest in the 100-acre tract to the steel company was concerned, the appellee, irrespective of whether he was or not the procuring cause of it, failed to show that he was other or more than a mere volunteer; hence was not entitled to a commission as her agent. 2 C. J. 483, par. 99; Williams v. Moore, 24 Tex. Civ. App. 402, 58 S. W. 957; Sheer v. Cummings, 80 Tex. 294, 16 S. W. 37; Dunn v. Price, 87 Tex. 318, 28 S. W. 681; Tascott v. Grace, 12 Ill. App. 639; Hoffman v. Condon, 134 App. Div. 205, 118 N. Y. S. 899; Newell v. Lafarelle (Tex. Civ. App.) 225 S. W. 853.

It is not claimed that Mrs. Guthrie directly in any way dealt with the appellee concerning the sale of her interest, but only that she was bound for the commission as a result of what her husband did for her as her agent in the matter; the appellee’s contention in that connection, as well as the trial court’s judgment, which accepted it, as the special issues submitted to and passed upon by the jury make manifest, being based upon the theory that her husband had authority to contract both for the sale of her interest and the payment of a commission therefor, and that, while he did not at any time prior to the execution of the contract and the payment of the earnest money for the sale of her interest promise the appellee that he would be paid a commission for bis services in connection with such sale, both Mr. and Mrs. Guthrie at some such time knew the appellee had rendered services in that connection and was claiming a commission therefor, hence she became liable to him for what the jury found was a reasonable compensation for his services — that is, 5 per cent, on the $37,500.

The gist of these issues and findings, otherwise stated, is:

(1) That appellee was the efficient cause of the sale of the entire Ruby-Oolby 100 acres to the steel company, inclusive of the 20 acres of it fronting on the Ship Channel.

(2) That Mr. Guthrie had authority from Mrs. Guthrie to contract for the sale of her interest in the whole tract and for the payment of a commission therefor.

(3) That both he and she, at some time prior to the execution of the contract and the payment of the earnest money for the sale of Mrs. Guthrie’s interest to the steel company, knew that appellee claimed to have or had rendered services in connection with such sale and was claiming a commission therefor, but that Mr. Guthrie had not at any such time promised him that he would be paid a commission for any such services.

(4) That 5 per cent, of the purchase price of Mrs. Guthrie’s interest would be a reasonable commission for the appellee’s services.

As at first indicated, whatever may be the state of the proof in other respects, we fail to find any evidence of probative force supporting this indispensable element of the theory thus relied upon, that the appellee must, at least, have had the right in the circumstances to expect from Mrs. Guthrie compensátion for the services she and her husband were thus found by the jury to have known he’ was rendering and claiming a commission for; without that he was only a volunteer, under the authorities cited supra. That he had no such right under any antecedent contract or promise to that effect from either heréelf or her husband is concluded on the one part by the undisputed absence of any direct dealings with her, and on the other by the specific finding that Mr. Guthrie made him none; so that, for it to have existed at all, it must have been shown to arise by implication, either from what Mr. Guthrie, acting with' authority from, or at least with the knowledge and acquiescence of, his wife, otherwise did for her, or from her own knowledge that the appellee had rendered services in connection with the sale of her part of the land and was claiming a commission therefor.

In this connection, we repeat our not understanding the law to be that her mere knowledge that appellee had rendered services in reference to the sale of her land and was claiming a commission for them would.make her liable to him for it; notwithstanding such knowledge, she had the right to go on and independently sell her property, if his services and claim for compensation were unauthorized by her either directly or through her husband. The rule in such circumstances' Is thus stated by Judge Key in Williams v. Moore, supra;

“If another person, unauthorized by the owner, assist an agent in making a sale, is it right and just to hold that, if apprised of what has been done by such assistant or subagent, and the fact that the 'agent has promised compensation by the owner, the latter cannot accept the terms offered by the purchaser without becoming liable to such subagent? Under such circumstances, it cannot be claimed that the owner has misled the subagent, nor will consummation of the sale without compensating him place him in any worse position than he would be in if the sale should be abandoned.”

This sine qua non of liability is more plainly lacking under the uncontroverted evidence here than in the Moore Case, because in this instance it is not contended that Mrs. Guthrie herself did other than simply carry out the sale with the purchaser, without any dealings or understanding of any sort with the appel-lee, and there is no testimony reasonably tending to show that her husband' ever had any authority from her to, or in fact ever did, promise or lead the appellee to believe that he would be paid a commission from her for what he had or might do in relation to the sale of her interest; on the contrary, both Mr. and Mrs. Guthrie uneontradictedly testified that, while Mr. Guthrie had authority from her to sell her interest, he had none to pay or agree to pay any commission thereon, and there is no rebuttal of these unequivocal statements.

The earnest money receipt relating to the sale of all the 100 acres involved does not tend otherwise, because its terms only went far enough to indicate some relationship between the appellee and the other joint owners of separate interests, who admittedly bound themselves to and in fact paid him a commission, but nothing as affected this appellant; likewise the evidence of particular sales of other property by Mr. Guthrie for his wife, offered as tending to show he had general authority to bind her for the payment of commissions, was all conclusively negatived by the uncontradicted showing that in each instance she knew of and expressly authorized the transaction.

In a word, it seems to us to have been indisputably shown, looking to the statement of facts in its entirety, that both Mr. and Mrs. Guthrie rested throughout the whole transaction upon the conclusion that the logic of the situation with reference to her interest in the property would bring her the price she was willing to take for it, without the need of discounting it by the payment of a commission, and to have consistently refrained from in any way laying themselves liable to pay Pne.

We pretermit, as unnecessary to the decision, the determination of whether or not the evidence was sufficient to support the other findings of the jury than those specifically discussed, but are clear in the conclusion that no knowledge nor act that would bind Mrs. Guthrie was shown to have been brought home to her, and that so much of the answer to issue No. 3 as found that Mr. Guthrie had authority from her to contract for the payment of a commission on the sale of her interest in this land cannot be. permitted to stand.

Since the cause was fully developed, these conclusions require a reversal and rendition in favdr of appellant; that order has accordingly been entered.

Reversed, and judgment here rendered that the appellee take nothing.
      ®s»For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes