author: BARCUS,' J.

text:
    DUNCAN v. MARLIN MOTOR CO.
    No. 1077.
    Court of Civil Appeals of Texas. Waco.
    June 25, 1931.
    Rehearing Denied Sept. 17, 1931.
    Jos. W. Hale, of Waco, for appellant.
    W. L. Eason and Bryan & Maxwell, all of Waco, for appellee.
   BARCUS,' J.

In April, 192S, appellant filed suit in the district court of Palls county against the Marlin Motor Company, a corporation, to recover judgment on notes totaling approximately $30,000. Appellees R. V. McClain and James M. Adams filed in said suit pleas of intervention!' On December 14, 1928, said McClain and Adams filed separate motions or request to dismiss their respective pleas of intervention, and the trial court noted on its docket that said parties were granted a nonsuit. On December 17, 1928, the cause was tried and appellant Duncan was given judgment against the Marlin Motor Company for $32,180.18 on its notes. The judgment recites that the in-terveners McClain and Adams had filed on the 14th day of December their applications for a nonsuit on their respective pleas of intervention, which said applications were then and there granted. Said judgment then, however, instead of dismissing the pleas of intervention, rendered judgment denying McClain and Adams any recovery on their respective causes of action as set up in their pleas of intervention.

On December 6, 1930, McClain and Adams filed in the cause of Duncan v. Marlin Motor Company a motion or bill to correct the judgment as entered by the trial court on December 17, 1928, in so far as it adjudged and decreed that they were denied any recovery. They alleged they did not know the provisions contained in said judgment until the summer of 1930, which was long after the adjournment of the term of court at which same was rendered, and that said judgment was not supported by any pleadings because at the time same was rendered they had, with permission of the court, taken a nonsuit. Notice of the motion was served on all of the parties mentioned in the original judgment. Said parties answered by general demurrer and general denial, and alleged that said judgment had become a finality at the close of the term of court at which it was entered and that no appeal was taken therefrom, and that by reason thereof the trial court could not at a subsequent term of court set aside, change, or modify said judgment.

The trial court, upon hearing said motion, corrected the judgment as rendered by it on December 17,1928, in so far as it decreed that McClain and Adams were denied a recovery on their pleas of intervention and, in lieu thereof, entered judgment dismissing said pleas of intervention. From said order A. Baker Duncan alone appeals.

Appellant by his first proposition contends that appellees McClain and Adams by taking a nonsuit on their pleas of intervention did not deprive him of his right to a judgment against them on his claim for affirmative relief. Whether this is a correct abstract proposition of law is not necessary for us to and we do not determine. The record shows that appellant did not ask in his original or any of his amended pleadings for any affirmative relief against either of the interveners. In his reply to their respective pleas of intervention he simply asked that they be denied any recovery.

Appellant contends that the trial court was without authority after the adjournment of the term at which the judgment was rendered to change or modify same. He further contends that it was error for the trial court to amend or correct its judgment as rendered on December 17, 1928, because there was no evidence introduced tending to show that the judgment as originally entered was not the judgment actually rendered by the court at said time. Articles 2228 and 2229 of the Revised Statutes provide specifically that the trial court can correct mistakes or misrecitals in the judgments as recorded’. The record in this case shows that McClain and Adams, the interveners, filed their written motions for a nonsuit. The docket entry made by the trial judge shows that the court granted their nonsuit. The judgment as originally recorded recites that their application for a nonsuit had been granted. We think this evidence was sufficient to authorize the trial judge Who entered the original judgment to find as a fact that he did not render a judgment disposing of the interveners’ pleas of intervention on their merits, and that the recital in the judgment as originally entered was a clerical error and did not speak the judgment of the court at said time. The notation on the judge’s docket at the time the cause was tried was: “Judgment for plaintiff for the amount of two notes, $22,700.00, and $7,000.00 less credit of $1,000.00 for principal, interest and attorney’s fees and cost of suit.” No suggestion is made in said docket entry that the trial court was attempting to or did in any way pass judgment on any controversial matters raised by the pleas of intervention. Our courts uniformly hold, under the statutes above referred to, the trial court may. at a subsequent term of court correct- thé judgment actually entered in such way that same may and will correctly state the judgment as actually rendered. O’Neil v. Norton (Tex. Com. App.) 83 S.W.(2d) 733; Bray v. City of Corsicana (Tex. Civ. App.) 280 S. W. 609; Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040.

Article 2050 of the Revised Statutes provides specifically that the trial court shall not render a judgment against a defendant unless he has either been served or has accepted service, or has appeared and filed an answer. In the pleas of intervention filed by McClain and Adams they were seeking affirmative relief against the other parties to said litigation. No one of said parties, however, sought any relief against either of said interveners.1 When they dismissed their pleas of interven-' tion by permission of the court, they were not thereafter before the court for any purpose, and it ha’d no jurisdiction over them or any. authority to render any judgment either for or against them, and its judgment denying them a recovery was without .authority of law. Lipscomb v. Japhet (Tex. Civ. App.) 18 S.W.(2d) 786 (error dis.).

We have examined all of appellant’s ássign-ments of error and propositions. Same are overruled, and the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: McClendon, o. j. McClendon, c. j.

license: Public Domain

text:
    McINNIS et al. v. BROWN COUNTY WATER IMPROVEMENT DIST. NO. 1.
    No. 7585.
    Court of Civil Appeals of Texas. Austin.
    June 3, 1931.
    Supplemental Opinions’, June 17 and 24, 1931.
    Rehearing Denied June 24, 1931.

      Wilkinson & Wilkinson, of Brownwood, and J. W. Stovall, of San Angelo, for appellants.
    McCartney & McCartney, of Brownwood, 'and Critz & Woodward, of Coleman, for ap-pellee.
   McClendon, o. j.

Appeal in a condemnation proceeding in which judgment was rendered condemning the fee to a portion of appellants’ land and an easement upon other portions.

Appellee, plaintiff below,, is a water improvement district, created under the provisions of chapter 2 of .title 128, R. S. of 1925 (article 7622 et seq.). Its general purpose was to construct a large reservoir by damming the waters of Pecan bayou, in order to provide a water supply for the city of Brown-wood. This dam when constructed would permanently inundate a portion of appellants’ lands bordering on the stream and some of its tributaries when the reservoir was filled to spillway level, and would in flood times 'temporarily inundate, additional lands. A portion of appellants’ lands would be entirely surrounded by the waters of the reservoir, thus creating a small island; and a small portion would be isolated from the main body. The proceeding sought and obtained condemnation of the fee to this land and permanently inundated portions of the lands, including the bed of Pecan bayou, and an overflow easement in the land temporarily inundated in flood seasons. Other details of the decree will be noted below.

Disqualification of the county judge and. members of the board of commissioners is urged on account of the fact that they were taxpayers in the district.

As to the judge this contention is overruled on the authority of Hubbard v. Hamilton County, 113 Tex. 547, 261 S. W. 990; City of Oak Cliff v. State, 97 Tex. 391, 79 S. W. 1068; City of Dallas v. Peacock, 89 Tex. 58, 33 S. W. 220, distinguishing City of Austin v. Nalle, 85 Tex. 534, 22 S. W. 668, 960; City of Dallas v. Armour & Co. (Tex. Civ. App.) 216 S. W. 222 (error refused).

As to the commissioners we overrule the contention on the authority of Moore v. Dallas (Tex. Civ. App.) 200 S. W. 870, 871; Watson v. De Witt County, 19 Tex. Civ. App. 150, 46 S. W. 1061; City of Marshall v. McAllister, 18 Tex. Civ. App. 159, 43 S. W. 1043.

R. S. art. 7880 — -132 (a), as amended in 1929 (Acts 41st Leg. p. 578, c. 280, § 14), provides that if a member of the board “be personally interested, either directly, or indirectly * * * in a particular proposed assessment or other determination,” he shall certify his disqualification. This language is substantially the same as that employed in article 2134, subd. 2, disqualifying jurors where “interested, directly or indirectly, in the subject matter of the suit.” In Moore v. Dallas, above, in construing this language the court say: “It is not believed that the difference in the wording of the statute relating to the disqualification of judges and that relating to the disqualification of jurors materially affects the question.” The interest of a taxpayer, in either case is too remote and contingent to disqualify.

Chapter 7, page 120, 5th Called Session of the 41st Legislature, 1930 (Vernon’s Annotated Civ. Stat. art. 7807a), grants to water improvement districts the right “to acquire by condemnation lands, easements and other property and the fee simple title, easement or right-of-way in, over and through all lands, I>rivate and public, except as hereinafter indicated, necessary for making, constructing, maintaining, operating, policing and protecting dams, reservoirs, canals, laterals, pumping sites, drainage ditches, levees and all other improvements necessary and proper for such districts, including sites for construe-, tion and working purpSses.” Section 3 of the act (demon’s Ann. Oiv. St. art. 7807a, § 3) provides that “the assessing of damages and all procedure with reference to condemnation, appeal and payment, shall be in conformity with the Statutes as provided in Title 52 of the Revised Civil Statutes of the State of Texas relating to eminent domain,” with certain provisos not pertinent to this appeal.

■ In the oral argument and by supplemental brief appellants for the first time raise the issue that the act in question is unconstitutional in so far as it attempts to confer jurisdiction on the county court to condemn the fee to land as being in conflict with sections 8 and 16 of article 5 of the Constitution, the former of which confers jurisdiction on districts courts “of all suits for trial of title to land,” and the latter excludes from county courts’ jurisdiction all suits “for the recovery of land.”

We overrule this contention on two grounds.

1. A condemnation proceeding is not a suit within the meaning of the invoked constitutional provisions. It is not a trial óf the 'title to land nor does it involve the recovery of land. Unless title in the condemnee is ■admitted the county court is without jurisdiction. This, we think, clearly follows from the holdings in Buffalo Bayou, B. & C. Ry. Co. v. Ferris, 26 Tex. 588, and San Antonio v. Grandjean, 91 Tex. 432, 41 S. W. 477, 44 S. W. 476, from the former of which we quote (Justice Moore writing): “The constitutional provision that the ‘right of trial by jury shall remain inviolate,’ does not apply to the case of taking private property for public use, but to suits in courts of justice; to some known and fixed mode of judicial proceeding, for the trial of issues of fact in civil and criminal causes in courts of justice.” This language is peculiarly apt to the invoked jurisdictional provisions of the constitution.

2. It was held in Gulf, C. & S. F. Ry. Co. v. Tacquard, 3 Willson, Civ. Cas. Ct. App. § 141, that the,statute conferring jurisdiction on county courts in condemnation proceedings was authorized by section 22 of article 5 of the Constitution, empowering the Legislature “by local or general law, to increase, diminish or change the civil and criminal jurisdiction of County Courts.” This decision has had express approval of the Supreme Court in Southern Kansas Ry. Co. v. Vance, 104 Tex. 90, 133 S. W. 1043, and Gulf Coast Irr. Co. v. Gary, 118 Tex. 469, 14 S.W.(2d) 266, 271.

This jurisdiction has been exercised by the county court from the earliest times, and whenever questioned its constitutionality has always been upheld. Its validity is not an open question.

We do not think there is merit in appellants’ further contention that the Legislature has not conferred upop the county court jurisdiction to condemn the fee because article 7S07a, § 3, confers jurisdiction by reference to title 52, R. S., which specifically excludes any procedure with reference to the acquisition of the fee-simple title. Article 3270 of that title provides: “Except where otherwise expressly provided by law, the right secured or to be secured to any corporation or other plaintiff in this State, in the manner provided by this law, shall not be só construed as to include the fee simple estate in lands, either public or private.”1 This language clearly contemplates condemnation of the fee by the procedure in this title, where, as in the instant case, it is “expressly .provided by law.”

By their first proposition appellants assert generally the uneonstitutionality of the act in so far as it authorizes condemnation of the fee.

It is not entirely clear from the brief whether they contend that such power could not be granted by the Legislature in any case.

Eminent domain, or the power to take private property for public use, is an inherent and inalienable attribute of sovereignty. Its delegation to the Legislature is implied from the general grant of legislative power; requires no express authority; and constitutional provisions touching it are generally regarded as limitations upon the legislative authority. See 20 O. J. p. 513, § 1; 10 R. O. L. p. 11, § 9; Lewis on Eminent Domain (3d Ed.) vol. 1, pp. 20, 21, §§ 9 and 10.

This power extends to every species of property and every character of right, title, or interest therein, including the fee to realty. Authority upon this subject is abundant and uniform. 20 G. J. p. 1221, § 582; Lewis on Eminent Domain (3d Ed.) vol. II, p. 743, § 411.

Although there have been in this state ⅝ number of legislative acts authorizing condemning the fee, their constitutionality in this regard appears never to have been brought in question. The first of these acts was that passed in 1901 under which the Galveston sea wall was constructed (chapter 12, p. 23, General Laws 1st Galled Session 27th Leg., 1901). Section 3 of that act empowered the county commissioners and city authorities “to take the fee simple estate to the land condemned or acquired hereunder, whenever deemed necessary for the purposes of this act.” Proceedings under the act were upheld in Johnston v. Galveston County (Tex. Civ. App.) 85 S. W. 511, but its constitutionality on the ground under discussion does not appear to have been raised.

Appellants’ contentions, as we gather them from the brief and argument, may be reduced tp two propositions:

1. The fee is not essential to the public uses for which the property is taken under the statute, in that an easement would be sufficient to all such uses, and therefore condemnation of the fee amounts to a taking of private property, not for public, but for private use, and violates the last clause of article 1, § 17, of the Constitution, (Bill of Rights) reading: “All privileges and franchises granted by the Legislature, or created under its authority shall be subject to the control thereof.”

2. The discretion which the act vests in the district to determine whether the fee or only an easement be taken is a legislative function which can not be thus delegated.

It is true that the power of eminent domain is limited to the uses of the taking, and that no more property, either in amount or in interest or estate, than is required for such use may be acquired. 10 R. C. L. pp. 88-90, § 78. But the function of determining this question of requirement or necessity is generally held to be a legislative (political power) and not a judicial one, and subject to review by the courts only where there has been a palpable abuse of authority. 20 C. J. pp. 624-626, § 111.

Appellants cite in this connection the following quotation from Gulf Coast Irrigation Co. v. Gary, above: “In a condemnation proceeding by an irrigation company, under the laws of this state, the irrigation company does not take a fee-simple title to the land condemned, but merely takes an easement that carries no greater dominion by the irrigation company than is proper and needful to carry out the purposes for which the land is taken. The principle .upon which such companies are allowed to exercise the right of eminent domain is not that they may do what they please with the land condemned," but that they may do what is reasonably needful to carry out the purposes for which the land is taken. Anything beyond this is not the taking of private property for public use, but the taking of private property for private use.”

The question there had nothing to do with the power- of the Legislature to grant the right to cpndemn the fee; the statute 'under consideration did not authorize its condemnation ; and the quoted language of the learned judge who wrote the opinion, when read in the light of the subject under consideration, is not'' susceptible of the construction which appellants seek to place upon it. The decision is not authority for their ’contention here under consideration.

The following quotation from Sweet v. Buffalo, N. Y. & P. R. Co., 79 N. Y. 293, epitomizes the-generally accepted view upon this subject: “When the statute authorizes the taking of a fee it cannot be held invalid, or that an easement only was acquired by proceedings thereunder, on" the ground that in the judgment of the court the taking of an easement only would accomplish the public purpose which the Legislature had in view. That. is a legislative and not a judicial question.”

The grant of power to water improve-' ment district, to condemn the fee to rear és-tate necessary to the construction of permanent public works, including the erection of ' large dams impounding great bodies of water ’ in lakes and reservoirs which permanently ' inundate large tracts of land, cannot be properly classed as a legislative abuse*subject to : judicial review. The importance. of the pur- ' pose for which such districts -are formed was f emphasized by the fact that the general legis-'' lative grant under which they are created was ‘ the subject of a specific amendment to the Constitution (section 59 of article 16). This amendment declares those districts to be “governmental agencies and bodies politic and cor--' porate with such powers of government and with the authority to exercise such rights, privileges and functions concerning the subject matter of this amendment as bray be con-' ferred by law.”

Passing to the second proposition,'the f language just quoted we believe is ah express ; grant to the Legislature to delegate to such ‘ districts the power to determine whether, and as to what lands, the fee or an easement ‘ should be taken.

But aside from this we think the proposition not well taken. -There is no difference in principle, we think, between the power to determine what property- is necessary to be taken and the power to determine what title or estate is necessary to be taken. That the Legislature may lawfully delegate to other instrumentalities, even to private corporations, the former of these powers is generally recognized. Crary v. Port Arthur Channel Co., 92 Tex. 275, 47 S. W 967; Van Valkenburg v. Ford (Tex. Civ. App.) 207 S W. 405; Pecos & N. T. Ry. Co. v. Malone (Tex. Civ. App.) 190 S. W. 809; 20 C. J. p. 626, § 112; 10 R. C. L. p. 183, § 158.

The statutes of a number of states delegate to corporations or other legislative agencies the power to determine whether the fee' or only an easement be taken. These statutes have been upheld wherever brought in question.

By several propositions appellants contend that there was no necessity for taking the fee to the several parcels covered by the decree. The only lands as to which the fee was taken, were those below spillway level and the island tract. The latter would be permanently isolated from all other lands of appellants, and its use would necessarily bo reduced to narrow limits. The grounds upon which the district claimed the fee to the island necessary, were that its location in the reservoir rendered it essential for policing purposes, and its natural beauty and location would make it desirable for summer residences, and its use as such would result in pollution of the waters of the reservoir. The action of the district in determining that it was necessary to take the fee to the specified areas is only subject to judicial review in ease of palpable abuse. No abuse was shown in this case. Crary v. Port Arthur Channel Co., above.

While it was proved that the governing board of the district had determined the necessity for condemnation of the fee, there was no pleading to that effect, and this omission is urged as error. Condemnation is a statutory proceeding, a special procedure for which is prescribed. R. S. title 52 (article 3264 et seq.). Appellee’s petition contains every allegation required by this procedure (R.. ;S. art. 3264),. and it is therefore not subject to the objection urged. Gulf, C. & S. F. Ry. Co. v. Ft. Worth & R. G. Ry. Co., 86 Tex. 540, 26 S. W. 54. This holding disposes of propositions 12, 13, 14, and 15.

Appellants complain of recitations in the court’s charge to the effect that appellee alleged and proved that the directors had determined that the fee was necessary. As already stated, the proof was made but the al-' legation was not. The recitation as to the pleading, though erroneous, had no material bearing on the case, in no way affected any issue submitted to the jury, and was therefore harmless.

' In addition to the fee, as stated, appellee was awarded every right of every character which appellants had in the permanently submerged land, preventing them from making any use of said land, or from going on, in, through, or upon said waters for any purpose whatsoever, and from making any use of the waters of the reservoir at any level, except to use the water for live stock and domestic purposes.

■ This portion of the decree is assailed on the ground that it deprives appellants of riparian rights attaching to the use of the remainder of their lands, which rights constitute an interest in land and.cannot be taken by condemnation. • ...

That such rights constitute property and an interest in land is well settled. The right of eminent domain, however, as above stated, extends to every species of and every interest in property. See McGhee Irrigation Ditch Co. v. Hudson, 85 Tex. 592, 22 S. W. 398.

The remaining propositions complain of the charge on the measure of damages.

In each instance where this issue was submitted the jury were asked to find the “market value,” the definition of which was given as follows: “In determining the market value of the property all the uses to which it máy be applied, and to which it may be adapted are to be considered. And in this connection you are instructed that the market value of property is the price which it will bring in cash when offered for sale by one who desires to sell, but is not obliged to sell, and is bought or purchased by one who desires to purchase it, but is under no necessity of doing so.”

This measure of damages and definition of “market value” accord with the generally accepted measure and definition in condemnation eases. 10 R. O. L. p. 12S, § 112; 20 O. J. p. 727, § 187. The' rule in this state is not otherwise. This is conceded by appellants.' They contend, however, that our statute (R. S. art. 3265, subd. 2) prescribing such measure is a limitation on the constitutional requirement for “adequate compensation.” To quote from their brief: “The contention is that ‘Market Value,’ as used in the charge is not adequate compensation as expressed in the constitution, section 17, art. 1.” No authority is cited for this proposition. Constitutional provisions of other states and of the federal government use the same or similar language; and the above general rules have been followed in interpreting such language. No adequate reason for departing from the general rule has, in our opinion, been advanced by appellants.

The remaining objection to the charge is in the use of “in cash” in the quoted definition. While the particular question does not appear to have been often raised, we find the expressions “market value,” “fair market value,” “cash market value,” and “fair cash market value” used synonymously throughout the reports. See Baucum v. Arkansas Power & Bight Co., 15 S.W.(2d) 399; State v. Woodward, 208 Ala. 31, 93 So. 826, 827; from the latter of which we quote: “‘Cash’ is the antonym of ‘credit.’ * » « The phrase ‘actual cash value’ is practically synonymous with ‘fair cash value’ [and means] the price it [property] will bring in a -fair market. * * * A sale on credit would ⅜ '* * have a tendency ‘to increase the number of bidders and to enhance the price.’ And that enhancement would vary ad infinitum according to the minitude of the cash payment and the magnitude and duration of the credit.”

The trial court’s judgment is affirmed.

Affirmed.

BAUGH, J., not sitting.

Correction of Opinion.

McClendon, c. j.

In referring to Revised Statutes, article 7S80 — 132 (a), as amended in 1929, we followed the citation of said article on page 46 of appellants’ brief. Appellee calls our attention to the fact that this article relates to water control and improvement districts and not to water improvement districts created under chapter 2, title 128, R. S. 1925. The latter are governed by reference in the particular at issue by the provisions of title 52, R. S. 1925, which provides that the commissioners shall be “disinterested freeholders of said county.” The same interpretation should be given this language as we gave to that of R. S. art. 7880 — 132 (a), in our original opinion.

Supplemental Opinion.

Upon our holdings regarding jurisdiction of the county court and the power of the Legislature to authorize condemnation of the fee, we cite additionally Houston Independent School District v. Reader (Tex. Civ. App.) 38 S.W.(2d) 610, an opinioñ by the Galveston court published after our origifaal opinion was handed down.


author: LESLIE, J.

text:
    ADAMS v. STEPHENS COUNTY.
    No. 826.
    Court of Civil Appeals of Texas. Eastland.
    July 10, 1931.
    Rehearing Denied Sept. 18, 1931.
    T. B. Ridgell, of Breckenridge, and Luther Nickels, of Dallas, for appellant.
    S. J. Osborne and Robert E. Bowers, both of Breckenridge, for appellee.
    Ritchie & Ritchie, of Mineral Wells, for Strawn Nat. Bank.
   LESLIE, J.

In this case George T. Adams sued Stephens county, alleging that he, as the duly elected tax collector of Stephens county for the years 1921, 1922, 1923, and 1924, collected state and county taxes and by mistake paid to the county $3,389.46 by way of excess fees more than he was due to pay the county for the year of 1921, and that such payment included the sum of $488.50 of his commissions earned in the collection of delinquent taxes, and that by virtue of like mistake he paid into the county for the year of 1922 his commissions for the collection of delinquent taxes amounting to $1,175, all of which it is alleged Stephens County refused to return to him.

Stephens county entered general and special denials, and presented a cross-action against Adams; seeking to cancel a certain warrant in the sum of $5,900.03 issued to him pursuant to an order of the commissioners’ court made December 31,1929, and purporting to be in full settlement with Adams for all claims made by him against the county as arising during his tenure of office. This warrant had been duly registered and for a valuable consideration transferred to the Strawn National Bank, who owned it at the time the suit was filed. Por that reason the county in its cross-action made said bank a party to the suit, and also sought cancellation of the order authorizing the warrant against it.

The county attacked the validity of the order and the warrant on the grounds: (1) That Stephens county did not owe Adams anything at the time of the entry of the order and the issuance of the warrant; (2) that no provision: was made' for the payment of the warrant at the time of its ordering; (3) that the claim by Adams was made and acted upon by the county at a time when both parties knew that the county owed Adams nothing. In other words, it was the county’s view that the order and the warrant were, under the circumstances, void.

Adams and the Strawn National Bank allege that the order of the commissioners’ court directing the issuance of the warrant was res adjudicata of the matters of the existence of the indebtedness to Adams and the amount thereof, and that the county’s efforts to cancel the warrant and order amounted to a forbidden collateral attack upon the same.

The trial was before the court without a jury, and resulted in a judgment denying Adams any recovery, but canceling the warrant and allowing the bank recovery over against Adams for the sum of $5,944, the principal amount paid by the bank for the warrant and the interest thereon. Adams and the bank each duly excepted and gave notice of appeal, but Adams alone has perfected the appeal, and the bank accepts the judgment.

The appellant’s major assignments and ■propositions attack the judgment as being erroneous on the ground that the county’s cross-action seeking to cancel the warrant was an unauthorized collateral attack on the order or judgment of the commissioners’ court approving- the claim and ordering the warrant.

These contentions will be examined in the light of the record, and the facts given a little more extensively.

By plaintiff’s pleadings and proof it conclusively appears that the subject-matter of the suit, the objects of recovery (the $8,389.46 excess fees and the items of $488.50 and $1,-175, alleged to be fees for the collection of delinquent taxes during 1921 and 1922, respectively) passed into and became part of the claims which Adams contends he presented to the commissioners’ court, that were considered by it, and which it undertook to adjust and settle by the issuance of the warrant for $5,900.03, pursuant to the court’s order to that effect. In support of this conclusion we give the following excerpt from the plaintiff’s pleadings, a part of which we italicize:

' “This plaintiff insists that the item of $4&8.50, commissions on collection of delwv-quent taxes for the year 1921, and also the sum of $1175.00, commissions on delinquent taxes for the year 1922, were both included, and considered in a certain voucher for $5900.03, which voucher was dated about Dec. 31st, 192.9, and was payable to tMs plaintiff (Adams) but is now owned by the co-defendant, the Btrawn 'National Bank, who is seeking judgment for said $5900.03 voucher aforesaid. But, if mistaken, that said two items are not included in said voucher aforesaid, and which plaintiff first insists was done, but in the alternative should his only reason be found and held that said commissions on delinquent taxes are not included in the vouch-. er, and if for any reason the same should not be established as a part of said voucher and judgment thereon rendered, then in the alternative only plaintiff insists that he have judgment in this suit for said two items — one for $488.50 which would, therefore, in that event, be included in the claim of $3389.46; and in addition judgment for $1175.00, being the commission aforesaid for the year-1922.
“This last above prayer for judgment for said commission for said two years is strictly an alternative prayer and relief, the plaintiff insisting that the said two items were included and adjudicated and are part of the said $5900.03, and that the Btrawn National Bank is entitled to recover that sum by reason of its ownership of voucher and the additional sums represented by said voucher.”

The plaintiff then follows this with a concluding prayer for judgment for the $3,389.46 with interest, etc., and again in the alternative for the $488.50 and $1,175 with interest; said items alleged to be commissions on delinquent taxes for 1921 and 1922, respectively.

It will also be observed that Adams’ testimony supports his first and primary plea, as above indicated.

About November 25, 1929, the plaintiff Adams presented to the county auditor and the commissioners’ court of Stephens county a claim against the county for excess fees amounting to $5,900.03. The claim was presented in writing and as follows: “Stephens County, debtor, to Geo. T. Adams in the sum of $5900.03 for excess payments to the County Treasurer for said county for the years 1923 and 1924, said payments being erroneously made through mistake under the belief that all county officers of Stephens County were under the Eee system, when in fact they were not under said system,' G. T. Adams, Ex-Tax Collector of Stephens County, Texas.”

Thereafter on the 31st day of December, 1929, said court entered an order allowing the claim, directed the issuance and delivery of a warrant to Adams, payable from the general revenues the following April 1, 1930. It was of the tenor following:

“No. 1919 $5900.03
“State of Texas
“Do Not Cash This Warrant
“The Treasurer of the County of Stephens
“Min. Book 8, page 205. Check will be issued by County Treasurer at maturity of warrant. To be paid April 30th, 1930, at the office of the County Treasurer.
<IT, m . , f bearer the sum “Pay to Geo. T. Adams ori (_order of Five Thousand Nine Hundred and 03/100 Dollars Out of the General Fund, being the amount allowed by the Commissioners’ Court of said County at its December Term, 1929.
“For full and final settlement of all excess fees of office paid to Stephens County during Mr. Adams’ tenure of office as Tax Collector.
“Witness my hand and seal of said court at Breclcenridge, Texas, this 31 day of December, 1929. B. R. Grant, County Clerk.
. “Approved: E. R. Maxwell, County Auditor.”

The plaintiff, Adams, indorsed thereon the following:

“I accept this warrant in full payment of all claims against Stephens County for the years 1923 and 1924 as my claim calls for, which is on file with E. R. Maxwell, the Auditor. G. T. Adams.”

As stated, he thereafter transferred and indorsed it to said bank, and the commissioners’ court, at its next regular meeting, countermanded the original order, and directed the cancellation of the warrant.

From the testimony it conclusively appears that the excess fees for 1921, amounting to $3,389.43, and those for 1922, amounting to $5,900.03, were paid into the county treasury of Stephens county. The law as it then existed required such payment. Section 4, Ch. 15S, p. 301, Acts of 1919; Stephens County v. Hefner, 118 Tex. 397, 16 S.W.(2d) 804.

During such years the tax collector and other officers of Stephens county, which had- a population of less than 25,000 inhabitants, came under the maximum fee bill, and that condition existed until the Legislature in 1923, chapter 181, p. 397, re-enacted a former statute, thereby exempting from the maximum fee bill the officers in a county so populated, and allowing them to retain such excess fees. Neither of the above sums could possibly form the basis for a warrant, or refund of moneys to Adams.

In 1923 and 1924 Adams paid no amount whatever into Stephens county. He was aware of the law as amended, and availed himself of its provisions by retaining what had formerly been paid in as excess fees.

Therefore, giving due effect to Adams’ contention that all claims in his favor against Stephens county arising during his tenure of office were considered by the commissioners’ court and included in said warrant, and assuming that said claims, without regard to their different natures (inclusive of the $488.50 and $1,175), passed into and were merged in the sum allowed and for which the warrant was issued, as so vigorously contended for by Adams, both in his testimony and his pleadings (as italicized above), it necessarily follows that, having conveyed the warrant to the bank, the only interest which he has in this litigation lies in resisting the county’s asserted right to cancel the warrant, which, if decreed, would leave him subject to a judgment in favor of the bank. In this situation' the issues simplify themselves. The county, by its cross-action against Adams and the bank, makes a direct attack on the validity of the commissioners’ "court order approving the claim and authorizing the warrant in satisfaction thereof. Under this character of attack and the conclusive nature of the testimony, the county was clearly entitled to a cancellation of the warrant. The payment to the county of excess fees in 1921 and 1922 was required by law and but the performance of an official duty. Though presenting a claim for such fees for 1923 and 1924, the law did not require Adams to pay such to the county, and in obedience to its provisions he paid none. On cross-examination he admitted as much. Under these views the appellant’s propositions noted above are without merit, and the contentions that a forbidden collateral attack was being made upon a final judgment of a court of competent jurisdiction is beside the question, as may be seen from the opinion of our Supreme Court by Chief Justice Phillips in Haverbekken v. Hale, County Judge et al., 109 Tex. 106, 204 S. W. 1162, 1165.

That was a preliminary injunction proceeding, instituted by Haverbekken to restrain the commissioners’ court from opening a second-class road across his land. The injunction was upon the ground that the act of the commissioners in ordering the opening of the road was void because, among other reasons, proceedings in respect to the number of freeholders petitioning for the road and the notice given on the petition did not comply with the statutes. A question arose as to the authority of the district court to entertain jurisdiction and supervise the proceedings of the commissioners’ court in the matter. In discussing the supervisory powers of the district court over commissioners’ courts, and holding the same may be exercised through its equitable jurisdiction, the court said: “The Constitution (Section 8, Article 5), as well as the' statute (Article 1706 [now Article 1908, R. S. 1925]), gives,the District Court general supervisory control over the Commissioners’ Court. That this supervisory control may be exercised through its equitable jurisdiction is well established. Bourgeois v. Mills, 60 Tex. 76; Bounds v. Kirven, 63 Tex. 159; McIntire v. Lucker, 77 Tex. 259, 13 S. W. 1027. The power of the District Court to supervise the proceedings of the Commissioners’ Court here involved gave the injunction suit the character of a direct attack 'upon those proceedings rather than a collateral one. Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325. This permitted a full inquiry for the purpose of seeing whether throughout the proceedings the Court had complied with the law, unhindered by any presumptions ordinarily indulged in a collateral attack upon a judgment of a court of general jurisdiction. Not otherwise could the District Court supervise and control its action.”

Article 2351, R. S., 1925, enumerates certain powers and duties of commissioners’ courts, among them the third being, “Lay out and establish, change and discontinue public roads and highways.” The tenth of such powers is that involved in the instant case, “Audit and settle all accounts against the county and direct their payment.”

Under the above opinion the supervisory powers of the district court over the acts of the commissioners’ court could not be more certain with reference to roads than to auditing and settling accounts. The authority from which the above excerpt is taken, under the facts of this case, is conclusive as to the right of the county to cancel the order and warrant in question.

However, if it be conceded that the attack on the order and warrant is collateral, nevertheless we would be required to hold that they were subject to such an attack on the ground that the commissioners’ court had no jurisdiction or authority in law to enter the order or authorize the warrant. The commissioners’ court of Stephens county judicially knew [Cameron County v. Fox, 2 S.W.(2d) 433], and Adams was presumed to know, and did in fact know, as disclosed by the testimony, that the law required him to pay the excess fees for 1921 and 1922 into the county. Said court, under duties imposed by the statute (articles 7260, 7261, 1925), had passed upon the reports of Adams as tax collector for the years 1921 and 1922, and it was a matter of record, knowledge of which was imputable to the court at the time they attempted to allow Adams’ claim, that said sum or sums were paid under the requirements of law.

Nothing having been paid in 1923 and 1924, which Adams admits, there was nothing to act on. There was nothing to act upon in either case, and any attempt to authorize the warrant or the payment thereof, under such circumstances, amounted to nothing less than an attempt to donate or give away that much of the county’s public revenues to one who had not the semblance of a legitimate claim thereto. Such would be a diversion of funds, and the law does not permit a diversion of the funds of a county by the commissioners’ court from those purposes which the statute declares they shall be applied to, and there was no provision in law whereby the commissioners’ court could have transferred to the plaintiff the funds to which he laid claim in this suit. Hence, as in substance held in the Cameron County Case, we here hold that the warrant in question and the order authorizing it were without lawful authority and void.

When the appellant presented his purported claim to the commissioners’ court, it was in the same attitude as if it had shown on its face that the excess fees paid into the county treasury for the years 1921 and 1922 were rightfully paid under the law, and could not be refunded to him by the commissioners’ court, and that the claim for excess fees alleged to have been paid for 1923 and 1924 were neither in fact paid by Adams nor required to be paid by the law as amended. The record affirmatively showing that the commissioners’ court was without jurisdiction, its action in approving the appellant’s claim was wholly void, hence subject to collateral attack, and the same is true of the warrant issued pursuant thereto. Other authorities in effect requiring the same conclusions under such facts are: Steusoff v. Liberty County (Tex. Civ. App.) 34 S.W.(2d) 643; School Trustees, Dist. No. 25, Harris County v. Farmer, County Treasurer, et al., 23 Tex. Civ. App. 39, 56 S. W. 555; Slaughter v. Knight (Tex. Civ. App.) 184 S. W. 539; McKinney et al. v. Robinson, 84 Tex. 489, 19 S. W. 699; Baldwin v. Travis County, 40 Tex. Civ. App. 149, 88 S. W. 480; Austin Bridge Co. v. Road Dist. No. 3 (Tex. Civ. App.) 247 S. W. 674; Jeff Davis County v. Davis (Tex. Civ. App.) 192 S. W. 291.

Before passing from this phase of the opinion, attention is called to the fact that the excess fees paid in for 1922 amounted to the exact sum for which the plaintiff made his claim for 1923 and 1924. This circumstance is but k coincidence, and apparently the warrant was not allowed for the excess fees paid in for the year of 1922.

In a manner somewhat confused and difficult to understand, an alternative plea is presented by the plaintiff, and thereby he seems to seek recovery of an item of $488 and another of $1,175, alleged to be commissions earned by him as such official on account of his services rendered in the collection of delinquent taxes of Stephens county. The recovery is claimed only in the event of the cancellation of the warrant (admitted by him to embrace these two items), and only in the event of his inability to collect anything on the theory of excess fees paid by mistake, and also admitted to be included in the warrant.

Passing over the question of whether Adams ever presented a claim for such clelinquent tax commissions, it appears that he and the county, by their pleadings and proof, drew a well-defined issue on whether or not he had ever paid any such commissions at all to the county treasurer, either by accident or otherwise. The testimony on this issue was very fully developed. It appears that Adams, in making payments to the county from month to month, regularly deducted 5 per cent, on all delinquent taxes collected and “retained” said commission. His theory, however, is that he later included them, along with the moneys turned in as excess fees. Disregarding the inconsistencies arising out of such claims, and looking to the testimony, we find an abundance of testimony to the effect that, for the years of 1921 and 1922 he retained more delinquent tax commissions than he was apparently entitled to, and he failed to demonstrate by the records or otherwise that the claims he made against the county embraced these commissions, along with excess fees. This he certainly could have done if his records and reports had truly reflected the items paid by him into the county. The trial court resolved the issue against him, and there is an abundance of testimony to support the conclusion in this respect, as well as on all other issues of fact. We would therefore not be warranted in disturbing the judgment on these grounds.

Other propositions and assignments become immaterial.

The judgment is affirmed.


author: DUNKLIN, J.-

text:
    SHELL v. HARDIN et al.
    No. 12538.
    Court of Civil Appeals of Texas. Fort Worth.
    July 18, 1931.
    Bonner, Bonner & Childress, of Wichita Falls, for plaintiff in error.
    Mathis & Caldwell and T. R. Boone, all of Wichita Falls, for defendants in error.
   DUNKLIN, J.-

On March 1, 1928, B. W. Owens, joined by his wife, sold and conveyed to Emory Morgan lots 1 to 8, inclusive, in block 116, in the city of Wichita Falls. The consideration for the conveyance as recited in the deed was $23,500, of which amount $3,500 was paid in cash and the balance was evidenced by four vendor’s lien notes of $5,000 each, bearing interest at the rate of 7 per cent, per annum, payable respectively on or before one, two, three, and four years after date. A vendor’s lien was expressly reserved in the deed to secure the payment of the notes.

On December 26, 1926, Emory Morgan conveyed the property to the Morgan Lumber Company. The consideration for that conveyance was $23,500; $3,500 in cash and the assumption of the four vendor’s lien notes that Emory Morgan had theretofore executed to B. W. Owens, which notes were specifically described, with the recitation that they drew interest from date at the rate of 7 per cent, per annum. The notes were numbered 3 and 4, being those two of the vendor’s lien notes which matured last and which were duly transferred and assigned by B. W.' Owens to J. G. Hardin; the assignment being in writing and indorsed on the back of the notes, also including an assignment of the vendor’s lien given to secure their payment and a guaranty by Owens that the same would be paid according to their tenor and effect.

The Morgan Lumber Company was indebted to the O. D. Shamburger Lumber Company and other lumber dealers in Wichita Falls, and C. D. Shamburger as a representative of those creditors entered into negotiations with Emory Morgan looking to a purchase of the buildings owned by the Morgan Lumber Company situated on the ground covered by the vendor’s lien notes and office buildings, lumber sheds, and other structures used in the conduct of the business of the Morgan Lumber Company, for the purpose of liquidating the debts so owing by the Morgan Lumber Company. In order to get the consent of Hardin, the holder of the notes, to the sale of the buildings on the lots and to the removal thereof, Shamburger agreed with Hardin to guarantee the payment of the notes, arid as an evidence of his agreement made this indorsement on each of the notes: “For .Value received, the receipt of which is hereby acknowledged, T hereby guarantee the payment of this note, with interest, when the same becomes due, same being extended to. August 1,1930, and to bear 8 per cent, interest after March 1, 1930.”

On August 2, 1929, Emory Morgan and Chester Morgan, composing the partnership firm of the Morgan Lumber Company, ex' ecuted a bill of sale to all the sheds and office buildings owned by the Morgan Lumber Company situated on the lots described above, The consideration recited in that bill of sale was “the sum of $2,645.83 to us in hand paid by C. D. Shamburger Lumber Company, Inc., a .corporation, the receipt for which is hereby acknowledged.”

The bill of sale contained these further stipulations:

“It is understood that this bill of sale will not be completed and shall not be considered binding upon the parties hereto until said Emory Morgan, Chester Morgan shall have fully complied with the bulk sales law, and this bill of sale is accepted by said, C. D. Shamburger Lumber Company, Inc., subject to the Morgan Lumber Company complying with the bulk sales law in every respect, it lieing understood that no part of the consideration to be paid by C. D. Shamburger' Lumber Company, Inc., shall be paid until this bill of sale is fully complied with and the bulk sales law is fully complied with in every particular.
“It being understood that this bill of sale duly signed by the owners of said Morgan Lumber Company shall be placed in the City National Bank of Wichita Palls, Texas, together with the full consideration to be paid by said C. D. Shamburger Lumber Company, Inc., to said Morgan Lumber Company for said sheds and office buildings, and said money and said bill of sale shall remain in said bank until the Morgan Lumber Company has fully complied with the bulk sales law, then and in that event said bill of sale shall become absolute. And we do hereby bind ourselves, our heirs, executors, administrators and assigns, to forever warrant and defend the title to the said property unto the said C. D. Shamburger Lumber Company, Inc., a corporation, its successors, executors, administrators and assigns, against every person whomsoever lawfully claiming, or to claim the same, or any part thereof.
“Purchaser shall have ninety days from the date of this instrument within which to remove said property above described from the premises.”

The consideration so mentioned, together with the bill of sale, was placed in the City National Bank of Wichita Palls in accordance with the agreement so made.

The Morgan Lumber Company then went into bankruptcy and Temple. Shell was appointed trustee in bankruptcy.

This suit was instituted by J. G. Hardin against Emory Morgan, C. D. Shamburger, the C. D. Shamburger Lumber Company, Inc., Temple Shell, the trustee in bankruptcy, and the City National Bank of Wichita Falls to recover the balance due on the two vendor’s lien notes above described, and also to foreclose the vendor’s lien on the lots for which those notes were given as part of the purchase money, and on the money realized from the sale of the buildings.

The defendant Emory Morgan filed a plea of non est factum, based upon allegations that without his consent the notes had been materially altered by the guaranty indorsed thereon and signed by Shamburger, which increased the rate of interest from 7 per cent, to 8 per cent, after March 1,1030; the notes as originally executed bearing interest at the rate of 7 per cent. only. It was further alleged that such change of rate of interest had never been ratified by him, and the plea of non est factum was duly verified by Emory Morgan. C. D. Shamburger and the C. D. Shamburger Lumber Company also filed an answer in which they admitted possession of the $2,-645.80 which had been collected for itself and other lumber companies in Wichita Palls to be paid to the Morgan Lumber Company for the improvements which had been bought and removed from the lots in controversy; that before the money was paid over to the Morgan Lumber Company the trustee in bankruptcy served notice on it that the trustee held a lien upon the lots, sheds, and other buildings which had been removed therefrom and demanded payment to him of the money, so realized from the sale. In his answer C. D. Shamburger admitted the execution of the guaranty indorsed on the notes, but prayed that in the event of a judgment against him the money so derived from the sale of the improvements be first applied to the amount due on the notes and that judgment against him be limited to the balance remaining unpaid ; and further that the lots upon which plaintiff claimed a vendor’s lien should be first sold under foreclosure and the proceeds applied on plaintiff’s debt before any execution should issue against him.

Temple Shell, trustee, adopted the plea of non est factum filed by Emory Morgan and challenged the plaintiff’s right to a foreclosure of the liens prayed for, by reason of the change in the interest rate in the guaranty.

The trustee further alleged that Emory and Chester Morgan had been induced to execute the bill of sale' to the C. D. Sham-burger Lumber Company upon representations made by C. D. Shamburger of the following facts:

Shamburger proposed a purchase from Morgan of the improvements on the lots for and in behalf of the Shamburger Lumber Company and several other lumber companies in the same city who were creditors of the Morgan Lumber Company; the Morgan Lumber Company being then unable to pay those debts. Morgan consented to make the sale for a consideration of $4,150, which offer was accepted by Shamburger for and in behalf of himself and the other creditors, and at the same time Shamburger promised to procure subscriptions from the several creditors of the respective amounts they would contribute towards the raising of the price of $4,150 agreed on. Thereafter Shamburger reported that the full price named had been subscribed by the various creditors and had •been paid in to Shamburger for the benefit of the Morgan Lumber Company; that relying upon that assurance, Emory Morgan and Chester Morgan executed the bill of sale to the Shamburger Lumber Company, but would not have done so but for the representations so made by Shamburger that the full sum of $4,150 had been paid for the improvements and was then held by Shamburger as a trust fund for the Morgan Lumber Company; that the bill of sale was executed, relying upon those representations and believing that Shamburger then held and haa on hand as trustee the full sum of $4,150. Based upon an allegation of those facts, Temple Shell, the trustee, prayed for a recovery over against O. D. Shamburger Lumber Company for the sum of $1,402.20, the balance of the $4,150, the agreed price for the improvements over and above the $2,645 deposited by Shamburger in the bank.

There was a further prayer for judgment for the sum of $1,300, which the evidence showed was realized from a sale of the buildings by Shamburger after he had bought them from the Morgan Lumber Company.

The bank was discharged on its disclaimer, and judgment was rendered in favor of the plaintiff for the balance due on, the notes against Emory Morgan and O. D. Shamburger and for a foreclosure of the vendor’s lien on the lots in controversy, and on the money held by Shamburger as the proceeds of the sale of the buildings as against all the defendants, with a further decree that the amount so realized from the sale of the buildings should be first applied to the judgment and before the sale of the lots, and that the lots be sold under foreclosure for the payment of the balance. From that judgment Temple Shell, the trustee, has prosecuted this appeal.

The principal contention presented by appellant is that the acceptance by the plaintiff of the guaranty of Shamburger indorsed on the back of the notes, increasing the rate of interest from 7 per cent, to 8 per cent, from and after the date stated, was a material alteration in the notes which rendereu them unenforceable against the maker, Emory Morgan, and that therefore there could be no foreclosure of the vendor’s lien in plaintiff’s suit which is based on those notes. Many authorities are cited in support of that contention, such as article 5939, § 125, Rev. Oiv. Statutes; Kalteyer v. Mitchell (Tex. Civ. App.) 110 S. W. 462; Id., 102 Tex. 390, 117 S. W. 792, 132 Am. St. Rep. 889; Baldwin v. Haskell Natl. Bank, 104 Tex. 122, 133 S. W. 864, 134 S. W. 1178; Otto v. Halff, 89 Tex. 384, 34 S. W. 910, 59 Am. St. Rep. 56; Caldwell Natl. Bank v. Reep (Tex. Civ. App.) 188 S. W. 507 (writ refused); Meade v. Sandidge, 9 Tex. Civ. App. 360, 30 S. W. 245 (writ refused); State Bank v. Williams (Tex. Civ. App.) 277 S. W. 773; Commercial Credit Co. v. Giles (Tex. Civ. App.) 207 S. W. 596; Metropolitan National Bank v. Vanderpool (Tex. Civ. App.) 192 S. W. 589; Citizens’ Natl. Bank v. Campbell (Tex. Civ. App.) 6 S.W(2d) 799; Clifton Mercantile Co. v. Gillaspie (Tex. Com. App.) 15 S.W.(2d) 607; 2 Corpus Juris, 1173.

There is no doubt that under those authorities an unauthorized change of interest rate of a promissory note would be a material change which would invalidate the note as against the maker if the same was made without his authority or consent or ratification. But the controlling inquiry in this suit is whether or not the contract of the maker with the payee of the notes has been changed or altered by the guaranty indorsed thereon. It will be noted that the guaranty contract of Shamburger was with the holder of the notes and to which Emory Morgan did not in any sense become a party. And it cannot be said that he was bound thereby, or that his contract to pay the notes was in any manner altered or changed. 1-Iis contract remained the same, and the guaranty of Shambui’ger had no more effect, to change or alter that contract by reason of it being indorsed on the notes than would have resulted if the guaranty had been made by a separate instrument of writing.

.The facts involved in this case are different from those in the decisions cited above, which, therefore, are not controlling here. And we have reached the conclusion that the guaranty indorsed upop, the notes in controversy was not a material alteration or change in the obligation of the maker to pay them according to their legal tenor and effect, and therefore the assignments of error now under discussion are overruled.

We believe that the following authorities sustain this conclusion: Hutches v. J. I. Case Threshing Machine Co. (Tex. Civ. App.) 35 S. W. 60 (writ refused); Clem v. Chapman (Tex. Civ. App.) 262 S. W. 168 (writ refused); Strehlow v. Planinger, 198 Wis. 525, 224 N. W. 742; Reed v. Culp, 63 Kan. 595, 66 P. 616; Joyce on Defenses to Commercial Paper, vol. 1, p. 385, § 311; 2 Corpus Juris, 1213.

The following is quoted from Joyce on Defenses to Commercial Paper, cited above: “The fact that the name of another is affixed to an instrument as surety subsequent to the signing of the same by the maker, a principal debtor, will not, it is held, release the latter from liability, as it does not increase or diminish his liability, he being liable for the whole debt in any event. So where the name of a guarantor is added it has been declared that it ‘is not a material alteration and does not release those primarily bound. It does not in any way change or affect their rights.- It is an independent.contract made with a, third party, to which the consent of the obligors is unnecessary. Their liability is neither increased nor diminished by the addition of the name of the guarantor, and he has no right of contribution or exoneration. The rights of the obligors are -no more affected by the guaranty placed on the note than they would be by a guaranty placed on a separate instrument.’ And the addition of a name as surety, subsequent to the signing by the original surety, has been construed as an immaterial -alteration, so far as the liability of the latter is affected. So it has been said that such a signing for a new consideration constitutes a new and independent contract to which the consent of the original promisor is not required.”

Two other propositions in appellant’s brief read as follows:

“(3) The trial court erred in rendering judgment for defendant in error, J. G. Hardin, for the sum of $2,645.00, because the un-contradicted evidence shows that the fund was not deposited by Shamburger et al. in escrow in the bank as the purchase price of the lumber sheds removed from the mortgaged premises, but only for the privilege of demolishing them and thus disabling Morgan Lumber Company from further engaging in the lumber business in the City of Wichita Ealls in accordance with a price agreement between Shamburger, Shamburger Company, Morgan Company and other lumber dealers.”
“(4) The trial court erred in refusing to render judgment for plaintiff in error against defendants in error, Shamburger and Sham-burger Company, for the sum of $4,150.00, because the uncontradicted evidence shows that said sum was subscribed by various lumber dealers to be paid to said defendants in error for the benefit of plaintiffs in error, all of which sum was to be subscribed and paid before any of the lumber sheds were demolished, and they became personally liable for the $1,402.00 remaining unpaid as the balance of the $4,150.00 agreed upon.”

We believe that the testimony introduced in connection with the bill of sale was sufficient, to say the least, to sustain the implied finding by the trial court that the transaction between the Morgan Lumber Company and the Shamburger Lumber Company, relative to the buildings on the lots, was an unconditional bona fide sale of those buildings to the latter company, and that the $2,645, now held by C. D. Shamburger, as trustee, and which was subjected to plaintiff’s debt by the judgment rendered, was the full consideration agreed on, after crediting thereon the debts owing by the Morgan Lumber Company to the Shamburger Lumber Company and its associates who distributed the cash paid. Accordingly, both the assignments last referred to are overruled.

For the reasons stated, all assignments of error are overruled, and the judgment is affirmed.


author: FUNDERBURK, J.

text:
    FAULKNER et al. v. BABER et al.
    No. 873.
    Court of Civil Appeals of Texas. Eastland.
    July 3, 1931.

    Rehearing Denied Sept. 18, 1931.

      Oxford & McMillan, of Stephenville, and J. G. Harrell, of Breckenridge, for appellants.
    J. R. Stubblefield, of Eastland, for appel-lees.
   FUNDERBURK, J.

Mary B. Baber, joined by her husband, brought this suit for recovery of a 200-acre tract of land in Stephens county, and to cancel a mineral deed to 640 acres of land of which the 200-aere tract was a part, and also to cancel an agreement for the sharing of the proceeds of minerals from said 640-acre tract and other lands. The defendants are R. E. Faulkner and G. F. Faulkner, brothers of plaintiff, Mary B. Baber, and C. M. Faulkner and W. E. Faulkner,, nephews — the children of a deceased brother, Daniel Faulkner. Mrs. Mar-zee Faulkner, Velma Jones, joined by her husband, O. H. Jones, Verda Mae Faulkner, Willie D. Jones, joined by her husband, A. U. Jones, Pauline Hancock, joined by her husband, H. T. Hancock, Clara Faulkner, Leila Faulkner, and Henrietta Faulkner (the last three minors acting by and through their guardian, Mrs. Marzee Faulkner), Mrs. Para-lee Moore, joined by her husband, J. B. Moore, and R. J. Moore made themselves parties by intervention, praying that plaintiffs be granted the relief claimed by them. Upon a special verdict of a jury judgment was rendered for the plaintiffs awarding the relief prayed for, from which the defendants have appealed.

Of date September 9, 1916, F. B. Faulkner, then the owner of lands in Stephens and Erath counties, prepared, signed, and acknowledged separate deeds to each of -five children, and another deed to two grandchildren, purporting to convey to them different tracts of the land. The deed to Mary B. Ba-ber, one of the children, contained recitals as follows: “And the further consideration that the grantee herein, Mary B. Baber, is to take, (receive and accept) the 200 acres of land hereinafter described as her share of her inheritance in her mother’s and my estate; her mother, Rachel Faulkner, being now deceased. And in consideration of the said Mary B. Baber accepting this as her part of said estate, also the further consideration that I, (her father) am to have the free use and benefit of the land hereinafter described and"conveyed for and during my natural lifetime without yielding or paying anything therefor, all such rights of use and benefit to cease at the death of the grantor herein and said tract of land herein conveyed to pass in fee simple to said Mary B. Baber, (my daughter.)” Provisions of like effect were in each of the other five deeds. Previously to the date of said deeds, the children of F. B. Faulkner had deeded to him the homestead tract of land in Erath county, in which they inherited the community interest of their mother. This old homestead tract was the one purported to be conveyed by F. B. Faulkner to Newt Faulkner by one of the six deeds above mentioned. Said deeds were kept in the possession of F. B. Faulkner, the grantor, until about April 24, 1924, at which time, he having refused a request of Henry P. Faulkner to have the deed to him delivered, the latter, under pretext of looking at the deeds, surreptitiously extracted them from the private bank box of F. B. Faulkner, wherein they were kept and sent all the deeds to the county clerks of the counties in which the lands were situated, for record. Two brothers, R. E. Faulkner and G. F. Faulkner, defendants herein, were witnesses to the fact that Henry Faulkner took the deeds without the knowledge of F. B. Faulkner. When the latter, on the same day, was informed by G. F. Faulkner that the deeds had been taken and sent for record, he ordered the recall of the deeds and expressed his unwillingness for them to be recorded, assigning as a reason therefor that he might want to sell the land. All parties who had knowledge of the taking of the deeds and of the recall of the same from the county clerks, unless possibly Henry Faulkner, supposed that they had béen returned without having been recorded. The deeds sent to the county clerk of Erath county were returned not recorded, but the three deeds, sent to Stephens county, including the one naming Mary B. Baber as grantee, were recorded. Henry P. Faulkner died in March, 1925, and the deeds to the Stephens county property were in his box of private papers at that time. F. B. Faulkner died on November 12,1925, the other deeds being at that time in his private box.

In 1918, F. B. Faulkner executed an oil and gas lease on the south half of the 640 acres in Stephens county, part of which is in controversy herein, for $9,600 and divided the money with the children. The children did not join in the lease.

On March 1,1920, F. B. Faulkner, by a deed of that date, conveyed to I-I. P. Faulkner, R. E. Faulkner, G. F. Faulkner, Mrs. Mary B. Baber, and Mrs. Paralee A. Moore, each a one-fifth undivided interest in the oil, gas, and other minerals in 640 acres of land in Stephens county, which included the 200-acre tract herein sued for by plaintiffs. That mineral deed was duly recorded November 5, 1920. By instrument of the same date (i. e., March 1, 1920), the several grantees in said mineral deed executed a general power of attorney to G. E. Faulkner to convey or lease the minerals. This power of attorney, by express recitation, referred to the land as that “in which We each have an undivided one-fifth interest by virtue of a mineral deed from F. B. Faulkner, our father, of even date with this instrument.”

A few days after the death of F. B. Faulkner, all the grantees in the several mentioned deeds, except Henry P. Faulkner, Wylie N. Faulkner, and Daniel Faulkner, met to settle up the estate. Daniel Faulkner and Henry P. Faulkner being dead, their heirs were present. Newt Faulkner had died, leaving no heirs other than the parties to this suit. At that meeting the several deeds (other than the deed to Newt Faulkner) were accepted by the grantees named therein or their heirs. The deeds which had previously never been recorded were thereupon filed for record. Most, if not all, of the grantors, or their heirs, had in fact been in possession of the land long pri- or to the death of F. B. Faulkner.

Plaintiffs, by their pleading, sought: (1) Recovery of the 200-acre tract of land upon the theory that title was conveyed from F. B. Faulkner to Mary B. Baber by the deed dated September 9,1916, which deed had be.en delivered during the lifetime of the grantor and prior to March 1, 1920, the date of the execution of the mineral deed; (2) cancellation of said mineral deed of March 1,1920, on the ground that the execution thereof by F. B. Faulkner was procured by the fraud of R. E. and G. F. Faulkner, and was void for that reason and because at the time of the execution of said mineral deed, F. B. Faulkner had theretofore parted with his interest in the land by reason of the deeds aforesaid; (3) cancellation of the mineral agreement of November 16, 1925, on two grounds, namely, first, coercion and duress on the part of R. E. and G. F. Faulkner inducing the execution thereof by plaintiffs and the interveners, and, second, the grantors who were married women did not appear before a 'notary public for the, purpose of acknowledging same, and did not acknowledge same, by reason whereof the 200 acres being the separate property and homestead of Mrs. Baber, such instrument was void. The verdict of the jury and judgment of the court sustained all of these contentions.

It is first insisted by appellants that the court erred in admitting in evidence as proof of title the deed dated September 9, 1916, from F. B. Faulkner to Mary B. Baber, over their objection that there was no evidence to show that same had ever been delivered. It seems to be the contention of appellants that, they having specially alleged that said deed was never delivered, there was thereby cast upon appellees the burden of proving such delivery as a prerequisite to the admissibility of the deed in evidence. There is thus presented an interesting question, not settled by any of the authorities cited in the briefs, which we find it unnecessary to determine, since practically the whole question is controlled by our conclusions in reference to appellants’ proposition under tlieir twenty-seventh assignment of error, hereinafter stated. If there was evidence td raise an issue for the jury as to the delivery of the deed, the error of the court, if it was error, in admitting the deed in evidence before such evidence of delivery was introduced, would be wholly harmless.

By their proposition under the twenty-seventh assignment of error it is contended by appellants that the court erred in submitting as an issue to the jury the question whether it was the purpose and intention of F. B. Faulkner to deliver said deed to Mary B. Baber himself or by others for the purpose of passing title to her, over the objection that the uneontroverted evidence showed that said deed was never delivered so as to become effective as a conveyance of the land. We find it necessary to consider only whether there was any evidence to raise an issue for the jury concerning the fact of delivery prior to March 1, 1920, when the mineral deed of that date was executed. If, up to that' time, • there had been no delivery of the deed, then, for want of legal interest in the subject-matter, plaintiffs showed no right to a cancellation of said mineral deed.

Since there can be no contention that there was any direct evidence of a delivery of the deed, it is necessary to consider what facts or circumstances, if any, exist from which the fact of delivery may be inferred. It is undisputed that about September 9, 1916, F. B. Faulkner made, signed, and acknowledged the deed. It is equally undisputed that the manual possession of same was retained by him up to about April 24, 1924. There is no testimony that he ever gave any direction to or made any request of any other person regarding the delivery of the deed.

Mrs. Baber testified that about Christmas, 1919, she, her husband, and family moved onto the place. This was in response to the direction or advice of her father, F. B. Faulkner, as follows: “‘You had better move out on your place; you are not doing any good, and you better move out there and improve it the way you want it and try to get a start; just settle down and be still and a, living will grow around you.’ He told me to tell John (Herring, the tenant on the place) to move off the place so I could move on * * * have been living on that place ever since, and claimed it as our homestead. * * » Daddy told me to move on it and improve it. * * ⅜ When we moved back on the land we improved it by building two good tanks on the place. My father often visited me during his lifetime. * * * He sure did know that I was in possession of the property. * * * He told us to go ahead and fix it up because it was ours. * * * When I first found out that my father had made these deeds was in 1916; my brother told me about it; he came out there and told me about it.”

She further testified that she lived on the place five years, 1904 to 1909, when the place certainly belonged to her father, and that they paid no rent on it. “I did not sign a lease on the place and my husband did not sign it. My father signed a lease on the land and signed it alone. * * * He got nine thousand, and six hundred dollars for the lease * * ’* that was in 1918. Then in 1920 there was a contract for a lease but that lease was not made. He made a mineral deed. * * * Jake, G. E. Faulkner, brought over a power of attorney to lease the land and me and my husband signed it. Tes, we claimed an interest in the land in 1920. I claimed two hundred acres in it; sure I did. My father had deeded it to me before then, hut ho was to have the control of it. (italics ours.) * * * At the time he got the first lease money he kept part of it, and gave us children a thousand dollars. * * * We did not pay the taxes in 1919, 1920, 1921 and 1922 nor 1923. We did pay the taxes for 1924 * * * after father died * * * in 1925. * * * • Hone of us children paid taxes on our places. * * * Tes, Jake visited my house about between the first and fifth of March, 1920; he was there when he brought that power of attorney there. ⅜ * * I signed it and acknowledged it 4 * * in 1915. X think, we signed this deed back to Daddy for the old home place. We sent that deed to Daddy. * * * This deed was for the tract of land that had never been divided * * * that was the property conveyed to my dead brother * * * part of the property conveyed by these six deeds * * * Newt’s deed, he got the old home place.”

Questioned as to why, after the heirs had in 1915 conveyed the home place to F. B. Faulkner,.he thereafter in 1916 deeded it to Newt Faulkner, she said: “I will tell you why; * * * Daddy said he wanted to divide his land and couldn’t do it unless we deeded the place back to him; because it was part of Mother’s estate; he wanted to divide the land among his children; that is why we signed the deed. That land is still undivided and we own an interest because Newt died without heirs except brothers and sisters.”

W. A. Baber testified: “I learned of the fact that in 1916 F. B. Faulkner * * * made several deeds to his different children and grandchildren for respective tracts of land. * * * . I first learned about it when Wylie Faulkner came out to stay with us. * * * iphat was Hght away after the deeds were made. F. B. Faulkner did not make any statement directly to me about go- < ing into possession of this land, only he told me to go over there and stay on the place and improve it just as we wanted to. * * * He told me which piece of land Mrs. Moore should have, and my wife and Mrs. Faulkner, —Henry is dead. I was talking about making an irrigation tank. ⅝ * * I did not commence on the tank until after Mr. Faulkner’s death. If I remember right, when we were talking about it down there and surveying for this tank * * * was in 1920. * * * It was in 1916 or 1917, something like that when my father-in-law, F. B. Faulkner was with me and we stepped off the land in order to locate the place where I would put the tank. * * * At that time I was not living on the 200 acres where I am living now,, and which we claim. * * * I did not pay • him any rent after we went on the place in 1919. I never paid any taxes on the land until after his death.”

Charlie Cook testified that in 1919 he asked F. B. Faulkner for a loan, which being refused, the latter gave as a reason: “I haven’t got it. I have got my business fixed so my children won’t have a lawsuit over it after 1 am gone.”

Mrs. Paralee Moore, the eldest daughter of F. B. Faulkner, testified: “I heard about the fact that my father had made me a deed to' this 240 acres and had made Henry Fauikner and all the children various deeds. My father told me that he had divided his lands and had made the deeds. He said: T have got my land all divided up. The deeds are made and in the hamlc.' That was all he told me. That was in 1919, sitting on the porch down in Erath County. ⅜ * * I did not ask him whether he had divided it up equally or not. * * * • I was willing to take what he gave me. * * * He just told me incidentally that he had made deeds dividing up his lands among the children and that he had the deeds in the bank. He did not tell me that he was going to get the deed and deliver it to me. He didn’t say. * * * I have testified that I didn’t know what part of the land or estate was supposed to be deeded to me.”

' John Herring testified as to a conversation with F. B. Faulkner at a time when the former was a tenant, in which the latter said, “Herring, you will have to move,” “And I said, ‘What for, Uncle Frank?’ He said ⅞ * * he had given part of the place to Mrs. Baber.”

It is believed that if there was any evidence of facts or circumstances to show a delivery of the deed in question prior to March 1,1920, it is comprehended in the foregoing, omitting only mere repetitions which add nothing thereto. Does same constitute any evidence of delivery? To properly ap. praise or interpret this testimony it should be considered in tbe light of the admitted or conclusively proven facts. They are, briefly, that in 1948, about two years after the deeds were made, P. B. Faulkner executed a lease of the land as though he were sole owner; he retained a part of the proceeds and gave each of the children $1,000. March 1, 1920, he conveyed to each of five children an undivided ohe-fifth interest in the oil, gas, and other minerals in the land. At the same time all the grantees executed a power of attorney which expressly recited the making of the said mineral deed. At said time and for four years thereafter all said six deeds dated September 9, 1916, remained in the possession and under the control of the said F. B. Faulkner. No statement or act of the latter was shown by any of the testimony indicating an intent to part with the control of said deeds. On the contrary, when in 1924 they were, without his knowledge, taken from his box by Henry B. Faulkner upon the pretext of looking at them, and sent away for record, he promptly protested, and ordered the recall of the deeds, stating that if he had wanted them recorded he would have had them recorded, and that he might want to sell the land. The transaction by which the deeds were at that time procured by Henry B. Faulkner and filed for record; while its details are mainly dependent upon the testimony of the defendants, is so fully corroborated by disinterested testimony and by record facts, that we think same may be regarded as conclusively proven. One of the interveners corroborated such facts. F. B. Faulkner’s widow testified that just after learning that the deeds, without his knowledge had been sent for record, he said, “I am going to get my deeds and put them in the bank and let them, stay there.” All of the testimony as to statements or acts tending to show the grantor’s intention as to the delivery of the deeds repels the inference of a purpose to give them immediate effect as conveyances. It was necessary that there have existed an intention to deliver the deeds and that there be acts tending to show an execution of that intention. Hubbard v. Cox, 76 Tex. 239, 13 S. W. 170. As said by 'the Supreme Court in Steffian v. Milmo Nat. Bank, 69 Tex. 513, 6 S. W. 823, 824: “To complete a delivery in its legal sense, two elements are also essential. The instrument must not only be placed within the control of the grantee, but this must be done by the grantor with the intention that it shall become operative as a conveyance.” Cox v. Payne, 107 Tex. 115, 174 S. W. 817. “It is essential to a valid delivery that there be some act or declaration from which an intention to deliver may be inferred.” 18 C. J. 198.

We think the undisputed evidence shows that up to March 1, 1920, there had been no delivery of the deed. What was said by the Supreme Court in McLaughlin v. McManigle, 63 Tex. 553, is very applicable to this: “The deed being found in the grantor’s possession was a circumstance tending, unexplained, to negative the fact of delivery to the grantee. It was a fact consistent with the grantor’s having made the same in anticipation of a future delivery of it, accordingly as circumstances might require or incline him, but which had never been carried into effect.”

In the present situation there is added the indisputable acts of ownership by F. B. Faulkner while the deeds were in his possession, and all the facts and circumstances relied upon to show delivery are just as consistent with the other and different "purpose so well stated in the foregoing quotation.

The next contention of the appellants that we shall notice is that there was no evidence of fraud upon the part of R. E. and G. F. Faulkner inducing the execution by F. B. Faulkner on March 1, 1920, of said mineral deed. We have read carefully the statement of facts, and the only evidence which it seems to us could be claimed to raise such an issue of fraud is: (1) The parties accused were beneficiaries of the transaction ; (2) they lived with or near the grantor and knew of the making of the mineral deed; and (3) four years later they acquiesced in the conduct of a brother of such a nature that it may be inferred that they were morally capable of committing the fraud charged in the particular transaction. The fact of the fraud alleged cannot, we think, be legitimately thus inferred. It cannot be established solely as an inference from the facts of interest, opportunity to commit it, and the fact that on some other and different occasion and at a different time the persons accused of the fraud connived at a fraud equally reprehensible as that charged.

Besides, the whole claim of fraud as invalidating the mineral deed presupposed the ownership by plaintiffs of all the minerals. Our conclusion that there was no delivery of the deed to Mrs. Baber, as already said, has the effect to show that plaintiffs, because of the lack of legal interest in the subject-matter, have no cause of complaint in this respect. We are forced to the conclusion that the court erred in submitting to the jury the question of fraud in procuring the execution of the mineral deed, but that that question should have been treated as one of law.

The issues relative to the mineral agreement dated November 10, 1925, are rendered not of controlling importance because of the disposition of the appeal made necessary by what has already been said. It is perhaps advisable, however, to express our views as to same in view of another trial. Those issues, it may be said, from the standpoint of appellees, are predicated upon the two other issues hereinbefore determined against them, namely, the delivery of the deed of September 9, 1916, and fraud inducing the execution of the mineral deed of March 1,1920.

We have not undertaken to pass upon and ■determine whether the undisputed evidence shows that there was no delivery of the deeds of September 9, 1916, after the death of F. B. Faulkner or at some time before his death, but subsequent to March 1, 1920. It is not deemed necessary to do so, in order properly to dispose of the appeal, and the question is so close that we are unwilling to foreclose it now. It is only deemed material to show the real character of the transaction transpiring a few days after the death of F. B. Faulkner in which the various parties accepted the old deeds and executed the agreement as to sharing the minerals in all the.lands.

Whether the deeds were in fact conveyances of title from the grantor to the several grantees, or whether because of their never having been delivered they only served the purpose in a partition of the estate of F. B. Faulkner by oral agreement to mark and describe the boundaries and identify the several tracts of land, has an important bearing on the effect of a cancellation of the mineral agreement. If the transaction was a partition of a common estate vested in F. B. Faulkner’s heirs, then a cancellation of said agreement, which was a material consideration upon which such partition was made, would not result in the reinvestiture in any one of any title or right in the estate. It would simply dissolve the partition and the whole estate would be subject to a repartition. Walling v. Harendt (Tex. Civ. App.) 37 S.W.(2d) 280. On the other hand, if the deeds vested title directly in the grantees, a cancellation of the mineral agreement would have the effect of restoring to certain of the parties, including the defendants R. E. and G. F. Faulkner, one-fifth of the minerals in the Stephens county lands instead of the proceeds from one-sixth in all the lands, and would deprive defendants O. M. and W. E. Faulkner of any interest in minerals except in the land included in their deed. At the same time such cancellation would have the effect of depriving the plaintiffs and inter-veners of any interest in the minerals in the lands of the defendants R. E. and G. F. Faulkner.

We are inclined to the view that plaintiff’s petition, at least in the absence of special exception, was sufficient to admit evidence that the plaintiff Mrs. Baber did not appear before the notary public for the purpose of acknowledging the mineral agreement and did not acknowledge same. There was also, we think, some evidence supporting such allegation. Where a married woman, whose acknowledgment of an instrument is essential to its due execution, does not appear before the officer certifying to such acknowledgment for the purpose of acknowledging it, she may impeach such certificate, though regular in form. Ward v. Weaver (Tex. Com. App.) 34 S.W.(2d) 1093; Robertson v. Vernon (Tex. Com. App.) 12 S.W.(2d) 991; Wheelock v. Cavitt, 91 Tex. 679, 45 S. W. 796, 66 Am. St. Rep. 920; Lummus v. Alma State Bank (Tex. Civ. App.) 4 S.W.(2d) 195; Yaseen v. Green (Tex. Civ. App.) 140 S. W. 824.

The fact of an appearance or not before the officer for the purpose of acknowledging, when disputed, is an issue for the jury.

We are also of opinion that there was error, as complained of, in the submission of the issue of duress and coercion. The basis of the issue of duress and coercion as made by the pleadings was a threat to tear up the deed. In addition to the submission of that issue, there was also one submitted not made by the pleadings, namely, a threat to withhold such deed. This could be treated as immaterial but for the fact that in special issue No. 7, which was necessary to make the finding as to a threat to destroy the deed effective, the jury were asked to find whether or not Mary B. Baber was induced to sign the agreement by means of a threat to destroy “or withhold from Mary B. Baber,” the deed, etc. It is apparent that the issue was not only duplicitous as urged by appellants, but' the affirmative answer of the jury may have been solely upon a finding that the threat to withhold the deed induced the signing of the instrument, an issue not made by the pleadings. In other words, the jury may have found as they did, and at the same time have been of opinion that the threat to destroy the deed did not induce the signing of the mineral agreement ■—the only basis in the pleading upon which plaintiffs claimed to be coerced.

Because of the errors mentioned, it is our opinion that the judgment of . the court should be reversed and the cause remanded, and it is accordingly so ordered.