author: RUDDY, Presiding Judge. PER CURIAM.

text:
    Lenore C. PEHLE et al., (Plaintiffs) v. Horace G. BEEDLE et al., (Defendants). Lake Charles Memorial Park, Inc., (Defendant) Respondent, Harry J. Brusselback & Company, (Movant) Appellant.
    No. 31550.
    St. Louis Court of Appeals. Missouri.
    June 15, 1965.
    Rehearing Denied July 13, 1965.
    Forrest M. Hemker, St. Louis, for defendant Horace Beedle, deed.
    Henry C. Hughes, St. Louis, for defendant Robert W. Maysack.

      Biggs, Hensley, Curtis & Biggs, Ward Fickie, St. Louis, for defendant-respondent, Lake Charles Memorial Park, Inc.
    Rader & Love, Edwin Rader, Clayton, for movant-appellant, Harry J. Brussel-back & Co.
   RUDDY, Presiding Judge.

Harry J. Brusselback, an accountant, was appointed by the trial court to conduct an audit of sales cards of Lake Charles Memorial Park, Inc., a corporation. His motion for an allowance of compensation for his services, to be taxed as costs, was denied by the trial court and he has appealed to this court.

The proceeding out of which this appeal arose began with the filing of an original petition by the plaintiffs wherein they sought equitable relief concerning the management and handling of the affairs of the Lake Charles Memorial Park Cemetery. In their prayer plaintiffs sought an accounting for all moneys and properties which should, according to them, have been deposited in a perpetual care fund. Plaintiffs also sought the appointment of a receiver to take over the business and affairs of the defendant corporation, Lake Charles Memorial Park, Inc., and asked for other relief. Thereafter, a supplemental petition was filed by the plaintiffs. Following this filing, the original petition was amended by the plaintiffs. Timely answers were filed by the corporate defendant and by the individual defendants.

Organizational and historical data alleged in the petition disclosed that Lake Charles Cemetery, sometimes referred to as Lake Charles Memorial Park, is located in St. Louis County, Missouri. At the time the petition was filed the record owner of the land on which the cemetery was located was Lake Charles Memorial Park, Inc., a Missouri corporation. This corporation was the manager and operator of the cemetery. There also existed at the time the petition was filed and at all times since the origin of the cemetery, a pro forma decree corporation known as Lake Charles Memorial Park, whose members were the owners of lots in the cemetery. The original operating company of the cemetery was the Carlton Securities Company, a Massachusetts trust, which was involved in a receivership action and the real estate comprising the cemetery was sold under foreclosure proceedings.

On October 14, 1922, Carlton Securities Company, as owners and operators of the cemetery, entered into a written agreement wherein, among other things, the trust agreed to turn over to the Lake Charles Memorial Park, a pro forma decree corporation, five percent of all lots for the sole use and benefit of the said pro forma decree corporation and that when the said five percent of the lots was sold, the cash returns therefor were to be kept in a separate fund for the perpetual care of the cemetery. Carlton Securities Company further agreed that five percent of the sales receipts of the remaining 95% of the lots in the cemetery would likewise be turned over to the pro forma decree corporation for the perpetual care fund.

Following the foreclosure proceedings, heretofore referred to, the real estate was acquired by a newly formed corporation, Belleview Acres, Inc., whose name was later changed to Lake Charles Memorial Park, Inc., the corporate defendant herein. The named individual defendants were at one time or another officers and directors of the management corporation or of the pro forma decree corporation.

On April 30, 1959, while the plaintiffs’ action was pending, the court, among other orders made at the time, made the following order:

“By consent of parties, Harry Brus-selback appointed to conduct audit of sales cards of Lake Charles Memorial Park, Inc. to determine amount of completed sales.”

A memorandum to the same effect signed by the attorneys for all of the parties was filed at the time the aforementioned order was made and said memorandum was approved by the trial judge of the Circuit Court of St. Louis County.

On March 31,1961, a stipulation of settlement was filed signed by all of the attorneys for the parties, and with it a contract was filed setting out the terms of the agreed settlement. The contract of settlement is very lengthy and it is only necessary to recite such parts as we feel have a bearing on and are pertinent to the “amended motion of Harry J. Brusselback and Company for a court order taxing as costs the sum of $1437.50 in favor of movant.”

Paragraph 18 of said contract provides:

“The company (Lake Charles Memorial Park, Inc.) agrees to meet its obligations in respect to all previously entered into ‘pre-need’ contracts of every kind as they mature. The obligation of the Company to make contributions to the perpetual care fund on account of ‘pre-need’ sales heretofore made is included in the accounting of the Brusselback Report and is settled by this agreement. * *

On the same day the trial judge entered a decree in accordance with the stipulation and contract “for the purpose of finally determining and adjudicating all issues in this action.”

Paragraph 9 of the decree provides:

“That by the receiver’s deed of June 1, 1934 the purchaser at the receiver’s sale and subsequent grantees, including Lake Charles Memorial Park, Inc., assumed the performance of the October 14, 1922, agreement set out in para-, graph 4 hereof; that defendant, Lake Charles Memorial Park, Inc., by a supplement to said agreement on June 6, 1939, agreed to allot 25% of the net sales price or lots sold until the perpetual care fund provided for in the October 14, 1922 agreement reached a minimum requirement of $3750.00 per acre.”

Thereafter, the decree showed that there was to be paid to the pro forma decree corporation cash and note obligations secured by a deed of trust having a value in the aggregate of approximately $58,500, together with an allotment to the pro forma corporation of 5% of all of the lots comprising the platted portion of Lake Charles Memorial Park Cemetery, which lots were to be agreed upon and transferred in accordance with the contract approved by the decree. The decree further shows that the attorney for the plaintiffs had requested the payment of $7500 as and for his attorney’s fee for services rendered, all of which was agreed to in the contract subject to the approval of the court. The court in its decree approved the payment to said attorney of the sum of $7500. The contract of the parties and the stipulation were approved by the court and made a part of the decree. The court further decreed “that the cost of this action be against defendant, Lake Charles Memorial Park, Inc.”

Thereafter, Harry J. Brusselback, accountant, filed a motion for a court order directing payment for services rendered pursuant to the appointment of the court. In his motion movant alleged that in accordance with his employment and instructions he made an “audit of the books and records respecting sales of lots in Lake Charles Memorial Park for the periods from the beginning of the receivership sale in 1934; from 1934 to 1949 and from 1949 to date.” He alleged that the fair and reasonable compensation for the work performed is the sum of $1800 and that there has been paid thereon by way of partial payment the sum of $362.50, leaving a balance due of $1437.50 for which sum he prays judgment with interest of $301.88 to be taxed as costs in favor of said movant.

The aforesaid motion of Harry J. Brus-selback was heard by the court on November 30,1962. The only witness was movant, Harry J. Brusselback, Jr., who testified that he was a certified public accountant. He said that some time in March of 1959 he was contacted by Mr. Berthold and subsequent to that time he met with Mr. Bert-hold and Mr. Becker and was told the nature of the job that was going to be offered him. Thereafter, he was asked by Mr. Becker to appear in court on April 30, 1959. On that date he appeared before Judge Noah Weinstein and after a conference with the Judge and Mr. Ward Fickie (attorney for the corporate defendant) and after being questioned by Judge Weinstein as to his qualifications, he was appointed by the court and the order heretofore referred to was entered. On the day of his appearance in court, namely, April 30, 1959, he was handed a letter dated April 28, 1959, written by Henry C. Hughes, an attorney representing one of the individual defendants, to Mr. William J. Becker, attorney for the plaintiffs. The pertinent part of this letter is as follows:

“This will inform you that I have conferred with Mr. Ward Fickie, attorney for Lake Charles Memorial Park, Inc., and Mr. Forrest Hemker, attorney for Horace Beedle, respecting the suggestion that Harry Brussel-back, C.P.A. of Clayton, Missouri, be engaged to make an audit of the books and records respecting sales of lots in Lake Charles Memorial Park for the periods from the beginning of the receivership sale in 1934; from 1934 to 1949 and from 1949 to date to ascertain the completed sales for the periods and determine 5% thereof. Such information would be useful to enable counsel for the respective parties to give appropriate consideration to the settlement heretofore proposed. * * ”

He said this letter was given to him on April 30, 1959, when he appeared before Judge Weinstein. He said that he was also told on the date of his appointment to take further instructions from the attorneys. He was asked: “Did you do that” and he answered, “That I did. THE COURT: Did I designate the attorneys ? THE WITNESS : I don’t recall, Judge; but I believed it was Mr. Becker. At any rate, he was the one I did talk to after that. THE COURT: You didn’t talk to Mr. Fickie? THE WITNESS: No.”

The witness testified that he made three separate reports on the results of his audit. The first report was made on May 29, 1959, consisting of 19 copies which he delivered to Mr. Becker and he assumed that Mr. Becker handled the distribution of the copies to the various parties involved. At this point, in the testimony of the witness, Mr. Ward Fickie representing the corporate defendant admitted that he received copies of the report. Attached to the report was a schedule which reflected a recapitulation of the sales, separated into periods as requested with computations of amounts due the “Perpetual Care Fund” in accordance with agreements, and records of minutes of the association. These minutes showed that pursuant to the agreement of April 14, 1922, 5% of all lot sales was due the Perpetual Care Fund from that date forward. The minutes showed as of June 6, 1939, that the amount to be allotted was amended to 25% “this agreement to be in full force and effect until the Perpetual Care Fund shall have reached a minimum requirement of $3750 per acre.” This report showed the sales separated into periods with the sales from October 14, 1922, to June 3, 1939, computed at 5% to show the amount due the Perpetual Care Fund and all sales thereafter computed at 25%. After making this first report the witness said that because the instructions he had received were not clear enough to proceed, he asked Mr. Becker what he should do and Mr. Becker suggested that he should write to the Judge for clarification. On July 16, 1959, the witness wrote to the Honorable Noah Weinstein, Judge, in which letter he requested clarification of instructions as to breakdown of periods for the purpose of computing interest on the balance due the Perpetual Care Fund. In the letter he pointed out that Mr. Becker hesitated to instruct him in this respect and pursuant to Mr. Becker’s instructions he was writing the letter to the Judge of the court. In his letter he requested instructions on other matters. Copies of this letter sent to the Judge of the court were mailed to all of the attorneys in the case. Witness testified that he received' no reply to his letter of July 16, 1959, to the Judge of the court and that he did not confer with said Judge subsequent to the date of his letter. Not hearing from the Judge of the Court or from the attorneys in the case, he said he conferred with Mr. Becker and as a result of this conference he prepared and delivered his second report dated July 31, 1959. This report showed the total sales by periods, similar in this respect to the first report, and showed the computation of 5% on the total sales, together with a computation of interest, and sales allotted to the Perpetual Care Fund, together with interest on said sales. A third report was made dated August 7, 1959, which showed the total sales by periods, the same as in the previous reports, together with the computation of said sales at 5%.

The witness identified an exhibit which showed the number of hours spent by him and by other members of the accounting firm in the audit and the preparation of the reports. The total bill amounted to $1800 which included expenses of $127.65. He stated that the charges made were fair, reasonable and proper in the auditing business. It seems that $362.50 had been paid on the bill, which left a balance due of $1437.50.

In his cross-examination by the attorney for the corporate defendant the witness was asked, “Your instructions contained in this letter (April 28, 1959) said to determine the completed sales during specified periods of time and five percent thereof. When were these instructions changed and by whom, and under what circumstances ?” and he answered, “Well, since these periods were not definite, I asked Mr. Becker to give me more definite instructions as to exactly what periods were to be covered, and he did.” The witness said that it was his understanding at the time of the hearing, April 30, 1959, that his instructions were to come from Mr. Becker, since he and Mr. Becker were located in Clayton “and handy to each other.” He said that he received no instructions from the other attorneys. The witness admitted that “technically” the first report did not show a computation of 5% of the total sales, however pointing out that the report did show the total of all sales for the periods requested.

On redirect examination the witness testified that none of the attorneys, prior to the day of the hearing, had ever complained to him about not following instructions, nor did any of the attorneys or the parties contend that the figures were inaccurate. In a colloquy between the attorney for the corporate defendant and the court the attorney admitted that the witness had determined the sales, but that he also determined 25% thereof “which was absolutely not in accord with the instructions.” The court then asked “May I ask you this: The basic figures that he used to arrive at his result would be the same whether you multiplied by 25% or 5% ? Mr. Fickie (attorney for corporate defendant): That is correct, sir.” Thereafter, the court interrogated the witness and in the course of its interrogation the witness said that Mr. Becker was not his attorney and that he did not feel that his primary obligation was to Mr. Becker in conducting the audit. He told the court that his primary obligation was to the court and everyone else involved. He told the court in the course of his interrogation that, “I understood I was do receive my instructions from Mr. Becker through the Court.”

Thereafter, the court entered an order denying the motion. The court in its order said:

“ * * * the Court finds that the purposes for which said movant was appointed on April 30, 1959, ‘by consent of parties’ to conduct an ‘audit of sales cards of Lake Charles Memorial Park, Inc., to determine amount of completed sales’ was not accomplished because of the intervention of the then attorney for plaintiffs; * * * ”

Respondent, Lake Charles Memorial Park, Inc., contends that appellant, movant, has not complied with Civil Rule 79.03, V.A.M.R., because movant failed to file a motion for new trial based upon the trial court’s denial of his application for compensation and, for that reason, there is nothing before this court for review. Mov-ant did not file a motion for new trial after the court’s order was entered denying his application for compensation. However assuming, without ruling, that the failure of movant to file a motion for new trial leaves nothing before this court for review, nevertheless, we would he compelled in the exercise of our discretion to resort to Civil Rule 79.04, V.A.M.R., which provides:

“Plain errors affecting substantial rights may he considered on motion for a new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.”

Our review of the record before us indicates the need for the exercise of the discretion vested in us by said rule and that we should consider the action of the trial court in denying movant’s motion for compensation. Williams v. Southern Pacific Railroad Co., Mo., 338 S.W.2d 882; Crooks v. Crooks, Mo.App., 197 S.W.2d 689. We add here that the court’s ruling was plainly erroneous and affected the substantial rights of the movant and manifest injustice has resulted therefrom.

Movant contends that “the trial court erred in denying the amended motion of movant for although a trial court’s discretion as to costs in an equity case is reasonably broad, such does not contemplate arbitrary or capricious action, but is a legal discretion that must be guided by sound equitable premises, considered in the light of the facts of a particular case.” Respondent contends that the trial court did not abuse its discretion when it denied the motion for compensation.

In the case of Oldham v. McKay, 235 Mo.App. 348, 138 S.W.2d 735, l. c. 739, the court in a discussion of the discretion possessed by a trial court in equity suits, in connection with the assessments of costs, said:

“ * * * It is a legal discretion that must he guided by sound equitable principles considered in the light of the facts of each particular case. The result, in an assessment of costs wherein the general rule is departed from, when examined in the light of all of the circumstances, must embody some justification in equity and good conscience, otherwise there is a manifest abuse of discretion which warrants the intervention of an appellate court.”

It is a legal discretion that must he exercised and while the court may have a discretionary choice, it cannot exercise it even to its own satisfaction, unless it is controlled and disciplined according to legal standards and reasoning.

The court in its order denying compensation to movant found that the “audit of sales cards of Lake Charles Memorial Park, Inc., to determine the amount of completed sales was not accomplished.” This finding is not supported by the record. The reports that were filed by movant showed the completed sales of lots by periods as requested. Each of the three reports shows these figures. In the colloquy between the court and the attorney for the respondent, the attorney admitted that the movant had determined the sales. His only complaint was that the movant had determined 25% of some of the sales “which (he said) was absolutely not in accord with the instructions.” The attorney for respondent admitted, in answer to a question by the court, that the basic figure that the movant used to arrive at his result would be the same whether multiplied by 25% or 5%. The evidence shows that none of the attorneys, including the attorney for respondent, ever complained to the movant that he was not following instructions, nor did any of them contend that the figures he submitted were inaccurate.

It will be remembered that after the mov-ant submitted his first report, which showed the total sales, some of which were computed at 5% and some at 25%, he wrote the letter to the Judge of the Court wherein he sought clarification of instructions, and sent a copy of the letter to all of the attorneys. Despite his request for further instructions, none were forthcoming, nor was any complaint made about computing some of the sales at 25%. The second and third reports submitted by the movant showed the total sales by periods as requested and showed a computation of 5% of these sales. It is true that other computations of interest etc. were also shown on these last two reports because no answer was received from his letter and movant sought further information from Mr. Becker, attorney for the plaintiffs.

The court in its order denying compensation further found that he did so “because of the intervention of the then attorney for plaintiffs.” It will be noted in the letter of July 16, 1959, written to the trial Judge, that Mr. William J. Becker, attorney for the plaintiffs, was reluctant to instruct the movant in the matters in which he sought information and suggested to movant that he seek information from the court. As we have said, movant received no answer from the court nor from the other attorneys. Movant thereafter sought the help of Mr. Becker, attorney for the plaintiffs, because it was his understanding that his instructions were to come from Mr. Becker and he sought these instructions from him inasmuch as he received no instructions from the other attorneys. We do not believe that movant can be criticized for seeking this information from Mr. Becker when he received no attention or response to his letter to the trial Judge. Frankly, the finding of the trial Judge denying the compensation to the movant because of the intervention of the then attorney for plaintiffs fails to find support in the record because there is no evidence whatever as to the conduct of said attorney. We agree with the contention of movant that he should not be criticized and denied compensation because he took instructions from Mr. Becker. He sought help from the trial Judge and from all of the attorneys in the case and in his quandary sought the help of Mr. Becker who was one of the attorneys in the case. We find no evidence of any wrongful conduct on the part of plaintiffs’ attorney. We do find evidence that the audit of the sales was accurately and correctly completed and that no complaints were ever made, even at the hearing on the motion for compensation, about the accuracy of these figures. The complaint of the respondent because of the use of 25% on some of the sales rather than 5% was a matter concerning a mere mathematical computation, as was suggested by the trial Judge in his interrogation of the attorney for respondent.

The court also in its order indicated that the purpose for which the audit was made was not accomplished. We think this finding is refuted by paragraph 18 of the settlement contract which contains the following language:

“The obligation of the Company to make contributions to the Perpetual Care Fund on account of ‘pre-need’ sales heretofore made is included in the accounting of the Brusselback Report and is settled by this agreement.” (Emphasis ours.)

The settlement contract also refers to the agreement of June 6, 1939, wherein it was agreed to allot 25% of the net sales of lots sold until the Perpetual Care Fund provided for in the October 14, 1922, agreement reached the minimum requirement of $3750 per acre. This was the basis of the use of the 25% computation in the first of the movant’s reports. Throughout the settlement contract, which was in evidence and is a part of the court’s records, it is obvious that the movant’s reports of his audit and his computations were used by the parties and their attorneys in arriving at the settlement. It is interesting to note that the court approved and allowed payment to the attorney for the plaintiffs of the sum of $7500 for attorney’s fees. Such approval and allowance by the court are not consonant with a finding or charge of wrongful intervention upon the part of the attorney for the plaintiffs in the preparation of the accountant’s report.

It appears that the only basis for respondent’s opposition to the allowance of compensation to the movant is because he had multiplied the basic figures of the sales by 25% rather than 5% in his first report. We think the reason for the use of the percentage of 25% is clearly demonstrated in the record. However this may be, the subsequent two reports did show the computation of 5% applied to the total sales. There is no merit to respondent’s contention in this respect for the reason that the basic figures are admittedly correct. As stated by movant, if counsel for respondent thought that movant’s first report was incorrect, he should have responded to the letter dated July 16, 1959, after he received a copy thereof and voiced such alleged inaccuracy. This he did not do.

Respondent makes a further contention that the court found that Mr. Becker “undertook to guide and control said audit without the court’s approval and knowledge * * This finding is not supported by the record but, frankly, is immaterial because, as we have pointed out, movant, pursuant to the court’s order did “conduct audit of sales cards of Lake Charles Memorial Park, Inc., to determine amount of completed sales.” The computation of 5% of these sales is shown on the second and third reports submitted by the movant. Thus, he performed all of the services he was requested to perform and should be compensated therefor. No charge is made that the amount requested is unreasonable. We rule that the court should have sustained movant’s motion for an order directing payment for his services.

The order and judgment of the court is reversed and the cause is remanded with directions to the trial court to enter judgment in favor of movant in the sum of $1437.50, with interest thereon at the rate of 6% per annum from February 18, 1963, and that said judgment be taxed as costs in favor of said movant.

WOLFE and ANDERSON, JJ., concur.

On Motion for Rehearing

PER CURIAM.

Respondent contends in its Motion for Rehearing and Suggestions in support thereof that we “overlooked the fact that the issue of credibility lay between the uncorroborated testimony of an interested witness, the appellant, movant and the ‘testimony’ of the trial judge contained in his written findings of fact.” The immediate answer to this is that there was no testimony of the trial judge in the record. And the finding of fact made by the trial judge “that the purposes for which said movement was appointed on April 30, 1959, ‘by consent of parties’ to conduct an ‘audit of sales cards of Lake Charles Memorial Park, Inc. to determine amount of completed sales’ was not accomplished because of the intervention of the then attorney for plaintiffs;” is not testimony and is a finding made by the Court based upon the record of the hearing before it. In our opinion we found that this finding was not supported by the record facts in evidence. This does not involve a question of credibility between an uncorroborated witness and the Judge of the Court, but presents a question whether or not the judgment of the Court in making this finding was correct. What the Court did find was that the purpose of the audit was not accomplished because of the intervention of the then attorney for plaintiffs. In our opinion we found that there was no evidence to support such a finding and we further found that an audit of sales cards of the Lake Charles Memorial Park, Inc., to determine the amount of completed sales was made.

Respondent in its Motion for Rehearing and in its Suggestions in Support thereof also contends that we substituted our judgment “based upon a rather sketchy record, for the judgment of the trial court in a matter which extended from June 15, 1958 when the action was filed until March 31, 1961 when the matter was settled by stipulation of parties. During this period of time, beside the ordinary pleadings which were filed, the trial court appointed a Commissioner to conduct an election, appointed Trustees in accord with said election, appointed a special custodian for funds, held pretrial conferences, ordered respondent’s attorney to act as trustee of funds, held a hearing on the petition to appoint a receiver, ruled on said hearing, held a hearing on a request for change of venue and ruled thereon, and held a number of informal conferences with counsel and sometimes with the parties present.” As indicated none of the aforesaid matters are contained in the record before us and in the suggestions in support of its Motion for Rehearing respondent has said “perhaps the state of the record is responsible for what is felt to be an erroneous result.” For this reason it contends that if this Court should deny a Rehearing that it remand the cause for further proceedings as was done in the case of Scheufler v. Continental Life Ins. Co., 350 Mo. 886, 169 S.W.2d 359. In that case the general counsel for various superintendents of insurance of the State of Missouri in the proceedings involving the Continental Life Ins. Co. appealed from an order of the Circuit Court of the City of St. Louis allowing him an attorney’s fee of $7500 contending that the allowance was grossly inadequate and should have been for the sum requested, namely, $17,000. This case, as the Court indicated, involved very complicated and hotly contested proceedings which included several trials and appeals. In that case the Supreme Court reversed and remanded it for a new hearing for the reason that it did not appear from the record that the trial court did in fact take judicial notice of all of the prior proceedings in the cause and determine the matter of fees on that basis. This is not a case that determines whether or not the attorney and the general counsel for the various insurance superintendents were entitled to a fee. It was merely a question of determining the reasonable value of his services and fixing a fee accordingly. That is not the issue in the instant case. In the instant case the issue is whether or not movant, appellant, is entitled to a fee. All of the proceedings that transpired in the case, referred to in Respondent’s Motion for Rehearing, in our opinion can have no material effect on the issue of movant’s right to a fee. As we have pointed out there has been no contention that the fee asked is unreasonable. Respondent’s Motion for Rehearing is overruled.


source: Caselaw Access Project

author: HILL, Judge (reversing). PALMORE, Judge

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. John MERRIMAN et ux., Appellees.
    Court of Appeals of Kentucky.
    June 25, 1965.
    Robert F. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Deddo G. Lynn, Lexington, for appellant.
    James F. Clay, Jr., Danville, for appel-lees.
   HILL, Judge (reversing).

The Commonwealth appeals from a $3,-025 judgment for a strip of appellees’ front yard 6 X 159 feet on which were situated some shrubs and a yard fence. Twenty-five ($25) Dollars of the judgment is for an agreed valuation for temporary easement. The land is sought for improvement of U.S. 150 between Danville and Perry-ville.

Before the taking, appellees’ house, located on the lot, was 25 feet from the old right-of-way. The right-of-way after the taking will be 19 feet from the residence. Before the taking, the nearest edge of the' hard surface of the old road was 32 feet from the home. After taking, it is 54 feet. The strip taken contains approximately 954 square feet.

Appellant complains of (1) incompetent evidence, for lack of proper qualification of the witness, and (2) excessiveness of the amount of the verdict.

First, was the testimony of appellee, John Merriman, incompetent because of his failure to qualify on knowledge of market value? He had not bought or sold any real estate but had “seen it” sold. He was 62 years of age, a farmer and carpenter, and had lived in the community 40 years. He heard of the sale of the Ison place behind him, and “just different places all up and down the road.” Certainly, this witness was not an expert, or a professional. That he was qualified on values at all is subject to serious debate. We have concluded his evidence was of some value to the jury, although its probative value is small. Cf. Commonwealth of Kentucky, Department of Highways v. Tyree, Ky., 365 S.W.2d 472 (1963). Also, Commonwealth, Department of Highways v. Fister, Ky., 373 S.W.2d 720 (1963).

Was the judgment excessive? Unquestionably we think it was. Before the taking the entire lot fronted 159 feet on the old road and extended hack in parallel lines an average of 97 feet, thus containing 15.-423 square feet. The house has four rooms, a hath, and partial basement framed up with rock. The strip taken contains 954 square feet, for which the judgment allows appellees $3.14 plus per square foot. At this same rate the entire lot would sell for $48,428.22 plus, without the house. Of course, we do not intend to imply that this means of arriving at value is a controlling one. There are other important considerations to appellees, such as loss of a shade tree and some shrubs and the closer proximity of the right-of-way to their home. However, change of grade has been favorable to appellees. Before the taking there was a minus four percent grade. New construction made a cut measuring 3.5 feet down to 1.1 feet.

Appellant’s witness, Harper, an employee of appellant, and a professional appraiser of considerable experience, testified the difference in before and after value of this property was $250.

Appellee, John Merriman, fixed the difference at $3,000. His two witnesses made it $2,950 and $3,250, respectively.

Appellant’s witness relied on comparable sales, three of which he compared ir. value, size of lot with improvements, and located a few hundred feet from appellees’ property.

We conclude this is one of those cases where at first blush it strikes the judicial conscience as being grossly excessive. Cf. Ballard v. King, Ky., 373 S.W.2d 591 (1963); Commonwealth of Kentucky, Department of Highways v. Branham, Ky., 380 S.W.2d 213 (1964); Commonwealth of Kentucky, Department of Highways v. American National Bank & Trust Company, Ky., 379 S.W.2d 252 (1964).

The judgment is reversed with directions to grant appellant a new trial.

PALMORE, J., dissents.

PALMORE, Judge

(dissenting).

I dissent from the majority opinion on the ground that the amount of the verdict does not strike me as obviously excessive. Perhaps if I were a qualified expert on real estate values in Boyle County, and if my expert opinion as such were a proper source of consideration in reviewing this case, I might feel otherwise. I think it is thoroughly unsound and, indeed, unfair to suggest that if the 954 square feet on the front of the lot was worth $3,000 the whole lot would have been worth $48,428. It is common knowledge, even to such non-experts as ordinary judges, that the front part of a lot has a higher value than the back.


author: PALMORE, Judge.

text:
    Basil Pearson COOPER et al., Appellants, v. John Edward Fowler COOPER et al., Appellees.
    Court of Appeals of Kentucky.
    July 7, 1965.

      Basil P. Cooper, Arlington, Va., I. C. James, Harrodsburg, for appellant.
    Malcolm Y. Marshall, Ogden, Robertson & Marshall, Louisville, George N. Wool-cott, W. H. Phillips, Harrodsburg (Guardian Ad Litem), for appellees.
   PALMORE, Judge.

This suit was brought for the purpose of clarifying and determining the title to three contiguous vacant lots in the City of Harrodsburg and effecting a sale of the property pursuant to an option agreement. The principal question on appeal is whether an executory devise under the will of Isaac Pearson, as construed by a judgment of the Mercer Circuit Court entered in 1936, requires the application of KRS 389.030 with respect to one of the three lots. The chancellor held that it does.

Isaac Pearson died in 1905. The testamentary language directly concerned is as follows:

“I will that our four children, John M. Pearson, Amelia D. Pearson, Charles T. Pearson, and Clarence A. Pearson shall have equal shares of my said estate. * * * Should any of our said children die without lawful children then their portion is to go to those who may survive them or to their children should the parents be dead.”

One of the children, Amelia Pearson Cooper, was survived by two sons when she died in 1946, so it is not necessary to quote or consider a further provision of the will that would have applied if all four children had died without issue.

The 1936 judgment followed the death of John M. Pearson without issue. It concluded that after John’s death Amelia, Charles and Clarence each owned “a de-feasible fee in and to an undivided one-third interest in the property owned by Isaac Pearson at the time of his death. * * * Upon the death at any time of any of said children of Isaac Pearson without issue surviving them their interest shall pass to their surviving brothers or sisters, or if they be dead, to their children (Emphasis added.)

Charles died in 1939 without issue. When Amelia died in 1946 she was survived by two children, the appellants Basil P. Cooper and Hugh P. Cooper, each of whom has three children.

Clarence is the lone survivor of Isaac Pearson’s four children. He is unmarried and has no children. He and his nephews, Basil and Hugh Cooper, contend that together they have the whole title and are able to convey it without approval or restraint of court. Their theory is that Basil and Hugh have an indefeasible estate in fee simple to an undivided one half and that Clarence has fee simple title to the other half interest subject to defeasance if he dies without issue, in which latter event Clarence’s half interest shifts to Basil and Hugh (Amelia’s children) or, through them, to their heirs or devisees as the case may be.

The critical question is whether the “children” designated in the will and in the 1936 judgment as owners of the executory interest are now fixed and ascertained or can be ascertained only if and when Clarence dies without issue. Did the testator mean the term in a strictly literal sense, or did he mean it in the sense of descendants?

KRS 394.410 provides as follows: “A devise to children embraces grandchildren when there are no children, and no other construction will give effect to the devise.”

“The rule is well settled that the word ‘children’ does not include grandchildren unless it plainly appears that such was the meaning from other provisions of the will, or that such a construction must necessarily be given to the deed or will so as to give effect to the grant or devise.” Carter v. Carter, 208 Ky. 291, 270 S.W. 760, 761 (1925). To the same effect see Simes and Smith, The Law of Future Interests, § 723.

We do not observe anything in the will, in the 1936 judgment, or in the circumstances of the case that requires the word “children” to be extended beyond its natural import, which is confined to immediate offspring and excludes more remote issue. The children of Amelia P. Cooper are Basil P. Cooper and Hugh P. Cooper, no more and no less. If the will had given Clarence a common law life estate with remainder in fee to Amelia’s children, the remainder would be vested. Cf. Brock v. Brock, 168 Ky. 847, 183 S.W. 213, 214 (1916). The law, of course, favors early vesting. Graham v. Jones, Ky., 386 S.W.2d 271, 273 (1965). Technically, no estate can vest in the holder of an executory interest until the happening of the event on which it is conditioned. Simes and Smith, The Law of Future Interests, § 221. The same is true with regard to contingent remainders, yet sometimes it is said that one may have a “vested interest in a contingent remainder.” Ibid., § 112. Granted that for the legal purist this expression may seem anomalous, we think it serves a useful purpose by describing the situation in which, no matter how remote or contingent the interest may be, we do know finally and for certain who owns it and, perforce, can transmit it. In the same broad sense Basil and Hugh are the “vested” owners of the executory interest which, upon the event of Clarence’s death without surviving issue, will operate to cut off Clarence’s fee simple estate and shift it to them.

The owner of any interest in real estate not in the adverse possession of another can convey it. KRS 382.010. Basil and Hugh being the fixed and finally ascertained owners of the only interest existing in derogation of Clarence’s title, the three of them can convey an indefeasible fee. Cf. Fulton v. Teager, 183 Ky. 381, 209 S.W. 535 (1919). If they so agree, KRS 389.030 has no application.

It follows that the trial court erred in retaining control of any part of the proceeds to be realized from the sale of the Isaac Pearson lot.

The parties are m disagreement with respect to the lot description used in the judgment. As the question did not arise until after the judgment was entered, the trial court has not had the opportunity of passing on it. It may be resolved upon remand of the case.

The cause is reversed with directions that the judgment he amended in conformity with this opinion.

MOREMEN, C. J., and MONTGOMERY, J., not sitting.


author: CLAY, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. F. W. RAY et al., Appellees.
    Court of Appeals of Kentucky.
    July 2, 1965.

      Robert F. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Dandridge F. Walton, Reed Anderson, Madisonville, for appellant.
    William M. Deep, Henderson, for ap-pellees.
   CLAY, Commissioner.

The Commonwealth appeals this condemnation case on the grounds the verdict is palpably excessive and not supported by the evidence, and the court should have stricken the testimony of certain witnesses.

Appellees owned a lot on Highway 41 near Henderson, Kentucky, with a frontage of 239 feet and a depth of 276 feet. On it was located a stone-faced two-story building with a restaurant below and two apartments above. The land taken was a 10 foot strip across the front of the property. The pavement line of the rebuilt highway extends from the old right of way line onto appellees’ property exactly one foot. The jury awarded appellees $9,125 for the land taken, and $2,458 for a temporary easement utilized during the reconstruction period of approximately nine months.

Three allegedly expert witnesses testified for appellees. The Commonwealth complains of these witnesses’ inflated before values, but what more seriously concerns us is the lack of justification for the asserted depreciation in value of the tract as a result of the taking. Their estimates averaged about $17,000. Though asked, witness Fryer could give no factors he considered in reaching his opinion of after value. Witness Hughes could say only that the taking of 10 feet brought the roadway nearer the building (which obviously is true) and “the remaining lot itself is a steeper grade there than it was coming off the roadway” (which, according to the photographs, appears to be inaccurate). Witness Hunt was asked the following questions and gave the following answers:

Q. “What factors did you consider in arriving at the reduction in the after value of this property?”
A. “The fact that the strip of land is being taken in front of the property and the highway is, the pavement is being moved nearer to the building, it has reduced the sight distance considerably. In other words, before the taking the building was approximately 6154 feet from the pavement, after the taking it is within 3554 feet of the pavement so when the pavement was 6154 feet from the building cars could see this place a long way down the road, but after the taking the pavement is nearer the building and the sight distance is reduced, you are on the thing before you can see it and I also took into consideration the fact that a lot of the front parking is gone, and also the part of the property that it has left; after the taking it is pretty steep from the edge of the pavement to the building where the parking area is after the taking.”
Q. “And you think the Commonwealth using its own property has reduced the value of the Ray property?”
A. “No, sir, I think taking ten feet of the Ray property and moving the highway twenty-six feet nearer to the building has reduced the value of it.”

These answers exhibit the improper basis upon which it is apparent the experts based their opinions and the jury awarded damages. To put it simply, the Commonwealth is paying in large part for the utilisation of its own right of way by the extension of the highway pavement.

Before this taking the Commonwealth could have extended the pavement to its right of way line, which was 36.5 feet from appellees’ building, without paying appellees a single penny. If the taking was restricted to pavement lines, the new pavement line encroaches only one foot on appellees’ property and the damage to appellees would obviously be minimal. However, from the standpoint of taking, we are not concerned with the pavement line but with the right of way line.

The fallacy in witness Hunt’s analysis is that he considered the Commonwealth was taking 26 feet of appellees’ property (from the old to the new pavement line) when in fact the Commonwealth already had an easement and a right to build a roadway without paying compensation on 25 feet of these 26 feet. As is evident from this witness’ testimony, and as we infer from the tenor of the testimony of the other two expert witnesses, the most substantial damage to appellees’ property was the loss of the free use which appellees had of the 25 foot strip over which the Commonwealth already had an easement. In other words, as witness Hunt so well points out, the jury was led to believe that the Commonwealth was not taking a 10 foot strip but a 35 foot strip of appellees’ property. This of course is requiring the Commonwealth to pay for the utilization of its own easement.

We cannot attribute much weight (if it has any validity whatever) to the loss of “sight distance” when we recognize that the taking involves only 10 feet. Witness Hunt is the only one who mentioned the loss of front parking space, but the pictures (which we are holding incompetent for the purpose for which they were introduced) do not indicate this constituted a serious impairment.

As we have said, the expert witnesses estimated the difference in value of the property because of the taking of this 10-foot strip at an average of approximately $17,000. On the face of it this is preposterous. Apparently the jury so considered it, since it would go no higher than $9,125, but this, in the light of the evidence, is plainly excessive.

We now turn to the award of $2,-458 for a temporary easement utilized for approximately nine months during reconstruction of the highway. The area involved was a strip 10 feet in depth for about one-half the frontage of the lot and 15 feet in depth for the remaining distance. Fixing it in terms of “reasonable rental value” or “fair market rental value” for this temporary easement, the witnesses testified to the following amounts:

Agnes Ray (an owner) $5,000
Fryer 4,500
Hunt 4,000
Hughes 3,600
Grissom (the Commonwealth’s expert) 500

Witnesses Ray and Hughes based their opinions in large part on loss of business, a noncompensable factor; the other witnesses, including Grissom for the Commonwealth, had nothing whatever to base their opinions upon. This is perhaps more the fault of the law than the fault of the witnesses.

To reach the heart of the problem, we can catalogue items of damage to which the landowner is not entitled. The interference with the owner’s use and enjoyment of property not taken, resulting from the reasonable construction operations, is not a compensable item. Commonwealth, Dept. of Highways v. Eubank, Ky., 369 S.W.2d 15; Commonwealth, Dept. of Highways v. Fister, Ky., 373 S.W.2d 720; Arkansas State Highway Commission v. Ptak, 236 Ark. 105, 364 S.W.2d 794; Blank v. Iowa State Highway Commission, 252 Iowa 1128, 109 N.W.2d 713; Lybarger v. State, Department of Roads, 177 Neb. 35, 128 N.W.2d 132; 68 A.L.R. 340; 68 A.L.R. 1505; 98 A.L.R. 956. It follows of course that business losses resulting from construction work for which the temporary easement is utilized cannot support an award. Commonwealth, Dept, of Highways v. Fister, Ky., 373 S.W.2d 720.

Under these settled rules the Commonwealth is not' required to compensate any property owner adjoining its right of way for injuries which flow from the necessary and reasonable construction work on the highway. The fact that the Commonwealth, in conjunction with such construction, condemns part of an owner’s property by extending its right of way either permanently or temporarily does not give the owner any special right to damages for injuries- caused by the construction work. Insofar as the Commonwealth creates what would constitute a nuisance if not done in the lawful exercise of its police power, the person whose property is partially taken for the extension of a right of way is not and should not be in a better complaining position than his next door neighbor whose property is not condemned.

We are emphasizing these points to make it abundantly clear that the construction work itself (if necessary and reasonable) has nothing whatever to do with compensatory damages which must be paid to the property owner for the taking of his property on either a temporary or permanent basis. We must then, in attempting to fix a fair measure of damages for a temporary easement of this nature, consider the taking as nothing more than the bare occupancy of the strip of land used for construction purposes by the Commonwealth. The owner has lost dominion of this part of his property for a brief period of time and he is entitled to damages only in an amount which fairly compensates him for that loss.

For a temporary injury to real property (and this temporary taking must fall in the same category), the traditional measure of damages has been “the diminution of the value of the use or rental value of the property.” City of Richmond v. Gentry, 136 Ky. 319, 124 S.W. 337. This constitutes a workable test when all of a particular tract is temporarily injured, used, or taken. It is difficult if not impossible to apply if restricted to a strip of land used temporarily in highway construction work. Such strip itself ordinarily has no market rental value because nobody would rent it. “Diminution in value of use” cannot constitute a measure because the property owner has no use of it at all.

In order to develop a practical measure of damages in cases of this sort, it appears necessary to consider the damaging effect of the temporary occupancy of the land upon the adjacent remainder of the landowner’s property. In temporary nuisance cases it has been held that if the property is occupied by the owner, the measure is the diminution in the value of the use, and if not occupied by him, it is the reduction in rental value. Adams Construction Co. v. Bentley, Ky., 335 S.W.2d 912. We do not think occupancy or non-occupancy by the owner is of any significance in fixing damages for a temporary highway construction easement. Combining the two criteria appears more practically workable. A proper standard is the diminution in the fair rental value of the landowner’s adjacent property by reason of the occupancy by the Commonwealth. If the part occupied has some material relevancy to the use of the overall premises, its temporary loss may cause a substantial depreciation in rental value. On the other hand (and perhaps in most cases), the temporary loss of an unused strip of land would not materially affect the fair rental value of the remaining property and the damages would be no more than nominal. See Community Public Service Co. v. Northcutt, 272 Ky. 494, 114 S.W.2d 729.

If the temporary occupancy resulted in the destruction of trees, shrubs, buildings or other improvements, or a permanent injurious change in topography, this would constitute a taking and properly could be considered as effecting the after value of the remaining property. The impairment of some special use of the strip occupied, if such use can be re-established at the termination of a temporary easement, would be reflected in the diminution of the fair rental value. Such impairment in a special use of the occupied strip was suggested in the present case as arising from the loss of parking space. This loss (if it existed) was not in any way related by the witnesses to the rental value of appellees’ property. The proof in the case would have justified no more than an award of nominal damages.

It is therefore obvious that the allowance of $2,458 for this temporary easement was not based on any evidence of substance and is patently excessive. We have been advised that in some cases the Commonwealth and the property owners have stipulated a reasonable rent for the use of a temporary easement of this kind and we think the practice should be encouraged.

One more question requires comment to insure against error on a new trial. The Commonwealth moved to strike the testimony of two witnesses because their value estimates were based upon the owners’ loss of business (principally during the period of reconstruction). This case was tried before own decision in Commonwealth, Dept. of Highways v. Fister, Ky., 373 S.W.2d 720, and perhaps if the court and the parties had had that case before them, the question would not have arisen. Without passing upon the motion to strike, we will again point out that business losses as such are not compensable items or factors of damage either with respect to the land taken or the temporary easement.

We will make two further observations. Under the Fister case the owner, Agnes Ray, was not qualified to express an opinion on valuation. Also under the Fister case the photographs of the construction work were not admissible for the purpose of showing the disruption of appellees’ business. These photographs would perhaps be admissible to show new pavement lines and the permanent physical conditions affecting the property when the reconstructed highway was completed, but if admitted for a legitimate purpose the court should admonish the jury that the disruption of the highway in front of ap-pellees’ premises cannot be considered in their award of damages.

The judgment is reversed for consistent proceedings.

      . Agnes Ray, an owner, only referred to it in connection with the construction work on the temporary easement.

      . See Commonwealth, Dept, of Highways v. Givens Bros., Ky. (decided June 25, 1965).


author: STEAKLEY, Justice. SMITH, Justice POPE, Justice

text:
    Mary Gein BURNS et al., Petitioners, v. R. C. GOODRICH et al., Respondents.
    No. A-10427.
    Supreme Court of Texas.
    June 23, 1965.
    Rehearing Denied July 28, 1965.

      Fairchild & Hunt, Center, R. E. McDaniel, Winnie, for petitioners.
    Spruiell, Lowry, Potter, Lasater & Guinn, John H. Minton, Jr., Tyler, for respondents.
   STEAKLEY, Justice.

Respondents, R. C. Goodrich et al., sued Petitioners, Mary Gein Burns and husband, and their assignees, alleging they were trespassers upon a tract of land of approximately 831/3 acres in which Respondents claimed to own the entire surface estate. Respondents sought injunctive relief which was granted by the trial court upon a finding that Petitioners owned no interest in the land. Except as reformed in a manner not relevant here, the Court of Civil Appeals affirmed. 382 S.W.2d 501. We hold that Petitioners were not trespassers because the doctrine of after-acquired title made good the title of Mary Gein Burns, and hence that of the Petitioner assignees, to an undivided interest in the land.

The original 200-acre homestead of Lee Lord and wife, Martha J. Lord, included the land in controversy. Lee Lord died intestate and each of six children inherited an undivided 16% acres. A later judgment against the wife burdened her interest with a judgment lien. Thereafter, on May 1, 1938, Mrs. Lord died intestate, and each of the six children inherited an additional undivided 16% acres. Under date of September 26, 1942, Ivy Lord, a son, joined by his wife, conveyed to their daughter, Mary Gein, á Petitioner here, his undivided 33% acres in the 200-acre tract. The provisions of this deed are quoted in the margin. On October 30, 1944, Ivy Lord acquired the respective undivided 16% acres which two of his brothers had likewise inherited from their father. On May 25, 1945, the judgment lien against the one-half interest of Martha Lord in the 200-acre tract was foreclosed and Mary Gein lost 16% acres which Ivy Lord had previously conveyed to her. Martha Lord’s one-half interest in the 200 acres was conveyed to D. B. Speights by sheriff’s deed dated August 7, 1945, and on this same date Speights conveyed to Ivy Lord 331/3 undivided acres out of the interest he purchased at the foreclosure sale. This deed had been lost but its execution, delivery and terms were established in the record and such proof does not involve any application of the Statute of Limitations, Article 5529, Vernon’s Annotated Civil Statutes. Speights testified to the fact that the undivided interest of 331/3 acres conveyed to Ivy Lord was out of the interest purchased by him at the foreclosure sale. It is thus clear that the 33}/$ undivided acres so acquired by Ivy Lord was adverse to the warranty in his deed to Mary Gein to the extent of the undivided 16% acres which he inherited from his mother and which Mary Gein lost in the judgment foreclosure. We need not consider the legal effect, insofar as application of the after-acquired title doctrine is concerned, of the acquisition by Ivy Lord from his brothers of the undivided interests which they had inherited from their father. Respondents are in privity with Ivy Lord by subsequent conveyances.

The doctrine of after-acquired title applies to a love and affection deed from father to son conveying a tract of land encumbered by a valid lien, the father having reacquired the land from the purchaser at foreclosure sale. Robinson v. Douthit, 64 Tex. 101 (1885).

The statement of the rule of after-acquired title from 19 Am.Jur. 614, § 16, was quoted with approval in Clark v. Gauntt, 138 Tex. 558, 161 S.W.2d 270 (1942), and Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878 (1940): “It is a general rule, supported by many authorities, that a deed purporting to convey a fee simple or a lesser definite estate in land and containing covenants of general warranty of title or of ownership will operate to estop the grantor from asserting an after-acquired title or interest in the land, or the estate which the deed purports to convey, as against the grantee and those claiming under him.”

In Moore v. Crawford, 130 U.S. 122, 9 S.Ct. 447, 32 L.Ed. 878 (1889), the court cited the statement by Mr. Justice Strong, speaking for the court in Irvine v. Irvine, 9 Wall. 617, 19 L.Ed. 800 (1869), that “It is a general rule that when one makes a deed of land, covenanting therein that he is the owner, and subsequently acquires an outstanding and adverse title, his new acquisition inures to the benefit of his grantee, on the principle of estoppel.” In Duhig, the following statement from Smith v. Williams, 44 Mich. 240, 6 N.W. 662 (1880), was quoted with approval: “When one assumes, by his deed, to convey a title, and by any form of assurance obligates himself to protect the grantee in the enjoyment of that which the deed purports to give him, he will not be suffered afterwards to acquire or assert a title, and turn his grantee over to a suit upon his covenants for redress. The short and effectual method of redress is to deny him the liberty of setting up his after-acquired title as against his previous conveyance. This is merely refusing him the countenance and assistance of the courts in breaking the assurance which his covenants had given.” See also Cherry v. Farmers Royalty Holding Co., 138 Tex. 576, 160 S.W.2d 908 (1942); Caswell v. Llano Oil Co., 120 Tex. 139, 36 S.W.2d 208 (1931); Baldwin v. Root, 90 Tex. 546, 40 S.W. 3 (1897); and the annotations in 58 A.L.R. 345 and 144 A.L.R. 554.

Ivy Lord’s deed to Mary Gein granted, sold and conveyed to her “all that certain tract or parcel of land being situated in Sabine County, Texas, and being a portion of the S. H. Morris headright survey, and described as follows, to-wit: Being 331/3 acres undivided in and to 200 acres of said S. H. Morris headright survey and described as follows: [metes and bounds description].” The habendum clause reads “to have and to hold the above described premises.” The warranty covenant is with respect to “the said premises.” The question to be decided is whether the deed conveyed and warranted title to an undivided 331/3 acres of land, or merely to the undivided interest of Ivy Lord inherited by him from his father and mother however large or small this interest may have been, and subject to any and all liens that may have constituted encumbrances thereon. We hold that the deed conveyed and warranted title to the undivided 33[4 acres of land which Ivy Lord had inherited from his parents. The clear import of the deed when read from its four corners, and particularly of its operative provisions, is to this effect. Cf. Nichols v. Schmittou, 107 Tex. 54, 174 S.W. 283 (1915), White v. Dupree, 91 Tex. 66, 40 S.W. 962 (1897), Richardson v. Levi, 67 Tex. 359, 3 S.W. 444 (1887). The sentence preceding the habendum clause upon which Respondent relies is not an intention clause restricting the granting clause to a conveyance of the grantor’s interest, whatever it might be, under which Mary Gein received all that Ivy Lord intended to convey and all that he warranted, i. e., his inherited undivided interest subject to the judgment lien against his mother. To the contrary, the sentence constitutes an identifying reference to the interest in land which was the subject of the conveyance and comports with the granting clause which states in clear and unambiguous terms the conveyance by the grantor of an undivided 33[4 acres of land.

The Court of Civil Appeals relied principally upon Clark v. Gauntt, supra; upon Wilson v. Wilson, 118 S.W.2d 403 (Tex.Civ.App.1938, no writ hist.), described by the Court as being a case “somewhat similar to the instant case”; and upon the Missouri case of Stoepler v. Silberberg, 220 Mo. 258, 119 S.W. 418 (1909). Each of these cases, as here, required the construction of a deed and, in our opinion, each case is distinguishable. The granting clause of the deed of trust in Clark v. Gauntt conveyed only the “right, title and interest” of the grantor, and the holding was that a conveyance of land limiting the estate granted to the right, title and interest of the grantor is not such a conveyance as will estop the grantor from asserting title to an interest thereafter acquired by him. The deed considered in Wilson read, in part, “That I, Robert Wilson * * * have granted, sold and conveyed * * * unto the said A. C. Irwin and John D. Wilson * * * All that certain tract or parcels of land, situated in Shelby County, Texas, being our one-fifth and entire interest [in] and to the estate of Media Wilson wife of Henry J. Wilson and mother of Robert Wilson, said estate consisting of a [sic] undivided one-half interest in and to the following tracts or parcels of land. * * * ” The construction of the deed by the Court was that the grantor did not convey the land; as said by the Court, “Robert did not convey to Irwin and Wilson one-fifth of one-half of tracts Nos. 1 and 2, but only the interest inherited by him through his mother which he described as one-fifth of one-half.” So in this respect the case would appear to be within the ambit of Clark v. Gauntt as a “right, title and interest” conveyance. But more distinguishing is the fact that Robert’s mother never owned any interest in the two tracts in question, and Robert never acquired any interest through her. The Court held there was no subsequently acquired title to the particular interest which the grantor conveyed and the title acquired by the grantor from another source (through his father) did not inure to the benefit of his grantee. The Court in Steep-ler recognized that the deed when construed in the light of all its parts "does not attempt or purport to convey and warrant the lot itself but only ‘all such right, title and interest’ that Frederick Stoepler, at the date of the deed, had in and to said house and lot in Block 177, and such interest therein as he had inherited from his father and devised to him by the will of his father and such as he had inherited from his sisters and brother.”

The passage of the after-acquired title to Mary Gein is not altered by the fact that Speights (who subsequently conveyed the undivided interest in the land to Ivy Lord) was the purchaser at the foreclosure sale rather than Ivy Lord. Also, under the well settled rule, estoppel exists against Ivy Lord and subsequent purchasers from him with notice of his prior conveyance. Robinson v. Douthit, supra. Respondents are such subsequent purchasers, and the trial court erred in holding that Mary Gein and her assigns owned no interest in the surface of the land, and in enjoining them from occupying any portion thereof.

The judgments of the District Court and the Court of Civil Appeals are reversed, and judgment is here rendered for Petitioners.

SMITH, HAMILTON and POPE, JJ., dissenting.

SMITH, Justice

(dissenting).

I respectfully dissent. Goodrich et al., on December 2, 1962, filed this suit in the District Court of Sabine County, Texas, against Mary Burns et al., alleging that they were the owners of 83% acres of land, a part of a tract of 200 acres out of the S. H. Morris survey; that the defendants Mary Gein Burns and husband, Joe Burns, and Ivy Lord and wife, Eliza Lord, entered upon the land unlawfully and without permission from the plaintiffs, the owners; that they made use of the residence thereon with “full knowledge that they are without any right or title to any portion of said premises.”

Since the Court has failed to take cognizance of the complete record in this case, it becomes necessary to make an analysis of the chain of title to demonstrate that the daughter has failed to establish an interest in the 831/3 acres involved in this suit. The record show that Ivy Lord and Mary Gein Burns and husband are trespassers. Not only that, the record reveals that the Speights’ judgment hereinafter mentioned was the result of a plan on the part of Ivy Lord to clear the Martha Lord 100 acres of the lien which was valid on May 1, 1938, the date of the death of Martha Lord. The record shows that D. B. Speights purchased the judgment lien against the Martha Lord 100 acres at the request of Ivy Lord. At the suggestion of Ivy Lord, Speights included all interested parties as defendants in a foreclosure suit. Mary Gein Lord, now Burns, was made a party defendant. Mary Gein recovered an interest in the land. How can Mary Gein and Ivy under the after-acquired title rule regain a title which they cleared of all liens and later by mesne conveyances passed to Goodrich et al. ? Ivy Lord admitted that the title, so far as liens against the Martha Lord 100 acres was concerned, was cleared. Ivy Lord admitted that, thereafter, the entire 200 acres was partitioned and he and his daughter acquired 831/3 acres “on the west side” of the original 200-acre Lord tract. Ivy Lord admitted that he sold 66% acres out of the 83% acres and “I got the money for it.” Sixteen and two-thirds acres were sold by Ivy Lord, as Guardian of Mary Gein Lord, through the probate court. Mary Gein testified that she went upon the land in 1962 because “the land was mine.” She testified that an attorney told her she had a right to enter upon the land; that this advice was given after the attorney “looked at my deed.” This deed was identified as the September, 1942, deed. “He advised me that I had a perfect legal right to come in and take possession of it if I wanted it”; that “he did not” make any investigation of the title. Mary Gein testified that she asked her father about the land. “He said that he had sold some land.” Mary Gein on cross-examination, testified further as follows:

“Q And he (Ivy) didn’t tell you that he, as your guardian, sold that to King Goodrich in 1947?
“A No, he didn’t.
“Q 1948?
“A No.
“Q Why didn’t you ask him if he’d sold it to somebody, that particular land?
“A Because if he had sold it he would have told me.”

Mary Gein’s cause of action, if any, was one against her father. Instead of bringing suit against her father, she now appears in this Court, not asserting a claim against her father, but asserting ownership of the very title conveyed to Goodrich et al. The record reflects a perfect chain of title into Goodrich et al. beginning with the sheriff’s deed dated August 7, 1945, to 'D. B. Speights. The record reflects a title which was free and clear of the Martha Lord judgment lien. I agree with Goodrich et al. that the 1942 deed conveyed only the interest inherited from his mother. What Ivy Lord had inherited from his father and mother was all Ivy Lord owned in September, 1942. Ivy Lord and his successors are not estopped to assert other interests in the 200 acres subsequently acquired from an inconsistent source. This is especially true under the record here presented. Mary Gein Burns and her husband were not in possession of the land. An examination of this record does not reveal an intention on the part of Ivy Lord to convey to Mary Gein more land than he owned through inheritance. There is no proof in this case that the title failed to the 16% acres Ivy Lord inherited from his mother. Under the record in this case, the after-acquired title rule cannot apply so as to award to Mary Gein an interest in the 83% acres acquired by Ivy Lord and Mary Gein in the partition agreement, dated August 22, 1945. The parties to this partition deed were the record owners of the 200 acres. Ownership was recognized to be as follows:

“Whereas, D. B. Speights and B. F. Chambers * * *, and Ivy Lord and Mary Gein Lord, minor * * * are the joint owners of 200 acres * * *, less certain minerals thereunder, * * and said 200 acres has been partitioned and divided into two tracts, the said Ivy Lord and Mary Gein Lord owning an undivided 83% acres, and the said D. B. Speights and B. F. Chambers owning an undivided 116% acres, * ‡ * »

There is no proof that the 16% Martha Lord interest which the Court now awards to Mary Gein is a part of the 83% acres set aside to Ivy and Mary Gein Lord. The partition deed awarded Ivy Lord and Mary Gein Lord, jointly, a specific tract of 83% acres on the west side of the 200-acre tract. Ivy Lord subsequently claimed 66% acres and represented that Mary Gein owned 16% interest. I repeat that Mary Gein cannot set aside the subsequent deeds executed by Ivy Lord individually and as Guardian of Mary Gein, under the after-acquired title doctrine. The theory advanced by the Court, if adopted, will cause a disturbance of many land titles in Texas.

In the future no purchaser will be secure in his title even though he has a title opinion from a competent lawyer certifying that his prospective grantor has a good and merchantable title. The case of Anderson v. Casey-Swasey Company, 103 Tex. 466, 129 S.W. 349 (1910), in principle, support;, my position. The facts in that case were these: One D. J. Anderson and his mother S. J. Anderson, executed a deed of trust covering 160 acres, in a 320-acre survey. At the time of the execution of the deed of trust, D. J. Anderson had no interest in the 320 acres. In fact, he had conveyed to his brother whatever interest he expected to inherit as an heir of his mother. Thereafter D. J. Anderson purchased 58 acres of land from a half-brother. This 58 acres was awarded to D. J. after the death of his mother. Later Casey-Swasey Company purchased this land under foreclosure sale authorized by the deed of trust. Suit was filed against D. J. for title to the land. The Court held that the after-acquired title doctrine did not apply since there was no proof in the record that the 58 acres was a part of the 160 acres described in the Deed of Trust. The Court held:

“In order that estoppel should inure to the benefit of the Casey-Swasey Company it must appear that the 58 acres was a part of the 160-acre undivided interest conveyed by the deed of trust; otherwise there would be no antagonism between the title acquired by D. J. Anderson in the 58 acres and the title attempted to be conveyed by him in the 160 acres.”

Our case is even stronger than Anderson’s, inasmuch as there is absolutely no showing in the record that Ivy Lord ever reacquired the interest which he inherited from his mother, the same interest conveyed to Mary Gein in 1942. The only interest Ivy Lord acquired subsequent to September, 1942, was the interest he and Mary Gein obtained after the Speights’ judgment and the partition agreement wherein both Ivy and Mary Gein jointly acquired a tract of 83}/3 acres. Ivy Lord and Mary Gein sought to defeat the Goodrich et al., title by claiming that Goodrich et al., failed to establish by proper proof that the deed from Speights to Ivy Lord had been lost. They failed in this regard, and the Court has so held.

A deed from Ivy Lord to Sturgis Lumber Company, together with a deed executed by Ivy Lord, Guardian of the estate of Mary Gein, establishes by competent proof that Ivy and his daughter, Mary Gein, conveyed all interest that they owned and that they retained no title which would entitle them to possession of the 83% acres in suit or any part thereof. The defendants contend that Mary Gein is entitled to recover 16% acres under the after-acquired title rule. The defendants’ contention being that the title she lost under the foreclosure proceedings should be made good out of the Lee Lord %2ths interest or, in the alternative, the title should be made good out of the 33% acres acquired by Ivy Lord in the deed executed after the foreclosure by Speights. Mary Gein cannot recover under either theory.

The after-acquired title rule is a part of the law of estoppel. The estoppel in the after-acquired title cases arises' from the assertion of ownership made by the grantor in the covenant of warranty, express or implied, or in other recitals in the deed. Such assertion is a representation that the grantor owns the land or the estate or interest to which it relates, and having thus represented the fact of ownership, the grantor is estopped to deny that fact. The Court, in the case of Clark v. Gauntt, 138 Tex. 558, 161 S.W.2d 270 (1942), in an opinion written by Justice Smedley, stated that:

“ * * * the clearest statements of it [the after-acquired, title rule] is that made in American Jurisprudence as follows: ‘It is a general rule, supported by many authorities, that a deed purporting to convey a fee simple or a lesser definite estate in land and containing covenants of general warranty of title or of ownership will operate to estop the grantor from asserting an after-acquired title or interest in the land, or the estate which the deed purports to convey, as against the grantee and those claiming under him.’ ”

However, before the rule as to after-acquired title can be held to inure to the benefit of Mary Gein, it must be first shown that Ivy Lord’s after-acquired title was a part of the land conveyed in the September, 1942, deed; otherwise, there is no conflict between the title acquired by him in the subsequent transaction and the title conveyed to Mary Gein Lord in 1942. See Anderson v. Casey-Swasey Co., supra.

The facts are not sufficient to show that Ivy Lord has asserted title to any part of the Martha Lord 16^ acres conveyed to Mary Gein. The solution of the problem in the case turns not only on the status of the title held by Ivy Lord in the 200-acre survey at the time of the conveyance to Mary Gein Lord, but also on the source and nature of the title acquired by Ivy Lord subsequent to such conveyance. At the time Ivy Lord executed the deed conveying to Mary Gein Lord, a minor, 331/3 acres, a part of the 200 acres, he conveyed the only interest he owned. The title to the 200 acres after the death of each parent was just as distinct in the heirs of the parents without partition as it would have been after partition. See Anderson v. Casey-Swasey Co., supra. Breaking it down a step further, the title to the Martha Lord 100 acres was just as distinct in the heirs as though it had been partitioned. The record shows that Ivy Lord by the 1942 deed conveyed all of the land he owned in the 200-acre survey. The 1 &/z acres was burdened with the judgment lien or incum-brance heretofore mentioned; but that lien was removed by the Speights’ judgment and foreclosure sale. Where a grantor has undertaken to convey a specified interest in a tract of land and there is no proof in the record that the interest conveyed has been lost by the grantee because of an incum-brance upon the land, the grantor should not be held to be required to apply other and different subsequently acquired interests to satisfy a grantee who has bought a restricted specified interest burdened with an incumbrance. This holding, in principle, is supported by the case of Wilson v. Wilson, Tex.Civ.App., 118 S.W.2d 403 (1938), no wr. hist., but cited with approval in the case of Clark v. Gauntt, supra, and is also supported by the holding of the Supreme Court of Missouri in the case of Stoepler v. Silberbert, 220 Mo. 258, 119 S.W. 418 (1909). I have no quarrel with cases cited by the defendants which hold that the warranty clause in a deed warrants the title of the grantee, nor do I question the rule announced in Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878 (1940), which the defendants say “prohibits the assertion of title in contradiction or breach of warranty.” The record in this case simply does not call for a holding that there has been a breach of warranty in the sense that Ivy Lord has denied the representation of ownership of the Martha Lord 16^4 acres conveyed in the 1942 warranty deed by the subsequent acquisition of the title to other interests or shares of the 200 acres inherited by the six children of Lee and Martha Lord.

The defendants rely upon the provisions of Articles 1297 and 1298, Vernon’s Annotated Statutes to support their contention that the after-acquired title rule estops Ivy Lord from passing his afer-acquired interest to anyone other than his grantee, Mary Gein Lord. These statutes cannot be invoked against the Ivy Lord grantees or their successors in title.

The defendants’ argument that the case of City of Beaumont v. Moore, 146 Tex. 46, 202 S.W.2d 448 (1947), a case which deals with the statutory covenant against incumbrances, as provided by Article 1297, supra, supports their theory is without merit. The contention would be sound in a proceeding by Mary Gein against Ivy Lord.

The Court has not only erroneously construed the September, 1942, deed, but it has failed to recognize that there is no evidence in this record that the land involved in this suit is a part of the 100-acre Martha Lord interest. Furthermore, the Court fails to recognize that the lien against the one-half interest formerly owned by Martha Lord was extinguished prior to the partition deed between the owners of the 200 acres formerly owned by the father and mother of Ivy Lord. The Court also fails to recognize that there is no proof whatsoever that the undivided interest acquired by Ivy Lord by virtue of the Speights deed as well as the specific 831/3 acres acquired by Ivy and Mary Gein jointly in the deed of partition was any part of the interest which Ivy Lord had previously inherited from his mother. The fact that Ivy Lord, through these subsequently executed instruments, acquired a greater interest in the 200 acres than the 16% interest conveyed in the September, 1942, deed is not controlling. Admittedly, Mary Gein also acquired in the partition deed a greater interest than she claims was lost, but she has never challenged her father’s actions in this or any other suit. In fact, the record shows that at the time of entering upon the land as a trespasser, she had asserted no adverse claim to the land while it was occupied by the present owners and their predecessors in title. C. K. Goodrich built a house on the 83% acres in 1948 and lived there until his death in August, 1962. After his death the house was vacant and locks were placed on the doors. Sometime after August, 1962, and before the petition for injunction was filed, the house was opened and Mary Gein Burns and her husband were occupying the premises, all without the permission or consent of the record owners. Under this record, the trial court properly found that the Bums family and Ivy Lord and wife, all of whom are defendants in this suit had “no right of occupancy of any portion of the surface of said lands.”

The injunction, as modified by the Court of Civil Appeals, should remain in full force and effect. Therefore, the judgment of the Court of Civil Appeals should be affirmed.

POPE, Justice

(dissenting).

I respectfully dissent. Ivy Lord inherited from his mother 16% acres of land, charged with a lien. By his 1942 deed he conveyed his inheritance to his daughter, Mary Gein. This intent to convey what he inherited was written into the deed in a separate special intention clause. When he conveyed what he inherited, and when his grantee received what he inherited, Ivy Lord could not thereafter be estopped. The opinion of the majority holds that there was a breach of warranty upon the foreclosure of the judgment lien against the 16% acres that Ivy Lord conveyed to Mary Gein and that the doctrine of after-acquired title should apply. I would hold that the evident intent of the grantor was to convey an undivided interest out of a described tract to the extent of his inheritance and that his grantee received exactly that. The grantee took the land with the debt, because that was what Ivy Lord inherited. These are the words that Ivy Lord put in his deed:

“It being understood that the interest hereby conveyed in said 200 acres of land being the interest inhearited by the said Ivy Lord, from the estate of his deceased father and mother, Lee Lord, and wife, Mrs. Lee Lord.”

Those words mean something. They are not idle recitals. The opinion of the majority reaches a result identical with that which would be compelled if the clause had been left out of the deed. To me, the words are purposeful, clear, and limiting. I would hold that Ivy Lord tried to tell us that he inherited something from his mother and that he intended to convey what he inherited, no more and no less.

“It being understood,” was Ivy Lord’s opening phrase. Those words mean “It is agreed.” Stanley v. Spann, 21 S.W.2d 305, 308, (Tex.Civ.App.1929, writ dism.). The thing that the grantor and grantee agreed upon was that the grantor conveyed “the interest inherited by the said Ivy Lord * * * ” An inheritance is the interest in real property which the law, immediately on the ancestor’s decease, casts on the heir. Barclay v. Cameron, 25 Tex. 233, 241 (1860). Inherent in the term is the idea that the heir takes the infirmities of the inheritance along with the strength, the assets as well as the debts. Ivy Lord inherited 16% acres from his father free of debt and a like share from his mother charged with debt. He conveyed what he inherited. When Mary Gein received all of that, as she did, she received all that the grantor and grantee intended by the deed.

Intention clauses should command attention. They serve useful purposes. Sometimes they describe and clarify. Germany v. Turner, 132 Tex. 491, 123 S.W.2d 874 (1939) ; Barfield v. W. C. Belcher Land Mortgage Co., 257 S.W. 1095, 1097 (Tex.Com.App.1924); Cullers v. Platt, 81 Tex. 258, 16 S.W. 1003, 1005 (1891) ; Hitchler v. Scanlan, 15 Tex.Civ.App. 40, 39 S.W. 633, 636 (1897, writ ref.). Sometimes they enlarge a grant or description or even convert what otherwise would be a quitclaim into a conveyance of land. Sun Oil Co. v. Burns, 125 Tex. 549, 84 S.W.2d 442 (1935) ; Cook v. Smith, 107 Tex. 119,174 S.W. 1094, 3 A.L.R. 940 (1915). Accord, Arrowwood v. Blount, Tex.Civ.App., 294 S.W. 616 (1927), affirmed 121 Tex. 52, 41 S.W.2d 412 (1931); Lauchheimer v. Saunders, 27 Tex.Civ.App. 484, 65 S.W. 500, 501 (1901, no writ). Sometimes they limit and restrict. Whatever the category, as Judge Smedley stated in Sun Oil Co. v. Burns, supra, intention clauses cannot be overlooked. He wrote in that case: “The clause declaring the intention of the grantor was, because of its plain language and manifest purpose, given the effect of enlarging both the granting clause and the terms of the description, and of converting what without it would have been a quitclaim deed into a conveyance of the land. * * *.”

An intention clause can enlarge and broaden a grant. In Cook v. Smith, supra, such a clause overcame the effect of operative words found in the granting, haben-dum and warranty clauses which would have made the instrument a pure quitclaim. In that case the grantor “bargained, sold, released and forever quitclaimed * * * all my right, title and interest * * The court stated that the habendum clause also contained the words of a quitclaim. In treating the deed in its entirety, however, the court seized upon the grantor’s intention clause to reach a result directly opposite that which would have been reached from looking at all the rest of the deed. These are the words that converted a quitclaim deed into a conveyance of land: “ * * * and it is my intention here now to convey to the said A. A. Neff all the real estate that I own in said town of Paducah in Cottle County, Texas, whether it is set out above or not.” Sun Oil Co. v. Burns, supra, is equally significant, for there too, it was the intention clause that converted the instrument into a conveyance of land.

Intention clauses which reveal the grantor’s intent to limit and restrict are entitled to equal respect. It is not unusual to include terms of agreement in a deed other than the premises, habendum and warranty clauses. In Fleming v. Ashcroft, 142 Tex. 41, 175 S.W.2d 401 (1943) the deed conveyed and warranted one-half interest in the oil under lands described by metes and bounds. Following the description and before the habendum and warranty clauses several special agreements were stated. One of them was: “It Is Understood that the sale of this royalty is for a period of fifteen years from February 19th, 1924, under the terms and provisions of oil and gas lease heretofore given by grantor herein as to the production of oil and gas, and at the expiration of said fifteen years the title to the minerals conveyed herein is to revert, without further notice, to grantor herein.” The Supreme Court found no repugnancy between this clear intent and other provisions of the deed, for “To hold otherwise would result in denying any effect whatsoever to the fifteen-year limitation.” The court restated the rule that intention must be gathered from a fair consideration of the whole instrument and that the construction given it should harmonize with the terms of the deed, including its scope, subject-matter, and purpose. Rio Bravo Oil v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 1087, 85 A.L.R. 391.

The majority distinguishes Wilson v. Wilson, 118 S.W.2d 403 (Tex.Civ.App.1938, no writ) and Stoepler v. Silberberg, 220 Mo. 258, 119 S.W. 418 (1909). The point in those cases and others like them, is that the courts did not disregard the grantors’ special intention clauses. The clauses gave expression to the grantors’ intent to limit and were respected. The following similar clauses have served as expressions of intent which courts have considered helpful in arriving at intent:

“ * * * All that certain tract or parcels of land, situated in Shelby, County, Texas, being our one-fifth and entire interest and to the estate of Media Wilson wife of Henry J. Wilson and mother of Robert Wilson, said estate consisting of a undivided one-half interest in and to the following tracts or parcels of land, being a part of the J. Cordova four leagues situated in Shelby County, Texas, * * * ” (Description of the three tracts follows). Wilson v. Wilson, supra.
“ * * * This deed is to embrace all the interest in the aforesaid real estate that I inherited from my father, Bernard Stoepler, deceased, and devised to me in his last will and testament and also such interest that I inherited from my sisters, Mrs. Zurmuehlen, deceased, and Mary Stoepler, deceased, and also my brother, August Stoepler, deceased.” Stoepler v. Silberberg, supra.
“ * * * all my interest in and to all property real, personal or mixed to which I was entitled at the death of my father Charles Hale as heir and one of his seven children who survived him or to which I may be entitled in his said estate as such child or heir at law * * *” describing property. Hale v. Hale, 93 S.W.2d 535 (Tex.Civ.App. 1936, writ ref.).
“ * * * It being my intention to convey all my interest in and to said tracts of land by reason of being a child and legal heir of James Spangler, deceased.” Spangler v. Spangler, 42 S.W.2d 826 (Tex.Civ.App., 1931, no writ).
“ * * * Do grant, bargain, sell, and convey unto the said G. H. Hermann, of Harris County, all that certain parcels of land that we inherited from the estate of Ade Bourgeois, situated on the San Jacinto River, it being parts of the J. B. Jones 1/3 league and of the James Strange 1/3 league of land in Harris County. The intention of this deed is to convey all the interests that Matalie Bonat, formerly Bourgeois, now owns by inheritance from her parents, now deceased, in the said above described tracts of land.” West v. Hermann, 47 Tex.Civ.App. 131, 104 S.W. 428 (1907, no writ).

It is my opinion that Ivy Lord’s intent, expressed in his 1942 deed to Mary Gein, has been thwarted. Intention should be ascertained from a consideration of all parts of the instrument. Garrett v. Dils Company, 157 Tex. 92, 299 S.W.2d 904 (1957); Benskin v. Barksdale, 246 S.W. 360 (Tex.Com.App.1923). This entire controversy centers upon Ivy Lord’s intent as expressed by his deed, but the one paragraph in the deed which demonstrates that intent is the one that has been treated as purposeless and meaningless. “The stone which the builders rejected, the same is become the head of the corner.” I would affirm.

I respectfully dissent.

HAMILTON, J., joins in this dissent.

      .
      “The State of Texas/KNOW ALL MEN BY “County of Sabine [ THESE PRESENTS : “That we Ivy Lord, and wife, Eliza Lord, of the County of Sabine and State of Texas, for and in consideration of the sum of Ten ($10.00) Dollars cash to us in hand paid and the love and affection that we have for our daughter, Mary Geine Lord, the receipt of which is hereby acknowledged, have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said Mary Geine Lord, of the County of Sabine and State of Texas, all that certain tract or parcel of land lying and being situated in Sabine County, Texas, and being a portion of the S. H. Morris headright survey, and described as follows, to-wit:
      “Being 33% acres undivided in and to 200 acres of said S. H. Morris headright survey, and described as follows:
      “Beginning on the bank of the Sabine River at a pine tree marked X about 15 ' ins. in dia. about 15 or 20 yds. below the mouth of Mill branch. Thence westerly crossing Mill branch to the N.E. corner of the original J. W. Carpenter home tract. Thence South with Carpenter’s East line to the N.E. corner of the old gin lot tract. Thence South with the east line of the old gin lot tract and continuing to the street leading to the old Goodloe house and running east and west. Thence east with said street to the Burkeville road. Thence south with the Burkeville road to the N.W. corner of 152 acres owned by the U.S. Forest Service. Thence 79% E. with the north line of said Forest tract 1012 vrs. to corner. Thence up Sabine river to the place of beginning, and containing 200 acres.”
      “It being understood that the interest hereby conveyed in said 200 acres of land being the interest inhearited by the said Ivy Lord, from the estate of his deceased father and mother, Lee Lord, and wife, Mrs. Lee Lord.
      “TO HAVE AND TO HOLD the above described premises, together with all and singular the rights and appurtenances thereto in anywise belonging unto the said Mary Geine Lord, her heirs and assigns forever. And we do hereby bind, ourselves, our heirs, executors and administrators to warrant and forever defend, all and singular the said premises unto the said Mart Geine Lord, her heirs and assigns, against every person whomeso-ever lawfully claiming or to claim the same or any part thereof.
      “In testimony, witness our signatures, this the 26 day of September, A.D. 1942.
      “Ivy Lord Eliza Lord.”

      . Mary Gein’s other undivided interest of 16% acres was conveyed to R. 0. Goodrich by guardianship deed dated February 24, 1948, and is not in dispute.

      . “It being understood that the interest hereby conveyed in said 200 acres of land being the interest inhearited [sic] by the said Ivy Lord, from the estate of his deceased father and mother, Lee Lord, and wife, Mrs. Lee Lord.”

      . “From the use of the word ‘grant’ or ‘convey,’ in any conveyance hy which an estate of inheritance or fee simple is to be passed, the following covenants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs or assigns, are implied, unless restrained by express terms contained in such conveyance:
      “1. That previous to the time of the execution of such conveyance the grantor has not conveyed the same estate, or any right, title or interest therein, to any person other than the grantee.
      “2. That such estate is at the time of the execution of such conveyance free from incumbrances.
      “Such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance.”

      . “The term ‘incumbrances’ includes taxes, assessments and all liens upon real property.”


author: WOODLEY, Judge.

text:
    Ex parte Jack EUBANKS.
    No. 38470.
    Court of Criminal Appeals of Texas.
    June 16, 1965.
    Brown & Hamby, by E. L. Hamby, Big Spring, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to custody to be extradited to the State of New Mexico.

The demand for extradition and accompanying documents reveal that the purpose of the Executive Authority of the demanding state was to have appellant returned to the penitentiary of New Mexico for further incarceration under a life sentence for murder, he having escaped without satisfying such sentence.

The demand was not accompanied by a copy of the indictment or other accusation or copy of the judgment or sentence, as required by the Uniform Criminal Extradition Act (Art. 1008a, Vernon’s Ann. C.C.P.) Section 3 of which provides:

“No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing alleging, except in cases arising under Section 6, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon ; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the Executive Authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. * * * judgment of conviction or sentence must be authenticated by the Executive Authority making the demand * *

Prior to the adoption by this State of the Uniform Criminal Extradition Act this Court had held that where the accused had been tried and convicted of crime in the demanding state, demand for his extradition did not have to be accompanied by copy of the indictment or other accusation, copy of the commitment or capias being sufficient. Ex parte Haynes, 98 Tex.Cr.R. 609, 267 S.W. 490.

Since the enactment of the Uniform Act, including the provisions of Section 3 above quoted, copy of the commitment is no longer sufficient and the demand to be sufficient to support the extradition warrant must comply with the statute. See Art. 1008a, Sec. 3, V.A.C.C.P.; 25 Tex.Jur.2d, p. 152, Sec. 18.

The judgment remanding appellant to custody under the extradition warrant is reversed and appellant is ordered released from further custody thereunder.