text:
    PEVETO et al. v. RICHARDSON et al.
    No. 1992.
    Court of Civil Appeals of Texas. Beaumont.
    May 1, 1931.
    Rehearing Denied May 6, 1931.
    Wm. E. Loose, of Houston, and E. L. Reid and V. H. Stark, both of Oránge, for appellants. '
    O. S. Parker, and O. M. Lord, both of Beaumont, Stephenson & Dies, of Orange, and A. M. Huffman, of Beaumont, for appel-lees.
   WALKER, J.

The parties to this suit are too numerous to name individually, but will be described by groups bolding and claiming common interests. The suit was in trespass to try title by J. F. Richardson. et al. against Bob Hale and W. A. P'eveto et al. and Francis D. Hollis et al., and was for the title and possession of the three following described tracts of land in Orange county: (a) All of the Jacob Beaumont survey; (b) 100 acres out of the extreme southwest corner of the John Stevenson league lying contiguous to the northeast corner of the Beaumont survey, with a common line of 700 or 800 varas; (e) 165 acres out of the John Stevenson league lying immediately north of the east end of the 100 acres just described, and with its east line an extension of the east line of the 100 acres. The southwest corner of the John Stevenson league corners on the northeast boundary line of the Jacob Beaumont survey and the west boundary line of the league is the west boundary line of the 100 acres. Between the west boundary line of the league and the west ■boundary line of the 165 acres.lying immediately north of the west end of the 100 acres, and consuming all the acreage between the west boundary line of the 165 acres and the west boundary line of the league, is another tract of land described in the record as the Dan Patillo tract. This tract of land is important only on the issue of appellants’ title of'ten-year limitation.

Thé defendants ' answered by demurrers, general denials, and pleas of not guilty and of the several statutes of limitations. The defendants Francis D. Hollis et al. also answered by way of cross-action, claiming an interest of 50 acres in the Jacob Beaumont survey. They also filed a cross-action against .defendants Bob Hale and W. A. Peveto1, •claiming 100 acres in the John Stevenson survey. Fannie A. Sneed et al. intervened in the suit, claiming the 100-acre tract. All parties adversely interested to the plea of intervention answered the same by pleas of not guilty and by specially pleading the several statutes of limitation, and affirmatively claimed the land by way of cross-action. The trial was to the court without a jury, with judgment as follows, statement taken from appellants’ brief:

' “Thereafter on the 23rd day of November, A. D. 1929, the court rendered judgment in said cause in favor of the plaintiffs and against the defendants W. A. Peveto, et al., and Bob Hale, and the defendants Francis .D. Hollis, et al., for all of the lands and premises described in plaintiffs’ petition except the 165 acre tract which was awarded to these defendants,1 and in favor of the inter-venors Fannie A. Sneed, et al., against all other parties to the suit, the title and possession of all the lands described in said petition in Intervention and being One Hundred (100) acres, more or less, in the Jno. Stephenson Survey.
“The court further decreed, in accordance with an agreement between intervenors Fannie A. Sneed et al. and the plaintiffs, that the plaintiffs recover an undivided 85/ 127ths interest in the lands described in the petition in Intervention of Fannie A. Sneed et al.
“The court further rendered judgment that the defendants Francis D. Hollis et al., recover the title to an undivided interest of fifty (50) acres out of the Jacob Beaumont Survey as against the defendants W. A. Pe-veto et al. and Bob 1-Iale, subject, however, to the terms of an oil and mineral lease theretofore executed by the'defendants Fran-,eis H. Hollis et al. with the exception of O. M. Lord, to the defendant Bob Hale.”

Only the defendants Bob Hale and W. A. Peveto et al. have appealed to this court from the judgment of the lower court.

The record title to the several tracts of land in controversy was as follows: The Jacob Beaumont survey was patented on the 7th day of November, 1890, to W. P. Williamson as assignee of Jacob Beaumont under a survey made by Surveyor J. A. Pinkston on the 13th day of June, 1890, and certified by him as containing 467½ acres of land. The land was located by virtue of confederate script No. 586 issued to Jacob Beaumonfon August 23, 1881, and transferred by him to George Williamson July 27, 1882, and surveyed for George Williamson on the 24th day of June, 1883, by Frank Cleveland, county surveyor of Orange county, and duly certified by this surveyor on the 10th day of September, 1883, as containing 661 acres of land. On the 10th day of December, 1885, Geórgé Williamson conveyed the survey to W. P. Williamson as containing 640 acres. On that same day W. P. Williamson conveyed to J. W. Faulk an undivided interest of 50 acres in the Jacob Beaumont. It is our understanding from the record that the F'aulk title to the 50 acres was owned by defendants Francis D. Hollis et al., which 50 acres was awarded to them by the judgment of the court.

During his lifetime, George Stephenson acquired the record title to the 100 acres and the 165 acres above described, together with other land on the John Stephenson league, and, owning this land, contracted to convey to John Turner 441‘acres thereof, for which he was duly paid by Turner, but died before making the conveyance. After his death, his executrix petitioned the probate court of Jefferson county, which court had jurisdiction of the estate of George Stephenson, deceased, for authority to execute a deed to John Turner for the 441 acres of land. To quote from the application: “Which the said Turner contracted for and justly paid for in the lifetime of the said deceased, and for which the said Turner has never obtained any title.”

On February 27, 1849, under orders of the probate court in all respects regular, the executrix conveyed to John Turner the 100 acres and the 165 acres as above described, reciting in her deed as follows: “That I, Lydia Stephenson, of Jefferson County, in my capacity as Administratrix of the goods and Estate which were of Geo. W. Stephenson, late of Jefferson County, deceased intestate, for this purpose being duly authorized and empowered by a decree of the County Court of Jefferson County, in consideration of One Hundred Dollars ($100.00) paid by John Turner to Geo. W. Stephenson, dec’d., in his lifetime, the receipt whereof I do hereby acknowledge, I do grant, etc., (here follows the granting clause and description of land conveyed).”

On January 14, 1881, John Turner conveyed the 100 acres to R. F. Jett, and on the 15th day of January, 1881, Jett conveyed it to W. P. Williamson, and on the 10th day of December, 1885, Williamson conveyed the same land to Faulk. This is the 100 acres in which interveners were awarded an undivided interest. As to the title of the in-terveners under which they recovered, the judgment awarding them their undivided interest contains the following recitation: “Being all the land in Orange County, Texas, deeded to Willis B. Moore by John Turner by deed dated February 11, 1854, filed for record in Orange County, Texas, on the same day.”

It is not necessary to trace the title of W. P. Williamson to the 165 acres, as it seems to be conceded that he owned that tract on September 14, 1888. On that date, joined by his wife, W. P. Williamson conveyed to James Peveto an undivided interest of 611 acres in the Jacob Beaumont survey, t^he 165-acre tract, and a third tract described as follows: “Also fifty acres, more or less, of the Headright of John Stephenson, in .Orange County, Texas, and known in the division of the Estate of said Stephenson as Division No. One, and to me deeded by R. IP. Jett.”

On the 4th day of June, 1893, James Peve-to and wife executed a deed of trust to J. W. Faulk to the three tracts of land deeded to them by W. P. Williamson to secure him in an indebtedness of $1,050. On October 2, 1894, Faulk, as trustee, made a deed to this land to Almond Berwick, who, on the 1st day of June, 1899, reconveyed all of the land held by him under the trustee deed to James Pe-veto. Peveto recorded this deed in 1903. The judgment of the trial court held this deed tó be void, and, while appellants have advanced propositions attacking this holding of the trial court, we understand from their brief that these propositions have been abandoned. However, this deed is important as affording the basis for appellants’ plea of ten-year limitation. J. F. Richardson acquired the indebtedness held by W. P. Williamson against Peveto, and on the 25th day of August, 1896, was awarded judgment by the district court of Orange county foreclosing his mortgage lien as against Peveto and wife and Faulk and W. P. Williamson. All the land was sold under this foreclosure to appellee J. F. Richardson, and on the day of sale, to wit, the 3d day of November, 1896, the sheriff of Orange county executed to him a deed thereto. The description of the 50 acres on the Stephenson league and of the undivided interest of 611 acres on the Jacob Beaumont survey become material under appellants’ propositions, which we will discuss later in this opinion.

Opinion.

Appellants’ first seven propositions assert error on the ground that the trial court erroneously overruled their motion for a continuance because of the absence of their witness Joe Eaves. If was the first application of the defendants W. A. Peveto et al., but at the previous term of the district court of Orange county their codefendant, Bob Hale, was granted a continuance. This suit was filed on the 12th day of December, 1928. On the agreement of the parties it was called for trial on the 4th day of 'November, 1929, when all parties except the defendants Bob Hale and W. A. Peveto et al., announced ready for trial. These defendants duly filed their motion for continuance because of the absence of Joe Eaves, whose testimony was shown to be material on their pleas of limitation. On the hearing of this application, it was shown that the witness was about eighty years old; that he lived in Jefferson county at Port Arthur, only a short distance from Orange, where this case was to be tried; that he was in frail health, and for several years had been suffering from a groin trouble in the nature of a rupture; that defendants knew the witness and the importance of his testimony before the case was called for trial, and had secured from him a promise to attend court and testify in their behalf; that he did attend court, but, before the case was called for trial, was taken seriously sick, and on the advice of his attending physician returned to his home in Port Arthur; that this physician testified the witness might be able to return to court within four or five days. Appellants had no subpcena issued for the witness, and, prior to the time of presenting their motion for continuance, had made no effort to take his depositions. On the hearing appellees agreed' to waive the issuance of a commission and to go with appellants to Port Arthur at any time to take the testimony of the witness. Upon this showing the motion for continuance was overruled, with the following statement by the trial judge: “The motion is overruled, gentlemen. It is the belief of this court that the testimony of this witness can| be had before the case will close, either by his presence in court or by deposition.”

Thereupon the trial proceeded in regular order until the 21st day of November, 1929,. when all the parties except appellants concluded their testimony. Thereupon they renewed-their motion for continuance because of the absence of the witness Joe Eaves. Though during the two weeks the case was on trial appellees were willing to waive the issuance of a commission to take this witness’s depositions and to go with appellants to Port Arthur for that purpose, appellants made no effort to take his depositions. While material on the issues of limitation, there was nothing about the testimony of this witness to show that appellants could not have fully protected their interest by taking his depositions, especially in view of the factlhat the trial was to the court without a jury. From the statement made in appellants’ application for a continuance, this witness was expected to testify only to the nature of. the claim and pos-' session of James Peveto to the land in controversy, the character of fences maintained by him around this land, and the nature of the marsh on the south or the 100-acre tract,( that is, whether or not it was sufficient to' constitute a barrier to cattle leaving the 100 acres or coming from other lands onto the 100 acres. This was not a statutory motion for continuance, but one addressed to the sound discretion of the trial judge. Under the authorities of this state, this discretion was not abused by overruling the motion. If appeb Iants wanted the testimony of Joe Bares, it was their duty to take his depositions, for manifestly they could have done this, which would have afforded them an adequate means of presenting his testimony to the trial court. Home Forum, etc., v. Varnado (Tex. Civ. App.) 65 S. W. 364; Thompson et al. v. Hart (Tex. Civ. App.) 157 S. W. 184; Hahl v. Davidson (Tex. Civ. App.) 202 S. W. 792; Palm v. Theumann (Tex. Civ. App.) 201 S. W. 421.

The evidence shows, as stated above,' that W. P. Williamson bought the Jacob Beaumont survey from George Williamson as containing 640 acres, and that it was first conveyed as containing 661 acres. He sold an undivided interest of 50 acres to Faulk and an undivided interest of 611 acres to James Peveto. By their eighth proposition appellants claim that the lower court erred in excluding the testimony of their witness Forrest Daniels to the effect that this survey contained a large excess acreage. To make this excess, the witness would have placed the Beaumont survey in conflict with adjoining surveys whose owners were in no way parties to this suit; thereby raising issues the court was without jurisdiction to determine. For that reason, the evidence was properly excluded. But appellants had no title to any part of the Jacob Beaumont, and had never been in possession of any part of it. Appellants, being without possession or' title, could offer this testimony only on the theory of an outstanding title. Appellees, if they did not own all of the survey, at least had in it an undivided interest of 661 acres. On this statement the evidence was properly excluded under the rule reannouneed in Hennegan v. Nona Mills Co. (Tex. Civ. App.) 195 S. W. 664, 669, “that as against a naked trespasser, the owner of an undivided interest may recover the entire tract.”

The ninth proposition is to the effect that the deed of the administratrix to John Turner was void because it was not shown that the contract whereby George Stephenson was to convey to John Turner the 441 acres of land was in writing, and because it was not shown that the administratrix was paid a valuable consideration for the deed. The proposition is without merit. After the lapse of eighty years, on a collateral attack, ‘the law will presume that the probate court had before it all necessary facts to support the judgment, where the record does not affirmatively show to the contrary. Maxson V. Jennings, 19 Tex. Civ. App. 700, 48 S. W. 781, 784; Dutton et al. v. Wright et al., 38 Tex. Civ. App. 372, 86 S. W. 1025; Houston v. Killough, 80 Tex. 296, 16 S. W. 56; Baker v. Coe, 20 Tex. 429; Bohanan v. Hans, 26 Tex. 445.

By the tenth and eleventh propositions appellants attack the trial court’s conclusions holding void Faulk’s deed as trustee to Almond Berwick, but these propositions are abandoned, and require no further consideration.

By the twelfth proposition appellants contend that they defeated the appellees’ record title to the land in controversy by the undisputed testimony in support of their plea of fen-year limitation. Their theory is that the three tracts of land deeded to Peveto by Ber-wick under his deed of the 12th of June, 1889, and which deed Peveto recorded on'the 16th day of December, 1903, were contiguous, and that James Peveto was in actual possession of the 165 acres from the date he recorded his deed in 1903 to his death in 19-20, claiming to the boundaries of his deed. They thus state their proposition of law: “That where surveys or tracts of land separately described arc conveyed in the same deed and said tracts are contiguous to each other, adverse possession by the grantee of one of the tracts for the statutory period will extend to all the several tracts if all of said tracts are claimed to be owned by the same person.”

Allen v. Boggess, 94 Tex. 83, 58 S. W. 833, and Houston Oil Co. v. Rice Institute (Tex. Civ. App.) 194 S. W. 413, support appellants’ proposition as a mere abstract statement of the law, but that proposition does not control this case. It will be conceded that appellants’ ancestor James Peveto held the 165 acres under all the legal essentials to mature thereto a title under the statute of ten-year limitation. (Rev. St. 1925, art. 5510.) But appellees made a sharp issue against appellants’ contention that the three tracts of land described in the Berwick deed to Peveto were contiguous. This issue was found against appellants by the trial court by the following fact conclusions, which has abundant support in the record: “I find that subdivision No. 1 of the John Stephenson Estate is situated in the northern end of the -John Stephenson Survey and is about one mile distant from the Willis Moore tract.” Since to invoke the rule announced in Allen v. Bogess it is necessary that all the subdivisions claimed through the deed be contiguous, and since the three tracts of land claimed by appellants were not contiguous, the twelfth proposition must be overruled.

All of the Jacob Beaumont survey lies in the Neches river marsh. James Peveto never had a fence on any part of that survey, nor did he ever have a fence on the south line of the 100-acre tract claimed by appellees. It was the theory of appellants that James Peve-to had a fence on the north and east boundary lines of the 165 acres and on the east boundary line of the 100 acres running south far enough into the marsh to afford a barrier to cattle leaving the land or entering it from other lands. It was also their theory that James Peveto’s fence on the north of the 165 acres extended across the north boundary line of the Dan Patillo tract to the west boundary line of that tract, and from that point that a fence extended south into the Neelies river marsh on the Beaumont, affording a barrier, as did the fence on the east of the 165 acres and the 100 acres. And further, that an agreement existed between Dan Patil-lo and James Peveto that the cattle of each of them might graze over all the lands included within this fence.

By his seventeenth, eighteenth, nineteenth, twenty-first, twenty-second, and twenty-third conclusions of fact the trial court found against appellants’ contention that the Neches river marsh was a sufficient barrier to prevent cattle from entering and leaving the lands in controversy. While these .fact conclusions are attacked by their thirteenth and fourteenth propositions as not having support in the evidence, it is our conclusion that these propositions are without merit. The states ment of facts .consists of six medium size volumes, and much of the testimony is on this issue. It would serve no useful purpose to review it in detail in this opinion. It is sufficient to say that the statement brought forward by the parties in their briefs affords a basis for the conclusions of fact thus attacked.

No statement is made in support of the fifteenth proposition, and therefore we treat it as waived.

By the sixteenth proposition, the description of the 611 acres conveyed to Richardson by the sheriff is attacked as being void. This description was as follows: “Also six hundred eleven acres off of Jack Beaumont Headright suitable in Orange County, Texas, this land being South of John Stephenson and William Allen Surveys.”

Appellees’ counter proposition to this contention, which fully summarizes the facts on this issue, and which we adopt as a statement of the facts, is as follows: “Where the deed from W. P. Williamson to James Peveto described the land as ‘Six Hundred Eleven acres of land off the Jacob Beaumont Headright, situated in the County of Orange, State of Texas, and transferred to me by George Wil-jamson; the land lying South of the John Stephenson and William Allen Surveys’, and where the mortgage from James Peveto and wife to J. F. Richardson described .the land in substantially the same way, and where the judgment rendered in favor of J. F. Richardson foreclosing the mortgage lien described the land as ‘Six Hundred Eleven acres off the Jack Beaumont Headright, situated in the County of Orange, State of Texas, this land being South of the John Stephenson and William Allen Surveys’, but said judgment also referred to the deed of trust and its place of record for further description of said land, and where the sheriff’s deed to J. F. Richardson described the land as ‘Six Hundred Eleven acres off the Jack Beaumont Headright situated in the County of Orange, State of Texas, this land being south of the John Stephenson and William Allen Surveys’, but said judgment also réferred to the deed of trust' and judgment, and where - the undisputed evidence shows that the Jacob Beaumont Survey did lie South of the William Allen and John Stephenson Surveys, the trial court did not err in permitting the plaintiffs to introduce in evidence the deed from James Peveto and wife, by Sheriff, to J. P. Richardson, dated November 3,1896, over the objection of appellants.”

The facts thus summarized relieve the description in the sheriff’s deed of the attack made against it. Mackechney v. Temple Lumber Co. (Tex. Civ. App.) 197 S. W. 744; Walter Connally & Co. v. Bank (Tex. Civ. App.) 189 S. W. 311, 312; Williams v. McComb (Tex. Civ. App.) 163 S. W. 654, 656; Anderson v. Casey-Swasey Co. (Tex. Civ. App.) 120 S. W. 918; Wren v. Scales, 55 Tex. Civ. App. 62, 119 S. W. 879; Pierson v. Sanger, 93 Tex. 160, 53 S. W. 1012; Sanger v. Roberts, 92 Tex312, 48 S. W. 1, 3. In support of their theory of actual inclosure of all the land in controversy, appellants asked their witness W. A. Peveto the following question: “What, if anything, did Daniel Patillo state to your father, in your presence, with reference to cattle grazing over on that land on Bear Island and South of the James Peveto place and Dan Patillo place? ”

By the seventeenth and last proposition the contention is made that it was error to exclude this testimony. This proposition is without merit. The proferred testimony was material only on the theory of a lawful inclosure of the lands claimed by appellants. Since this issue was found against them by the trial court, the testimony of this witness in this respect was rendered immaterial.

Prom what has been said it follows that the judgment of the lower court should be affirmed, and it is accordingly so ordered.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    FIRST STATE BANK OF THREE RIVERS v. PETRUCHA.
    No. 8566.
    Court of Civil Appeals of Texas. San Antonio.
    March 18, 1931.
    Rehearing Denied April 29, 1931.
    Conger & Conger, of San Antonio, for appellant.
    Arthur H. Bartelt, Hill Grover, and C. W. Trueheart, all of San Antonio, for appellee.
   SMITH, J.

Appellee, Tom Petrucha, aged 72 years, resides on his farm in Matagorda county. On August 20, 1929, he was visited by two strangers, Grover C. Turner and Sam Nami, who, by fraud and deceit, induced him to execute and deliver to Turner his plain promissory note for $5,000, to mature in ninety days, and bearing 8% interest, as consideration for an oil lease upon 1,000 acres of land in Bandera county. Turner departed with the old man’s note, but after a few days returned, and, still practicing his deceit, induced appellee to execute a new note, for á like amount and upon the same terms, as well as a mortgage upon 200 cattle as security for the note. The new note and mortgage were dated September 4. On the same day Turner turned over the note to one Terry J. Balhorn, for the purpose of enabling the latter, as a broker, to sell the note. Turner did not indorse the note, but gave Balhorn a separate written assignment of it. Subsequently, and before the maturity of said note, Balhorn executed his own note in favor of appellant, First State Bank of Three Rivers, for $5,000, negotiated it to said bank for $4,750, and deposited ap-pellee’s note therewith as collateral security, reserving his commission out of the proceeds and paying the balance over to Turner. In September, at the maturity of his note, and still ignorant of the fraud which induced him to execute it, appellee paid the bank the accrued interest thereon, to wit, $200.

On January 9, 1930, the bank brought this action against appellee to recover the amount of the note and foreclose the moftgageron the cattle. Appellee answered, setting up the fraud of Turner and Nami, alleging that Bai-horn and the bank each acquired the note with notice of that fraud, and praying for cancellation of the note and mortgage and recovery of the amount of interest he had paid thereon. He further alleged that he did not discover the fraud which had been practiced upon him until after the note had passed into the possession of the hank, and he had paid the accrued interest thereon to the bank. In his cross-action appellee impleaded A. D. Rogers, R. S. Rogers, Grover 0. Turner, Sam Nami, and Balhorn, alleging that they were parties to the fraud practiced upon him and praying for recovery against them.

In response to a jury verdict the trial court rendered judgment denying recovery to the bank, decreeing the cancellation of the note, and awarding judgment in favor of appellee for $200 against the hank and Nami. Judgment was rendered in favor of the two Rogers and Balhorn, and Turner was dismissed for want of service. The hank appealed.

The jury found, upon sufficient evidence, that appellee was defrauded as alleged; that he executed the note sued on by reason of that fraud, and did not discover such fraud until after he had paid appellant the accrued interest on said note; answered in the affirmative the question, “Did Balhorn ever own any interest in the note and chattel mortgage herein sued upon?” and found that he had no such knowledge of the fraud as to charge him with had faith in taking those instruments; that A. D. Rogers acted as the agent of appellant in acquiring the note and mortgage, and as such had knowledge of such facts concerning those instruments as would amount to bad faith on the part of his principal, the bank, in acquiring them. In short, the jury found for appellee upon every ultimate issue in the case as against the bank" and Nami.

Appellee predicated his defense upon the major allegations to the effect that he was induced by the fraud of Turner and Nami to execute the original note, as well as the note and mortgage subsequently executed by him in substitution of the original note, and that he subsequently paid the accrued interest on the note while still ignorant of the fraud. These allegations were supported by ample evidence and were conclusively established by jury findings. Appellant contends that as the evidence showed that appellee executed the second note and the mortgage in order to enable the payee to sell the note, and with the knowledge that the payee intended to and did thereupon sell the note to Balhorn, an innocent purchaser, appellee was estopped to deny liability. We overrule this contention. The fraud of Turner was a continuing one throughout these transactions, and appellee had not discovered such fraud. The fact that he executed the substitute note and mortgage, and thereby changed the form of his obligation, did not have the effect of concluding him, unless, indeed, it is further shown that he thereby intended to waive his right to set up the fraud, Goodwin v. Bank (Tex. Civ. App.) 20 S.W.(2d) 1090; Hawthorne v. Walton (Tex. Civ. App.) 30 S.W.(2d) 397; Sturdevant v. Falvey (Tex. Civ. App.) 176 S. W. 908, or unless the-rights of holders in due course for value had intervened.

But, it is contended by appellant that. Balhorn was a holder in due. course for value and that appellee’s right to set up the fraud was cut off by Balhorn’s acquisition of the; note. It appears from the record that Bal-, horn took the instrument without the payee’si indorsement thereon and- through a separate assignment not attached to the note. Ap-. pellant’s contentions must be tested by these facts.

A promissory note payable to order, as in' this case, “is negotiated by the indorsement of the holder completed by delivery.” Negotiable Instruments Act, article 5934, § 30.: Such “indorsement must be written on the-instrument itself or upon a paper attached thereto.” Section 31. And, “where the hold-, er of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferor had therein, and the transferee acquires, in addition, the right' to have the indorsement of the transferor. 'But far 'the purpose of determining whether the transferee is a holder in due course, the negotiation talces effect as of the,time when the in-dorsement is actually made.” Section 49: (Italics ours.) The method by which Balhorn took the note from Turner, the payee, was not the method prescribed by the foregoing statutory provisions, since it was not “negotiated by the endorsement of the holder written on the instrument itself or upon a paper attached thereto.” , .

The result of the transfer without the payee’s indorsement therefore had the effect,' merely, of “vesting” the “transferee” with “such title as the transferor had therein.” And as Turner never indorsed the paper, Bal-horn never became a holder in due course, since such status begins only “as of the time when the endorsement is actually made.” Balhorn’s status was therefore fixed by the provision in section 58, art. 5935, that “In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it' were nonnegotiable.” Accordingly, Balhorn did not become a holder in due course, and acquired only such title as Turner had. The note in his hands was therefore subject to any defenses that might be urged against Turner himself. J. I. Case Threshing Mach. Co. v. Howth, 116 Tex. 434, 293 S. W. 800; Ellington v. Commercial State Bank (Tex. Civ. App.) 15 S.W. (2d) 59; Id. (Tex. Com. App.) 24 S.W.(2d) 359; Ingraham v. England (Tex. Civ. App.) 258 S. W. 278.

Appellee impleaded A. D. Rogers upon allegations that he was an active participant in the fraud perpetrated upon appellant, and sought to hold him liable as a principal. The evidence developed, however, that Rogers was not a principal actor but acted only as the agent of the bank in acquiring the note from Balhorn, with knowledge of the fraud practiced upon appellee by Turner in procuring the execution and delivery of the note and mortgage. The jury properly resolved these facts into findings. Now, appellant contends that appellee is bound by his allegation that Rogers was a principal actor in the fraud, and will not be permitted in the face of these pleadings to avail himself of the evidence .which gave Rogers the character of a mere agent of the bank. Appellant contends, further, in this connection, that in order to bind the bank by reason of Rogers’ -agency, it was incumbent uixin appellee to specifically allege such agency; that in the absence of such allegations the trial court could not properly submit the question of such agency to the jury. We overrule these contentions. It was alleged that the bank acquired the note and mortgage with notice of the fraud by which their execution and delivery were procured by Turner from appel-lee. This allegation was sufficient, at least in the absence of special exceptions, to let in proof that the bank acquired such notice through the knowledge of its agents, since it is a corporation, and therefore can act or acquire notice only through its agents. Nor can appellant complain of the submission to the jury of the issue of Rogers’ agency, since it appears that appellant himself invited such submission by requesting the court to propound to the jury a like question, in a slightly different form.

From the foregoing conclusions the case at large may be summarized as follows: Turner and Nami fraudulently induced ap-pellee to execute both the original note, and the substituted note and mortgage given to secure its payment. Turner assigned the note and mortgage to Balhorn, who, although having no notice of said fraud, did not become a holder in due course but took only such title to the instruments as Turner had, and therefore took them subject to all defenses available against Turner. Balhorn in turn transferred the instruments to the Bank, which ¡had notice, -through the knowledge of its agent, Rogers, of the fraud with which they were tainted, and was properly denied any recovery upon the note and mortgage. These conclusions dispose of appellant’s major contentions, embraced in its propositions 1, 2, 3, 4, 7, 8, lOj IT, and 19, which are overruled. Some of the .remaining contentions found among appellant’s 19 propositions will now be discussed and disposed of.-

The jury answered in the affirmative the question, did Balhorn “ever own any interest in the note and chattel mortgage herein sued upon,” and further found that Bal-horn had no knowledge of facts concerning said instruments “as would amount to bad faith in taking said instruments at that time.” Appellant contends that the judgment rendered is contrary to those jury findings. We perceive no such conflict, however. It is .true that Balhorn had a broker’s interest in those instruments, and we must accord verity to the finding that he had no knowledge importing bad faith upon his part in taking the note. But those facts became immaterial in view of the conclusion, as a matter of law, that he was not a holder in due course, that he took no more title than his assignor had, and that he took subject to all the defenses available as against his assignor, Turner. Appellant’s propositions 5 and 6, in which this question is raised, are accordingly overruled. Proposition 9 will also be overruled. The special charge, the refusal of which is complained of in that proposition, was properly refused as being upon the weight of the evidence, if for no other reason.

Appellant’s proposition 12 complains that the court erred in admitting testimony of A. D. Rogers for the purpose of establishing the fact of his agency for the bank. We do not understand from the record that Rogers testified to the mere conclusion that he was the agent of the bank. Such testimony would have been inadmissible. The ’witness did testify to specific facts which had the effect of showing his agency. Such testimony was admissible, particularly when considered with corroborative evidence from other sources. The proposition is overruled. The testimony complained of in propositions 13, 14, and 15, was admissible as showing the original fraud, and was rendered applicable to appellant, shown to have had notice of that fraud. Proposition 16 is without merit, and is overruled. The testimony complained of in proposition 17 was admissible as a circumstance bearing upon Rogers’ interest in and agency for the bank. Proposition 18 is predicated alone upon appellant’s assignment of error 7, the subject-matter of which has already been disposed of adversely to appellant.

The case appears to have been fairly tried and correctly disposed of, and the judgment is affirmed.

COBBS, J.

I do not concur.


author: ABEXANDER, J.

text:
    TEXAS CO. v. SCHRIEWER et al.
    No. 1026.
    Court of Civil Appeals of Texas. Waco.
    March 12, 1931.
    Appellees’ Motion for Rehearing Denied April 16, 1931.
    Appellant’s Motion Granted in Part April 16, 1931.
    Second Motion for Rehearing Denied May 7, 1931.

      F. T. Baldwin and E. S. Morris, both of Houston, for appellant.
    Henderson & Hoyle and R. V. Armstrong, all of Bryan, and A. S. Rollins, of Dallas, for appellees.
   ABEXANDER, J.

This was a suit in the district court of Brazos county by the Texas Company against Paul Schriewer, Allen Smith, and the American Surety Company of New York to recover from Paul Schriewer the sum of $12,-941.81 for material furnished him as a subcontractor in the construction of a state highway in Young county, and against Allen Smith as principal and American Surety Company as surety on the contractor’s bond executed by Allen Smith in compliance with the provisions of Revised Statutes, art. 5160 (as amended by Acts 1929, 41st Deg., c. 226, § 1 [Vernon’s Ann. Civ. St. art. 5160]), and against Allen Smith and American Surety Company on a release bond executed in compliance with the provisions of article 5472b— 1 (as added by Acts 1929, 41st Beg., 2d Called Sess., p. 154, c. 78 [Vernon’s Ann. Civ. St. art. 5472b — 1]). A trial before the court without a jury resulted in a judgment for plaintiff against Paul Schriewer for the sum of $12,941.81, and that plaintiff take nothing against defendants Allen Smith and American Surety Company-. The plaintiff appeals.

Allen Smith entered into a contract with the state highway department for the construction of a public highway in Young county and executed a bond with the American Surety Company as surety for the faithful performance of the contract. . He sublet a part of the contract to Paul Schriewer. The court filed findings of fact in which it was found that the Texas Company furnished Paul Schriewer for the construction of said highway, material of the value of $12,941.81, and that all of such material was used in the construction of said highway, and that same has not been paid for. The Texas Company, however, did not file with the county clerk of Young county an itemized list- of the material so furnished by it within ninety days from the date of the delivery of such material as provided in Revised Statutes, art. 5160. After the state highway department had paid Allen Smith approximately $100,000 on said contract and while there was still owing him thereon a balance of $23-,414.58, the Texas Company notified the state highway commission of its claim for the material so furnished Paul Schriewer. Allen Smith as principal, and American Surety Company as surety, executed to the state highway department a release bond as is provided in article 5472b — -1, and obtained a release of the balance due under said contract. The trial court held that appellant could not recover against Allen Smith and American Surety Company on the original bond given for the performance of the contract because appellant did not file an itemized statement of its account with the county clerk of Young county within the time provided by law. The court also held that appellant could not recover against Allen Smith and American Surety Company on the release bond because, (a) the appellant did not furnish the material to the original contractor, but furnished the same to a subcontractor, (b) notice was not given before the first ‘payment was made on the contract, and (c) notice of appellant’s claim should have been given to the state treasurer and not to the highway commission.

Since the appellant did not file with the county clerk of Young county an itemized list of the materials furnished by it within ninety days after the delivery of the same as provided by article 5160, it cannot recover on the original bond given for the faithful performance of the contract. If it is to recover at all, it must recover by virtue of the provisions of article 5472a, on the release bond given in compliance with the terms of Revised Statutes, art. 5472b — 1. Article 5472a reads as follows: “⅜at any person, firm or corporation, or trust estate, furnishing any material, apparatus, fixtures, machinery or labor to any contractor for any public improvements in this State, shall have a lien on the moneys, or bonds, or warrants, due or to become due to such contractors for such improvements; provided, such person, firm, corporation, or stock association, shall, before any payment is made to such contractor, notify in writing the officials of the State, county, town or municipality whose duty it is to pay siich contractor of his claim.” (Acts 1925, 39th Leg., ch. 17, p. 44, § 1 [Vernon’s Ann. Oiv. St. art. 5472a]'). •

Does one who furnishes labor or material for public improvements to a subcontractor, and not to the general contractor, have a lien on the funds due or to become due for the construction of such public improvements? The statute does not, by express terms, include one who furnishes labor or material to a subcontractor. It reads: “That any person * * '* furnishing any material * * * or labor to any contractor for any public improvements in this State, shall have a lien on the moneys * * * due or to become due to such contractors for such improvements,” etc. In construing statutes, it is the duty of the court to ascertain and give effect to the intention of the Legislature. In order to arrive at such intention, resort may be had not only to the language of the act, but the occasion and necessity of the enactment, the evils to be remedied, the object to be secured, and its relation to existing legislation on the same subject. The court should give to the statute that construction best calculated to secure the benefits'intended, and, for the purpose of arriving at such intention, may consider the construction placed on prior similar acts and the established policy of the legislature as disclosed by a general policy of legislation.

For many years it has been the established policy of the state, as disclosed by general legislation on the subject, to secure the laborer or materialman by a lien to insure payment for the laboT and material so fur-nished by him. One furnishing labor or material, either to a • general or subcontractor, for private improvements is given .a lien on the improvements constructed with ■the labor or material so furnished. Bassett v. Mills, 89 Tex. 162, 34 S. W. 93; Padgitt v. Dallas Brick & Construction Co., 92 Tex. 629, 50 S. W. 1010; Wilson v. Sherwin-Williams Paint Co., 110 Tex. 156, 217 S. W. .372. Mechanics and laborers in almost every .known trade are now given liens or some other eumpulsory process for enforcing payment of their claims.

Prior to the enactment of article 5472a, one furnishing labor or material for the construction of public improvements could neither fix a lien on the improvements nor impound the funds due by the state or munici-palitiy for such improvements. The only remedy afforded such laborer or materialman was that given by Revised Statutes, article 5160, by which it was provided that those contracting to construct such improvements should, before commencing such work, execute a bond obligating such contractor to pay all persons supplying labor or material for such improvements. At the time article 5472a was enacted, the state was entering upon a period of extensive road building and public improvements. It is manifest that by the enactment of article 5472a, it was the intention of the Legislature to provide additional security to those who furnish labor or material for public improvements. The Legislature was attempting to provide a method by which the funds set aside for such improvements could be impounded for the benefit of those who directly brought about such improvements. The state was furnishing the funds for such improvements, and it had the right and it was its duty to provide that those who supplied the labor and material for such improvements should be compensated therefor. It is the duty of the courts, therefore, to so construe the statute as to accomplish this end, if they can do so, without doing violence to the language used.

To give the statute that construction contended for by appellee and to hold that those who furnish labor and material to the general contractor may impound the funds, but that those who furnish such labor or material to a subcontractor have no lien thereon, would be a discrimination without warrant. We can perceive no good reason why the Legislature should prefer the laborer who furnishes labor direct to the general contractor ovér the one who furnishes such labor to a subcontractor. In each case the general contractor gets the benefit of the labor and material necessary for the improvements and for which he has obligated himself to pay. The state likewise gets the benefit of such labor and material and is likewise interested in seeing that it is paid for. Moreover, to place such a construction on the statute would enable the general contractor to practically nullify the statute. By subletting the entire contract, the general contractor could place the funds beyond the reach of the laborer and materialman. The general contractor, under his contract with the state, obligated himself to pay all lawful ela'ims for labor and material furnished for such improvements. It was made the duty of the contractor to supply the labor and material for such improvements at his own cost.. He could provide such labor and material himself, or he could delegate or sublet this duty to another, hut, by such subletting, the general contractor could not relieve the funds due him under such contract from the danger of being impounded for the payment of the obligations that he had assumed. If the general contractor desired to protect himself against hills incurred by the subcontractor, he should have demanded a bond from the subcontractor. Huddleston & Work v. Kennedy, 40 S.W.(2d) -, decided by the Eastland Court, Feby. 20.

Prior to the enactment of article 5472a, the Legislature in 1913 had enacted Revised Statutes, article 5160, requiring the general contractor who contracts to construct public improvements to execute a bond to secure the payment of bills incurred for labor and material. That article provides that “any person * * * entering ■ into a ⅜ * ⅞ contract with this State * * * for the construction of any public * * * work, shall be required * * * to execute the usual penal bond * * * that such contractor shall promptly make payments to all persons supplying him or them with labor and materials in the prosecution of the work provided for in such contract.” It will be noted that this statute relates to the same subject as does article 5472a, that is, the protection of the laborer and materialman on public improvements, and that it does not by its terms require that the bond shall be made for the benefit of those furnishing labor or material to a subcontractor. Yet, at the time of its adoption, the courts of the state of Illinois, from which the statute was apparently adopted, had held that such bond inured to the benefit of those furnishing such labor or material to a subcontractor. Siemer Milling Co. v. C. J. Moritz, Inc., 227 Ill. App. 459; City of Staunton v. Cole & Fauber, 254 Ill. App. 377. It is a well-established doctrine that when the statute of another state is adopted with a known and well defined construction, the courts may, presume that the legislators used the words therein with the intent that they should receive the same construction. City of Tyler v. St. L. S. W. Ry. Co., 99 Tex. 491, 91 S. W. 1, 13 Ann. Cas. 911. This article 5160 is almost an exact copy of the federal statute on the same subject (USCA, title 40,; § 270) enacted in 1894. The Supreme Court of the United States in numerous decisions has held that the bond provided for therein inured to the benefit of those furnishing material or labor to the subcontractor. United States, for Use of Hill, v. American Surety Co., 200 U. S. 197, 26 S. Ct. 168, 50 L. Ed. 440; Mankin v. United States, 215 U. S. 533, 30 S. Ct. 174, 54 L. Ed. 315. Consequently our own courts, in construing article 5160, have held that such bond protected those furnishing material or labor to-subcontractors. Fennell v. Trinity Portland Cement Co. (Tex. Civ. App.) 209 S. W. 796, para. 6, (writ refused); U. S. F. & G. Co. v, Henderson County (Tex. Civ. App.) 253 S. W. 835; Fleming-Stitzer Co. v. Boyett (Tex. Civ. App.) 253 S. W. 561, at page 565. Such construction of the meaning of the terms of article 5160 was well established in this state at the time the Legislature enacted article 5472a, now under consideration. Since at the time of the enactment of article 5472a the courts of this and other states had held that the terms of article 5160 were broad enough to include all those whose labor or material was used in such improvements, and that one supplying material or labor to a subcontractor was' protected alike under the statute with one furnishing labor or material to the general contractor, and since article 5472a was on the same subject, we assume that the Legislature intended to adopt the same construction that had been placed on the previous statute and that the latter statute-inures to the benefit of those so supplying-subcontractors. Huddleston & Work v. Kennedy, 40 S.W.(2d) - — , supra.

Was it necessary that the notice-be given to the proper authorities before the-first payment was made under the contract? The statute provides that “such person [so-furnishing the labor or material] * * * shall, before any payment is made to such, contractor, notify in writing the officials of the State,” etc. The record shows that moi’e-than $100,000 had been paid by the state to the general contractor before the notice was given. There yet remained unpaid on the contract the sum of $23,414.58 at the time-the notice was given. It is the contention of the appellee that the required notice must be given before the first payment is made by the state to the contractor.' The word “any” is a flexible word that may have any one of several meanings according to its use.. In its broad, distributive sense, the sense in. which the word is very frequently used, it may have the meaning of “all,” “every,”' “each,” or “each one of all.” 3 O. J. 232. Its meaning is often restrained, limited, or-influenced by the subject-matter or manner in which it is used. It may mean “one indefinitely out of an indefinite number.” Words and Phrases, Third Series, Vol. 1, page 477. When .used in a statute, it should, be so construed as to make its meaning comport with the general scheme of the statute-in which it is used. Articles 5472a and' 5472b were passed by the Legislature for the-purpose of providing a more expedient and efficient method to those furnishing material, apparatus, fixtures, machinery, or labor-to any contractors for any public improvements in this state for the collection of their claims therefor. The remedy provided by these statutes is in addition to the remedy provided by article 5160, which was in force at the time, of their passage, ft is manifest that it was the intention of the Legislature by the enactment of article 5472a to give to the laborer and materialman who furnished labor and material for the construction of public improvements a lien on the funds set apart by the state for such work. Under the statutes, contracts for the construction of state highways may provide for payment in installments to an amount not exceeding 90 per cent, of the value of the work done. Ten per cent, of the contract price is retained until the entire work has been completed and accepted, and ■ it is provided that the final payment shall not be made until it is shown that all sums of money due for labor and material or equipment furnished for the purpose of such improvements have been paid. Arernon’s Ann. Civ. St. art. 6674m. If we give the statute the construction contended-for by appellee, those furnishing labor and material, and giving the required notice before the first installment is paid under the contract, would have a lien on the funds, whereas, those furnishing labor and material thereafter would have no such lien. We can perceive no reason why the Legislature should prefer those who furnished the first labor and material under the contract over those who completed the work. The labor and material for the placing of the topping on the road is of equal importance as the labor and material necessary for the construction of the foundation. The Legislature, by the enactment in question, was undertaking to empower the state highway department to contract for the necessary labor and material for the completion of the entire contract, and was likewise undertaking to secure those who furnished such labor and material. If we accede to appellee’s contention, the contractor, by collecting the first installment on the contract, could thereby nullify the statute and automatically place the remainder of the funds beyond the reach of the laborer who thereafter labored under such contract. We think that the notice is sufficient if it is given before the last, or any other installment, is paid. So long as there yet remains in the hands of the state or municipality a payment that has not been made to the contractor, the same may be impounded and subjected to the claim of the laborer or materialman by the giving of the notice to the proper authority. Huddleston & Work v. Kennedy, supra.

Is notice to the state highway department or state highway commission, sufficient? The statute provides that those furnishing the labor or material shall “notify in writing the officials of the State * * * whose duty it is to pay such contractor of his claim.” The trial court held that the notice should have been given to the state treasurer and not to the highway commission. Under the statute, all funds belonging to the highway department are “deposited with the State Treasurer to the credit of a special fund designated as ‘The State Highway Fund,’ and shall be paid only on warrants issued by the Comptroller upon, vouchers drawn by the chairman of the Commission and approved by one other member thereof, such vouchers to be accompanied by itemized sworn statements of the expeditures.” R. S. art. 6694. By article 6672 of the statutes, it is provided that such funds shall be expended by and under the supervision of the state highway department. See, also, R. S. arts. 6673, 6674; Yernon’.s An,n. Civ. St. arts. 6674c, 6674d, and 6674e. It is apparent from the provisions of these statutes that the state highway department is given the control and supervision of the state highway funds and that it has the authority to say when the funds shall be expended and when they shall not be expended. The state treasurer is merely the depository of the funds. The highway department is authorized to enter into the contract on the part of the state for the construction of state highways and to. make a binding contract for the payment of the contract price thereof. Vernon’s Ann. Civ. St. art. 66741. The highway commissioners must authorize the payment of the-estimates due under the contract and no installment can be paid until it is so author- ' ized by the highway commissioners.. We-think the state highway department and the-commissioners thereof are the officers whose duty it is to pay such claims, and that notice to that department is sufficient to impound, the funds.

The appellant, in addition to suing Paul Schriewer and the appellees for the amount hereinabove referred to, sued the appellees for an additional sum of $26.50 claimed to have been furnished directly to Allen Smith. It does not appear that notice -of the claim for this item was given to the highway department, and therefore the appellant was not entitled to recover for this item*. Since appellant was not entitled to recover the full amount sued for, it is not -entitled to recover the attorney’s ffees provided for in article 5472b — 1. The appellant seemed to recognize this proposition, as, it introduced no evidence as to the reasonable value of attorney’s fees.

It is apparent from what has been said that the appellant was entitled to recover from the appellees the amount ‘of its claim against Paul Schriewer. The judgment of the trial court in favor of the .appellant against Paul Schriewer is therefore affirmed, . -. -u. - and the judgment of the trial court in favor of the appellees is reversed, and judgment is here rendered in favor of the appellant against the appellees for the sum of $12,941.-81, with interest .thereon at the rate of 6 per cent, per annum from January 1, 1930.

On Motion for Rehearing.

In our original opinion, we held that the appellant was not entitled to recover the full amount sued for and that by reason thereof it was not entitled to recover the reasonable attorney’s fee provided for in article 5472b — 1, § 2 (Acts 1929, 41st Leg., 2d O. S., p. 154, c. 78). In this we were in error. An inspection of the record reveals that the appellant was allowed to recover in this court the full amount for which claim was made to the state highway department and it was therefore entitled to recover a reasonable attorney’s fee to be taxed as a part of the costs in the case.'

In the trial court, the appellant did not introduce any evidence showing what would oe a reasonable attorney’s fee for the claimant, and the question arises: Oan this court fix the amount of such fee without such evidence? In the ease of Mayer v. Templeton, 53 S. W. 68, 70 (writ refused), the Court of Civil Appeals had under consideration Revised Statutes 1925, article 4100, allowing a reasonable attorney’s fee to a garnishee. No fee was allowed in the trial court and no evidence introduced showing what would be a reasonable fee. The court said: “It is held that the court may fix such compensation without evidence, and we here mate the order th&t appellees be allowed $100 as such compensation, bo be paid by appellants.” The Supreme Court denied a writ of error in that case. In the case of Johnson v. Blanks, 68 Tex. 495, 4 S. W. 557, 558, the court in construing the same statute held that the trial court could, without evidence, fix the amount of the fee to be allowed the attorney for the garnishee. In that case the court said: “* * * It would certainly be competent for the court to demand evidence if it saw proper, and in some cases this might be necessary. But it is to be presumed that the court is sufficiently acquainted with the value of professional services in preparing a garnishee’s answer which is presented to it without hearing testimony.” The same holding was made in the case of Kansas City, M. & O. Ry. Co. v. Oates (Tex. Civ. App.) 185 S. W. 1014; Bohan v. Harris, 71 Mont. 495, 230 P. 586; Carr v. Bonthius, 79 Wash. 282, 140 P. 339; Spencer v. Collins, 156 Cal. 298, 104 P. 320, ,20 Ann. Cas. 49; Pearce v. Albright, 12 N. M. 202, 76 P. 286; Globe Indemnity Co. v. Sulpho-Saline Bath Co. (C. C. A.) 299 F. 219; Mills v. Lehigh Valley Ry. Co. (D. C.) 226 F. 812.

In American Can Co. v. Ladoga Canning Co. (C. C. A.) 44 F.(2d) 763, pages 765-772, it was held that where the trial court allowed an attorney’s fee and the case was afterwards appealed, the appellate court could allow an additional fee to cover the services rendered on appeal. The same holding was made in Davis v. Parrington (C. C. A.) 281 F. 10, and Louisville & N. Ry. Co. v. Dickerson (C. C. A.) 191 F. 705.

Any testimony that might have been introduced on the trial as to what would have been a reasonable attorney’s fee would have been in the nature of expert testimony, and, as such, would have been merely advisory and would not have been binding on the court. The witnesses in estimating the value of such services could not have taken into consideration the services afterwards rendered on appeal. The fee asked for in this ease is only $500. The judgment is for approximately $13,000. This court is familiar with the record, and we find that the fee asked for is not excessive, but is a reason- ' able fee within the contemplation of the statute. The judgment heretofore rendered herein is modified so as to allow the appellant an attorney’s fee of $500 to be taxed as a part of the costs.

In all other respects, the motions for rehearing filed herein by both the appellant and the appellees are overruled.

       Rehearing pending.


author: COBBS, J.

text:
    HARPER v. ALLEN et al.
    No. 8546.
    Court of Civil Appeals of Texas. San Antonio.
    March 18, 1931.
    Rehearing Denied April 29, 1931.

      R. T. Pritchett and Sidney P. Chandler, both of Corpus Christi, for appellant.
    E. B. Ward, Howell Ward, Kleberg & Eck-hardt, and J. C. North, all of Corpus Christi, for appellees.
   COBBS, J.

This suit was filed by appellant against appellees to set aside a certain judgment rendered in the district court of Nueces county, on the 22d day of July, 1927, in cause No. 8592, Annie Beehert et al. v. W. A. Harper. In addition to canceling the judgment, the plaintiff sought to have the cloud, cast upon the title of his land by such judgment, removed. , The land involved in this suit and the former suit above mentioned is located in Nueces county, Tex., and described as lot No. 10, block No. 8, in the Brooklyn addition to the city of Corpus Christi, Tex.

Appellant, among other things, pleaded that he was a resident of the state of California at the time said suit was filed and judgment taken, and that he had no notice or service of said action and trespass to try title except by publication. He pleaded that at the time said suit was filed he had a good defense to the alleged cause of action, and that he then had, and now has, a fee-simple title to the land.

Appellant further alleged that he was not represented in any matter by an attorney of his choice in that suit, and that the attorney who filed an answer in said cause was' appointed by the court, and pleaded that the proceedings- in said action did not comply with the requirements of the Revised Statutes of Texas 1925, title 42, articles 1975 to 1977. Appellant alleged .that no statement of facts was filed in said cause No. 8592, as is required by law in such cases, and prayed that the judgment be canceled and annulled, and that the cloud east upon the title to his land be removed.

The defendants, appellees herein, pleaded a general demurrer and several special exceptions, and then in the alternative pleaded that they were the owners in fee simple of the record title of and from the sovereignty of the soil, and also pleaded the three, five, and ten year statutes of limitation.

The ease was tried with a jury. After the evidence was all in, both parties filed separate motions for an instructed verdict. The court refused to grant appellant’s motion, but granted appellees’ motion.

Plaintiff introduced evidence showing title to him through the Kinney and Jones title, which merged into the Corpus Christi City & Land Company, a remote grantor of plaintiff. It was shown that his grantor and remo'te grantors had actual peaceable possession of the land involved in this suit from February 7, 1907, until the latter part of 1919. The defendants relied on an alleged chain of title through what is known as the Kinney title, and the instruments upon which -they base their title are in the statement of facts.

It is contended that, in suits upon which citation by publication is relied, as here, to give the trial court jurisdiction of the action in trespass to try title, the plaintiff’s chain of title must be set out in the petition and specially pleaded, but that the chain of title in cause No. 8592, was not set out in the petition, wherein appellees were plaintiffs, so judgment in that case is fundamentally wrong. Appellant herein in the present suit pleaded that the appellees did not comply with .the requirements of the statute in suits where jurisdiction is obtained by publication in cause No. 8592, styled Annie Bech-ert et al. v. W. A. Harper, in support of which he introduced in evidence the record in No. 8592, including the plaintiffs’ petition, the answer by the attorney ad litem, citation by publication, affidavit of J. O. Scott, attorney who originally filed the suit, and the judgment.

This suit was brought by virtue of and un-. der the law, article 1975, R. S., which reads as follows:

“Art. 1975. Actions Maintainable. — Per-1 sons claiming,a right to or interest in property in this State may bring and prosecute to final decree, judgment or order, actions against non-residents of this State, or persons whose place of residence is unknown, or who are .transient persons, who claim an adverse estate, or interest in, or who claim any lien or incumbrance on said property, for the purpose of determining such estate, interest, lien, or incumbrance, and granting the title to said property, or settling the lien or incumbrance thereon.”

Article 1976 provides for service by publication, and article 1977 states the requisites of pleadings, as follows:

“Art. 1977. Requisites of Pleadings.. — The pleadings in such ease shall set forth the ti-tie of the complainant, and such proceedings shall be had in such action as may be necessary to fully settle and determine the question of right or title in and to said property between the parties .to said suit, and to decree the title or right of the party entitled thereto; and the court may issue the appropriate order to carry such decree, judgment or order into effect.”

And article 1978 provides that “no judgment by default shall be taken in such case, but the facts entitling the plaintiff to judgment shall be exhibited to the court on the trial; and a statement of the facts shall be filed as provided by law in suits against non'residents of this State where no appearance has been made by them.” The statute also provides that an attorney shall be appointed by the court to represent the interest of the nonresident.

Permit us to to stop here and call to the attention of the trial court that the average attorney fails to understand the importance and significance of his appointment to defend with all his might and vigor the rights of the nonresident party. Under article 1977 it is required to fully settle and determine the question of right or title in and to the property between parties to the suit and to decree the title or right of the party entitled thereto.

So zealous is the law in such nonresident suits that it requires the court to appoint a competent attorney to represent such nonresident fairly and truthfully, and that at the time the facts in the case entitling the plaintiff to a judgment shall be exhibited, and a statement of the facts shall be filed, as provided by law in other cases, in suits against nonresidents where no appearance is made.

We are reminded here that no facts were exhibited upon the trial before judgment was taken, and that thereafter no statement of facts was filed. Our courts have many times held that such failure to exhibit and prove the facts renders the judgment a nullity.

While our statutes provide for service of citation by publication, they carefully prescribe the service to be had, and consequently, when the suitor fails to follow the demands of the statute, passed for the protection of the absent holder, he acquires no rights.

Of course the question of the right acquired under our statutes also presents a jury question, of which no right is given to lightly pass it by.

Nothing is said in the statute about pleading the title specially, but we think that is what the statute requires, that the same should be specially pleaded, link by link. No other meaning can be made of the statute.

It is probable that a discussion of the validity of the former judgment in the case might have been pretermitted because appellant, after seeking cancellation of the former judgment, engaged in the trial of the cause on its merits, thereby entering an appearance. No more could have been gained for appellant by a cancellation of the judgment rendered against him than to give him a trial on the merits. I-Ie obtained this, and consequently the only vital question on this appeal is as to the correctness of the action of the court in instructing a verdict for appel-lees. If appellant introduced any evidence which should have been considered by the jury, the judgment should be reversed, if not, it should be affirmed.

The testimony of appellees, copied in appellant’s brief, is amply sufficient to sustain their pleas of limitation, and it devolved upon appellant to show that there was controverting evidence offered by appellant sufficient to raise a question of fact to be considered by a jury. Unless appellant did this, it was not error to instruct a verdict for appellees. In his brief appellant sets out ample testimony to show .that the property had been in possession of appellees probably since 1871, and clearly since 1919., appellees had been in possession of the property, rising and enjoying it and openly claiming it adversely to every one. Appellant asserts that he introduced evidence which controverted the evidence presented by appellees, and which he copies, but not one single word of testimony offered by him on limitation is copied in support of his assignments of error or propositions. He states that a certain witness swore to facts raising an issue as to limitations, but does not state any of it. If he had testimony which contradicted the testimony of Mrs. Savage, which he quoted, it devolved on him to give such testimony, in substance at least. This he did not attempt to do but sought to throw the burden on this court of searching a cumbersome statement of facts to sustain his propositions. The duty of developing and searching after facts to sustain propositions of law propounded by counsel is one pertaining .to an attorney, and no such duty is required of an appellate court.

It follows that, while the original judgment should have been set aside, appellant gained an opportunity to fully present his cause to the trial court on the last trial, and that was all to which he was entitled. As the case is presented to this court, there was no error in the trial judge instructing a verdict for ap-pellees.

The judgment is affirmed.


author: COBBS, j. PER OURIAM.

text:
    ELGIN et al. v. BANKS.
    No. 8565.
    Court of Civil Appeals of Texas. San Antonio.
    April 1, 1931.
    Rehearings Denied April 29, 1931.
    Morriss & Morriss, Reed Cozart, and Douglas & Black, all of San Antonio, for appellants.
    Briscoe & Morris and Joe L. Hill, all of San Antonio, for appellee.
   COBBS, j.

Appellee sued appellants,' John E. Elgin and N. C. Sawyer, on a note for the principal sum of $400. The note was executed by G. H. Nagel in favor of Martin Nagel, and given as part payment for a certain lot, and was after-wards assigned by Martin Nagel to Thomas Y. Bank, appellee herein. The lot was sold by G. H. Nagel to John E. Elgin and wife, and they assumed the payment of the $400 note. Later John E. Elgin and wife sold the property to N. O. Sawyer, who assumed the payment of the said note.

Appellants filed general demurrer and general denial.

When Martin Nagel deeded the property to G. H. Nagel he took a deed of trust from G. H. Nagel, which described the $400 note and stated that the interest was “payable semiannually ; and after maturity at the rate of 10% per annum; containing the usual default and attorneys fees clauses.” It also provided that, in case of failure to pay interest, the taxes, or keep the improvements insured, the whole debt would mature. And that in case of sale by the trustee all recitals as to nonpayment of money should be true and the maturity of the debt, etc.

The case was tried with a jury, and, upon their answers to special issues, judgment was entered against J. E. Elgin, and judgment was rendered against N. C. Sawyer on an instructed verdict.

There was no other answer except general demurrer and a general denial filed.

Of course, terms which in law have a distinct and fixed meaning, which ordinarily a person would not understand, should upon request be explained by the court. In this case we do not think the court should have explained to the jury the meaning of the word “delivered,” or defined the word “accept,” as both have a well-defined and ordinary meaning and significance and needed no explaining to an ordinary jury. They were used in their ordinary sense and without any peculiar technical significance or meaning, which an ordinary person would fail to understand.

We do not think there was anything in the argument of counsel that calls for a reversal. The objection to the argument should ordinarily be called to the court’s attention at the time presented and not later. An argument as to what the law was, etc., may not be improper, but, if so, the trial court upon proper exceptions would control it, and instruct the jury not to consider it, but take the law from the court. We do not think there is anything in the exception that calls for a reversal, and it is overruled.

It would axjpear tliat the argument was harmless, and there was no reason to believe that it had a harmful effect. The verdict seems to be supported by sufficient legal evidence.

Of course where counsel has made improper, erroneous, and prejudicial argument and improper remarks and an improper statement of law to the jury, it is material error for the court to refuse to instruct the jury not to consider the same.

The court rendered judgment in favor of appellee against appellant for $483.50. Appellant contends on this appeal that by reason of an erroneous calculation of accrued interest the judgment is excessive in the sum of $3.58. Appellee does not challenge this contention, which is apparently' well founded. The judgment will be reformed accordingly. This contention was not presented with such particularity in the trial court as to apprise the court of the specific items or amount of the alleged excess, and the costs of the appeal will be taxed against appellant as in case of affirmance.

The judgment will be reformed so as to decree recovery in favor of appellee against appellant for the sum of $479.92, with interest as decreed below, and as so reformed the judgment will be affirmed at the cost of appellant.

On Motion for Rehearing.

PER OURIAM.

Through inadvertence the appeal and brief of appellant N. 0. Sawyer were not discussed or specifically disposed of in the original opinion.

Sawyer purchased a parcel of land from the Elgins, who had purchased it from Nagel; In the conveyances of the land from Nagel to the Elgins, and from the latter to Sawyer, the grantees in both instruments assumed to pay said note, as part consideration for the land. The note was described in both conveyances as, simply, a promissory note for the amount stated, with 8 per cent, interest, to mature on October 1, 1980, executed by 6. H. Nagel to Martin Nagel, and dated .October 1, 1927. This description omitted any mention of the provisions actually embraced in said note for increased or compound interest, or for acceleration of its maturity, or for attorney’s fees, nor was any reference made to any instrument of record, for a bettor or more eomxfiete description of the note, although the deed of trust given upon said land by 6. H. Nagel to Martin Nagel, coincident with the execution of the note and to secure the payment thereof, did contain a complete description of the note, including the additional clauses omitted from the description in the deeds. But this deed of trust was not referred to in the deeds, directly or otherwise. Neither was it mentioned in appellee’s petition below, and so was it excluded from the instruments from which it was agreed upon the trial that Sawyer’s liability should be determined. No effort was made to recover by reason of said deed of trust, and appellee did not seek or obtain foreclosure of any lien upon the land. It is simply a plain suit to recover the amount of the note, with interest and attorney’s fees, upon a declaration accelerating its maturity and rendering it due two and a half years before its maturity date. In this state of the case, it would seem under the authorities that Sawyer could not be bound, over his objections, by those provisions of the note not embraced in the description thereof in the deed of assumption. Dalton v. Rainey, 75 Tex. 518, 13 S. W. 34; Standard Paint & Wall Paper Co. v. Rowan (Tex. Civ. App.) 158 S. W. 251; Hall v. Read, 28 Tex. Civ. App. 18, 66 S. W. 809; Gray v. Fenimore (Tex. Com. App.) 215 S. W. 956.

In this appeal, however, appellant Sawyer seems to seek reversal upon the single contention that the note sued on was a materially different note from the one assumed by him, and therefore there could be no recovery thereon against him for any purpose or amount. This contention is not tenable. The whole record, and particularly the stipulation of the parties upon which the judgment is based, show that the note sued on is in fact the note assumed by appellant.

The only effect that, could have been given to the variance between the note in suit and the one assumed would be to limit the recovery to the liability fixed in the note as described in the deed of assumption. But the trial court nor this court may upon its own motion grant to appellant a character or degree of relief not sought by him in either court. Appellant nowhere complains of the judgment against him for attorney’s fees, or for compounded interest (if that was in fact included in the judgment), or for a premature institution of the suit against him. He simply contends that there should have been no recovery against him for any amount, which contention must be denied. By his failure to at any time assert it, he has waived whatever right he had in the beginning to object to the recovery of attorney’s fees, and to the premature institution of the suit against him.

The order affirming the judgment in all things will be adhered to, and the motions of both appellants will be overruled.


author: COBBS, J. SMITH, J.

text:
    O’DELL et al. v. GRUBSTAKE INV. ASS’N.
    No. 8514.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 7, 1931.
    Rehearing Overruled April 29, 1931.
    M. A. Childers and J. B. Lewright, both of San Antonio, for appellants.
    Douglas & Black, of San Antonio, for ap-pellee.
   COBBS, J.

R. M. Lowe, a stockholder in the Grubstake Investment Association, brought this suit in the Seventy-Third district court of Bexar county, for a dissolution of said partnership, and for a receiver for said'partnership pending the assembling of its assets, the payment of its debts, etc.

On July 16, 1928, Ira O’Dell, another stockholder, intervened and joined R. M. Lowe as plaintiff.

Trial was had on the application for receiver August 20, 1928, before the Honorable Robert W. B. Terrell, who was then presiding judge of the Seventy-Third district court, and a receiver was appointed.

The receiver served from August 20, 1928, to February 19, 1930. On June 28, 1929, E. G. Eberle, and several other stockholders, intervened as plaintiffs,' adopting all of the pleadings of the original plaintiff, R. M. Lowe.

On February 15, 1930, the receivership proceedings were dissolved by Hon. F. Stevens, who had succeeded the Honorable Robert W. B. Terrell as trial judge of said court.

The original plaintiff, R. M. Lowe, having withdrawn as plaintiff, on February 24, 1930, E. G. Eberle et ah, interveners, filed a motion to reinstate said receivership proceedings and appoint a new receiver.

This motion was consolidated with the trial on the merits for dissolution, and on April 4, 1930, judgment was entered denying inter-veners the right to dissolve the partnership and denying a receivership.

After hearing the case on its merits, the court, as stated, denied the motion to dissolve, and' denied the appointment of a receiver. The reasons of the court are given in his findings of fact and conclusions of law which we copy as follows:

“1. I find the history of the case to be as outlined in the decree herein.
“2. I find that Grubstake Investment Association was organized and is operated under a Declaration of Trust and accordingly that it is a joint stock association, with its shareholders having the responsibility of partners as to third persons.
“3. As to the alleged fraudulent representations to certain shareholders that there would be no personal liability attached to them upon becoming shareholders in the Grubstake Investment Association, I find that there is no testimony that any shareholder was actuated or induced by said representations to become members of said association. In that connection, I find that it was generally understood by the shareholders forming said Grubstake Investment Association and also represented to some of them by the promotors that there would be no personal liability attached to them as such shareholders. It is a matter now of judicial history that personal liability does attach to shareholders in such organizations.
“4. I find that the Association, pending the receivership, has adjusted the large claims against it, and that no liquidated claim is pressing the said Association. Accordingly, I find that the Association is not insolvent.
“5. I find that there is no condition threatening loss or injury to the property of the Association.
• “6. I find that there are no circumstances justifying or requiring the appointment of a receiver herein.
“7. I find that there are no facts in evidence warranting a dissolution of the Association by the Court.
“Conclusions of Law.
“1. I conclude that as the only cause of action upon which the receivership herein is sought consists of allegations intended to obtain the dissolution of the Grubstake Investment Association, that said allegations are not supported by the facts as hereinabove found, and furthermore that said allegations, if true, would not justify the dissolution of the Association against the expressed provisions of its Declaration of Trust to the contrary.
“2. I conclude that the allegations of misrepresentation as to the ownership of the Cox lease, if true, would not justify a dissolution of the Association, but would give rise to an ■ action for damages by the injured persons.
“F. Stevens, Judge.”

We think the findings of fact ¿fre well supported by the evidence and therefore adopt them. Of course every one knows that no receivership should be dissolved as long as there are debts outstanding to be paid, but here the court has found there are no debts outstanding to belaid, and we shall not dis^ turb that finding. Neither do we believe this; is a case for the dissolution of the partnership.

This association was organized under a dec-' laration of trust that gave a period of twenty; years to run. Of course as to third persons there was a legal responsibility, but the court has found that the association is not insolvent' and therefore not necessary to be dissolved and wound up.

Believing that the trial court has made a legal and fair disposition of the case, the judgment is affirmed. [

On Motion for Rehearing.

SMITH, J.

In 1919 appellants and others organized a so-called “common-law trust” for the purpose of engaging in the oil business. By the terms of this trust agreement the complete and exclusive control and management of the business was vested in three trustees and their successors in that office, so that the individual shareholders were denied any voice in such management and control. The whole structure of the agreement was built upon and permeated with the stipulation that in no event should the individual shareholders in the trust become liable for the debts or ácts of the trustees in behalf of the association, and that in no event should the association assume the character of a partnership, or be regarded as a partnership for any purpose. Since the organization of the association and the execution of the trust agreement, however, it has been definitely decided by the courts of this state that as to third parties a trust agreement of this character constitutes a partnership, in which the shareholders are in fact individually liable for the debts and acts of the association and its trustees. The trust agreement here in question has been so construed by this court (Stephenson v. Kirkham, 297 S. W. 265, writ denied), as well as by the trial court.

This suit was instituted by some of the shareholders in the association, to require an accounting from the trustees, for dissolution and winding up the affairs of the associa- ‘ tion, and the appointment of a receiver of the properties of the association to accomplish the end sought. This relief was denied in toto, and Ira O’Dell and other complaining shareholders have appealed.

! The record of this litigation discloses bit¡ter discord between some of the partners in '■the concern, as well as distrust of the managing trustee, which a jury in a former trial ';found to be well founded. The record also ;shows that a large number of suits are pending against the .association, and that the association owes numerous debts, although the ■trial court found it had “adjusted the large claims against it, and that no liquidated claim -is pressing it at this time.”

The trial court further found that “it was generally understood by the shareholders * * * ' and also represented to some of them by the promoters that there would be no personal liability attached to them as such shareholders,” but that “there is no testimony that any shareholder was actuated, or induced by said representations to become members of said association.”

It is perfectly obvious that all the shareholders executed the trust agreement in the mistaken and controlling belief that the stipulation against the creation of partnership relations or of individual liability of the share- ‘ holders for the debts or acts of the association or of the trustees in its behalf would be valid in law, and Would effectuate such exemption. The law has intervened to eliminate that stipulation from the contract, under the remaining provisions of which, if enforceable, the managing trustee may proceed at will during the next eight years to bind all the shareholders, individually, and as unwilling partners, to personal liability for any debt he may see fit to incur, or any act he may perform, in the name of the association. Such a contingency was never contemplated by the parties, whose minds never met in agreement upon the contract as now construed by the courts and insisted upon by appellee, whereby the parties are deprived "Of the very protection in consideration of which they entered into the agreement actually made. The law haying thus emasculated the contract, nullified material and controlling provisions which permeate the entire agreement, destroyed the consideration moving the parties to execute it, and rendered its remaining provisions palpably unconscionable, equity should intervene to terminate the agreement in its entirety and relieve the parties of the unconscionable burdens imposed upon them by the remaining provisions. We conclude that the record presents a casé entitling appellants to cáncellation of th.e contract, dissolution of the partnership created by the contract, to an accounting from the trustees, and to a receiver for the purpose of winding up the affairs of the association.

Appellants’ motion for rehearing is granted, and the judgment will be reversed, and the cause remanded for further proceedings in consonance with this opinion.

FLY, C. J.

I concur in the foregoing decision.