author: GRISSOM, Chief Justice.

text:
    Manuel Benavides VOLPE, Appellant, v. Servando BENAVIDES et al., Appellees.
    No. 3723.
    Court of Civil Appeals of Texas. Eastland.
    June 1, 1962.
    Rehearing Denied July 20, 1962.
    Mann, Byfield & Castillon, Laredo, for appellant.

      Hall & Hall, E. H. Borchers, Laredo, Neel & Seaman, Corpus Christi, R. T. Wilkinson, Jr., Houston, J. W. Cooper, Jr., Corpus Christi, for appellees.
   GRISSOM, Chief Justice.

Servando Benavides, Sr., and his wife, Maria Volpe de Benavides, owned large tracts of land in Texas and Mexico. She died intestate in 1919. In 1921 one of their sons, Manuel Benavides Volpe, sued his father, brothers and sisters for a partition of said community estate in Texas, alleging he was entitled to l/£th of his mother’s ½ of said community estate. All defendants answered and, likewise, prayed for partition. Two of the S brothers and sisters were minors. They answered through their guardian ad litem alleging that each owned a i/sth. interest in said property, adopted the plaintiff’s pleadings and prayed, as did all the parties, for a partition.

On March 23, 1923, the court rendered the first partition judgment which contained the following recitals:

“Second: That all of the personal property is susceptible of partition, and the whole of the real property of said estate is susceptible of partition as to .the surface thereof, but the Court finds that it would be inequitable at this time to partition the oil, gas and mineral rights in and under said lands, for the reason that a great deal of explorations of said lands and adjoining lands for oil and gas is now being done, and it is impossible at this time to determine what would be a fair, equitable and just partition of the oil, gas and mineral rights under said lands, and the Court finds that all parties to this suit, including the Guardian Ad Litem 'for the minors, have agreed that the oil, gas and mineral rights and the leases, .royalties and rentals therefrom shall be kept intact and administered together for a ' period of five years from this date, and placed in the hands of’ a Trustee, * * * to * * * manage and handle said oil, gas arid mineral rights and all rents and royalties therefrom, and supervise the renting and collection of rentals and royalties therefrom, and to pay over each ninety days to the parties entitled thereto under this decree, their pro-rata share as hereinafter fixed. The said Trustee to have no power to sell royalties unless. empowered to do so by this Court, upon application made for said purpose, and said Trustee * * * at any and all times to render to the beneficiaries of said trust statements as to all receipts and disbursements; the said Trustee to have full power to execute all documents and instruments necessary or convenient to lease and assign said oil, gas and mineral rights, and to make contracts with reference to royalties and rentals, therefrom, as fully as the owners of said oil, gas and mineral rights could do themselves * *

It contained a finding that Servando Bena-vides, Sr., was entitled to 'i/2 and the five children were each entitled to a ¼oth of said community estate and that plaintiff had made a contract with some lawyers to convey to them %oth of the real estate set aside to him.

“Ninth: It is therefore, Ordered, adjudged and Decreed by the Court that the above described lands, excluding the oil, gas and mineral rights therein and under, and all said personal property be, and. the same is hereby ordered and directed partitioned and distributed in the above shares among the plaintiff and defendants herein, as follows, to-wit: to Servando Benavides, one-half part and interest; to Manuel Benavides Volpe one-tenth part and interest, and out of which said share there shall be .set. aside in severalty, in equal shares, tó A. C. Hamilton and S. T. Phelps, one-tenth of the realty set aside to said Manuel Benavides Volpe, and one-fourth of all personal property set aside to said Manuel Benavides Volpe; to' Angelina B. de Longoria, one-tenth part and interest; to Servando B. Volpe one-tenth part and interest; to Carlos B. Volpe one-tenth part and interest; and to Maria B. Volpe one-tenth part and interest.
“Tenth: It is further ordered, adjudged and decreed by the Court that the oil, gas and mineral rights, in upon and under all said lands, belonging to said community estate, shall be kept and held together for a period of five years from this date, unless sooner terminated by an order of this court, and the care, management, control and handling- of said oil, gas and mineral rights in, upon and under said lands, are hereby placed in the hands of Sam W. Brown, Trustee * *

It provided that the trustee should have no power to sell royalty unless specially authorized by the court upon application for that purpose. It provided in Paragraph 10 that the trust in said minerals should exist for five years, but it contained a significant provision that at the expiration of the trust the minerals “shall revert to and become a part of the fee of the lands for which a partition is * * * ordered, and be owned by the parties who have the respective title and possession of said lands at the termination of this trust.” It provided that if at the expiration of the five year term of the trust conditions as to exploration for oil justified it, the trust might be extended for three years “when such trust shall terminate and title to the said oil, gas and mineral rights shall vest in the then owners of the fee simple title to said lands.” Commissioners to make partition of the land and personal property were then appointed. In their report they divided the land into six shares, one half of which was allotted to the father, as Share 6, and the other half was allotted as Shares 1 to 5, to the five children, respectively. The minerals were not specifically mentioned in said report.

On June 30, 1923, final judgment was rendered in the partition suit. It adopted the report of the commissioners, and contained the following provision:

“It is further ordered by the court that the title shall be, and is hereby vested in each party, to whom a share has been allotted, to such shares or portion of such property as is set apart to him or her by such commissioners in said report as against each of the other parties of this suit, his or her heirs, executors, administrators or assigns, as fully and effectually as the deed of such party or parties could vest the same, and this decree shall have the same force and effect as a full warranty deed of conveyance from such other parties and each of them.”

Said second 1923 partition judgment recited that the preliminary decree placed the minerals in the hands of a trustee and fixed the share of the proceeds to which each party was entitled, but failed to declare the interest of plaintiff’s attorneys in the minerals but that they were entitled to ⅛⅛ of the minerals held by said trustee for plaintiff. The court then, significantly, decreed that said attorneys were vested with, subject to the terms of said trust, ⅛⅛ of plaintiff’s minerals and entitled to receive one-fourth of the proceeds from his minerals during the existence of the trust and that “at the expiration of said trust said interest shall be limited to the lands herein set aside and partitioned to the said Manuel Benavides Volpe.”

In July, 1923, said attorneys reconveyed to the plaintiff. After a description of the land, the deed recited that it was the intention of the grantors to convey to Manuel Benavides Volpe all the right, title and interest in the minerals set apart to them by said judgment and to authorize the trustee to make all payments to appellant to which they were entitled during the existence of the trust and that “at the expiration thereof, the said Manuel Benavides Volpe shall have all lands which he may own at that time free from any right, title or interest of the grantors, in and to the mineral rights thereunder.”

In April, 1929, the same court entered an order continuing the trust until March, 1931. It recited that between the expiration date of said trust and the entry of said order continuing the trust that the trustee had distributed the proceeds' of the minerals as provided in said decree, “with the consent and approval of all parties interested in the oil, gas and minerals in, upon and under said lands * * * ” ; that conditions relative to exploration for oil that existed in 1923, still continued, rendering it equitable that said trust be extended until March, 1931, “at which date this trust shall terminate and thé title to the oil, gas and minerals in and under said lands shall vest separately in the then respective owners of the fee simple title to said lands as provided in the original decree.”

In July, 1931, all of said parties executed an instrument conveying their interest in the minerals in trust for 10 more years. It recited that in the 1923 judgment “all real property” belonging to said community estate had been partitioned between the father and five children, subject to’the terms of a trust covering the minerals. It recited that each had confidence in the trustee and desired that he continue in possession and control of the minerals and that unified control and management of the minerals should continue for 10 more years, unless sooner terminated by a majority in interest of the beneficiaries. They granted to the trustee all their right, title and interest in the minerals under said land, “including the respective tracts of land set apart respectively to the undersigned * * * by the terms of said decree, to which reference is hereby made for a full description of said real property constituting said community estate and partitioned as aforesaid, including all of the * * * minerals underlying said land * * *.” It provided that the trustee should not sell royalty without the written consent of a majority in interest of the beneficiaries.- It provided that the trust might be terminated at any time by a majority in interest. It further provided that

“At the termination of said trust, whether by the expiration of said ten years or otherwise, the rights and interests herein conveyed by the respective grantors to the said trustee, shall automatically revert to and vest in the respective grantors, their heirs and assigns, and the leases and contracts then outstanding shall fall to and vest in the beneficiary or beneficiaries owning the oil, gas and mineral rights of the particular tract or tracts of land covered by the respective leases in the proportion in which the said oil, gas -and mineral interest are owned and said trustee shall distribute to the beneficiaries as required hereunder any net returns belonging to said trust as may then remain in his hands, and this trust shall thereupon automatically close.”

In February, 1941, all of said parties entered into another trust agreement. It recited that under the 1931 trust agreement Martin was trustee of the minerals underlying said land and also acted as agent for Servando Benavides, Sr., as guardian of the estate of his minor children, and that the guardian desired that said trust should be continued so that his wards would continue to receive during the life of the trust a share of the proceeds from oil produced from lands which they did not own, but which belonged to other parties to said trust agreement, and that there was then no present prospect that oil would be produced from said minors’ lands,

“5. Whereas, it is agreed and understood between the parties hereto that the following parties are respectively the owners in severalty of the following respective tracts of land, including the oil, gas and other minerals, if any, underlying the same as follows:
“(a) That said minors, Evelyn Gloria Benavides and Carlos Eduardo Benavides, are the owners of the land described as Share No. 1 in the final decree of the court dated June 30th, 1923 ⅜ ⅜ ⅝ .ft

that Manuel Benavides Volpe was the owner of the land described as Share 2 in said 1923 judgment and that the others owned certain numbered shares described in the 1923 judgment. It provided that the trustee should continue during the existence of the trust to pay to the parties thereto, being the same persons that were parties to the 1923 partition judgments and the 1931 trust agreement, the proceeds of the sale of leases and minerals according to their interest in the land partitioned in 1923. The granting clause recited that they conveyed to the trustee “all of their right, title and interest, and the right, title and interest of each of them in and to all of the oil, gas or other minerals underlying the several tracts of land hereinabove described.” The warranty clause reads as follows:

“Each of the grantors herein hereby binds himself or herself, his or her heirs and assigns to warrant and defend all and singular the title to the particular premises conveyed herein by him or her against the claim or claims of any and all persons whomsoever lawfully claiming the same or any part thereof, it being the purpose of each grantor to warrant the title only as to the minerals and mineral interest owned and conveyed herein by him or her respectively and not as to those conveyed or assigned by any other of the parties hereto.”

Section S set out the share owned by each party as determined by the 1923 judgments. Section 10 was as follows:

“Other than the trustee, no party shall have any title to or interest in the minerals underlying any of the land hereinabove described other than the land heretofore owned by him or her severally as above set out in Section 5 hereof, and conveyed herein, except the right to receive his or her share of the net returns from the sale of the oil, gas and other minerals from the land conveyed and assigned by the grantors herein after the same shall have been produced by lessee and sold by the trustee as herein provided for.”

Section 13 of the 1941 trust agreement was as follows:

“13. Each of said minors, upon arriving at his or her majority or upon being emancipated prior thereto, may either ratify or rescind this instrument, and in case the same is then ratified, he or she shall thereupon be bound by the terms hereof and shall be entitled to continue to receive his or her pro-rata share of the benefits thereafter accruing under the terms of this trust upon the same terms and to the same extent as if originally bound hereby. If, however, said minors or either of them shall fail to ratify this instrument at his or her majority, or upon being emancipated, he or she shall thereupon cease to be entitled to any part of the benefits thereafter accruing hereunder, except such as may have accrued or may thereafter accrue from leases covering the portion of the land described in Subsection (a) of Section 5 hereof; and any and all oil, gas and/or other mineral leases theretofore executed upon any of the land described in Subsection (a) of Section 5 hereof shall vest in and be owned by said minor or minors in proportion to their interest in the land above set out in Subsection (a) of Section 5 hereof * * *.” (The land described in said Subsection (a) of Section 5 was share number 1 as fixed by the decree of partition in June, 1923, which share was therein allotted to said minors.)

Subdivision 25 of the 1941 trust agreement contained the following:

“All other conveyances and agreements heretofore executed by the undersigned or any of them to Albert Martin in trust, including the said trust instrument dated August 6th, 1931 are hereby terminated and the rights and interest therein conveyed shall, upon the execution and delivery hereof revert to the grantors therein * *

At the termination of said 1941 trust extension agreement, no oil was being produced from Share 2, which had been partitioned to Manuel Benavides Volpe by the 1923 judgments. There was production from some other shares.

Manuel Benavides Volpe filed four suits, which were consolidated. He alleged that the minerals under Shares 1 to 5, allotted, respectively, to him and his brothers and sisters in the 1923 judgments, had never been partitioned and that he owned an undivided ½⅛ interest in the minerals underlying all the land included in Shares 1 to 5, inclusive, as designated in said 1923 judgments; that the minerals underlying Share 6, which was in 1923 allotted to his father, was not in dispute; that all the parties recognized that the minerals underlying that share was owned by them as tenants in common by virtue of a devise from their father, Servando Benavides, Sr., who was then dead. Plaintiff alleged that the legal effect of the 1923 partition was to sever the minerals from the surface and leave them undivided; that the 1923 partition judgments were clear and unambiguous; that such judgments, as a matter of law, could not constitute an agreement to' partition the minerals; that the minerals under Shares 1 to 5 were still owned in undivided interests as tenants in common, but by agreement they were put in trust; that the trust expired in March 1931, when the legal title to the respective undivided interest in the minerals reverted to them and merged with the equitable title owned by plaintiff and defendants; that upon termination of the trust in 1941 the respective undivided interests conveyed to the trustee would have then reverted to them “respectively, had- it not been for the execution of the * * * 1941 trust deed”; that the court should decree that the legal effect of the 1941 trust agreement was to vest legal title to the respective undivided interests in the trustee and upon expiration thereof legal title to the respective undivided interests was to revert to them; that the legal effect of the 1941 trust agreement was merely to extend the 1931 trust and postpone reversion of legal title to the beneficiaries until its termination; that the 1941 trust expired in February, 1956, and that by its terms the legal title to the respective undivided interests of the beneficiaries reverted to them and merged with their equitable title thereto; that upon termination of the trust plaintiff thereby acquired the legal title to his undivided l/⅞⅛ interest in the minerals under all the land; that defendants contended that the minerals under Shares 1 to 5, inclusive, were partitioned by the 1923 judgments. He alleged that all parties to said judgments were parties to this suit. He prayed for judgment decreeing that the minerals under Shares 1 to 5, both inclusive, of the 1923 partition judgments had never been partitioned and that plaintiff owned an undivided ½⅛ of the minerals under all of said shares. He alleged that the court should construe and declare that the legal effect of said judgments and trust agreements was to leave plaintiff owning an undivided ½⅛ interest in the minerals under all said land.

The defendants contended that the minerals were partitioned by the 1923 judgments and the 1931 and 1941 trust agreements; that the 1923 judgments were res adjudicata and that plaintiff was estopped to contend that there had been no partition of the minerals.

All parties filed motions for summary judgments. They stipulated that there was no disputed issue of fact; that the minerals and the parties in this suit are the same as in the 1923 judgments. Plaintiff’s motion was denied. The defendants’ motions were granted and judgment was rendered for them. The plaintiff has appealed.

Appellant says that the only part of the 1923 preliminary decree of partition that is material here is the recital that it was inequitable at that time to partition the minerals because there was exploration for oil and it was then impossible to determine what would be a fair partition of the minerals and that all the parties had agreed that the minerals should be kept intact and administered together by a trustee for 5 years, plus the recital that said land, excluding the minerals, was directed partitioned and distributed in stated shares. However, he quotes from said judgment the provision that at the expiration of the agreed trust the minerals should revert to and be owned by the parties who had the title to the respective shares and that the minerals should vest in the then owners of the fee simple title to said lands. Appellant also says that the 1929 judgment was material only in that it extended the trust for 3 years and that the only subsequent action .of the court in the 1923 case was to approve the trustees’ bonds.

Appellant says, in effect, that the 1931 trust agreement was, as held by the trial court, a mere extension of the trust. The beginning of said 1931 trust agreement recited that by final judgment in 1923 all real property belonging to said estate was partitioned between the surviving father and five children, subject to the terms of a trust covering the minerals, which trust was created for their benefit, and it was recited therein that the guardian of the minor children desired that the trust continue so that they might continue to receive, during the trust, a share of proceeds of the minerals “whether produced from their land or not.”

Appellant says that, because of the finding in the 1923 preliminary partition decree that the minerals were then incapable of being partitioned in kind, the court did not have the power to partition the minerals, either then or in the future, and, if the 1923 judgments were construed as partitioning the minerals they were void for want of power to partition the minerals in kind; that, in the absence of an agreement not to partition, the court had no alternative but to partition the minerals along with the surface, either in kind or by sale; that the 1923 judgments may be1 collaterally attacked, even though the court had jurisdiction of the parties and subject matter, because it did not have the power to grant such relief, that is, having found that a fair and equitable division of the minerals in kind could not then be made, the court did not have the power to partition the minerals in kind. Appellant contends that when the court so found it lost jurisdiction to partition the minerals in kind, either presently or in the future, without a subsequent finding that the minerals were then capable of partition in kind. He says that an agreement not to partition is shown by the agreement to place the minerals in trust and, therefore, the judgments must be construed as having left the minerals undivided.

Appellant says that the only possible construction of the preliminary partition decree of 1923, so that it will be valid, is to construe it as leaving the minerals undivided by virtue of the agreement to put the minerals in a trust, which constituted an implied agreement not to partition the minerals ; that if the 1923 preliminary partition decree is valid, so far as the minerals are concerned, it was not a final judgment and, further, that the 1931 and 1941 trust agreements were, as held by the trial court, merely extensions of the original trust created in 1923 and that the recitals in the 1941 trust agreement should be disregarded because same were obviously inserted under the erroneous belief that the 1923 judgments partitioned the minerals; that the only purpose of the 1941 trust agreement was to extend the trust and that the allegedly erroneous recitals that the minerals were partitioned in 1923 must be disregarded, because this is not a suit on the 1931 or 1941 trust agreements; that said trust agreements did not affect the legal status of the minerals and that the sole purpose of their execution was to extend the terms of the trust.

Appellees call special attention to the fact that the 1923 partition judgments recite that the minerals were placed in trust by agreement of all the owners; that the 1923 preliminary decree provided that at the end of five years the minerals should revert to and become part of the fee of the lands “and be owned by the parties who have the respective title and possession of the lands at the termination of this trust” and that, if the trust should be extended for three years, that at the end of three years the trust should terminate and “title to the said oil, gas and mineral rights shall vest in the then owners of the fee simple title to said lands”; that the final partition decree of 1923 recited that the preliminary decree failed to declare the interest of appellant’s lawyers in the minerals and that, therefore, it was adjudged that, subject to the trust, they were vested with ¼⅛ of appellant’s minerals and that at the expiration of the trust said attorneys’ interest in the minerals “shall be limited to the lands herein set aside and partitioned to the said Manuel Benavides Volpe”, that is, to Share 2; that the 1929 order extending the trust for three years referred to the provision in the 1923 preliminary decree that the court might extend the trust for three years and that at the end thereof the minerals should “then vest in the then respective owners of the fee simple title to said lands” and that said 1929 order extending the trust until March, 1931, also provided that in March, 1931, the title to the minerals should “vest separately in the then respective owners of the fee simple title to said lands as provided in the original decree.” Appellees say that the provisions of the 1923 partition judgments are clear; that they operated to sever the minerals from the surface by creation of an agreed trust vesting the legal title and possession of the minerals temporarily in a trustee, but putting the equitable ownership of the minerals in the respective owners of each allotted share and providing that at expiration of the trust the legal title and the possession of the minerals should vest in the owners of the surface under whose lands the minerals lay, to whom the equitable ownership had previously been partitioned in severalty. They say that such construction is necessitated and emphasized by the finding in the 1923 final partition judgment that the preliminary decree had not fixed the interest of appellant’s attorneys in the minerals and by the fact that the court expressly corrected that oversight by providing that at the expiration of the trust said attorneys’ mineral interest should be “limited to the lands herein set aside and partitioned to the said Manuel Benavides Volpe”; that had it been the intention to leave the minerals unpartitioned this language would not have been used and it would have violated the contract between appellant and his lawyers because, if the minerals had not been partitioned, the lawyers would have owned an interest in the minerals under all the land; that by placing the minerals in trust by agreement of the owners, the court severed them from the surface and provided that upon termination of the trust the minerals would revert to and become a part of the fee of the respective allotted shares and that the only construction that could be given the language was that the respective owners of the surface in severalty became the owners of the minerals underlying the share that was by said 1923 judgments allotted to him; that, if appellant’s interpretation should be adopted, that is, that the minerals continued to be owned in undivided interest under all the land, that at the end of the trust they could not have reverted to and become a part of each allotted share “and be owned by the parties who have the respective title and possession of said lands” but that each party’s undivided mineral interest would have continued to be throughout all the land. We agree with appellees’ said contentions.

Appellees contest appellant’s statement that the court in the 1923 preliminary decree found that the minerals were incapable of being partitioned in kind. They point out that the exact language used was “that it would be inequitable at this time to partition the * * * minerals” because of explorations then being made for oil and that it was impossible then to determine what would be a fair partition of the minerals. Appellees say it is obvious that in the 1923 judgments and the 1929 order extending the trust the court did not find that the minerals were incapable of being equitably partitioned in kind, but merely that it didn’t then have the information available to determine what would be a fair partition. However, appellees contend that, even if a conflict exists between such finding and the judgment partitioning the minerals in kind,' such finding could not destroy the judgment and that the judgment is conclusive that the minerals were, in fact, partitioned. They say that the record does not disclose on its face that the partition was unfair and, even if construed as appellant does, that the judgment partitioning the minerals was not subject to collateral attack and, at most, disclosed an irregularity which had to be challenged by appeal, which was not done; that it should be assumed that, because it was not then known in what part of the estate the minerals, if any, were located, that to, at least, partially avoid what might eventually prove to be an uneven distribution of the minerals that the parties and the court, by agreement, adopted the trust device to permit a sharing of the hoped for revenues from leasing and production during the existence of the trust and that the 1923 judgments were agreed judgments. In support of this last contention they cite Frazier v. Hanlon Gasoline Company, Tex.Civ.App., 29 S.W.2d 461, 469 (Writ Ref.), where it was held that a judgment in a partition suit from which there was no appeal should be considered as an agreed judgment. Appellees say that under the authority of the Frazier case and Laird v. Gulf Production Company, Tex.Civ.App., 64 S.W.2d 1080 (Writ Dis.), the court had the power to partition the minerals under equitable rules, under statutory provisions or to blend the two; that the court had the power to make an equitable partition of the minerals and appellant’s only remedy was to appeal and that the 1923 judgments are not subject to collateral attack.

Appellees say it is evident that the 1941 trust agreement operated to partition the minerals; that this is manifested by the recital therein that the parties were, respectively, the owners in severalty of the respective shares, including the minerals underlying same, and that each grantor bound himself to defend the title to only the particular premises conveyed by him and that it was the purpose of each grantor to warrant the title only as to the minerals owned and conveyed by him and not as to those owned and conveyed by any other party thereto. They say it is evident that when appellant executed the 1941 trust agreement he claimed to own the minerals under the share allotted to him in 1923 and agreed that the others owned the minerals under their shares. We agree with this contention. In support of this contention they cite Greene v. White, 137 Tex. 361, 153 S.W.2d 575, 136 A.L.R. 626. Appellees further say that appellant is estopped by said deed to claim that he owns minerals under the tracts allotted to others.

All parties prayed for a partition of all of said estate. It was stipulated that the parties and the minerals involved here are the same as in the 1923 judgments. It was agreed that there was no issue of fact. All parties filed motions for a-summary judgment.

From the entire record it is evident that the minerals were partitioned in 1923 and placed in trust by agreement of all the parties and that such partition was recognized by all the parties at all times thereafter. However, had there been no partition prior to the execution of the 1941 trust agreement it, alone, would have effected a partition of the minerals, locating the interest of each within the boundaries of the share allotted to him in the 1923 judgments.

The record shows that in 1923 the parties realized there might soon be leasing or production of oil on some of the shares while others might be non-productive. Evidently there was then no production on any part of the estate. The court might have assumed that the minerals under each share was of equal value. Although all interests in the estatq were partitioned, because of the possibility that some might be allotted land that would soon be leased or produce oil while that allotted to others might not, it was agreed that all minerals should be put in trust so that during the trust all would share equally in income from leasing or production on any part of the estate. Such conclusion is required by all the record, including the following: Provision in the 1923 preliminary partition judgment that upon termination of the agreed trust that the minerals should vest in the owners of the fee simple title to said lands, that is, become a part of the respective share allotments. Had there been no partition of the minerals, termination of the trust would not have caused the minerals under a particular share to vest in its owner but each would have continued to own an undivided interest in the minerals under all of the shares. The second 1923 partition judgment provided that appellant’s lawyers were then vested with a ¼⅛ interest in appellant’s minerals, subject to the trust, but that, upon termination of the trust, their interest in the minerals should be limited to Share 2, which was partitioned and allotted to appellant. If the minerals had not been partitioned, appellant’s lawyers, upon termination of the trust, would have owned an undivided interest in the minerals under all the shares and the court could not have limited their mineral interest to the specific tract allotted to appellant. If there had been no partition of the minerals in 1923 the same court that rendered the 1923 partition judgments could not have in 1929 provided, as it did, that when the trust terminated in 1931 title to the minerals should vest separately in the owners of the respective shares, because, absent partition of the minerals, their interest in the minerals would have continued to be in all the shares. But for the 1923 partition of the minerals the court could not have found, as it did, that the guardian of the minor children wanted the trust extended so that his wards could continue to receive during the term of the trust a share of the proceeds of leases- and oil produced from any of the shares. Had there been no partition of the minerals the minor children would have continued to share in the proceeds of minerals from all parts of the estate without a continuation of the trust. Had there been no partition of the minerals in 1923, the trust agreement signed by all the parties in 1931 could not have recited in its preliminary paragraph, as it did, that by final decree in 1923 the court partitioned all the real property of said community estate between the father and five children, nor that

“At the termination of said trust * * * the rights and interests herein conveyed by the respective grantors to the said trustee, shall automatically revert to and vest in the respective grantors, their heirs and assigns, and the leases and contracts then outstanding shall fall to and vest in the beneficiary or beneficiaries owning the oil, gas and mineral rights of the particular tract or tracts of land covered by the respective leases * *

Had there been no partition of the minerals in 1923 the parties to the 1941 trust agreement, in referring to the shares allotted to each by the 1923 judgments, would not have stated therein that

“ * * * it is agreed and understood between the parties hereto that the following parties are respectively the owners in severalty of the following respective tracts of land, including the oil, gas and other minerals, if any, underlying the same * * * ”;

nor that they did thereby “GRANT, SELL, CONVEY, ASSIGN AND SET OVER unto the said * * * Trustee * * * all of their right, title and interest, and the right, title and interest of each of them in and to all of the oil, gas or other minerals underlying the several tracts of land here-inabove described * * * ”, nor the following in their warranty:

“Each of the grantors herein hereby binds himself or herself, his or her heirs and assigns to warrant and defend all and singular the title to the particular premises conveyed herein by him or her against the claim or claims of any and all persons whomsoever lawfully claiming the same or any part thereof, it being the purpose of each grantor to warrant the title only as to the minerals and mineral interest owned and conveyed herein by him or her respectively and not as to those conveyed or assigned by any other of the parties hereto.”,

nor the following provisions in paragraphs 10 and 13:

“10. Other than the trustee, no party shall have any title to or interest in the minerals underlying any of the land hereinabove described other than the land heretofore owned by him or her severally as above set out in Section 5 hereof, and conveyed herein, except the right to receive his or her share of the net returns from the sale of the oil, gas and other minerals from the land conveyed and assigned by the grantors herein after the same shall have been produced by lessee and sold by the trustee as herein provided for.
‡ ⅜ ⅛ ‡ ‡ ⅛
“13. Each of said minors, upon arriving at his or her majority or upon being emancipated prior thereto, may either ratify or rescind this instrument, and in case the same is then ratified, he or she shall thereupon be bound by the terms hereof and shall be entitled to continue to receive his or her pro-rata share of the benefits thereafter accruing under the terms of this trust upon the same terms and to the same extent as if originally bound hereby. If, however, said minors or either of them shall fail to ratify this instrument at his or her majority, or upon being emancipated, he or she shall thereupon cease to be entitled to any part of the benefits thereafter accruing hereunder, except such as may have accrued or may thereafter accrue from leases covering the portion of the land described in Subsection (a) of Section S hereof; and any and all oil, gas and/or other mineral leases theretofore executed upon any of the land described in Subsection (a) of Section S hereof shall vest in and be owned by said minor or minors in proportion to their interest in the land above set out in Subsection (a) of Section 5 hereof * * (The land described in Subsection (a) of Section 5 was allotted to the minors in the 1923 judgments.)

All of appellant’s points have been considered and are overruled. We conclude that the minerals have been partitioned and that each party owns the minerals in the share allotted to him by the 1923 judgments. The judgment is affirmed.


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    PANHANDLE STEEL ERECTORS, INC., et al., Appellants, v. Pete WHITLOW et al., Appellees.
    No. 7152.
    Court of Civil Appeals of Texas. Amarillo.
    May 28, 1962.
    Rehearing Denied July 2, 1962.

      Underwood, Wilson, Sutton, Heare & Berry, Simpson, Adkins, Fullingim & Han-kins, James R. Collins, Amarillo, for appellants.
    Burrell B. Evans, Tulia, for appellees.
   CHAPMAN, Justice.

This is an appeal by Panhandle Steel Erectors, Inc., Charles M. Walker, Jerome H. Caldwell, and St. Paul Mercury Insurance Co., Inc. from the order of the trial court overruling their pleas of privilege.

All emphases shown herein are ours.

Plaintiffs below, appellees here, Dale D. (Pete) Whitlow, J. O. Parker, and Robert G. Lee, d/b/a Happy Elevator Company, are residents of Swisher County, Texas. They instituted this suit in the District Court of Swisher County against the parties above named to recover damages resulting from the failure of steel grain storage constructed by Panhandle Steel Erectors, Inc. and Walker and Caldwell. St. Paul Mercury Insurance Company, Inc., is joined as a party defendant by reason of having executed as surety for the principals, Walker and Caldwell, the contract bond in evidence in the sum of $4,200.00 conditioned they would fill all their undertakings, covenants, etc. Their undertaking was the construction of a concrete slab and foundation for grain storage tanks in Happy, Swisher County, Texas.

The principal office of Panhandle Steel Erectors, Inc., hereinafter called Steel Erectors, is in Amarillo, Potter County, Texas. C. M. Walker is a resident of Potter County, J. H. Caldwell is a resident of Randall County, and St. Paul Mercury Insurance Company, Inc.’s principal office is in Dallas County. Except when their names are used the parties will be referred to as they were in the court below.

Plaintiffs allege a separate contract was made by them with Steel Erectors to erect on the foundation three circular steel bins 39 feet in diameter, 65 feet high, intersticed together with 3 to 4 feet between such hinds and braced properly to hold storage of grain when filled.

Plaintiffs seek to recover against all defendants except St. Paul Mercury Insurance Company, Inc. for damages for the failure of steel grain storage, alleging that Steel Erectors was negligent in furnishing defective materials for the construction of a steel grain storage elevator, in the manner of construction, and for breach of expressed and implied warranties. They allege Walker and Caldwell were negligent in failing to use anchor bolts of proper design, in failing to insert anchor bolts in the manner in which a reasonable and prudent builder would have inserted them under the same or similar circumstances, in failing to pour the foundation deeper and wider, in furnishing defective materials, and for breach of implied and/or expressed warranties. All defendants filed their pleas of privilege to be sued in the counties above shown respectively as their residences and principal places of business. Plaintiffs controverted the pleas, seeking to sustain venue in Swisher County under Subdivisions 5, 9a, 23, and 29a of Article 1995, Vernon’s Ann.Civ.St. After a hearing the trial court overruled all pleas of privilege and all defendants have appealed separately.

Because of our view of the case we deem it necessary to write only upon Subdivision 9a of Article 1995, V.A.C.S., as applied to the rights of defendants, Walker and Caldwell, and Steel Erectors.

We shall discuss together defendants, Caldwell’s and Walker’s, and defendant Steel Erectors’ contention that plaintiffs failed to discharge the burden of proving exceptions to exclusive venue under Subdivision 9a, to the effect that an act or omission of negligence occurred in the county where the suit was filed, that such act or omission was that of defendant in person, or that of his servant, agent, or representative acting within the scope of his employment and that such negligence was a proximate cause of plaintiffs’ injuries.

The contract for construction of the storage was made by plaintiffs with Mr. Mjolhus, referred to at times in the record as Mr. Milhouse and pronounced as such. Steel Erectors contend the evidence was incompetent to prove that Mjolhus was such an agent or representative of theirs as to impute to them any of his acts or omissions. To this contention we cannot agree. Pete Whitlow, one of the plaintiffs, testified as follows:

“A. Mr. Milhouse of Panhandle Steel Erectors contacted us to figure on this proposed storage.
“Q. All right.
* * * * * *
“Q. Now what did he propose or did he propose anything in the way—
“A. He proposed. He looked at the site and he proposed on this strip between the two tracks to build some upright steel tanks. They would hold anywhere around 250 to 280,000 bushels. And he said he would draw up some plans and costs and so forth and so on, and present them to us. Was our — I believe that was our first meeting.
“Q. All right. Did he draw up some plans and present them to you?
“A. Yes, sir.
“Q. Would you recognize the plans if you were to see them again?
“A. Yes, sir.
“Q. I ask you, Mr. Whitlow, to look at this piece of paper and tell the Court what it represents, if that is a plan that Mr. Milhouse presented to you.
“A. This is the plan that he drew up, the proposal, and presented to us on near about August 24 or when he dated this, of this proposed plan.
“Q. What does that show, Mr. Whitlow ?
“A. Well, it shows three 39-foot diameter tanks with two interstices spaced approximately 16 foot apart. They’re circular tanks.
“Q. Does it show the interstice between the Tanks 1 and 3, and 3 and 5 ?
“A. Yes.”

Then later in the testimony Mr. Whitlow had quoted Mr. Mjolhus as saying: “Now, that’s the plan we can build.” Counsel then asked him: “Now what do you mean by ‘we’.” He replied as follows:

“A. His firm, Panhandle Steel Erectors.
“Q. He was representing Panhandle Steel Erectors, is that right?
“A. Yes. He was their representative, Mr. Milhouse.”

All this testimony came into the record without objection. Then counsel asked Mr. Whitlow if Mr. Mjolhus was a member of the firm of Panhandle Steel Erectors. Opposing counsel then objected to that line of questions “ * * * On the basis that it is an attempt here to use the ex parte declaration of agency, therefore, falling within the hearsay rule.” Plaintiffs’ counsel then called to the attention of the court that Steel Erectors had filed with the papers of the court their plea of privilege to be sued and made no objection as to whether they were not the correct party being sued. The objection was then overruled.

Additional to the testimony just stated plaintiffs notified Steel Erectors after the failure of the elevators and the company retained Mr. McMorries, a professional consulting engineer, to make the investigation. After that investigation he testified in the case for the plaintiffs.

Our court in 1915 held: “The relation of agency does not depend upon express appointment, but it must be, and frequently is, implied from the words and conduct of the parties and the circumstances of the particular case.” Holmes v. Tyner, Tex.Civ.App., 179 S.W. 887. We reaffirmed that holding as late as 1957, citing a Commission of Appeals opinion to the same effect. Tudor et vir v. Thomas et al., Tex.Civ.App., 301 S.W.2d 733 (Refused, N.R.E.). Accordingly, we believe and so hold that the record made in this case is sufficient to show Mr. Mjolhus was acting as the representative of Steel Erectors in all his transactions with plaintiffs in the construction of the grain elevators and the warranties in connection therewith.

We now turn to the question proper as to negligence and proximate cause under Subdivision 9a.

The evidence shows in effect that Mr. Mjolhus wanted the foundation built by a reputable foundation man or firm and furnished a sketch of the layout of the elevators. He did not furnish the specifications for the foundation except as to the spacing of the anchor bolts. Mr. Whitlow testified Mr. Walker contacted plaintiffs, they furnished him the copy of the plan of the structure, he figured it and in a few days “ * * * came back and told me he had checked the foundation, how many yards of concrete, how much steel * * * to hold that much grain storage and would build it for so much money.”

“Q. All right. And then what happened after that?
“A. He built the foundation; set the bolts. He and his crew came in and built the foundation; furnished the contracting bond.”

We believe the testimony of Mr. Mc-Morries, the consulting engineer, retained by Steel Erectors and used as a witness for plaintiffs, showed the negligence and proximate cause of both the foundation builders and steel erectors in their respective areas of construction essential to retain venue under Subdivision 9a. He testified in effect that the foundation was poured on the natural ground without excavation, that it should have been built wider and deeper and that machine bolts were used instead of the proper hook-type or expanded head-type bolts. His conclusion was that the structural failure of the grain unit was due to improper foundation, to improper anchor bolts and to improper construction and design of the intersticed Tank 4 in that the omission of structural bracing from the east and west sides, either tying them together or tying them to the floor “ * * * caused the structural failure of the units as together.”

Mr. McMorries’ testimony further shows:

“I found on Tank 2, which is this tank, that on the east side of the tank I found five, around five, anchor bolts that held the foundation to the tank or the tank to the foundation. I found the concrete broken away on five on this — on the east side of Tank 2. Also, on Tank 3, which is the middle full tank, I found that the three anchor holts on the east side, also, had been pushed outward allowing the tank to deflect out somewhat. And at the base connecting these intersticed tanks to Tank 3 there is an angle, base angle, from one to the other around the circle, base angle, connecting that full tank to the intersticed tanks. That base angle was ripped and torn where it connects to Tanks 3 and 4, which is on the north side and east side of Tank 3. The failure there was caused by the stresses transferred from Tank 4, which is an intersticed tank, to its connection with the first full tank, Tank 3. Also, I found on Tank 4, which is the second one from the north, that there was a foundation failure on that one. Three anchor bolts on the east side had broken at the floor line- and that the remaining anchor bolts on the east side had pulled through the-concrete. I found there when I noticed the ones that had pulled through the concrete that the anchor bolts were not of the standard type of anchor-bolts used for construction work; that they were standard machine bolts; that they werenJt hooked or expanded head-type that are used in concrete.”

It thus appears that the failure in the foundation and the failure in both the design and bracing in the steel were the results of negligent omissions or commissions on the part of both the foundation builders and steel erectors in their respective construction obligations and that they singularly and collectively constituted a proximate cause and/or proximate causes-of the damages suffered by plaintiffs as a result of the breaking away of the foundation and the separation of the steel and consequent flood of grain from the elevator to the surrounding area.

Though Mr. Caldwell does not show in the record to have done any of the-figuring with plaintiffs on the foundation the contract bond signed by him with Mr. Walker shows him a principal in the contract for the construction in Happy, Texas- and thus makes him liable along with the other principal for the failure in the foundation construction. Holmes v. Tyner, supra.

If we have properly interpreted the wording of defendants, Walker’s and Caldwell’s and Steel Erectors’, points in which they assert plaintiffs have failed to discharge their burden of showing by a preponderance of the evidence etc. they are raising “no evidence” points. If so, the rule of Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 applies wherein it says:

“If, discarding all the adverse evidence and giving credit to all evidence that is favorable to the successful party, and indulging every reasonable conclusion that is favorable to him, a trier of the facts may have found in his favor, then it is to be concluded that there is evidence to support the finding.”

On the other hand if, by the verbiage employed in the points, they are raising questions of the great weight and preponderance of the evidence a different rule applies and we must consider all the evidence. In re King’s Estate (King v. King), 150 Tex. 662, 244 S.W.2d 660. In any event, under either rule, the evidence to sustain venue in Swisher County under Subdivision 9a is sufficient as to defendants, Steel Erectors and Walker and Caldwell, and the judgment is not against the great weight and preponderance of the evidence.

As heretofore stated, plaintiffs in their controverting affidavits raised four exceptions to exclusive venue. We are so certain that the record requires affirmance of the judgments as to defendants, Walker and Caldwell and Steel Erectors, under Subdivision 9a that we consider it useless to discuss the other subdivisions raised and pass now to a consideration of St. Paul Mercury Insurance Co., Inc.’s appeal.

Its liability could be only under its contract bond, which was entered into in Potter County. It has no place of payment, the record shows no agent in Swisher County, and it is separate from the ■oral contract of the principals to perform in the construction of a grain elevator foundation in Happy, Texas.

In the very early jurisprudence of this state our Supreme Court in Lindheim et al. v. Muschamp et al., 72 Tex. 33, 12 S.W. 125, said:

“The sureties on the bond were liable only upon condition that their principal failed to perform his contract, and the bond is not made payable in any particular place. The engagement entered into by Muschamp to construct the building was one contract, and the bond was another, each separate and distinct from the other. The liability upon the latter was dependent entirely upon the performance or nonperformance of the former.
“In order to give jurisdiction to the court in which this suit was brought the bond must have been made payable in Val Verde county. To entitle a plaintiff to sue in a county other than the residence of the defendant he must bring his case clearly within some exception named in the statute. Cohen v. Munson, 59 Tex. [236] 237. The fact that Muschamp’s individual contract to construct the building was to be performed in Val Verde county did not give the court of that county jurisdiction of the suit brought upon the bond, payable at no specified place, and executed by persons residing in Kinney county at the time the suit was brought.”

The courts of Texas, including our own, have consistently followed, cited and quoted from the Lindheim v. Muschamp case. Employers Casualty Co. v. William Cameron & Co., Inc., Tex.Civ.App., 288 S.W. 584 (N.W.H.); Scarbrough & Davis v. Culp, Tex.Civ.App., 276 S.W. 743 (N.W.H.); Hamlin et al. v. Aetna Casualty & Surety Co., Tex.Civ.App., 13 S.W.2d 382 (Writ Dis.)

St. Paul Mercury Insurance Co., Inc. is not a necessary party to this suit so as .to maintain venue against them under Subdivision 29a of Art. 1995, and since their obligation bond does not provide for payment in any county we believe their plea of privilege must be sustained.

Accordingly, the judgment of the trial court is affirmed wherein it maintained venue in Swisher County as to defendants, Walker and Caldwell and Steel Erectors, and is reversed as to St. Paul Mercury Insurance Company, Inc. and ordered transferred to Dallas County.

      . The testimony was that most of the property width was utilized but there is no showing that the foundation could not have been excavated and built with the necessary depth.


author: NORTHCUTT, Justice.

text:
    J. T. SINGLETON, County Judge of Oldham County, Texas, et al., Appellants, v. Claud SMITHERS et al., Appellees.
    No. 7150.
    Court of Civil Appeals of Texas. Amarillo.
    May 21, 1962.
    Rehearing Denied June 18, 1962.

      Witherspoon, Aikin, Thomas & Langley, Hereford, John L. Scott, Jr., Vega, Fike & Hunter, Dalhart, for appellants.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, Harlow Sprouse, of counsel, Amarillo, for appellees.
   NORTHCUTT, Justice.

This is an appeal from two suits, injunction and mandamus, which were consolidated for trial. The Canadian Valley Common School District No. 5 of Old-ham County, Texas, and the Channing Independent School District of Hartley County, Texas, desired to consolidate for school purposes. These school districts were contiguous with each other. On June 24, 1960, twenty-eight persons signed and filed with the County Judge of Oldham County a petition requesting the County Judge of Oldham County, Texas, to call an election for the purpose of such consolidation. On the same date, fifty-five persons signed and filed with the County Judge of Hartley County a petition requesting the County Judge of Hartley County, Texas, to call an election for the purpose of such consolidation. On the same day, June 24, 1960, a duplicate of the petition presented to the County Judge of Hartley County, but addressed to the County Judge of Oldham County, was presented to the County Judge of Oldham County and a duplicate of the petition presented to him was presented to the County Judge of Hartley County, Texas.

At the time the petitions, above mentioned, were filed requesting the calling of the election, the County Judge of Hartley County was ready and willing to call such election and will not be further considered herein. On June 25, 1960, four members of the County School Trustees of Oldham County, in a special called meeting, entered an order purporting to annex and/or consolidate Canadian Valley Common School District No. 5 of Oldham County, Texas to and with Vega Independent School District of Oldham County, Texas. At the time this order was entered on June 25, 1960, the trustees knew the petition above mentioned had been filed the day before with the County Judge of Oldham County. John M. Shelton was a member, at that time, of the County School Trustees of Oldham County but was not notified of that special call meeting and was not present at the meeting when that order was entered. After the order was entered on June 25, 1960, by the four county school trustees, the County Judge of Oldham County refused to take any action on the petition filed with him asking for the election and did not investigate about the qualifications of the parties signing the petition, and did not intend to take any further action upon the petition after the order by the four trustees was entered, and he so testified.

Vega Independent School District is located partially in Deaf Smith County and partially in Oldham County. The four county trustees, without the consent of anyone in Deaf Smith County or the Canadian Valley Common School District No. 5, sought to make the annexation as above stated. We are of the opinion their action was void. One reason for holding this action as void is because Mr. Shelton, one of the County Trustees of Oldham County, was not notified of the special called session on June 25, 1960. It is stated in the case of Palmer et al. v. District Trustees of District No. 21, Tex.Civ.App., at 289 S.W.2d 344 (Writ Ref. N.R. E.), as follows:

“The transfer order in question was entered at a special meeting of the County Board of Trustees. Notice of the special meeting was not given to one member of the Board, Mr. J. C. Duncan, President of the Board, and he did not participate in the meeting. This order was clearly void under the following authorities: Art. 2687, Vernon’s Ann.Civ.St.; 1 Tex.Jur.Supp., sec. 23, p. 109; Webster v. Texas & Pacific Motor Transport Co., 140 Tex. 131, 166 S.W.2d 75; Houston & North Texas Motor Freight Lines v. Johnson, 140 Tex. 166, 166 S.W.2d 78; Hildebrand on Texas Corporations, Vol. 2, p. 578, sec. 638.”

Article 2682, Texas Civil Statutes, provides that the district court shall have general supervisory control of the actions of the county board of school trustees in creating, changing and modifying school districts. Therefore, when the petition was filed with the County Judge of Old-ham County asking for the calling of an election, the judge then acquired jurisdiction of the matter and the County School Trustees did not have the right to take the action they did. Consequently the plaintiffs had no other relief than to apply to the court for relief. Wichita Common School District No. 11 et al. v. Dickens Independent School District of Dickens County et al., Tex.Civ.App., 206 S.W.2d 885, writ refused.

After the four County Trustees of Oldham County entered their order on June 25, 1960, and the County Judge of Oldham County refused to take any action on the petition filed with him, the plaintiffs brought these suits to restrain the enforcement of the order to consolidate the Canadian Valley Common School District No. 5 with the Vega Independent School District, and to compel the County Judge of Oldham County to call the election requested by the petition. On the final hearing of these cases, both the plaintiffs and the defendants presented their Motions for Summary Judgment. Defendants’ motion was denied and plaintiffs’ motion was granted, and the court held the purported orders and actions of the County School Trustees of Oldham County, Texas, entered on June 25, 1960, and September 8, 1960, to be invalid, illegal, and void and of no force and effect, and that the same constituted no impediment to and did not interfere with the rights of the plaintiffs to have J. T. Singleton, County Judge of Oldham County, Texas, issue an order for an election. The court ordered J. T. Singleton, County Judge of Oldham County, Texas to forthwith and with reasonable dispatch issue an order for an election, etc. (as provided by the statutes). Where the petition is in due form in all respects, the County Judge is bound to call the election. The reason given for failing to call the election in this case is practically identical with the case of Garrett, County Judge, et al. v. Unity Common School District et al., Tex.Civ.App., 211 S.W.2d 238 (Writ Ref. N.R. E.).

Since the County Judge failed and refused to take any action on the petition, filed with him, after the County School Trustees took the action they did on June 25, 1960, injunctive relief was available. County Board of School Trustees of Leon County et al. v. Leon Independent School District, Tex.Civ.App., 328 S.W.2d 928, and the cases there cited. If the District Court had the right to take the action it did to grant a temporary injunction, and we think the court had that right, any action taken thereafter that was restrained under the injunction would have no force. However, after the District •Court had entered its temporary injunction on August 12, 1960, restraining further action until final hearing, which we interpret as meaning everything was to remain as it was, the County Judge of Old-ham County attempted on September 7, 1960, to find and hold there were not sufficient qualified petitioners on the petition requesting the holding of the election. Likewise, the County School Trustees of Oldham County, on September 8, 1960, attempted to take action as before and confirm their void action taken on June 25, 1960. The whole matter was then under the jurisdiction of the District Court and the trustees and the County Judge had no right to take further action.

There is no question here involved about the form of the petition and sufficiency of the number signing the petition. We think this record clearly shows there were more than twenty qualified signers to the petition here involved. The County Judge of Oldham County did, on September 7, 1960, almost three months after the petition had been filed with him, attempt to state and hold there were not twenty signers on the petition filed with him. This was an attempt at removing the jurisdiction on the petition filed with him. All of these actions were taken after the District Court had taken jurisdiction and had made its order.

Article 2806, Texas Civil Statute, Vernon’s Ann.Civ.St. art. 2806, provides:

“On the petition of twenty (20) or a majority of the legally qualified voters of each of several contiguous common school districts, or contiguous independent school districts, or one or mo.'e independent school districts and one or more common school districts constituting as a whole one continuous territory, praying for the consolidation of such districts for school purposes, the County Judge shall issue an order for an election to be held on the same day in each such district.”

If each of the petitions contained twenty or more legally qualified voters and the petitions were in due form the County Judge shall (and not may) issue an order for an election and perform the duties provided by said articles. Naturally, the judge should determine if there were as many as twenty qualified voters signing the petition. But in this case, the judge refused to proceed in any manner after the void action of the four county school trustees. McLemore et al. v. Stanford et al., Tex.Civ.App., 176 S.W.2d 770. The action of the County School Trustees was purely an attempt to prevent the consolidation here sought.

We cannot say under this record, and in the face of the holding of the trial court, that the county judge acted in good faith in refusing to act upon the petition as well as in his action in attempting to declare the petition did not have a sufficient number of qualified signatures. The judge testified he knew Mr. Smithers and knew that he lived in the Canadian Valley Common School District No. 5 of Oldham County, Texas, and knew he was one of the school trustees of that district, and he had a poll tax, but stated in his opinion Smithers did not have and maintain and occupy a residence in that district. About all he would ever testify to was that in his opinion they were not qualified petitioners, and those opinions were not based on proper facts testified to by him. Such findings of the County Judge may be set aside in direct attack on the grounds of fraud or bad faith. School Board of the City of Marshall et al. v. State of Texas, 343 S.W.2d 247 (Supreme Court). It is stated in the case of Womack v. Berry et al., 156 Tex. 44, 291 S.W.2d 677, by the Supreme Court as follows:

“The rule denying mandamus with respect to matters of a discretionary character is not without limitation, however, and the writ may issue in a proper case to correct a clear abuse of discretion. See City of Houston v. Adams, [154] Tex. [448], 279 S.W.2d 308; Stakes v. Rogers, 139 Tex. 650, 165 S.W.2d 81; City of San Antonio v. Zogheib, 129 Tex. 141, 101 S.W.2d 539; Arberry v. Beavers, 6 Tex. 457, 55 Am.Dec. 791; King v. Guerra, Tex.Civ.App., 1 S.W.2d 373 (writ ref.); 55 C.J.S., Mandamus, §§ 63 and 73, pp. 100, 126; 34 Am.Jur. 858, Sec. 69; 35 Am.Jur. 31, Sec. 259. While no Texas case has been found in which the writ issued to correct the action of an officer or tribunal in a matter of discretion, the cited cases recognize the exception to the general rule.”

We are of the opinion that the County Judge clearly acted in abuse of his discretion and did not act in good faith. Judgment of the trial court is affirmed.


author: WILLIAMS, Justice.

text:
    Dr. Coleman JACOBSON et al., Appellants, v. PRESTON FOREST SHOPPING CENTER, INC., et al., Appellees.
    No. 16082.
    Court of Civil Appeals of Texas. Dallas.
    May 25, 1962.
    Rehearing Denied June 29, 1962.

      Wynne, McKenzie, Stroud, Jaffe & Tins-ley; Morris I. Jaffe and Carl W. Wilson, Dallas, for appellants.
    H. P. Kucera, City Atty., N. Alex Bick-ley, Asst. City Atty., Saner, Jack, Sallinger & Nichols, H. Louis Nichols, Dallas, for ap-pellees.
   WILLIAMS, Justice.

This action was instituted, pursuant to terms of Art. 101 lg, Vernon’s Ann.Civ.St. in the nature of a writ of certiorari, by Dr. Coleman Jacobson, and approximately thirteen other resident owners of property in an area in Dallas County, Texas, generally described as PRESTON HAVEN ESTATES, complaining of Preston Forest Shopping Center, Inc., Board of Adjustment of the City of Dallas, Texas, George F. Mixon, Ray Cummings, Building Inspector of the City of Dallas, Texas, and the City of Dallas, a municipal corporation, seeking to set aside and to hold illegal the decision of the Board of Adjustment of the City of Dallas on April 25th, 1961 granting a variance in a building being constructed by Preston Forest Shopping Center, Inc., on property adjacent to that owned by plaintiffs. Defendants answered, contending the action of the Board of Adjustment was supported by substantial evidence and was, in every respect, legal. At the conclusion of the hearing in the District Court, which included all of the evidence adduced before the Board of Adjustment, as well as additional evidence in that Court, the District Judge, trying the case without a jury, affirmed the action of the Board of Adjustment granting the variance. The trial court filed findings of fact and conclusions of law; overruled exceptions filed thereto by the defendants, and also overruled defendants’ request for additional findings. From such judgment the complaining property owners have duly prosecuted this appeal.

By their first five points, briefed together, appellants contend, in essence, that there was no substantial evidence before the Board of Adjustment or the trial court to support the application for the variance.

Appellants’ points require that the antecedent facts relating to the background of this controversy be detailed. In doing so, for brevity we will refer to the Board of Adjustment of the City of Dallas as “Board”, Preston Forest Shopping Center, Inc. as “Shopping Center”. George F. Mixon as “Mixon”, City of Dallas as “City”, and Ray Cummings, Building Inspector, as “Inspector”.

Shopping Center (whose president and principal stockholder is Mixon) developed the property on the Southeast corner of Preston Road and Forest Lane, in Dallas,. Texas as a shopping center. Appellants, are the owners of residences in an Addition also developed by Mixon, and immediately adjoining Shopping Center.

Mixon was originally granted a special permit under Ordinance #5238 enacted by the City, on August 28th, 1951, said Ordinance being later amended by Ordinance #6493, passed by the City on March 7, 1955, which was a special permit for local Retail-3 uses. This Ordinance specifically provides that the development of the property shall be generally in conformity with the site plan as approved by the City Plan Commission. The original site plan, attached to the Ordinance, was changed on March 20, 1958, such change showing the store buildings in the location where the building under attack is presently built but not demonstrating any specific height of the building, but merely showing square footage of the building. The site plan then was again changed on May 23rd, 1960, such site plan being the one used in the building of the structure now under attack. This site plan has upon its face a statement “approved May 23rd, 1960 Department of City Planning by H. Alden Deyo.” To it is also attached a memorandum to the Building Inspector from H. Alden Deyo, director of planning, stating that the copy of the site plan attached was approved by the City Plan Commission and is to be made a part of special permit Ordinances Nos. 8428 and 6493.

Subsequent to the passage of Ordinance #6493, Shopping Center made application dated, August 5th, 1960, for a building permit with the Inspector for the purpose of erecting a retail store, two stories in height. Submitted with this application were copies of the building plans which were to be used, being substantially the same building plans which two previous buildings in the City of Dallas had been erected for the same department store. The application for building permit was granted by the Inspector and Shopping Center commenced construction of such building. During the process of construction certain of the appellants noticed that the wall of the building was being constructed to a height greater than that of other buildings in the shopping center and began an investigation. Thereafter apel-lants sent written notice to Mixon and Shopping Center advising him that the building was being erected in violation of the Zoning Regulations and that appellants protested such violation. Thereafter the Inspector notified Shopping Center on March 8, 1961 that the building, as shown on the plans, exceeded the height allowed by the Zoning Ordinances of the City of Dallas, and that any further building would be at the risk of the owner. On March 13, 1961 Shopping Center filed appeal #7760 to the Board, requesting approval of the building permit previously issued by the inspector, and requesting approval of a variance in the height of the ,roof of the building. The actual terms of the application by Shopping Center are set forth in the footnote # below. On the reverse side of the application is the Inspector’s report containing a certificate showing that the variance required was 2 feet 9 inches on the height of the building. This certificate is referred to in footnote # below. Following two extensive hearings at both of which testimony of various witnesses were heard, the Board entered its order granting the variance requested relating to the height of the roof, but requiring Shopping Center to construct such screening between the wall of the building and the residences of appellants. Upon appeal to the District Court all of the testimony introduced before the Board on the two hearings was introduced and, in addition thereto, further testimony was introduced. The Trial Judge affirmed the order of the Board.

In our consideration of appellants’ points of error having to do with the state of evidence, as well as other points dealing with the legality of the order of the Board, we are governed by the following established legal principles:

I. Boards of Adjustment, when acting within their jurisdiction pursuant to statutes (1011a-1011g V.A.C.S.) act as quasi-judicial bodies. Washington v. City of Dallas, Tex.Civ.App., 159 S.W.2d 579.

II. The only question which may be properly raised in a review of a decision of the Board of Adjustment by writ of certio-rari is that of the legality of the Board’s order. City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67.

III. A legal presumption exists in favor of the Board of Adjustment order and the burden of proof to establish its illegality rests upon those who attempt to overcome its presumption of validity. Board of Adjustment v. Stovall, Tex.Civ.App., 218 S.W.2d 286; Driskell v. Board of Adjustment, Tex.Civ.App., 195 S.W.2d 594; Montgomery v. City of Dallas, Tex.Civ.App., 245 S.W.2d 753; McQuillin “Municipal Corporations” 3rd Ed. Vol. 8, §§ 25.327-25.328.

IV. The court, considering the legality of the order of the Board of Adjustment, must not put itself in the position of the Board and substitute its findings for that of the Board, even though the Court concludes that the overwhelming preponderance of the evidence is against the Board’s decision. City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67.

V. The question on appeal from an order of the Board of Adjustment is whether or not there is any substantial evidence affording reasonable support for the findings and order entered by the Board, such being a question of law, and not a fact. If the evidence before the Court, as a whole, is such that reasonable minds could have reached the conclusion that the Board must have reached in order to justify its action, then the order must be sustained. Thomas v. Stanolind Oil & Gas Co., 145 Tex. 270, 198 S.W.2d 420, 421; City of Dallas v. Stevens, Tex.Civ.App., 310 S.W.2d 750; Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424; Huguley v. Board of Adjustment of City of Dallas, Tex.Civ.App., 341 S.W.2d 212; Board of Adjustment v. Underwood, Tex.Civ.App., 332 S.W.2d 583.

The power of a Board to grant a variance of a Zoning Ordinance is derived from Art. lOllg, V.A.C.S. and Art. 165-24 of the Zoning Ordinance of the City of Dallas. Art. 101 lg, contains the following language :

“The Board of Adjustment shall have the following powers: * * * 3. To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.”

Art. 165-24, Zoning Ordinance of the City of Dallas, provides:

“Section 3. Jurisdiction. When in its judgment, the public convenience and welfare will be substantially served and the appropriate use of the neighboring property will not be substantially or permanently injured, the Board of Adjustment may, in specific cases, after public notice and public hearing, and subject to appropriate conditions and safeguard, authorize the following exceptions to the regulations herein established. * * * 2. Permit such modification of the height, yard area and parking regulations as may be necessary to secure appropriate development of a parcel of land of such restricted area and shape that it cannot be appropriately developed without such modification.”

Being ever mindful of the foregoing principles of law we have carefully and tediously reviewed the entire record in this case, and based upon the record as a whole, we are of the opinion that the Board’s finding and decision are sustained by substantial evidence and that the findings of fact and conclusions of law filed by the Trial Court are correct and should be affirmed.

Appellants vigorously assail the record as being entirely devoid of any evidence relating to the essential elements necessary, and as required by the statute and ordinance, in order to obtain a variance. This has necessitated a careful and tedious study of all of the testimony and in doing so our labor has been materially increased due to the very informal nature of the hearing before the Board. It would serve no useful purpose, and would unduly lengthen this opinion for us to summarize in detail all of the testimony, both oral and before the Court. We deem it sufficient to say that our examination of the testimony has revealed material differences creating issues of fact which have been resolved against appellants.

It is significant and important to bear in mind that the issue before the Board in this case was one as to variance of the height of the building. Typical of the testimony concerning this was that of Mr. Ray Cummings, Chief Building Inspector of the City of Dallas, who testified at the trial of the case that in the area in question the maximum allowable height of a building is 2½ standard stories and that, according to his office’s ruling, would be 28 feet 9 inches. He further testified that this height of the building applied to the roof of the building, and the parapet walls were permitted to extend above the roof height for a distance of 4 feet. Thus, he said that the allowable height of the outside parapet walls would be 32 feet 9 inches, and that the plans for the building showed the outside parapet walls to be 32 feet high. Thus, the issue of the height of the outside walls did not appear to be in dispute, the only question being the height of the roof of the building which was found to be 2 feet 9 inches higher than authorized by the Ordinance. Mr. Cummings advised the Board that the outside parapet walls were not in violation of the Zoning Ordinance of the City and that if the roof or the outside ceiling were lowered 2 feet 9 inches it would not require any change to be made in the outside parapet walls. He further testified that his office examined the plans and specifications tendered and found them to be in accordance with the Ordinance prior to the time a building permit was issued. However, later inspection revealed the height of the roof to be 2 feet 9 inches too high, hence, the resulting application for such variance. There was considerable testimony, pro and con, concerning whether or not the site plan had been approved by the City Plan Commission. There was also considerable testimony, pro and con, as to the correct method of measuring the height of a building. There was considerable testimony to the effect that if the roof of the building was lowered 2 feet 9 inches same could not be observed by appellants-landowners, since the outside walls and parapet were higher than the roof itself. Testimony was adduced from Mr. Gillespie, Staff Designer for Mixon, and by Mr. Nichols, attorney for appellees, concerning the issue of good faith on the part of the builder in proceeding to build the building based upon approved plans and by a building permit issued by the City of Dallas. Mr. Nichols testified at considerable length concerning the hardship which would result to his client if the roof of the building were required to be lowered; that such roof had been constructed by his client acting in good faith and upon a valid building permit issued by the Inspector; that the site plans had been duly approved; that no ob j ection was presented concerning the height of the outside walls of the building; that if the roof line were lowered 2 feet 9 inches and the outside walls not lowered, same being authorized under the Zoning Ordinance without any variance, it would not change the appearance of the building insofar as the neighbors are concerned. Mr. Nichols testified that, under the circumstances involved in this case, that should the variance be granted, it would not in any way effect any of the neighbors, because, in doing so, the Board would not in any way change the outside height of the walls, which is all that can be seen by the neighbors.

Appellants tendered testimony of numerous property owners who all protested the height of the outside walls of the building, contending same were too high and constituted damage and harm to their property. Considerable testimony was tendered concerning the proper way in which to measure the height of a building, such testimony being extremely conflicting.

Again bearing in mind that under the law it is not for this Court to consider the question of preponderance of the evidence nor to substitute our judgment for that of the trial court or the Board. It is only for this Court to determine whether there was substantial evidence introduced in court to support the action of the administrative body. When we apply these rules to the evidence adduced we are unable to agree with appellants that there is no evidence to support the material elements required by the statute and ordinance in order to obtain a variance in this case. Accordingly, appellants’ first five points are overruled.

Appellants’ sixth point complains of the action of the trial court in sustaining the decision of the Board because the action of the court was improper in that it acted upon an application asking for 2 feet 9 inch variance, when, in fact, the evidence showed that the variance was in excess of 6 feet. This point must be overruled. In the first place the application by appellees for a variance, copied in footnote # 1 below reveals that same was not for a specific height or variance. It merely requested the Board to permit appellees to construct the building in accordance with the plans and specifications previously approved by the Inspector and upon which a building permit had been granted. It was the Inspector himself who advised the Board that the variance needed was 2 feet 9 inches. Moreover, the testimony, as heretofore discussed, is conflicting as to the proper mode and method of measuring the height of the building in question. The testimony being conflicting it is not for us to substitute our judgment for that of the Board or the Trial Court.

By their seventh point of error, appellants present three different questions: (a) that the Board had no authority under its By-laws to grant a height variance. Appellants refer to the By-laws of the Board which do not contain any mention concerning the height. However, both the provisions of lOllg, V.A.C.S. and the Zoning Ordinance, Art. 165-24, both provide ample authority for the Board in this regard; (b) appellants contend that the permit in question upon which the building was constructed was invalid and of no force and effect as a site plan upon which permit was granted and had never been approved by the City Plan Commission as required by the Ordinance. As stated above there is a conflict in the testimony, both before the Board and the Court, concerning the approval of the site plan in question. The site plan itself bears a notation on two different places thereon that it had been approved by the City Plan Commission. At the hearing of the Board on April 25, 1961 site plans were presented to the Board and identified as the approved site plans and as being the site plans used by the Inspector in issuing the building permit. Testimony was introduced that the Inspector considered the site plans as having been approved. The site plan was also considered by the City Attorney’s office of the City of Dallas as being the approved site plan. There is a conflict between the testimony of Mr. Jaffe, attorney for appellants and Mr. Nichols, attorney for appellees, concerning whether the site plan had been approved. Mr. Bickley, Assistant City Attorney, testified that the site plan in question had been ruled officially as being the site plan approved and under which the building was constructed. There being this existing conflicting testimony, it is not for us to resolve the question and the court’s findings that there was substantial evidence to support the Board’s action must be approved. Moreover, it is our opinion that the question of whether the site plan had been approved by the City Plan Commission is not a controlling factor insofar as this decision is concerned. The Inspector’s office, City Plan Office, and the Board had considered the site plan which was used by the Inspector which had been approved by the City Plan office as being the officia'* approved site plan. Since the Inspector is charged with administering the Zoning Ordinance, if he erred in his decision in this regard, the matter is one that should have been taken to the Board for its consideration or relief sought directly in court as we held in Spaidcs v. Bolton, Tex.Civ. App., 335 S.W.2d 780. This was not done. The only question presented to the Board was one of variance of the height of the roof; (c) appellants contend that the action of the Board was void because the first hearing before the Board on April 11th was held before only four members of the Board, same being less than the statutory quorum required in such cases. The complete answer to this contention is found in the record wherein it is demonstrated that at the first hearing of the Board on April 11th only four members were present. At that time the Chairman of the Board specifically inquired as to whether or not there would be any objections to proceeding to hear testimony by four members of the Board without making a decision and awaiting the presence of five members of the Board before final decision was made. The record reveals that Mr. Jaffe, attorney for appellants, specifically agreed to such procedure. No decision was made at the April 11th hearing of the Board. Thereafter on April 25th, 1961 five members of the Board were present, heard testimony and acted upon the final decision in this case. It is our opinion that under the record here made no error is demonstrated. Appellants’ seventh point is overruled.

The judgment of the trial court is affirmed.

      . “This application is made at the direction of the City Attorney and the City Council of the City of Dallas, Texas, and is made without prejudice to any rights we may have under the law, as it exists at the present time.
      The site plan now being used was presented to and approved by the City Plan Commission. The plans and specifications of the building to be known as the Pair of Texas, were submitted to the Building Inspection Department. The plans, as submitted, clearly indicated the height to which the building was to be built. There was no concealment or misrepresentation on the part of the applicant in order to obtain a Building Permit under any but legal and ordinary means. On this basis, and while in possession of all facts, the Building Inspection Department issued a Building Permit for the construction of the building, according to the plans submitted for approval. Construction was begun, and each stage was inspected and approved by an Inspector from the Building Inspection Department. The complete steel structure, including steel roof girders, was all in place and erected, and the complete brick-work and parapet on all the walls had been completed before the applicant was notified that it had exceeded the allowable height and would need approval of a variance. The roof has been poured, and the parapet walls have been installed; only the glass and building trim have not yet been installed. If the highest point of the sloping roof exceeds the allowable of 2½ standard stories, the height of the exterior wall does not exceed the overall allowable height, including the parapet wall.”

      . “I hereby certify that Barnett M. Good-stein representing Preston Forest Shopping Center, Inc., did apply for a permit to build a 2 story masonry building 200 ft. x 210 ft. for a retail department store at number 800 Preston Forest Shopping Center Street.
      “The permit was denied on the following grounds. The City Plan Commission approved a site plan for this building and a building permit has been issued to build which is now under construction.
      “Since this building will exceed the height maximum of 28' 9", the developer has been notified that construction from the date of the letter, March 8, 1961, would be done at his own risk.
      “Proposed maximum height 31'-0"
      “Maximum height permitted 28'-9"
      “Variance needed of 2'-9"
      “Referred to the Board of Adjustment according to Article 165-24, Section 3, Par. 2, of the Zoning Ordinance #5238.
      “/s/ R. H. Cummings “FBF
      “R. H. Cummings
      “Chief Building Inspector.
      “FBF/md”