author:
FANNING, Justice.
      DAVIS, Justice

text:
    Annie McKEE, a Widow, et al., Appellants, v. C. W. DOUGLAS and Jesse O. Douglas, Appellees.
    No. 7415.
    Court of Civil Appeals of Texas. Texarkana
    Nov. 20, 1962.
    Rehearing Denied Dee. 18, 1962.

      Hollie McClain, Fulton & McClain, Gil-mer, W. D. Brown, Quitman, for appellants.
    Grover Sellers, Sulphur Springs, Turner, Rodgers, Winn, Scurlock & Terry, Dallas, for appellees.
   FANNING, Justice.

This suit involves title to one-fourth of the mineral royalty interest under a 38i/-> acre tract of land in Wood County, Texas. This tract was owned by I. A. McKee as his separate property, he having acquired it about six years prior to his marriage to Mrs. Annie McKee, one of the appellants in this cause. In a warranty deed, dated December 30, 1946, signed by I. A. McKee and wife, Annie McKee, the 38½ acre tract was conveyed to C. W. Douglas and Jesse O. Douglas, the appellees herein. Contained in said deed was the following paragraph :

“The grantors herein as a further consideration herein do hereby reserve unto themselves, an undivided ⅛⅛ interest in and to all the royalty on all oil, gas and other minerals produced from said land described herein, together with the right of ingress and egress, with the understanding that the grantees herein shall have the right to lease said land for oil, gas and other minerals and collect the bonus or bonuses and all delay rentals under any such lease. Which interest shall be non-participating.
“It is understood that ½ of the royalty has heretofore been sold to G. D. Greer and this deed is made subject to said sale.”

On September 16, 1947, about 8½ months after execution and delivery of the warranty deed above referred to, I. A. McKee executed and delivered to C. W. Douglas and son, Jesse Douglas, the following quoted instrument, referred to as “affidavit” :

' “I. A. McKEE TO THE PUBLIC
Affidavit
Dated: September 16th, 1947
Filed: September 16th, 1947
Recorded: Vol. 302, pg. 449 Deed Records, Wood County, Texas
#33718 AFFIDAVIT
‘ “THE STATE OF TEXAS 1 * “COUNTY OF WOOD J
‘ “Before me, the undersigned authority, a Notary Public in and for Wood County, Texas, on this day personally appeared I. A. McKee, who after being duly sworn did depose and say:
‘ “That he is the same I. A. McKee, Grantor in deed dated Dec. 30, 1946, to C. W. Douglas and Jesse O. Douglas, said deed being recorded in Vol. 289, page 322, Deed Records, Wood County, Texas, in which deed said I. A. McKee reserved 1/4 interest in all royalty on oil, gas and other minerals in and under 38½ acres of the Oscar Engledow Survey in Wood County, Texas. That subsequent to the filing of said deed Affiant and Grantees in said deed have reached an agreement whereby the said I. A. McKee and wife, Annie McKee relinquish any and all claims to any part of the royalty, as described in said deed, and hereby declare the same to be the property of C. W. and Jesse O. Douglas, Grantees in said deed, and authorize the holder or holders of lease or leases on said land to pay the same to the said C. W. and Jesse O. Douglas, in full.
‘ “I. A. McKee
1 “Subscribed and sworn to before me this 16th day of September, A. D. 1947.
‘ “C. C. Ferguson
(seal) ‘ “Notary Public in and for Wood County, Texas.” ’

Plaintiffs-appellants went to trial on their First Amended Original Petition, wherein they pleaded a count of trespass to try title, and alternatively pleaded that a mutual mistake was made in the instrument styled “affidavit” by all parties to said instrument alleging that the mistake was that instead of stating in said instrument that “the said I. A. McKee and Annie McKee relinquish any and all claims to any part of the royalty, as described in said deed * * * that the instrument should have read * * * relinquish any right or any and all claims to the rental payments.” Plaintiffs-appellants in this connection also pleaded “that in truth and in fact, the plaintiff, Annie McKee’s husband, and the defendants herein were mistaken and unaware of the language used in the instrument.” Plaintiffs-appellants, among other things, also pleaded alternatively that if the affidavit should be construed as a conveyance that the court should find that a constructive trust arose at the time of transfer, and that the defendants held the said interest in trust for plaintiffs.

Defendants responded to plaintiffs pleadings by pleading “not guilty”, a general denial and specifically pleaded the four year statute of limitation.

The trial court granted the motion of defendants for an instructed verdict and rendered a take nothing judgment against the plaintiffs. Plaintiffs-appellants have appealed.

We hold that as a matter of law that Defendants’ Exhibit No. 1, styled “Affidavit”, and quoted above, was an instrument which conveyed title to the one-fourth royalty in the 38½ acre tract in question from I. A. McKee to C. W. Douglas and Jesse O. Douglas. See the following authorities : Richardson v. Levi, 67 Tex. 359, 3 S.W. 444; Threadgill v. Bickerstaff, 87 Tex. 520, 29 S.W. 757; Young v. Rudd, Tex.Civ.App., 226 S.W.2d 469, wr.ref., n.r.e.

In Richardson v. Levi, supra, it is stated:

“A release may be used to convey a title to one who has no previous right in land, and is in most states equivalent to the word ‘quitclaim.’ ”

In Threadgill v. Bickerstaff, supra, it is stated:

“The transfer of this deed by Baker to Seaborn Bickerstaff, with the clause, ‘hereby relinquish unto the said Sea-born Bickerstaff all the privileges thereunto belonging,’ conveyed to the latter all the right of Hiram Baker in the land.”

In Young v. Rudd, supra, it is stated:

“No particular form is required in this state to convey title to land. Leal v. Leal, Tex.Civ.App., 4 S.W.2d 985, affirmed by the Supreme Court in [Tex.Com.App.], 14 S.W.2d 797; Baker v. Wescott, 73 Tex. 129, 11 S.W. 157. In Harlowe v. Hudgins, 84 Tex. 107, 19 S.W. 364, 365, it is said: ‘No precise technical words are required to be used in creating a conveyance. The use of any words which amount to a; present contract of bargain and sale is all sufficient. Whatever may be the' inaccuracy of expression or the inaptness of the words used in an instrument, in a legal view, if the intention to pass the title can be discovered, the courts will give effect to it, and construe the words accordingly.’ ”

Therefore appellants’ fourth point is overruled and appellees’ counterpoint two in reply thereto is sustained.

We further hold that under this record plaintiffs-appellants’ alternative plea seeking to avoid the effect of the “affidavit” or quit-claim deed’ (Defendants’ Exhibit 1) by virtue of an alleged mutual mistake was barred by Art. 5529, Vernon’s Ann.Civ.St, the four year statute of limitation. See the following authorities: Hogan v. Price, Tex.Civ.App., 274 S.W.2d 745, 746, wr. ref. n.r.e.; La Neve v. Hinkson, Tex.Civ.App., 271 S.W.2d 467, wr. ref., n.r.e.; Hutchins v. Birdsong, Tex.Civ.App., 258 S.W.2d 218, wr. ref., n.r.e.; Kahanek v. Kahanek, Tex.Civ.App., 192 S.W.2d 174.

In Hogan v. Price, supra, it is stated:

“Applicable to the disposition of this limitation plea, sustained by the learned trial court, is the rule stated • in Kahanek v. Kahanek, Tex.Civ.App.; 192 S.W.2d 174, 176, with authorities there collated, namely: ‘It is also settled that a distinction has been written into our Texas law under that statute, based upon whether the party seeking to correct the mistake is the grantor or the grantee; the rule being that if such actor be the grantor, then he is charged, as a matter of law, with knowledge of the contents of his deed from the date of its execution, and limitation begins to run against his action to correct it from that date.’ See also Hutchins v. Birdsong, Tex.Civ.App., 258 S.W.2d 218. As the sole heirs and devisees of Hogan, the appellants stand in his shoes in the application of this rule.” (Emphasis added.)

In La Neve v. Hinkson, supra, it is stated:

“As a general proposition, one who executes an instrument is charged with knowledge of its contents and limitations begin to run from the time of its execution and one who acquires title to land by a deed is charged with notice of all instruments included in his chain of title, and the statute of limitation begins to run from the time he acquired title. Kennedy v. Brown, Tex.Civ.App., 113 S.W.2d 1018; Kahanek v. Kahanek, Tex.Civ.App., 192 S.W.2d 174. It is also well settled, however, that where the grantee, in an instrument in which land was included by mutual mistake of the parties, had said or done anything which would lull the grantor to sleep, limitation will not begin to run against the grantor until he discovers, or should have discovered, the mistake. Hutchins v. Birdsong, Tex.Civ.App., 258 S.W.2d 218, 222 (RNRE).”
* * * * * *
st * * * Appellant has failed to show that she was lulled to sleep by the lessee in the questioned oil and gas lease, or by anyone representing him. If the fact of being misled by the joint lessors Hinkson and Dalton should be held to excuse appellant from discovering the alleged mistake, she has also failed to make such showing concerning them. She has failed to bring herself within the exception of the rule in the case of Hutchins v. Birdsong, supra, so as to prevent the running of the statute of limitation.”

Also in order to reform a deed for mutual mistake, the mistake must have been made by all parties to the instrument, 36 Tex.Jur., 746, 747; Tunnell v. Neill, Tex.Civ.App., 33 S.W.2d 530, it being the law that a unilateral mistake is not ground for affording relief to the party who was mistaken wherein the other party in no way induced it (36 Tex.Jur. p. 750), with the complaining party or parties not relying upon fraud or relying upon acts of the opposing party in “lulling the complaining party or parties to sleep” before the limitation period expired.

It was on December 30, 1946, when I. A. McKee executed the deed to the Doug-lases in which the one-fourth royalty interest was reserved or excepted from the grant. Mrs. McKee joined as a grantor in that instrument, the property however being the separate property of her husband, I. A. McKee.

Also it is undisputed from evidence in the record that this tract constituted no part of the homestead of I. A. McKee and wife Annie McKee. Their homestead was a 65 acre tract upon which they lived about 12 or 14 miles from the 38½ acre tract. The undisputed evidence shows that the 38½ acres had been rented out and had never been used at any time as a part of the homestead. In this connection see Vaughn v. Vaughn, Tex.Civ.App., 279 S.W.2d 427, wr. ref., n. r. e., and authorities cited therein.

The only way in which Mrs. McKee could have had any interest whatever in the property would have been for the subsequent quitclaim deed (affidavit) not to have been executed and delivered and for her to have inherited a portion of this royalty interest as an heir upon her husband’s death intestate. In such event she would have held as an heir of her husband and would have been charged with his knowledge of the affidavit or quitclaim deed executed on September 16, 1947, and would have stood in his shoes.

I. A. McKee died on November 28, 1957, more than ten years after the affidavit or quitclaim deed was executed by him and he never in his lifetime brought suit to set aside or reform such instrument. There is no evidence in the record that C. W. Douglas or Jesse Douglas were guilty of any fraudulent or unconscionable conduct in the securing of said quitclaim deed and there is no evidence tending to show that C. W. Douglas or Jesse Douglas ever did anything during I. A. McKee’s lifetime to “lull him to sleep” with respect to any mistake in the deed alleged to have been made. At the time of the death of I. A. McKee, under this record, any right he might have had for reformation of the affidavit or quitclaim deed was clearly already barred by the four year statute of limitation.

I. A. McKee died intestate. He had no children and had not adopted any children. His heirs at law were his wife, Annie McKee, and his brothers and sisters and children of a deceased brother, and such heirs are parties appellants to this suit.

The suit in the case at bar was not brought until August 7, 1960, by the heirs at law I. A. McKee, appellants herein. Appellants testified to the effect that they did not discover the affidavit until about July, 1960, that some of them and others had a conversation or conversations in July, 1960, with Mr. C. W. Douglas, wherein he told them to the effect that he was not claiming the one-fourth royalty in question and that he would execute a deed if his son, Jesse, would do so first and made other statements as shown in the record. However, there is no evidence that Jesse Douglas ever made the statements that appellants’ witnesses testified that his father made and Jesse Douglas refused to sign a deed to the McKees. Also the father C. W. Douglas never signed a deed to the McKees. As we view it, the statements testified by appellants’ witnesses to have been made by Mr. Douglas, in July, 1960, do not show any fraud or unconscionable conduct on the part of Mr. C. W. Douglas in connection with the securing of the quitclaim deed. Furthermore, at that time in July, 1960, the four year statute of limitation had already run against I. A. McKee, and neither of the Douglases had “lulled I. A. McKee to sleep” during McKee’s lifetime. Since the cause of action had long since been barred by the four year statute of limitation before I. A. McKee died, and before July, 1960, it can not be logically held that whatever Mr. Douglas may have said to the McKees or others in July, 1960, would have “lulled the appellants to sleep”, since they promptly brought their suit on August 7, 1960, long after the suit was barred.

Since plaintiffs-appellants herein are heirs at law of I. A. McKee, and since the suit was barred by the four year statute of limitation, long prior to Mr. McKee’s death, such heirs stand in I. A. McKee’s shoes and hence are barred by the four year statute of limitation to bring this suit.

The cases of Biggs v. Poling, Tex.Civ.App., 134 S.W.2d 801 wr. dism. judgm, cor., and McGowen v. Montgomery, Tex.Civ.App., 248 S.W.2d 789, cited by appellants, are not applicable to the case at bar because in those cases the title was shown to have been acquired in a wrongful or unconscientious manner and such is not the case in the case at bar here. Also the case of Miles v. Martin, 159 Tex. 336, 344, 321 S.W.2d 62, 70 is clearly distinguishable and is in no way applicable here, as under the facts in that case, the Supreme Court stated: “ * * * and the evidence showing that he was paid one-fourth of the delay rentals for about five years indicates that there may be an issue of fact * *

Appellants by their second point contend to the effect that the deed from I. A. McKee and Annie McKee, to the Douglases which reserved the ¼⅛ royalty interest passed title to Annie McKee in her own individual right and that she had never signed an instrument conveying the interest to appellees. .This point is clearly without merit under this record and is overruled. See the following authorities: Leidig et al. v. Hoopes, Old., 288 P.2d 402; Pruett et al. v. Burrow et al., Old., 291 P.2d 349; Art. 1288, Vernon’s Ann.Civ.St.

The 38½ acres was the separate property of I. A. McKee, it was not homestead, and Mrs. McKee had no character of interest or title in said tract. Her joinder in the conveyance to the Douglases was unnecessary. The reservation or exception of the royalty interest in the deed could inure only to the benefit of the owner, I. A. McKee. Such reservation or exception did not amount to a gift to Mrs. McKee of a portion of such excepted or reserved royalty interest. The only' way for I. A. McKee to have made a gift to Mrs. McKee of an interest in his separate property would have been by the execution of a deed. See Art. 1288, V.A.C.S. Also see 27 Tex.Jur.2d Gift, Sec. 30, wherein it is stated: “The only method of concurrently giving an estate in land and perfecting the gift is by a deed conveying the property to the donee.” Since I. A.' McKee never executed such a deed to Mrs. McKee she never acquired any interest in the royalty in question by gift or in any other manner under the facts in this case.

We hold that under this record the trial court correctly instructed a verdict in favor of defendants against plaintiffs. Appellants’ first point is overruled.

By their third point appellants contend that the trial court erred in not allowing appellants to swear to their petition and introducing testimony to show that no consideration was paid for the one-fourth royalty interest. Appellees counter this point stating to the effect that the request came to the trial court at a time after all parties had closed their case and rested, and after argument made on defendants’ motion for instructed verdict, and after the trial court had announced that he would sustain such motion and enter judgment for defendants, and contending that the trial court did not abuse his discretion in refusing such request, and contending further that the error, if any, was not reversible error.

It is well settled law in this state that consideration for a deed is not required. 14B Tex.Jur., p. 488, Sec. 5; Baxter v. Beaupre, Tex.Civ.App., 295 S.W.2d 718; Higgs v. Farmer, Tex.Civ.App., 234 S.W.2d 1021.

Even if the lack of consideration had been proven it would not have defeated appellees’ unquestioned right to an instructed verdict by reason of appellants’ cause of action being barred by the four year statute of limitation. Since the proof of no consideration would not have defeated appellees’ motion for instructed verdict on the four year statute of limitation matter, the failure of the trial court to allow the belated swearing to plaintiffs’ pleading so that evidence of “no consideration” for the quitclaim deed could have been introduced in evidence, would not constitute reversible error in any event under this record. See Barclay v. Falvey, Tex.Civ.App., 110 S.W.2d 791, wr. ref., wherein it was stated:

“But, had the court received all the testimony tendered by appellant, she would not have made out a case for the jury against appellees’ plea of four years’ limitation. She rested under the burden of going forward with her tender of evidence to the extent of showing not only the right of reformation, but also that this right was not barred by limitation. * * *. Had the court received all the testimony offered by appellant, and nothing more, appellees would have been entitled to their instructed verdict, because, as a matter of law, their plea of limitation would have been good. To complain of the exclusion of her proffered testimony, she was required to show injury, and she could show injury only by tendering testimony sufficient to toll the running of the statute of limitation, * * ⅜ »

The judgment of the trial court is affirmed.

DAVIS, Justice

(dissenting).

The following was written to be the opinion of the court. I file it, with alterations and some additions, as my dissent.

This is a trespass to try title suit with an alternative plea that in the event the trial court held that a certain affidavit executed by I. A. McKee, now deceased, to be an instrument of conveyance, then, and in the event the interest purportedly conveyed was mistakenly designated as a “royalty” interest; and, further in the alternative, that there was no consideration paid for the royalty interest and that the appellees never claimed the royalty interest; and, since the affidavit used the word “royalty”, that a constructive trust arose.

On December 30, 1946, I. A. McKee, now •deceased, and wife, Annie McKee, sold to appellees C. W. Douglas and Jesse O. Douglas 38(4 acres of land in Wood County, Texas, and reserved unto themselves an undivided one-fourth non-participating royalty in and to the tract of land. The reservation reads as follows:

“The grantors herein as a further consideration herein do hereby reserve unto themselves, an undivided 14th interest in and to all the royalty on all •oil, gas, and other minerals produced from said land described herein, together with the right of ingress and •egress, with the understanding that the grantees herein shall have the right to lease said land for oil, gas and other minerals and collect the bonus or bonuses and all delay rentals under any such lease. Which interest shall be non-participating.
“It is understood that (4 of the Royalty has heretofore been sold to G. D. Greer and this Deed is made subject to said sale.”

There was no proof as to whether or not the sale of the (4 royalty interest sold •to Greer was participating or non-participating.

The 38(4 acre tract of land was the separate property of I. A. McKee. The property was conveyed to I. A. McKee on October 25, 1930, prior to his marriage to Annie McKee.

On August 27, 1942, I. A. McKee and wife, Annie McKee, executed an oil, gas and mineral lease for a 10 year period. Prior to September 16, 1947, I. A. McKee and wife, Annie McKee, received a rental payment on the land under the oil and gas lease. The royalty reservation by the McKees, being non-participating, they cashed the check and delivered the money to C. W. and Jesse O. Douglas. I. A. McKee advised them that an instrument should be prepared so that in the future the rental payments would be sent directly to the Douglases. An affidavit 'was prepared by a scrivener — not a lawyer — and was signed by I. A. McKee before a notary public. The Affidavit reads as follows:

‘ “AFFIDAVIT
‘ “THE STATE OF TEXAS 1 ‘ “COUNTY OF WOOD j.
‘ “Before me, the undersigned authority, a Notary Public in arid for Wood County, Texas, on this day personally appeared I. A. McKee, who after being duly sworn did depose and say:
‘ “That he is the same I. A. McKee, Grantor in deed dated Dec. 30, 1946, to C. W. and Jessee 0. Douglas, said deed being recorded in Vol. 289, page 322, Deed Records, Wood County, Texas, in which deed said I. A. McKee reserved (4 interest in all royalty on oil, gas, and other minerals in and under 38(4 acres of the Oscar Engledow Survey in Wood County, Texas. That subsequent to the filing of said deed Affiant and Grantees in said deed have reached an agreement whereby the said L A. McKee and wife Annie McKee relinquish any and all claims to any part of the royalty, as described in said deed, and hereby declare the same to be the property of C. W. and Jesse? O. Douglas, Grantees in said deed, and authorize the holder or holders of lease or leases on said land to pay the same to the said C. W. and Jesse? O. Douglas, in full.
‘ “I. A. McKee
‘ “Subscribed and sworn to before me this 16th day of September, A. D. 1947,
‘“C. C. Ferguson
Notary Public in and for
Wood County, Texas.” ’

The McKees did not have or adopt any children. I. A. McKee died Nov. 28, 1957, intestate. The suit was filed by Annie McKee, a widow, Jack McKee, M. J. B. McKee, T. R. McKee, Keith McKee, Maggie Newsom, a widow, Juanita Bailey and husband, W. E. Bailey, Mary McKee Huffman and husband, W. F. Huffman, and Winnie Young, a widow, surviving brothers and sisters, and a niece and nephew of I. A. McKee, against C. W. Douglas and Jesse O. Douglas. The defendants answered by a plea of not guilty and specially plead' the statutes of limitations.

Trial of the case was to a jury, and upon completion of the evidence the trial court instructed the jury to return a verdict in favor of the defendants. Appellants bring forward four points of error. '

By.their point 1, appellants complain of the action of the trial court for instructing a verdict against the appellants. It is the duty of this court to review the record with all the evidence in the case that is relevant to the issues and consider them in the light most favorable to-the appellants, disregarding all conflicts and indulge in every intendment reasonably deducible from the evidence in favor of ;the appellants. City of Houston et al. v. Chapman, 132 Tex. 443, 123 S.W.2d 652; Anglin v. Cisco Mortg. Loan Co., 135 Tex. 188, 141 S.W.2d 935; Wellington Oil Co. of Delaware v. Maffi, 136 Tex. 201, 150 S.W.2d 60.

According to the evidence, Mrs. McKee went to see C. W. Douglas in July of 1960. She talked to him about the royalty interest, and he admitted to her that they had reserved one-fourth royalty interest in and to the land at the time of the sale. C. W. Douglas told1 Mrs. McKee that he would sign an instrument acknowledging the fact that the ⅛⅛ royalty interest was reserved, and expressed a hope that she would be luckier than they were because royalty was slightly higher at that time. He further advised that he would sign an instrument acknowledging that the ¼⅛ royalty interest was reserved provided his son, Jesse Douglas, would sign the same. She further asked about the affidavit and the use of the word ‘royalty’ instead of the word ‘rental’ in the same. It seemed Mr. Douglas did not know anything about it. When Mrs. McKee returned with an instrument to correct the affidavit, C. W. Douglas suggested that she leave the instrument with him and he would get in contact with his son, Jesse. They later refused to sign the same.

The appellees take the position that the appellants have been overcome by the statute of limitations by not taking action sooner. The appellants base their claim upon the case of Biggs v. Poling et al., Tex.Civ.App., 134 S.W.2d 801, err. dism., judgment correct. The facts in that case show that there was a mistake made in a royalty deed as to the amount of the royalty interest conveyed. The heirs of the original owner were not barred after 13 years by the statute of limitations from reforming the instrument to speak the true intent of the parties. Mrs. McKee did not know about the contents of the affidavit until July of 1960. At this time she learned for the first time about the affidavit being recorded. She immediately began proceedings to try to get the affidavit corrected to speak the truth. She knew the word ‘royalty’ should have been ‘rental’. She filed her suit on May 18, 1961. Until July, 1960, after the affidavit was signed, she remained ignorant of her rights, and no limitation ran against her. McGowen v. Montgomery, Tex.Civ.App., 248 S.W.2d 789, N.W.H. Under such circumstances, and against such a mistake of law, equity will grant relief by way of re-formation if the circumstances otherwise warrant an exercise of its power. Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62. I would sustain the point of error.

By their Point 2, appellants say the court erred in granting an instructed verdict because the deed which reserved the ¼⅛ royalty interest to the grantors passed title to the appellant, Annie McKee, in her own individual right, and she has never filed an instrument conveying the interest to the appellees. There is no pleading or evidence in the record to support a gift from I. A. McKee of any of his separate property to Annie McKee. It seems that she merely signed the deed as a matter of form. Under the pleadings and the evidence in the case, the point of error is without merit and should be overruled. Leidig et al. v. Hoopes et al., Old., 288 P.2d 402; Pruett et al. v. Burrow et al., Okl., 291 P.2d 349.

By their third point, the appellants say the trial court erred in not allowing them to swear to their petition and to introduce testimony to show that no consideration was paid by the appellees for the ¼⅛ undivided royalty interest at the time of the signing of the affidavit. It was stipulated at the beginning of the trial that the plaintiffs could file a general denial and a special denial to the last pleadings filed by the defendant. The appellees did not file any exceptions to the pleading on the grounds that they were not sworn to, and objected to the offer of testimony showing that no consideration was paid at the time of the execution of the affidavit. Ramsey v. Cook, Tex.Civ.App., 231 S.W.2d 734, N.W.H. The appellants had affirmatively plead that no consideration was paid. They did not swear to their petition. It seems that under Rule 93 Vernon’s Ann.Tex.Rules Civ.Proc. a denial of an allegation in the plaintiff’s petition that is founded upon a written instrument must be under oath. It seems that the only provision of the rule upon which the trial court could have assumed the necessity of swearing to the petition is Sec. (j) of Rule 93, which reads as follows: “That a written instrument upon which a pleading is founded is without consideration, or that the consideration of the same has failed in whole or in part.” (Emphasis added). Later in Rule 93 under an unnumbered paragraph it reads in part as follows: “Any such denial may be made in original or in amended pleading; * * (Emphasis added). The appellants’ pleadings do not seem to be an instance contemplated by Rule 93. Under the theory of a suit in the nature of a trespass to try title, the pleadings would not come under the rule. The alternative pleading that a constructive trust arose, in the event the court held that the affidavit was an instrument of conveyance, does not come under the rule. Barnard v. Blum, 69 Tex. 608, 7 S. W. 98.

The appellants offered to amend their pleading by swearing to the petition at that time. The trial court refused the offer. This was error. In re Laughlin, 153 Tex. 183, 265 S.W.2d 805; Westinghouse Electrical Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422. I would sustain the point.

By their Point 4, the appellants say the trial court erred in holding that the affidavit was an instrument of conveyance. The affidavit is quoted in full hereinabove. As one studies the affidavit carefully it can readily be seen that the scrivener, not being a lawyer, could have erroneously used the word “royalty” instead of the word “rentals”. If the trial court believed the affidavit to be an instrument of conveyance, the appellants should have been permitted to submit a special issue to the jury for a finding of fact as to whether or not the word “rental” should have been substituted in the affidavit for the word “royalty”. For a related factual situation, see Harris v. Windsor, 156 Tex. 324, 294 S.W.2d 798. I would sustain the point.

As I view the record, two grown men are being permitted to steal an undivided one-fourth royalty interest in and to 38½ acres of land from a widow-woman and the next of kith and kin of her deceased husband. The affidavit, which was prepared by someone other than a lawyer, has been held to be an instrument of conveyance. According to the record, the one-fourth of the royalty was reserved. The grantors later received a rental payment. They cashed the check and gave the money to the grantees. Mr. McKee suggested that an instrument be fixed up so the future rentals would be paid to the grantees. Fanning refers to the affidavit as a Quitclaim Deed and an instrument of conveyance. Anyone with intelligence enough to pour water out of a boot, with the toe cut out, and the directions on the heel, would know that the affidavit is not a Quitclaim Deed or an instrument of conveyance of a one-fourth royalty interest; but was intended to refer to the rentals. This is another reason why an instrument such as the affidavit prepared by a person, other than a lawyer, should not be permitted to be offered in evidence. The law should require an instrument pertaining to the title to real estate be prepared by a lawyer, or that it bear the certificate of a lawyer as to its intent and purpose. The jury twice refused to return the instructed verdict. If it had been permitted to return a verdict of its own choosing, it would probably have been in favor of the appellants.

The affidavit was offered into evidence by the appellees as “what they believed to be a Quitclaim Deed”. Under objections by appellants, the affidavit was, under instructions by the trial court, referred to as “an instrument”. Appellees offered the same into evidence, without any reservations, and they are bound by everything it says, including the fact that it does not show that any money or thing of value was given therefor. Lock et al. v. Morris et al., Tex.Civ.App., 287 S.W.2d 500, w. r., n. r. e.

If the affidavit had been intended to be a Quitclaim Deed, or an instrument of conveyance, it should have so stated.

I would reverse and remand the case for a new trial.


source: Caselaw Access Project

author: DAVIS, Justice.

license: Public Domain

text:
    Howard B. MIMS et ux., Appellants, v. HOUSTON FIRE & CASUALTY INSURANCE COMPANY, Appellee.
    No. 7434.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 13, 1962.
    Rehearing Denied Dec. 11, 1962.

      Sidney Lee, Texarkana, for appellants.
    Atchley, Russell, Hutchinson & Waldrop, Texarkana, for appellee.
   DAVIS, Justice.

Plaintiff-appellants, Howard B. Mims and wife, Adele Mims, sued the defendant-appellee, Houston Fire & Casualty Company, on two fire insurance policies that had been issued to appellants by the ap-pellee. Policy No. FH-832904 was effective from June 1, 1960, to June 1, 1961. Policy No. FH-832467 was effective from June 15, 1960, to June 15,1961. Each policy was issued to insure the appellants against loss by fire on a frame dwelling house. The house was totally destroyed by fire on August 3, 1960. Each of the policies insured the house in the principal sum of $4,000.00, and each contained the following provisions:

“If the Coinsurance Clause is not applied, no other fire insurance is permitted unless the total amount, including this policy, on each Item is inserted in the blanks which follow: Item No. 1 $4,000.; 2$ ; 3$4$5$.”

Policy No. FH-832467 was a renewal of the appellee’s policy No. 642948072 which was in force during the year preceding the effective date of Policy No. FH-832467. Policy No. FH-832904 was a renewal of appellee’s Policy No. 642-947056, which was in force during the preceding year.

The appellee took the position by its pleading that the quoted provision of the policies limited the amount of insurance, on the insured structure to Four Thousand Dollars.

Mid-State Investment Corporation and Mid-State Homes, Inc., were named loss payees in both the insurance policies be-, cause they had a mortgage on the insured house. They were made defendants in the suit.

Trial was to a jury. After an agreement to enter a judgment for the mortgagees, both appellants and the appellee filed mo-, tions for instructed verdict. The trial court: overruled the appellants’ motion. The trial; court granted the appellee’s motion and entered a judgment in favor of the appellants for the limited sum of $4,000.00,. denying the appellants any recovery upon, one of the two policies.

Prior to trial, the appellants requested; the appellee to make admissions of relevant: facts under the provisions of Rule 169,. Texas Rules of Civil Procedure. The request for admissions was in part denied,. The appellant, by means of taking depositions, acquired the proof of the facts which, the appellee had denied. Subsequent to. the trial, the appellants, having proved the-truth of matters concerning the facts, applied to the trial court for an order requiring the appellee to pay to them the-reasonable expenses in making such proof. Rule 170, T.R.C.P. The trial court denied; the application.

The appellants have appealed from the-judgment of the court in denying them a. recovery on one of the policies, and from-, the order of the court in denying them any-recovery in the expenses in making proof' of facts which the appellee denied. They-bring forward 13 points of error.

By their first seven points of error,, the appellants complain of the error of the trial court in granting the appellee’s motion for an instructed verdict, and in refusing to grant their motion. The evidence in the case is clear and convincing. The appellants bought a house that was unfinished. There was insurance with the appellee, insuring the same for $4,000.00. They made some improvements upon it, and they went to the same people and advised them that they wanted some more insurance. The same agents issued an additional policy insuring the house for an additional $4,000.00. Appellee had previously collected a full year’s premium on both the policies. When time came to renew the policies, the same agent prepared both the policies, describing the house exactly the same in both policies, and mailed the two policies to the appellant in the same envelope, together with the bills for the premiums thereon. Each of the policies insuring the house was for $4,000.00. The premiums were paid and subsequently the house was destroyed by fire.

Under the quoted provision of the policies, the Agent knew, by the issuance of each policy that the house was insured for an additional $4,000.00, or a total of $8,000.-00; Item No. 1 in each policy carried the amount of $4,000.00. The facts necessary to show a waiver and estoppel are not in dispute. The appellee knowingly issued the two policies of insurance to the same insureds, covering the same property, and mailed them in the same envelope. It collected two annual premiums upon the two policies. It permitted both of them to remain in force and effect until after the insured property had been totally destroyed by fire. The evidence shows that none of these facts were in dispute. There was nothing to submit to the jury upon the question of whether or not the appellee had waived the forfeiture and was estopped to interpose it as a defense. The following authorities are cited in support of these propositions:

“45 C.J.S. [Insurance] 724, Sec. 725d; 46 C.J.S. [Insurance] 658, Sec. 1377; 29A Am.Jur. 153, Sec. 961; 17 Appelman [Appleman] Ins. Law and Practice 493, Sec. 9711; 24-B Tex.Jur. 540, Secs. 269 and 270; the Planters’ Mutual Ins. Co. v. Lyons, Lindenthal & Company, 38 Tex. 253 (Sup.Ct. 1873); The Crescent Ins. Co. v. Griffin and Shook, 59 Tex. 509 (Sup.Ct.1883); The L. & L. & G. Ins. Co. v. Fred Ende, 65 Tex. 118 (Sup.Ct.1885); Morrison v. Ins. Co. of North America [69 Tex. 353], 6 S.W. 605 (Sup.Ct.1887); New Orleans Ins. Ass’n. v. Griffin [66 Tex. 232], 18 S.W. 505 (Sup.Ct.1886) Mutual Life Ins. Co. v. Nichols, 24 S.W. 910 ([Tex.] Civ.Apps. 1935 — No Writ History) ; Hartford Fire Ins. Co. v. McLemore [7 Tex. Civ.App. 317], 26 S.W. 928 (Civ.Apps. 1894 — Writ Dismissed) ; German Ins. Co. v. Cain, 37 S.W. 657 ([Tex.] Civ. Apps.1896 — No Writ History) ; Standard Life & Acci. Ins. Co. v. Davis, 45 S.W. 826 ([Tex.] Civ.Apps.1898 — No Writ History); St. Paul Fire & Marine Ins. Co. v. Cronin [62 Tex.Civ.App. 440], 131 S.W. 649 (Civ.Apps. 1910 — No Writ History); National Union Fire Ins. Co. v. Dorroh [63 Tex.Civ.App. 620], 133 S.W. 475 (Civ.Apps.1911 — Writ Refused) ; Western Assur. Co. v. Hillyer-Deutsch-Jarrett Co., 167 S.W. 816 ([Tex.] Civ.Apps.1914 — Writ Refused) ; Reliance Ins. Co. v. Dalton, 178 S.W. 966 ([Tex.] Civ.Apps.1915 — Writ Refused) ; Mechanics’ & Traders’ Ins. Co. v. Dalton, 189 S.W. 771 ([Tex.] Civ. Apps.1916—Writ Refused); Detroit Fire & Marine Ins. Co. v. Wright, 273 S.W. 628 ([Tex.] Civ.Apps.1925 — Writ Refused); Camden Fire Ins. Ass’n v. Sutherland, 284 S.W. 927 ([Tex.] Com. Apps.1926) ; Ins. Co. of Pennsylvania v. Couch, 290 S.W. 274 ([Tex.] Civ. Apps.1927 — Writ Dismissed) ; Southern Mut. Fire Ins. Co. of Yoakum v. Mazoch Bros., 291 S.W. 257 ([Tex.] Civ.Apps.1927 — Writ Dismissed); Occidental Fire Ins. Co. v. Fort Worth Grain & Elevator Co., 294 S.W. 953 ([Tex.] Civ.Apps.1927 — Writ Refused) ; Law v. Texas State Mut. Fire Ins. Co., 12 S.W.2d 539 ([Tex.] Com. Apps.1929 — Motion for Rehearing Denied 16 S.W.2d 277); Southern Underwriters v. Jones, 13 S.W.2d 435 ([Tex.] Civ.Apps.1929 — Writ Refused) ; Coleman Mut. Aid Ass’n v. Clark, 63 S.W.2d 270 ([Tex.] Civ.Apps.1933 —Writ Dismissed); Trice v. Georgia Home Ins. Co., 81 S.W.2d 1055 ([Tex.] Civ.Apps.1935—No Writ History); Home Ins. Co. of N. Y. v. Young, 97 S.W.2d 360 ([Tex.] Civ.App.1936—Writ Dismissed) ; Newriter v. Life & C. Ins. Co., 229 Ala. 359, 157 So. 73 (1934) Western & S. L. Ins. Co. v. Oppenheimer, 31 Ky.L.Rep. 1049, 104 S.W. 721 (1907); McGuire v. Home L. Ins. Co., 94 Pa.Super. 457 (1928) National Life & Acci. Ins. Co. v. House, 104 Ind.App. 403, 9 N.E.2d 133 (1937) Lanigan v. Prudential Ins. Co., 63 Hun. 408, 18 N.Y.S. 287 (1892); Clay v. Liberty Industrial L. Ins. Co., 157 So. 838 (La.App.1934); Cobbs v. Unity Industrial L. Ins. Co., 158 So. 263 (La.App.1935); Wills v. Liberty Industrial L. Ins. Co., 159 So. 141 (La.App.1935); Atlas v. Metropolitan L. Ins. Co. [Sup.], 181 N.Y.S. 363 (1920) ; Melick v. Metropolitan L. Ins. Co., 84 N.J.L. 437, 87 A. 75 (1913 — Affirmed in 85 N.J.L. 727, 91 A. 1070); Monahan v. Mutual L. Ins. Co., 103 Md. 145, 63 A. 211, 5 L.R.A.(N.S.) 759 (1906); Emlaw v. Travelers’ Ins. Co., 108 Mich. 554, 66 N.W. 469 (1896); National Life & Acci. Ins. Co. v. Cummings, 27 Ala.App. 355, 172 So. 353 (1937); Harris v. Louisiana Industrial L. Ins. Co., 19 La.App. 589, 141 So. 103 (1932) ; Kennedy v. Agricultural Ins. Co., 110 N.W. 116, 21 S.D. 145 (1906); Westchester Fire Ins. Co. v. Wilson, 294 S.W. 1059, 220 Ky. 142; Johnson v. Aetna Ins. Co. [201 N.C. 362, T60 S.E. 454 (N.C.Sup.Ct.1931); Carrugi v. The Atlantic Fire Ins. Co., 40 Ga. 135, 2 Am.Rep. 567 (1869); State Mutual Ins. Co. v. Harmon [75 Ga. App. 273], 43 S.E.2d 347 (Ga.Ct. of Apps.1947); Hicks v. Home Sec. Life Ins. Co. [226 N.C. 614], 39 S.E.2d 914 (N.C.Sup.Ct.1946); Western Assur. Co. v. White [171 Ark. 733], 286 S.W. 806, 48 A.L.R. 349 (Ark.Sup. Ct.1926); and St. Paul Fire & Marine Ins. Co., v. Garza Co. Warehouse & Marketing Ass’n. [5 Cir.], 93 F.2d 590 (Cir.Ct.Apps.1938); Mann, et ux v. Charter Oak Fire Ins. Co. [D.C.] 196 F.Sup. 604; Affmd. [5 Cir.] 304 F.2d 166.”

If the Coinsurance Clause in either policy invalidates the other policy, then both the policies were invalidated. One could not be effective and the other be invalidated. The points of error are sustained.

Appellants’ points 8, 9, 10, 11 and 12 are without merit and are overruled.

Appellants say the trial court erred in denying their application for reasonable expenses which they had incurred in making proof of matters of fact relative to the second insurance policy which the appellee had denied. The denials were false and were pertinent to the facts involved in the lawsuit about which there was a bona fide controversy. The appellee admits that under an arbitrary refusal to so cooperate is of course contrary to the provisions of 790(c), and will subject a party to the penalties provided therein. The appellee takes the position that the admissions requested were questions of law. Such is not the case. They were questions of fact that had to be proved by the appellants.

The pertinent parts of the rule read as follows:

“If any party or an officer or managing agent of- a party refuses to obey an order made under Rule 167 the court may make such orders in regard to the refusal as are just, and among others, the following:
* * * * * *
“(c) an order striking out pleadings or part thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party. If a party, after being served with a request under Rule 169 to admit the genuineness of any documents or the truth of any matters of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of any such document or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof. If in the course of such a hearing it shall appear to the satisfaction of the court that any party or his attorney is arbitrarily refusing to co-operate in disposing of questions of fact as to which there is no basis for bona fide controversy, the court shall tax all expenses of proving such facts, including reasonable attorneys fees, against the party refusing to co-operate, subject to review upon appeal.” (Emphasis added.)

The trial court found that the reasonable expense incurred in making the proof to be $150.00. But he found that the matter of proof was not necessary because the appellants were not entitled to recovery on the insurance policy which the appellee had falsely denied. In this, the trial court was in error. The point is sustained.

The judgment of the trial court is affirmed in part and in part reversed, and judgment is here rendered that the appellants recover of and from the appellee the sum of Four Thousand Dollars as provided by Policy No. FH-832904, with interest thereon at Six per cent per annum from the date the appellee denied liability. Judgment of the trial court is also reversed and judgment is here rendered that the appellants recover of and from the appellee the sum of One Hundred Fifty Dollars for necessary expenses required to make the necessary proof of facts, with interest thereon at Six per cent per annum from November 24, 1961, until paid.

Affirmed in part and reversed and rendered in part


author: DENTON, Chief Justice.

text:
    Don LASSITER, Appellant, v. BOXWELL BROTHERS, INC., Appellee.
    No. 7196.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 3, 1962.

      Sanderson & Bagley, Amarillo, for appellant.
    Walter P. Wolfram, Amarillo, for ap-pellee.
   DENTON, Chief Justice.

Boxwell Brothers, Inc., filed suit against Don Lassiter and wife, Mary Lassiter, seeking recovery on a promissory note in the original sum of $1,091.12. Payments totaling $374.00 by the Social Security Administration and the Veterans Administration were credited to the note. The note was executed by the Lassiters in payment of the funeral expenses incurred for the burial of Mrs. Lassiter’s former husband, David Wendell Giles. The case was tried before the court without a jury. The trial court awarded appellee judgment against Don Lassiter for the balance due on the note plus interest and attorney’s fees. The court held Mrs. Lassiter was not liable on the grounds she was a married woman and the note was not executed for necessities. No exception was taken to the latter holding. Appellant contends the note was executed without consideration, and that there was no meeting of the minds of the parties to the note.

No findings of fact or conclusions of law were requested or filed. It is elementary that when the appellant contests the trial court’s judgment without requesting such findings or conclusions, we must assume the trial court’s findings support its judgment; and the judgment must be affirmed if there is any evidence of probative force to support it upon any theory authorized by law.

The note is regular on its face and no claim of fraud or ambiguity is made. Under Article 5933, Section 24, Vernon’s Ann. Tex.St., the note is deemed prima facie to have been issued for valuable consideration and appellant, who admitted signing the note, is deemed to have become a party to such note for value. Appellant contends he signed the note when he was under no legal obligation to make the payment for the funeral expenses of his wife’s former husband, therefore, the note was executed without consideration.

The note in question was executed by appellant and his wife simultaneously with a written contract designated “Memorandum of the arrangements with Boxwell Brothers”. It reads in part as follows:

“Nothing herein contained shall preclude or otherwise prevent Boxwell Bros., Inc. from filing a claim against the estate of said decedent, but the obligation of the undersigned shall be deemed to be a joint and several obligation with said estate; and all legal rights and priorities are especially reserved.
“I or We, the makers of the attached promissory note, do hereby authorize Boxwell Bros., Inc. to furnish the above service and merchandise, and in consideration thereof agree to pay the amount owing therefor in accordance with the attached promissory note, which is evidence of the indebtedness and not payment thereof, and is given without prejudice to the rights of the payee as provided by laws concerning priority of claims.
“Estate of David Wendell Giles,
“s/ Mary Lassiter, Admin-istratrix and Guardian.
“s/ Don Lassiter.”

A valuable and sufficient consideration for a contract may consist of either a benefit to the promisor or a loss or detriment to the promisee. In other words, sufficient consideration for the agreement may consist of some right, interest, profit, or benefit that accrues to one party, or, alternatively, of some forbearance, loss, or responsibility that is undertaken or incurred by the other party. Accordingly, it is not necessary that the promisor receive a benefit under the agreement. On the contrary, if the promisee parts with some legal right or sustains some legal injury as the inducement for the agreement, this will be sufficient. See 13 Tex.Jr.2d, Section 46, page 178, and cases there cited.

It is apparent appellee was caused to furnish its services and merchandise on the strength of a note being signed by appellant. Then there was consideration for the note even though appellant would not be personally liable for such burial expenses prior to the execution of the note. Appellant’s first point of error is, therefore, overruled,

Appellant next contends there was no meeting of the minds between the prom-isor and promisee, to-wit: That it was agreed between the parties that appellant’s signature was a mere formality and as comaker of the note he would not become personally liable. It is well settled that in .the absence of a plea of fraud, accident or mistake, an unconditional written instrument cannot he varied or contradicted by parol agreements or by representations of the payee that the maker would not be held liable according to the tenor of the instrument. Robertson v. City Nat. Bank, 120 Tex. 226, 36 S.W.2d 481, (Opinion adopted.) ; Dean v. Allied Oil Co., Tex.Civ.App., 261 S.W.2d 900, (Error Dismissed.); Howeth v. Davenport, Tex.Civ.App., 311 S.W.2d 480, (Refused, NRE). Although the trial court admitted the alleged parol agreement into evidence, it is presumed such evidence was not considered by the court as it entered judgment in accordance with the written provisions of the note. Appellant’s second point of error is overruled.

Appellee requests this court to assess a ten per cent penalty against appellant under the provisions of Rule 438, Texas Rules of Civil Procedure. In our opinion, the record failed to establish that the appeal was taken for delay or without sufficient cause. We conclude such a penalty is not justified.

The judgment of the trial court is accordingly affirmed.


author: CHADICK, Chief Justice.

text:
    The CITY OF HOUSTON, Texas, et al., Appellants, v. Mrs. J. A. SHOBER, Appellee.
    No. 7418.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 6, 1962.
    Rehearing Denied Dec. 11,1902.

      R. H. Burks, Homer T. Bouldin, Houston, for appellants.
    C. C. Divine, Houston, for appellee.
   CHADICK, Chief Justice.

This is an appeal from a decree granting a temporary injunction ancillary to a declaratory judgment suit. The decree temporarily restrains the City of Houston from enforcing its penal ordinance No. 61-1444, and from interfering with the operation of Mrs. J. A. Shober’s business known as Anchor Baths, pending trial of the suit on its merits.

The order granting the temporary injunction contained commonplace recitals, such as the cause coming on for hearing, the presentment of pleas to the jurisdiction and special exceptions, hearing the argument of counsel, and the denial of the pleas, etc. The paragraph preceding the decretal language of the Order reads as follows:

“After considering the pleadings, the evidence, and the argument of counsel, the court finds that the plaintiff, Mrs. J. A. Shober, is entitled to the relief prayed for and the application of plaintiff for temporary injunction is granted.”

The City of Houston urges under its points of error Six and Seven that the injunction is void because the order does not “set forth the reasons for its issuance” as required by Rule 683, Vernon’s Texas Rules of Civil Procedure. It is said in Transport Company of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, “We interpret the Rule to require * * * that the order set forth the reasons why the court deems it proper to issue the writ to prevent injury to the applicant in the interim; that is, the reasons why the court believes the applicant’s probable right will be endangered if the writ does not issue”. The above quoted finding does not conform to this test as it does not give the reasons why the trial judge believes the applicant’s probable right w.ould be endangered if the writ did not issue. It is meaningless, under the circumstances, to pursue the question further because the judgment must be reversed and the temporary in junetion dissolved for reasons yet to be discussed.

The facts of this case are undisputed and the appellee does not contend that the facts support more than one conclusion. The constitutionality vel non of the City’s Ordinance, No. 61-1444, a question of law, was the legal issue before the trial court. The appellee urges it as the only issue before this court. The trial judge was authorized to grant the temporary writ to maintain the status quo if Mrs. Shober’s petition alleged a cause of action and the evidence adduced tended to sustain it. Southwestern Greyhound Lines v. Railroad Commission of Texas, 128 Tex. 560, 99 S.W.2d 263. This court may reverse the trial court’s order only when a clear abuse of discretion is shown. Texas Foundries, Inc., v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460. If the pleading and evidence in this record presents a case showing the appellee has a probable right, and would probably suffer harm if the temporary writ did not issue it is this court’s duty to affirm. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549.

In a recent case, Patterson v. City of Dallas, Tex.Civ.App., 355 S.W.2d 838, N.R.E., propositions of law were sustained substantially similar, if not identical, to those urged here by the City of Houston. In that case it was contended that an ordinance violated the state and federal Constitutional rights of a bathhouse owner, and discusses the constitutional questions at length. The Dallas Court of Civil Appeals concluded that the ordinance was a reasonable exercise of the city’s police power and a valid and constitutional enactment. Since the ordinance considered in the referenced case is so nearly identical with Houston’s Ordinance No. 61-1444, and the similarity of the attack made on both ordinances so nearly the same, a detailed discussion of the legal issues would be a useless repetition. Peference is made to the Patterson case for a discussion of the issues.

The Patterson case holds the ordinance concerned valid; so it must be held ini the instant case that City of Houston Ordinance No. 61-1444 is likewise valid. It follows that the trial court’s conclusion that Mrs. Shober should be protected fromi probable harm to her business due to the enforcement of an invalid ordinance is without legal support. A valid ordinance scuttles the basis for the temporary injunction' entered by the trial court. See Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294, 295; State v. Ferguson, 133 Tex. 60, 125 S.W.2d 272; State ex rel. Flowers v. Woodruff, 150 Tex.Cr.R. 255, 200 S.W.2d 178; Ex parte Hill, 144 Tex.Cr.R. 52, 160 S.W.2d 929; Malone v. City of Houston, err. ref. n. r. e., Tex.Civ.App., 278 S.W.2d 204; Stecher v. City of Houston, err. ref. n. r. e., Tex.Civ.App., 272 S.W.2d 925, and Bell Dental Laboratory v. Walton, n. w. h., Tex. Civ.App., 307 S.W.2d 342. The temporary-injunction granted to Mrs. Shober is dissolved.


author: MURRAY, Chief Justice.

text:
    The CITY OF ALICE et al., Appellants,, v. BOWERS-WRIGHT FUNERAL HOME, INC., et al., Appellees.
    No. 14007.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 21, 1962.
    Rehearing Denied Dec. 19,1962.

      Lon D. Herbert, Alice, for appellants.
    Sidney P. Chandler, Corpus Christi, for appellees.
   MURRAY, Chief Justice.

This is a suit by the City of Alice as plaintiff and Alice Independent School District as impleaded defendant, against Bowers-Wright Funeral Home, Inc., for the collection of delinquent ad valorem taxes against personal property. The suit was filed on January 27, 1958, in the District Court of Jim Wells County, Texas. By an amended petition filed November 6, 1961, Walter Cheshire, Jr., Temporary Administrator of the Estate of Bill McElroy, Deceased, and Annie E. McElroy, a feme sole, individually and as former Independent Executrix of the Estate of Bill McElroy, Deceased, were made defendants. The personal property was described as vehicles, equipment, merchandise, furniture and fixtures. No valuation of the property was shown. The delinquent taxes are alleged to be due for the years 1953,1954, 1956 and 1957, and the total tax due, together with penalty and interest, was alleged to be $552.19.

The Alice Independent School District in its original pleading sued only Bowers-Wright Funeral Home, Inc., and attached to its pleading an instrument headed “STATEMENT OF TAXES DUE THE ALICE INDEPENDENT SCHOOL DISTRICT, Alice, Texas, Date Nov. 19, 1957.” It is addressed to “McElroy Funeral Home,” and the taxes are for the year 1956, on property described as “Autos & Equipment, Valuation- $3,000.00.” The total amount due is stated to be $50.85. There is no showing that any of the taxes were assessed against Bowers-Wright Funeral Home, Inc., or any one else for that matter.

Attached to the amended .petition filed by The City of Alice on November 6, 1961, is a statement of taxes due, dated “7-1-60”, certified to by Frank A. Read, Tax Assessor-Collector, City of Alice, and addressed to “McElroy Funeral Home (Bowers-Wright),” in which the property is described as follows:

“Pers. Property — Vehicles, Equip., Mdse., Furn. & Fixt., located in said place in City of Alice, Texas.
Val. Year Tax Penalty & Interest Total
6,040 135.90 63.87 199.77 CO to Oh
6,040 135.90 55.72 191.62 'T
3,000 67.50 19.50 87.00 VO m
3,000 60.00 13.80 73.80 399.30 . $552.19” N in

Bowers-Wright Funeral Home, Inc., filed an answer on February 14, 1958, asking that the cause be dismissed for want of jurisdiction, pointing out the vagueness of the description of the property and alleging that no valid taxes had been assessed against it or the other parties named in the suit. Shortly after filing this answer, the Bowers-Wright Funeral Home, Inc., was liquidated in the 79th District Court of Jim Wells County.

Annie E. McElroy, individually and as Independent Executrix of the Estate of Bill McElroy, Deceased, on December 18, 1961, filed an answer denying the allegations of plaintiff’s petition, and contending that the court did not have jurisdiction over any property on which the taxes are alleged to have been assessed, pointing out the indefinite and uncertain description of the property, and asking that the suit be dismissed for insufficiency of the description of the property. She also denied that Walter Cheshire, Jr., was ever temporary administrator of the estate of Bill McElroy.

Annie E. McElroy, individually and as Independent Executrix of the Estate of Bill McElroy, Deceased, also filed a motion to dismiss this cause as to her and said estate because the suit was barred by the four-year statute of limitation.

The trial court sustained this motion, and dismissed the cause for want of jurisdiction, from which judgment of dismissal the City and School District have prosecuted this appeal.

When a City or a School District properly levies a tax on personal property, at that time a lien is created in favor of the taxing authority to secure the payment of the tax. Art. 1060, and Art. 2758, Vernon’s Tex.Civ.Stats.; Mission Independent School Dist. v. Armstrong, Tex.Com.App., 222 S.W. 201; City of San Angelo v. Deutsch, 126 Tex. 532, 91 S.W.2d 308.

The County and State has no lien upon personal property assessed for taxes unless and until such property is seized or levied upon. Cassidy Southwestern Commission Co. v. Duval County, Tex.Com.App., 3 S.W.2d 416; International Harvester Co. of America v. Smith, Tex.Civ.App., 91 S.W.2d 827.

We would readily agree that the petition herein under the old practice would have been subject to a general demurrer, but since the adoption of Rule 90, Texas Rules of Civil Procedure, the general demurrer can not be used.

The court under Rule 91, T.R.C.P., may hear special exceptions, and where special exceptions are sustained the plaintiff should first be given an opportunity to amend before there can properly be a dismissal.

The allegations of the petition are so vague and indefinite that it can not be determined from the pleadings whether or not the taxes are barred by the four-year statute of limitation.

The trial court erred in taxing the costs of court against the City and School District. Art. 7297, Vernon’s Tex.Civ. Stats.; Whelan v. State, 155 Tex. 14, 282 S.W.2d 378; Electra Independent School Dist. v. W. T. Waggoner Estate, 140 Tex. 483, 168 S.W.2d 645; Whelan v. State, Tex.Civ.App., 254 S.W.2d 558; Lubbock Independent School Dist. v. Owens, Tex.Civ.App., 217 S.W.2d 186; Sour Lake Independent School Dist. v. Easterling, Tex.Civ. App., 142 S.W.2d 237; Republic Ins. Co. v. Highland Park Ind. School Dist. of Dallas County, Tex.Civ.App., 57 S.W.2d 627.

The judgment is reversed and the cause remanded.


text:
    L. N. ASBECK et al., Appellants (In the Matter of the Estate of Ben Asbeck, Deceased), v. Jack ASBECK, Appellee.
    No. 7424.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 6, 1962.
    Rehearing Denied Dee. 11,1962.
    W. T. McNeil, Cullen B. Vance, Edna, for appellants.
    David C. Whitlow: Whitlow & Cole, Victoria, for appellee.
   CHADICK, Chief Justice.

This is an appeal from an adjudication naming the heirs at law of an intestate, Ben Asbeck, and the distributive share of each heir in the decedent’s estate. The judgment of the trial court is affirmed. The opinion dated July 24, 1962, is withdrawn and this filed instead of it.

The action originated in the County Court of Jackson County during the pend-ency of a probate proceeding styled “In the Matter of the Estate of Ben Asbeck, deceased”. The appellee, Jack Asbeck, intervened as an adopted child of Eddie As-beck, claiming in his adoptive status as an heir at law of Ben Asbeck. The County Court denied Jack Asbeck’s claim of adoption, and he appealed to the District Court of Jackson County. In his trial pleadings in the District Court Jack Asbeck alleged that he was the adopted son of Eddie As-beck on the theory of adoption by estoppel, and as such entitled to inherit a i/£th portion of Ben Asbeck’s estate, and in addition, as a grand-nephew of Ben Asbeck entitled to inherit a Jioth part of such estate. In accordance with favorable jury answers to special issues submitting the theory of adoption by estoppel judgment was rendered awarding Jack Asbeck the shares in Ben Asbeck’s estate that he claimed.

Ben Asbeck, Eddie Asbeck, Will Asbeck, Charlie Asbeck, Louis Asbeck, and Emma Asbeck Power were brothers and sister. Will, Charlie, Eddie and Emma predeceased their brother Ben whose death occurred in 1959. Ben was not survived by mother, father, wife or child. Will, Charlie and Emma were survived by numerous children and grandchildren, and they together with the surviving brother, Louis Asbeck, were respondents in the district court suit and are appellants here. Eddie Asbeck fathered no child, and unless he adopted Jack Asbeck he was not survived by a natural or adopted child at death in 1954. He, Eddie Asbeck, died testate and willed his entire estate to his surviving wife.

Jack Asbeck, the appellee, is the natural son of Norman Asbeck, also deceased, who was a son of Will Asbeck, one of the brothers initially named above. Jack As-beck, therefore, is the natural grandnephew of both Ben Asbeck, whose estate is involved in this action, and of Eddie As-beck, by whom Jack claims to have been adopted.

Decision on the appellant’s third point of error controls the disposition of the appeaL The issues raised by the point are complex and do not lend themselves to simple solution or easy explanation. The point reads

“The evidence having failed to show that the Appellee, Jack Asbeck, was adopted in accordance with the provisions of Section 9 of Article 46a of the Revised Civil Statutes of Texas, as amended, the Court erred in holding that Appellee, Jack Asbeck, could inherit from a collateral kindred, Ben Asbeck.”

When Ben Asbeck died in 1959 the-law of descent and distribution vested the title of Ben’s estate in Louis, Ben’s surviving brother, and the living descendants of Ben’s deceased brothers and sister. Mow v. Baker, Tex.Com.App., 24 S.W.2d 1, 68 A.L.R. 405; Powers v. Morrison, 88 Tex. 133, 30 S.W. 851, 28 L.R.A. 521; Sections 37, 38, Subd. (a), par. 3, and 43, Probate Code, V.A.T.S. To sum up, on the basis, of the cited authority, at Ben’s death Louis Asbeck and the living descendants of Ben’s deceased brothers and sister succeeded to and were directly vested with title to Ben’s-estate in their own right as Ben’s heirs, and no part of Ben’s estate descended to or vested in Ben’s then deceased brother, Eddie Asbeck.

Jack Asbeck claims a l/sth share of the Ben Asbeck estate because those in privity of estate with Eddie Asbeck are estopped to deny that Eddie adopted Jack as his child. His claim of estoppel is founded upon an agreement made by Eddie Asbeck with Jack Asbeck’s parents that he, Eddie Asbeck, would adopt Jack as his child, and proof of fact showing that Jack was taken into Eddie Asbeck’s home with the intent and purpose on Eddie’s part of adopting him, Jack conducting himself towards Eddie Asbeck and performing as Eddie’s child, and Eddie on his part conducting himself towards Jack as Jack’s father, and leading Jack to believe that he, Eddie, had adopted him as his son, etc.

As related earlier, Eddie Asbeck died testate in 1954, and devised his estate to his surviving wife. The conclusion has also been expressed that as Eddie Asbeck predeceased his brother Ben, he Eddie, was not Ben’s heir, and no part of Ben’s estate descended to him. Too, it is settled law that a so-called “adoption by estoppel” of a child is binding upon the privies of the adopting parent. Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906. Texas Law Review, Vol. 36, issue No. 11, November, 1957, p. 30. And “Privity”, as here used, is the legal relationship between parties incident to succession on the part of one party to an estate or interest formerly held by the other. 1 Freeman on Judgments, 959, Sec. 438; 72 C.J.S., Privity p. 954, et seq.; “Judgments”, 34 T.J. (2) 441, Sec. 402. It follows that as no appellant takes or claims an interest in the Ben Asbeck estate in succession to Eddie Asbeck, there can be no privity of estate between appellants and Eddie Asbeck.

A judgment of adoption by es-toppel binding the privies of Eddie Asbeck is not conclusive against the appellants, and as to them does not fix the adoptive status of Jack Asbeck. An estoppel in pais operates only on parties to the transaction and their privies. Buckner’s Orphan Home v. Berry, Tex.Civ.App., 332 S.W.2d 771, N.R.E.; Harris v. Mayfield, Tex.Com.App., 260 S.W. 835; 31 C.J.S. Estoppel §§ 130, 131 and 132. So far as the appellants’ interest in Ben Asbeck’s estate is concerned, the interest passed to the appellants free and clear of any claim Jack Asbeck might assert because of his adoption under equitable principles.

Appellee, Jack Asbeck, cites Rothman v. Gillett, Tex.Civ.App., 315 S.W.2d 956, N.R.E., as authority supporting the proposition that a child adopted by estoppel inherits from collateral kindred to the same extent as a child adopted in accordance with statutory adoption procedures. The case is not controlling here. Examination of the opinion reveals the underlying facts to be distinctly different from the facts of the instant case. In Rothman the parties claimed and proved adoption in accordance with statutory adoption procedures applicable at the time of the event. In addition, adoption by estoppel was found on the basis of other facts proven.

The record in the instant case does not contain pleading or proof of attempted compliance with statutory adoption procedure. The equity power of the District Court was simply invoked by Jack Asbeck to estop the privies of Eddie Asbeck from asserting an adoption was not consummated as between Jack and Eddie’s privies. What has previously been said demonstrated, it is thought, that Jack Asbeck was not proven to be an adopted child of Eddie Asbeck so far as the administration and distribution of Ben Asbeck’s estate is concerned, and Art. 46a, Subd. 9, and Sec. 40 of the Probate Code can have no application in the distribution of Ben Asbeck’s estate.

Appellant’s point 3 is sustained and that portion of judgment of the trial court awarding Jack Asbeck a one-fifth share in the Ben Asbeck estate as the adopted child of Eddie Asbeck is reversed and judgment is rendered that he take nothing in that capacity, and the judgment, modified to reflect this action, is affirmed.

      . To minimize confusion caused by constant repetition of the surname Asbeck, members of the family will frequently be referred to by their familiar given name.

      . See the first three paragraphs of the Court of Civil Appeal’s opinion. Examination of the record of the case in the Court of Civil Appeals and the Supreme Court confirms this statement. A vivid discussion of the Rothman case by Hon. Winston McMahon appears in Texas Bar Journal, Vol. 23, Issue No. 8, dated Sept. 23, 1960, page 537.


author: CHAPMAN, Justice.

text:
    Don M. DAVIS et al., Appellants, v. ZONING BOARD OF ADJUSTMENT OF CITY OF LUBBOCK, Texas, Appellee.
    No. 7189.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 29, 1962.
    Rehearing Denied Dec. 3, 1962.

      McWhorter, Cobb, Johnson & Cobb, Lubbock, for appellants.
    Fred O. Senter, Jr., City Atty., J. Worth Fullingim, Asst. City Atty., Lubbock, for appellee.
   CHAPMAN, Justice.

This is an appeal from a district court judgment upholding the action of the Zoning Board of Adjustment of the City of Lubbock denying an application for the granting of a special exception to permit the erection of a building on Lot 8 in Block 1 Ridgelawn Addition to the City of Lubbock to be occupied by a pharmacy. Application was made by Don M. Davis and his mother, Mrs. Morris Davis to the Board for the granting of a special exception under the provisions of Section 19.6-2-6 of the zoning ordinance of the city.

The creation of said Board of Adjustment has legislative authority in Article lOllg, Vernon’s Ann.Civ.St.Tex. If we understand the record, Ordinance 1695 of the City of Lubbock having to do with zoning was passed under the authority of the statute just above named and was in existence at the time of the application here being considered.

Appeal is perfected to us upon two points. The first point asserts that the Zoning Board of Adjustment acted illegally in denying appellants’ request for there was no substantive evidence offered to support the action of the Board. But on the other hand, there was legal evidence introduced by appellants meeting the requirements for the special exception requested. Point two asserts error of the court in failing to recognize that the proof required for the granting of a “special exception” is less onerous than that required in the case of a “variance.”

The court in announcing his judgment sustaining the Board made comments which are included in the transcript and designated FINDINGS OF FACT. Those comments are as follows:

“I really expected more testimony on the matter of traffic and things of that kind. As I recall, Mr. Smith did testify that in his opinion there would be an increase in traffic, whether he said an increase in traffic hazards or not, I don’t recall, but I still think the case is governed by the substantial evidence rule and under Section 19.4-2. ‘The burden of proof is on applicant to establish the facts necessary which the Zoning Board of Adjustment must find before granting any special exception, variance or appeal as herein contained.’ Section 19.6-1 says ‘A special exception may be granted an applicant when the Board of Adjustment finds:’, and then 19.6-1-1 ‘that the granting of such exception will not be injurious or otherwise detrimental to the public safety— public health, safety, morals and the general welfare of the general public’, and 19.6-1-2, ‘that the granting of such exception will not be substantially or permanently injurious to the property or improvements in such zone or neighborhood in which the property is located’, and 19.6-1-3 ‘that the granting of such exception will be in harmony with the general purpose and intent of this ordinance.’ Obviously, the Board didn’t find those things or not all of them, at least, because they denied the exception. And upon my conclusion that the substantial evidence rule gov-eras and that what was offered in evidence before the Board itself is not binding and that this Court only has to determine whether or not there did exist facts at the time of the hearing on October 20, 1960, upon which the Board could have justified their findings. I think that I would have to rule that there are — there were facts coming within the purview of the substantial evidence rule which would have justified their findings and therefore I will deny the motion of the applicant to set aside the findings of the Board of Adjustment and will affirm the action of the Board.”

We agree with the trial court that this is a proper case for the application of the substantial evidence rule.

The section of Ordinance 1695 of the City of Lubbock alleged by appellants as governing the subject application is 19.6— 2-6 and reads as follows:

“Permit in any district such modification of the requirements of this ordinance as the Board may determine necessary to secure an appropriate development of a lot where adjacent to such lot on two or more sides there are dwellings that do not conform to these regulations.”

Section 19.5-1 of the Ordinance reads as follows:

“A special exception is a permission given by the Board properly authorized by this ordinance in specific cases for an applicant to use his property in a manner contrary to the provisions of this ordinance, provided such use subserves the general welfare and preserves the community interest.”

Section 19.6 details the various special exceptions the Board may consider in granting an exception and those found applicable by the trial court to this case are 19.6-1-1, 19.6-1-2, and 19.6-1-3 quoted above in the court’s FINDINGS OF FACT.

Much of the law decided under the substantial evidence rule in this state has grown out of judicial reviews made by our courts in cases appealed from administrative hearings by the Railroad Commission. Since a proper decision of this case must depend upon the pronouncement of our appellate courts, particularly our Supreme Court, in those cases we believe it well to briefly review some of those we consider most pertinent to the questions here involved.

In an article carried in Texas Bar Journal in 1958 Justice Griffin of our Supreme Court in reviewing the more important of these rule 37 cases, and particularly after stating the Supreme Court holding in Gulf Land Co. et al. v. Atlantic Refining Co. et al., 134 Tex. 59, 131 S.W.2d 73 and Railroad Commission et al. v. Shell Oil Co., Inc., et al., 139 Tex. 66, 161 S.W.2d 1022 said:

“With this holding, and the holding in the Gulf Land Co. case, it is no wonder the Bar was confused as to the exact nature and scope of the review which a trial court must give to an appeal from an administrative decision.
“The Supreme Court in 1946 recognized that there was a conflict in its previous decisions, and in the case of Trapp et al. v. Shell Oil Co., Inc., 145 Tex. 323, 198 S.W.2d 424, resolved the conflict by approving the holding of the court in the Gulf Land Co. case.”

However, in the Trapp case the Supreme Court approved the definition in the “Trem Carr” case for the substantial evidence rule in the following language:

“We shall not undertake to formulate a comprehensive definition of the rule, but it is believed that this Court made a fair statement of the rule in the Trem Carr case, to which we have referred in our original opinion. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022, 1029. Speaking of the substantial evidence rule it is said: ‘In such a case the issue is not whether or not the agency came to the proper fact conclusion on the basis of conflicting evidence, but whether or not it acted arbitrarily and without regard to the facts. Hence it is generally recognized that where the order of the agency under attack involves the exercise of the sound judgment and discretion of the agency in a matter committed to it by the Legislature, the court will sustain the order if the action of the agency in reaching such conclusion is reasonably supported by substantial evidence. This does not mean that a mere scintilla of evidence will suffice, nor does it mean that the court is bound to select the testimony of one side, with absolute blindness to that introduced by the other. After all, the court is to render justice in the case. The record is to be considered as a whole, and it is for the court to determine what constitutes substantial evidence. The court is not to substitute its discretion for that committed to the agency by the Legislature, but is to sustain the agency if it is reasonably supported by substantial evidence before the court. If the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its action, then the order must be set aside.’ ” (Emphases by the Supreme Court)

The next leading case we wish to discuss by the Supreme Court on the meaning of the substantial evidence rule concerning the scope of judicial review in a suit to test the validity of an administrative hearing is that of Hawkins et al. v. Texas Co., 146 Tex. 511, 209 S.W.2d 338. The court in that case, speaking through Justice Smed-ley, said:

“ * * * the finding of the Commission [in our case the Zoning Board of Adjustment] will be sustained by the court if it is reasonably supported by substantial evidence, meaning evidence introduced in court. The word “reasonably” has been deliberately used in the statement and its use gives to the judicial review a broader scope than it would have if some substantial evidence were regarded sufficient of itself to sustain the Commission’s order. It is for the court to determine as a matter of law the reasonableness of the support afforded by substantial evidence. * * * (Emphasis by Supreme Court)
“In making its decision of this question the court examines and takes into consideration all of the evidence, the entire record.”

The court then goes on to say in effect that the trial on the appeal from the administrative agency does not mean a trial as of the ordinary civil suit in which the court makes its own findings based upon a preponderance of the evidence, but it does mean there shall be a trial in so far as the facts are concerned and the court determines from all the evidence before it whether the action of the administrative body is or is not reasonably supported by substantial evidence. The court then quotes with approval from the Trem Carr case wherein it was quoted with approval in the Trapp case to the effect that a mere scintilla of evidence will not suffice.

With the above pronouncements by the court concerning the scope of judicial review from the administrative hearing in mind, let us now examine the record to determine as a matter of law if the trial court was correct in holding the conclusions reached by the Zoning Board of Adjustment were reasonably supported: by substantial evidence.

First, let us say that the trial court was not limited to the evidence taken before the agency but could hear and consider any relevant legal testimony of the conditions existing at the time of the administrative hearing. Trapp et al. v. Shell Oil Co., Inc., 145 Tex. 323, 198 S.W.2d 424.

. In all such trials, where the conclusions reached by the agency are appealed from, the burden of proof is upon the party complaining, of such law, rule, regulation, or order; and such law, rule, regulation, or order shall be deemed prima facie valid. Gulf Land Co. et al. v. Atlantic Refining Co. et al., 134 Tex. 59, 131 S.W.2d 73, 81.

J.' R. • Smith, zoning administrator for the City- of Lubbock, testified that notices of appellants’ application were sent "to all property owners within two hundred feet of the lot in question, that no. objections to the zoning exceptions sought were made by any person; that witnesses before the Zoning Board testified the lot was unfit for residential purposes and that it was undisputed that nonconforming uses are on two sides of the property, one an antique shop and the other one a beauty shop. He identified a number of pictures and sketches which were offered in evidence at the trial and before the agency showing the proposed pharmacy, the beauty shop, and antique shop and the picture of the Methodist Hospital immediately across the street northwest from Lot 8 involved. The hospital is a huge plant showing to be seven or eight stories high and apparently covering most of the block.

Mr. McCain, the operator of the antique shop, testified it would be a benefit to the neighborhood to grant the exception; that the block has been going down ever since the Methodist Hospital was constructed;' and that the construction of the proposed pharmacy would improve the corner 10Q per cent. He did admit a new home was under construction at the far end’of the block.

Mr. Barry testified he owned some vacant property north of the Davis lot and he would not consider putting a home on the property, due to its location.

Mr. Stacy testified he owned property in the block and that the construction of the proposed pharmacy would result in cleaning up the Davis lot and would help the general appearance of the area.

Mr. Ward testified he lived in the vicinity of Lot 8; that he owns a ten-room house of brick veneer construction and three lots east of the Davis property; that business was already in the neighborhood due to the location of the Methodist Hospital; that building a new residence on' Lot 8 would not upgrade the area; and that construction of the proposed pharmacy would be-a definite improvement and he had no objection to the granting of the exception.

Mr. Don Davis, one of the appellants, testified that his plan of construction would provide adequate off-street parking, which he indicated would require few places because of the adequate staff with which they operate a pharmacy; that vacant property was north of him but was not suitable for residence because of the Methodist Hospital.

The exhibits introduced show thirteen people in the area, in addition to the Davises, signed the petition for the exception and not one single person from any source objected except the City Traffic Engineer, Bill McDaniel, and the Director of Planning and Traffic for the city, Robert Burr.

The maps introduced show the property immediately west of Lot 8 and south of the hospital is zoned for clinics.

If the testimony stopped here, we believe there would not be any possible question but that the finding of the agency was not reasonably supported by substantial evidence. The only testimony to offset it is that of the two city employees last named.

' Mr. McDaniel testified that placing a pharmacy on the lot would increase traffic hazards in the area.

Mr. Burr testified that the “construction of another business” in the area would de-valuate the remaining property in the block for residential purposes, because it would increase traffic and cause more illumination, and then he speculated that it would cause more trash.

When the entire record is looked to, as we are required to do under Trapp, above quoted, we cannot see the testimony of the two city employees as constituting more than a scintilla of evidence, which will not suffice. Trapp et al. v. Shell Oil Co., Inc., 145 Tex. 323, 198 S.W.2d 424 supra; Hawkins et al. v. Texas Co., 146 Tex. 511, 209 S.W.2d 338 supra.

The testimony shows the property would be much more valuable when used as a pharmacy and is practically valueless as it is. The record as a whole shows the traffic is already there from the extremely large hospital operation and that Lot 8 has nonconforming property on two sides in the same block and that the block west is zoned for clinics.

The San Antonio Court of Civil Appeals has held in Brehmer v. City of Kerrville et al., Tex.Civ.App., 320 S.W.2d 193 (NWH) that where the only complaint made by property owners in the neighborhood is that it might increase traffic on an already busy thoroughfare, such testimony was not sufficient to deny an exception. In our case even the property owners did not complain, but to the contrary requested that the exception be granted. If that case is legally correct, the only evidence with any probative force whatever left to deny the application, is the testimony by Mr. Burr that construction of “another business” would devalue the property. He did not say construction of the proposed pharmacy would devalue the other property, but “another business.” Testimony that indefinite would appear to us to be of little, if any, probative force. Additionally, there is the testimony of all the people owning property in the area who testified, saying the proposed exception would increase the value of the other property in the area.

Our Supreme Court has held, “cities can establish zoning districts under the police power to safeguard the health, comfort and general welfare of their citizens;” but that this power is not an arbitrary one and that our courts must determine whether zoning ordinances constitute a reasonable exercise of that power. City of Corpus Christi v. Allen et al., 152 Tex. 137, 254 S.W.2d 759.

There was simply not any probative evidence by which the agency and the trial court could find that granting the exception would be “injurious or otherwise detrimental to the public health, safety, morals, and the general welfare of the general public,” nor

That it would be substantially or permanently injurious to the property or improvements in such a zone or neighborhood,” nor

That the granting of such exception would be out of harmony with the general purpose and intent of the ordinance.”

As a matter of fact, the proposed building would furnish a very attractive buffer between the hospital and the other part of the block most suitable for residential purposes. It would not, under the record here, extend business either south or east because there are already nonconforming uses there. The testimony is without contradiction that the property just north is not suitable for residences because of its proximity to the hospital. It is difficult for us to conceive of a case where the evidence showed before the agency and the court more merit for the application of the exception provided for in the statute above quoted and in the applicable section of the ordinance. The above quote from the Supreme Court speaking through Justice Smedley in the Hawkins case seems a sufficient legal ground for us to say even if there was some substantial evidence, that neither the finding of the agency nor the judgment of the court is reasonably supported by substantial evidence. Therefore, we can only come to the conclusion that the exception was illegally denied. (Emphasis added)

Because of the disposition we have made of the first point and conclusion we have reached, it is unnecessary to pass on the second point. Accordingly, the judgment of the trial court is reversed and rendered and the court is instructed to render judgment granting the exception.

      . We assume that “district” as used in this section means zoning district.

      . Texas Bar Journal, December 22, 1958, beginning on page 721.

      . Rule 37 cases were those coming under the Railroad Commission rule controlling spacing of wells.

      . The Growing Substantial Evidence Rule, Texas- Bar Journal, December 22, 1958, page 742.

      . i. d. page 743.

      . Trem Carr was the name known by the profession for Railroad Commission v. Shell Oil Co., Inc., 139 Tex. 66, 161 S.W.2d 1022.