author: WALTHALL, J.

text:
    THOMPSON v. MOOR.
    (No. 2113.)
    Court of Civil Appeals of Texas. El Paso.
    March 1, 1928.
    Rehearing Denied March 22, 1928.
    (.Adverse possession <@=I 15(1) — Whether claimant had obtained title under ten-year limitation statute held for jury (Rev. St. 1925, art. 5510).
    In suit claiming title and right of peaceable and adverse possession of 50-acre tract under 10-year, statute of limitations (Rev. St. 1925, art. 5510), whether the claimant had obtained title under such statute held for jury.
    2.Trial <@=351 (5) — Refusal to submit issue as to 10-year inclosure by fence held not error, where court submitted case on 10-year limitation issue, defining peaceable and adverse possession (Rev. St. 1925, arts. 5510, 5511).
    In suit claiming title and right of peaceable and adverse possession to 50-acre tract under Rev. St.' 1925, art. 5510, court’s refusal to submit defendant’s requested issue as to 10-year inclosure of land claimed, by fence, pursuant to article 5511, held not. error, where court had sufficiently submitted case on special issue of 10-year limitation under article 5510, in which instruction he had defined peaceable and adverse possession.
    3. Trial <@=352 (4) — Refusal of requested issue whether claimant had one-tenth land in cultivation held proper, where there was no showing claimant owned or claimed surrounding lands (Rev. St. 1925, arts. 5510, 5511).
    In suit claiming title by adverse possession under Rev. St. 1925, art. 5510, court’s refusing to give special charge, pursuant to article 5511, requesting a finding, on whether claimant had one-tenth of the land under cultivation, held proper, where there was no showing that claimant was owner of the surrounding lands, or claimed such lands.
    4. Adverse possession <@=60(1) — That claimant settled with some claimants during limitation period held not inconsistent with hostile claim relative to another (Rev. St. 1925, art. 5510).
    That plaintiff claiming adversely under 10-year limitation statute (Rev. St. 1925, art. 5510), had settled with some other claimants during such 10-year period, held not to show that his claim was inconsistent with and hostile to other unsettled claims, such as that of defendant.
    5. Adverse possession <@=385 (3) — Evidence held to show claimant’s intention to hold under claim of right until dispossessed by record owner (Rev. St. 1925, art. 5510).
    In suit to establish title by adverse possession under 10-year limitation statute (Rev. St. 1925, art. 5510), evidence held to show claimant’s intention to hold under a claim of right until dispossessed by the record owner.
    ■6. Adverse possession <9=49 — Tax judgment against adverse claimant and record owner, void as to latter, held not such “adverse suit” as to interrupt 10-year possession (Rev. St. 1925, arts. 5510, 5514).
    A suit for taxes resulting in judgment against record owner, and one claiming adversely to him under Rev. St. 1925, art. 5510, which judgment was void as to record owner because of insufficient citation, -was not such adverse suit to recover the estate as to interrupt adverse claimant’s 10-year peaceable possession period contemplated by article 5514.
    7. Adverse possession <§=>46 — Valid sheriff’s sale of land breaks chain of title of defendant in execution remaining in, or taking, possession subsequent to sale, and claiming limitation title.
    A sheriff’s sale of land, if valid, breaks the chain of title of defendant in execution remaining in, or taking, possession subsequently to the sale, and claiming limitation title, and against the holder of a title which passes by the sheriff’s sale.
    8. Taxation <@=641 — Tax suit will not lie against possessory claim, unless proper party against ■ whom tax lien foreclosure would lie Was before court (Rev. St. 1925, art. 5510).
    A tax suit -will not lie against an adverse claimant’s possessory claim, under Rev. St. 1925, art. 5510, unless the state had before the court in the suit the proper party against -whom a foreclosure of the state’s tax lien would lie.
    Error from District Court, El Paso County; P. R. Price, Judge.
    Suit by Lee Moor against D. A. Thompson. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Turney, Burges, Culwell & Pollard and R. L. Holliday, all of El Paso, for plaintiff in error.
    Jones, Hardie & Grambling, of El Paso, for defendant in error.
   WALTHALL, J.

Lee Moor, claiming title and right of peaceable and adverse possession, under the statute of limitations of 10 years, to some 50 acres of land, a part of survey 20, described in his petition, brought this suit against D. A. Thompson, alleging that Thompson, under a recorded deed, was claiming some right, title, or interest in said land, and was seeking to dispossess him from said land. The prescriptive period alleged was 10 years next preceding the 20th day of October, 1926.

Thompson answered by plea of not guilty, and by cross-action alleged lawful possession in himself and claiming title under deed of date October 13, 1911, and that Lee Moor, on January 1,1926, unlawfully entered upon said premises and ejected him therefrom and unlawfully withholds same to his damage, stating same.

The case was tried and submitted to a jury on the one special issue of limitation of 10 years, defining peaceable and adverse possession. The jury found in favor of plaintiff, Lee Moor, on his plea of limitation of 10 years, and judgment was entered in his favor. The court overruled Thompson’s motion for new trial and he prosecutes this appeal by writ of error.

Opinion.

We will designate the parties as appellant and appellee as in their briefs. Appellant assigns error substantially as follows:

(1,2) In refusing to grant appellant’s motion'to instruct the jury to return a verdict in his favor.

(3) Error in refusing to submit requested special issues as to whether appellee, for 10 years continuously elapsing prior to the filing of his suit, had had the land sued for inclosed by a fence.

(4) Error in refusing to submit to the jury whether or not one-tenth of the land sued for was in cultivation by the appellee for a period of 10 years prior to the filing of the suit.

(5) Error in refusing-to submit requested special issues 1, 2, 3, and 4, insisting that the undisputed facts were that the land was entirely surrounded by a tract or tracts of land owned, claimed, and fenced by plaintiff, and that, if the jury had answered said questions in favor of appellant, appellee, could not have had judgment under the law unless the land was segregated and separated by a separate fence, and at least one-tenth of the land in the suit was in.cultivation and used for agricultural purposes, as provided by article 5511, R. O. S. 1925.

(6) Error in entering judgment for appel-lee, as appellee “took possession of the land sued for without any claim of title, and his possession was not adverse dnd hostile to appellant.”

(7) Error in entering judgment for appellee under his plea of ownership under the 10-year statute of limitation, because appellee’s “peaceable adverse possession was disturbed by suit and the continuity of his possession was broken by suit of the state against appellant and appellee for taxes.”

It was agreed that appellant is the owner of the lands involved in the suit under record title, unless his title is defeated by appellee’s plea of limitation under our statute of 10 years.

The evidence found in the record is devoted principally to the issue of appellee’s claim of title under the 10-year statute of limitation, the evidence covering approximately some 60 pages of the record, and too voluminous to embrace in this opinion. We have carefully reviewed the entire record and have concluded the evidence is sufficient to have required the submission of the issue of limitation to the jury. Without stating the evidence as applied to each of the propositions severally, a brief summary of the evidence shows that in October, 1912, appellee took possession of several surveys of land on what is known as the island in the San Eli-zario grant in El Paso county, Tex., for the purpose of cultivating same for farming purposes under a system of irrigation; most of the land embraced within appellee’s holdings appellee owned, but some of the land so held and inclosed by appellee’s inclosure appellee did not own; that appellee at once began the clearing, fencing, and leveling of the lands, beginning at the extreme westerly end of the island at survey No. 1, and fenced the surveys lying between No. 1 and the easterly end of survey No. 33, and completed the fencing and clearing of said surveys, including the land involved in this suit, apparently in 1913 and 1914.

The lands inclosed were put in cultivation by appellee as fast as he could fence, level, ditch, and get water to it for agricultural purposes, and lands inclosed, not leveled and ditched, appellee used for pasture of his stock.

The evidence, while not as clear as it could and should be, as the witnesses speak from a map referring to places indicated by the witnesses,, without identifying the places on the map, and speak more in reference to other lands inclosed and claimed than to the lands in controversy, but the evidence shows that the northerly side of appellee’s inclosure is bounded -by the northerly prong of the Rio Grande; that the surveys on the northerly side call for and run to the river; that on the river side and immediately along the river, averaging in width from about 60 feet to about one-quarter of a mile, the ground in places is bosque, low, and subject to overflow; and that appellee’s fence on the river side runs along the edge of the" low and subject to overflow ground.

A few statements from the evidence will ■indicate the character of appellee’s possession and his claim to the land. As to the south one-half of survey 20, the land involved here, appellee, Moor, testified:

“I have had that Thompson land; been using it continuously during all that period, for pasturing cattle and horses and farming. During that whole period since the year of 1913 or 1914, when we completed that fence we turned the horses in there. Before we put the fence up there we herded them on there.”

The witness testified that it was not a fact that any one could go back and forth across the river any where they pleased; that they could break the fence down, but they could not cross there without breaking it down; that the fence along the river has never been' discontinued to witness’ knowledge; witness had people keeping the fence up; the fence along the river has been turning stock; said:

“I used that land for pasture from 1913 until I taken charge of it, fenced ⅛ up to the present time. I have not put it all in cultivation yet. I suppose I have about 25 or 30 acres of this particular piece in cultivation, guessing at it as near as I can, it won’t miss it very many acres. To put -if in cultivation we cleared it up, grubbed it, and leveled it. After they (the federal government reclamation) put in the drain there, I never tried to cultivate any of'it in any way, any of the low land until such time the reclamation put in their drainage. * * * We put the levy all the way from the west end of the island by the (Lee Moor) bridge all down to 33; I had to do that to protect this land in there; * * * I commenced to level this particular land we are talking about in 1913, 1914, and 1915. I did not do very much of it at that time. I had a house built as near as I could on this Cooper Sharpley land (the north half of survey 20).”

On the claim made by appellee to the inclosed lands appellee said, in part:

“When we first went down there (on the island), for the first few years, 5 or 6 years, there were different parties that would come in there and put a camp up and squat on it, thinking they could hold it, and we asked them to leave; told them to get off; told them we were in possession.”

The witness then testified, in substance, that when he first went there (on the island) he did not know the nature of the claims people would make; did not know who they were, except just the names on the map; ap-pellee would have their claims investigated, and where people had valid claims to the land and demanded possession appellee adjusted their claims and kept the land; that occurred in several instances during the prescriptive period. Appellee said he had the land in controversy fenced during the years and had been claiming it “against anybody in the country up untjl now; I am still claiming all that the title is not perfected (in appellee); I am now claiming all that my title is not perfected in. I have been claiming it ever since I have been down there against everybody until such time they might show me they had rights or something there.” Other similar expressions we need not quote.

The court was not in error, we think, in refusing to instruct the jury in appellant’s favor; nor was the court in error in refusing to submit requested issues as to whether Lee Moor had the land inclosed by a fence during the 10 years elapsing prior to the filing of his suit on May 6, 1926, as complained of under the third proposition. The court had sufficiently submitted the issue of limitation of 10 years under article 5510, R. C. S. 1925. Craig v. Cartwright, 65 Tex. 413; Houston Oil Co. v. Jones, 109 Tex. 89, 198 S. W. 290.

Article 5511, R. C. S. 1925 (old article 5677), reads:

“A tract of land owned by one person, entirely surrounded by a tract or tracts owned, claimed or fenced by another, shall not be considered inclosed by a fence inclosing the circumscribing tract or tracts, or any part thereof; nor shall the possession by’the owner or claimant of such circumscribing land of such interior tract be the peaceable and adverse possession contemplated by article 5510 unless the same be segregated and separated from the circumscribing land by a fence, or unless at least one-tenth thereof be cultivated and used for agricultural purposes, or used for manufacturing purposes.”

The record does not show that Lee Moor owned, claimed, or had fenced the lands entirely surrounding the lands owned by Thompson, appellant, the land in controversy. The land in controversy extended to the river on the easterly end of the tract, and the land across the river was not owned, claimed, or fenced by appellee, Moor, so that, as we view it, the above-quoted article has no application and the court was not in error in refusing to give in charge to the jury appellant’s requested special charge requesting a finding whether Lee Moor had at least one-tenth of the land in controversy in cultivation.

We think the fact' that, during the time appellee was in possession of the land in controversy, and other lands, he made settlements with claimants of lands, such settlements would not necessarily show that ap-pellee’s claim of right to the land in controversy was not “inconsistent with and hostile to the claim of another” (that is, to the claim of appellant, also holding under deed); nor would such settlements with other deed owners necessarily show that appellee’s claim of right was subordinate to the right of another. There 'is no intimation in the evidence that •appellee intended to hold in subordination to the record owner. We think, on the contrary, the evidence shows that appellee intended to hold under his claim of right until he was dispossessed by the record oyner. True, he did not wait until he was actually sued or dispossessed by such other record owners of other lands, but when such other record owners made demand for possession of lands adversely held by appellee, appellee had such claimant’s title examined, and when advised by his attorney that the record owner’s title was good, and was advised, in substance, “to agree with thine adversary quickly while thou art in the way with him” (Matt. 5:25), then, and then only, did appellee make settlement by buying the land from such record owner.

The case of Houston Oil Co. of Texas v. Jones, 109 Tex. 89, 198 S. W. 290, by the Supreme Court, settles adversely to appellant’s contention under his sixth proposition, that the judgment for appellee was error because appellee “took possession of the land sued for without any claim of rights, and his possession was not adverse and hostile to appellant.”

It is suggested that appellee’s possession was interrupted by an adverse suit, a suit for taxes, and for that reason it was error to enter judgment in his favor. The facts, briefly stated, show that in 1920, during the prescriptive period, Thompson, at all times a nonresident, and Lee Moor, were jointly sued by the state for taxes due on the land in controversy, for the taxes due for the year 1917. Judgment was entered in favor of the state for the taxes due, with order of foreclosure of the tax lien. At'that time the record title showed to be in appellant, Thompson, and prior to the suit the land had been severally assessed in the names of each of appellant and appellee, and for some years each had paid the taxes, but for 1917 the land had not been assessed to either and neither had paid the tax for 1917. The suit was filed in 1920, and land was sold under said foreclosure sale in 1920, and bought by H. M. Wight, to whom a sheriff’s deed was executed. Wight bought the land for Lee Moor, paid the taxes due under the judgment, and thereafter executed a deed to the land to Lee Moor. The citation to Thompson in the tax suit was defective, and there is a stipulation by the attorneys of the parties in the statement of facts, apparently to the effect that because of the want of sufficient citation the judgment against Thompson in the tax sale was void.

We have concluded that, under the above state' of facts, the tax suit and judgment was not such “adverse suit to recover the estate,” as to interrupt the “peaceable possession” of appellee contemplated by article 5514, R. C. S. 1925 (former article 5680), under his plea of limitation of 10 years; his prescriptive period not having matured at the times of the filing of the suit, judgment, and sale of the land under the order of sale. Appellee remained in actual and continuous possession and use of said land, and such possession was not interrupted by anything happening by reason of the tax suit.

It is well settled that a sheriff’s sale of land, if valid, would break the chain of title of the defendant in execution, remaining in or taking possession subsequently to the sale, and claiming limitation title, and against the holder of the title which passed by the sheriff’s sale (Blum v. Rogers, 71 Tex. 677, 9 S. W. 595, and cases there cited), but we have found no case in this state holding that, prior to the maturity of the limitation title, would a tax suit and foreclosure thereunder, not valid as to the record owner, have the effect to interrupt the possession of the limitation claimant under the 10-year statute where the assessment and payment of the taxes on the land is not a material fact necessary to the prescriptive title. Under Patton v. Minor, 103 Tex. 176,. 125 8. W. 6, it is held that, where the 10-year limitation claimant had no title at the institution of the suit, and therefore was not a proper party to the suit, the judgment bound him, as well as all other persons, though not served, evidently means and has application to a valid suit against a proper party properly before the court. Lee Moor having no title to the land at the time of the suit and judgment, and no right other than a possessory claim, the tax suit would not lie against his possessory claim unless the state had before the court, in the suit, the proper party against whom a foreclosure of the state’s tax lien would lie. It is not shown that Lee Moor had rendered the land for taxation, nor had it been assessed in his name for the year 1917, the year for which the suit was brought, so that it might not be said that he had made himself a proper party to the suit by a voluntary rendition of the property for taxation.

The judgment is affirmed.
      ®=>Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    McLAIN v. GUINN et al.
    (No. 11903.)
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 28, 1928.
    1. Vendor and purchaser <©=>254(I) — Generally, where price for land has not been paid, lien to secure unpaid price is implied regardless of whether lien was reserved.
    Generally, where purchase money for land has not been paid, lien to secure payment thereof is implied regardless of fact that deed or notes given for price failed to reserve lien.
    2. Vendor and purchaser <3=266(1) — Lien to secure unpaid price of land may be waived.
    Lien to secure unpaid purchase price of land may be waived.
    3. Appeal and error <3=1012(1) — Weight and sufficiency of evidence Is-for trial court.
    Weight to be given to testimony and its sufficiency is for jury or trial court.
    4. Appeal and error <3=1001(1) — Judgment should be affirmed where evidence interpreted In light most favorable to successful party reasonably supports it.
    Where evidence interpreted in light most favorable to successful party is reasonably sufficient to support judgment, judgment should be affirmed.
    5. Vendor and purchaser <3=281(3) — Evidence held to sustain finding that no vendor’s lien was retained when lot was sold.
    In action to recover on a note given as part of price of lot and to foreclose a vendor’s lien on the lot, evidence held, to sustain finding of trial court that no vendor’s lien was reserved, fact that purchaser of lot witnessed signature of maker of note given in payment only repelling presumption, under Rev. St. 1925, art. 5934, § 35, that by signing note he became liable thereon.
    Appeal from District Court, Knox County; J. H. Milam, Judge.
    Suit by J. H. McLain against Ben I. Guinn and others to recover on a note and for foreclosure of a vendor’s lien. From a judgment for plaintiff against defendant John H. Klepper on the note, but denying right to foreclose the vendor’s lien, plaintiff appeals.
    Affirmed.
    Jas. A. Stephens and D. J. Brookreson, both of Benjamin, for appellant.
    M. F. Billingsley and J. S. Kendall, both of Munday, for appellees.
   CONNER, C. J.

This suit was instituted by the appellant, J. H. McLain, against Ben I. Guinn, John H. Klepper, C. A. Eiland, D. B. Barnes, and J. A. Corbitt, to recover upon a promissory note in the sum of $400, of which $50 had been paid. Said note was executed by John H. Klepper and was alleged to have been given as part of the purchase money for the south half of lot 9, block 1, in the town of West Munday, Knox county. The plaintiff prayed for judgment for the amount of the note with its interest, attorneys’ fees, costs of suit, and specially for a foreclosure of a vendor’s lien upon the lot-mentioned.

The defendants appeared and answered by a general denial and specially to the effect that the lien asserted by the plaintiff, if any, had been waived.

The trial was before the court without a jury, and .resulted in a judgment for the plaintiff against John H. Klepper alone for the amount due upon the note, and in favor of all defendants on the issue of the lien. From the judgment so rendered, plaintiff, McLain, duly excepted and prosecutes this appeal.

The sole question presented for our determination is whether or not the evidence is sufficient to support the court’s judgment. In determining the question it follows that we should state the evidence.' In substance, the undisputed testimony is that on the 12th day of March, 1926, W. T. Lewis was the owner of the south half of lot 9, blo.ck 1, in the town of West Munday, Knox county. On that day Lewis, joined by his wife, by regular warranty deed, conveyed said south half lot to Ben I. Guinn, one of the appellees in this case. The deed recited a consideration of $1,000 paid, and was without reservation of a lien to secure the payment of any unpaid purchase money. The testimony further shows that at the time of this transaction W. L. Lewis was indebted to the plaintiff in this case in the sum of $400, and that John H. Klepper was indebted to Ben I. Guinn in the sum of $600, for which he had given a promissory note. At the time of Guinn’s purchase of the half lot, he in fact did not pay $1,000 in money as reci^d in the deed, but, as hereinafter more particularly disclosed, in lieu thereof gave to Lewis the Klepper note, some furniture, merchandise, and a small amount of money. In conference and by agreement among Guinn, Lewis, and Klepper, the Klepper note was substituted by three promissory notes executed by Klepper- and made, one payable to J. H. McLain in the sum of $400, one payable to James A. Stephens, not a party to this suit, in the sum of $100, and one payable to Lewis in the sum of $200. It is upon the $400 note made payable to J. H. McLain that the suit was instituted. The note to McLain by Klepper contained no grant or contract for a lien upon the one-half lot in controversy to secure its payment. After these transactions, however, to wit, on May 22, 1926, Lewis executed an assignment to McLain of the “purchase lien owned and held by me (Lewis) against said premises (said one-half lot) by virtue of the laws reserving purchase-money liens for lands. * * * ”

W. T. Lewis, the grantor in the deed to Guinn was called as a witness for plaintiff. He testified, among other tilings, that at the time of the conveyance to Guinn—

“There was nothing said by any of the parties to the transaction about waiving any lien on this property. In fact, it was not mentioned by them to me, or I to them. Prior to this time I was indebted to Mr. McLain, and he and I went into Mr. Kendall’s office,- and requested Mr. Kendall to draw up a deed of trust on this property to secure that debt, and after that, I delivered to Mr. McLain the note you showed me, and soon thereafter I executed a transfer of this lien to take the place of that deed of trust. The reason I wanted to execute the deed of trust, I really wanted to sell the place and pay up what I owed, and have the rest for myself. Ben I. Guinn held a note of Klepper which I taken in on the place as part payment for it, and also settled with Mr. McLain. Ben already had a note of Klepper’s. I took up the Klepper note and had it made out again, part of it to me and part of it to Mr. McLain. That note has not been paid.”

Ben I. Guinn testified in behalf of the defendants on direct examination as follows:

“My name is Ben I. Guinn. I am the grantee in a deed made by W. T. Lewis, conveying the S. ½ of lot 9, block 1, of original town of West Munday. I think the consideration for that property was $1,000. This was paid some money, some furniture, household goods, and one thing and another, and some notes. Mr. Lewis come over there to the store and wanted to trade me the place at first. I had a note of-John Klepper’s, and Mr. Lewis wanted some stuff, some furniture, and first one thing, and another — in fact, we were trying to trade for two or three days before we did finally trade. I finally made a trade with him, I gave him the note of John Klepper, and the stuff he wanted, and some money — I don’t know just how much money now, but not very much — but he got the note on Klepper I already had. There was no particular conversation had between us with reference to the Klepper note, except that I talked with John and he agreed to pay $50 per month. I could not say whether Mr. Lewis was present at the time I talked with Klepper about paying the $50 a month or not, but I rather think he was — I am sure he was. There was nothing said about any lien on the place further than Mr. Lewis said the place was clear; he told me it was absolutely clear. There was nothing said between he and I with reference to his having any lien on the property he was selling to me. He and I agreed upon the value of the notes, and they were set out in the deed as cash consideration.
“There were three new notes made for the original note I believe, one of which was made payable to Mr. McLain, and one to Mr. Lewis and one to you, and all of the notes were signed by John H. Klepper, and were given in part payment for the lots. These three notes represented the amount that John Klepper owed me. Mr. Lewis explained to me that he owed Mr. McLain, and wanted to split the note up into three notes, so they were just made out direct to McLain, to you, and to Mr. Lewis in lieu of the original note of Klepper’s I surrendered to him. These three notes took the place of , money, and were given for an old note that John Klepper owed me, which, at Mr. Lewis’ request, it was split up in three ways. I did not know at that time that John Klepper could not pay anything. He had a good shop, and was doing a good business then. It was his shop he was working in. These three notes, $400, $100 and $200, they Were executed in payment of an indebtedness that Klepper owed me, and Mr. Lewis was to take up that debt.
“At Mr. Lewis’ request, Klepper made out new notes in lieu of the note I had of his, which went in on the purchase of this property. Lewis took up the Klepper debt in payment, or part payment for this property, so when Klepper signed the new notes, they were made payable to the parties direct, and when this was done, I credited his account and settled it off, and in making these new notes, they were made direct to you, and Mr. McLain, and Lewis, and these notes were given in exchange for a note I had of Klepper’s which was a part of the purchase price of this lot. Yes; we had agreed on the price of the note, and for convenience they were made direct instead of my indorsing the other note. I was to pay Lewis originally a $1,000 for the place, which was taken up in furniture, the indebtedness of Klepper to me and some money. Lewis was to take the Klep-per debt. At the time we began negotiations, John H. Klepper owed me the amount of the three notes, but it was all in one amount. This was divided up at the request of Mr. Lewis.”

The trial court filed no findings of -fact and conclusions of law, nor does the judgment disclose whether the trial court concluded that the note declared upon by appellant was in fact not the note given by Guinn to Lewis as part of the purchase money for the lot, or whether, regardless of that contention of appellant, the lien had been waived. Appellant stresses the proposition that where it appears that the purchase money for land has not been paid, that the law implies a lien to secure the payment of all unpaid money, regardless of the fact that the deed of conveyance or, notes given as part of the purchase money fails to reserve a lien. Generally speaking, this contention is undoubtedly true with us. In an early day it was ruled by our Supreme Court in the case of Briscoe v. Bronaugh, 1 Tex. 326, 327, 46 Am. Dec. 108, that it is a doctrine of the civil law and of the equity jurisprudence of the United States and of England that a vendor has a lien upon the thing sold for the purchase money, without any special agreement for that purpose; that the vendee holds in trust for the vendor until the purchase money is paid; and that this trust attaches to the land or thing sold, and follows it into the hands of subsequent purchasers With notice. The rule so indicated has been frequently followed by our courts since the decision cited. White, Smith & Baldwin v. Downs, 40 Tex. 226; Irvin v. Garner, 50 Tex. 50; Senter & Co. v. Lambeth, 59 Tex. 264; Burford v. Rosenfield, 37 Tex. 42. Nevertheless the lien may be waived. See Parker County v. Sewell, 24 Tex. 238; Weeks v. Barton (Tex. Civ. App.) 31 S. W. 1071; Wasson v. Davis, 34 Tex. 159; Faver v. Robinson, 46 Tex. 294; Cresap v. Manor, 63 Tex. 485.

In the case of Parker County v. Sewell, Parker county sued J. H. Sewell, John H. Prince, and G. K. Elkin to recover the amount of a note given hy them to the plaintiff, as the consideration for the purchase by Sewell of certain town lots belonging to said county, and to enforce the vendor’s lien on the lots, which the plaintiff claimed to arise by virtue of the sale. Prince and Elkin executed the note as sureties of Sewell. Isaac Anderson, and others not necessary to name, intervened and claimed the lots as innocent purchasers from Sewell, and resisted the application of ■the plaintiff to enforce the vendor’s lien, on the ground that it had waived its lien by taking independent, personal security, namely, the joint makers with Sewell of the note sued on. The court, after affirming the general doctrine that the vendor of land retains a lien upon it for the unpaid purchase money which would be enforced against the vendee and those claiming under' him with notice that the purchase money remains unpaid, held, after reviewing the authorities, that the taking of a distinct and independent security by the vendor of real estate, .where it does not appear that he reposed as well upon his lien as upon such security, will be considered a waiver of the lien. In the course of discussion, the court quoted the following from Chancellor Kent:

“Taking a note, bill or bond, with distinct security, or taking distinct security exclusively by itself, either in the shape of real or personal property, from the vendee, or taking the responsibility of a third person, is evidence that the seller did not repose upon the lien, but upon independent security, and it discharges the hen.”

In the case of Weeks v. Barton, supra, this' court held, quoting from the headnote:

“Where a note does not show that it was given for the price of land, and declares that it is secured by rent on other property, and the deed conveying the land recites a cash consideration and reserves no lien, in an action to foreclose his lien, the burden is on the vendor to show that a lien on the land was reserved.”

In the case of Faver v. Robinson, supra, our Supreme Court held that a petition which merely alleged that the joint and several promissory notes of the vendee and two others on a lot had been given for the amount which the vendee was to pay for the lot was insufficient to support a judgment enforcing a lien, citing the case of Parker County v. Sewell, 24 Tex. 238, with approval. •.

In the ease of Cresap v. Manor, supra, it appears that Manor sold land to Cresap, taking in payment $15 in cash and two promissory notes, each executed to Cresap by one Gossett for the purchase money of a tract of land sold to Gossett. These notes were indorsed by Cresap, and they, together with the $15' paid in money, formed, as the deed recites, the consideration for the land. The notes made to Cresap by Gossett were secured by lien on lands sold by Cresap to Gossett. Chief Justice Willie, in disposing of the case, said:

“The presumption of law, therefore, was that the vendor’s lien was waived; and if Manor relied upon it, in addition to the other securities held by him, the burden was upon him to establish that fact by appropriate evidence.”

It was further said in that case that:

“It is the settled law of this state that the taking of a distinct and independent security by a vendor of real estate, where it does not appear that he reposed as well upon his lien as upon such security, will be considered as a waiver of the vendor’s lien. Parker County v. Sewell, 24 Tex. 238; Faver v. Robinson, 46 Tex. 204; Ellis v. Singletary, 45 Tex. 27.”

There were no objections to the evidence, and the rule by which we must be guided is that in the first instance the weight to be given to the testimony and its sufficiency is for the jury or trial court, as the case may be, and that where the evidence, interpreted in the light most favorable to the successful party, is reasonably sufficient to support the judgment, the judgment should be affirmed. Wright’s Adm’x v. Donnell, 34. Tex. 291; Boettler v. Tumlinson (Tex. Civ. App.) 77 S. W. 824, writ refused.

According to the rule so stated, we have felt unable to say, as appellant insists, that the evidence fails to support the court’s judgment denying the vendor’s lien upon which appellant declared. By a review of the testimony it will be seen there was no express reservation of the lien and the deed recited the consideration as paid, and that at the time of the conveyance by Lewis and wife to Guinn nothing was said about a lien; that the notes to McLain, Stephens and Lewis “were given in exchange for a note he (Guinn) had of Klepper’s, which whs a part of the purchase price of this lot.” Guinn refers to the transaction as a trade between him and Lewis, and testified that at the time Klepper had a “good shop and was doing a good business then. It was his shop he was working in.” The Klepper note was property subject to valuation and assignment, as truly so as the furniture and household goods, and we know of no reason why, Guinn and Lewis so agreeing, it might not be treated as cash.

There is nothing in the testimony that we have been able to find that shows that Klep-per was insolvent at the time. Guinn, upon the completion of the transaction, canceled his debt against Klepper. Lewis, by the transaction, seems to have discharged the debt he owed to "McLain, and he now has the judgment of the court ■ against Klepper on the note received by him as a discharge oi the McLain debt. No judgment was obtained by appellant against Guinn. or Lewis, and of this no complaint is made, or any evidence that Gninn by indorsement or otherwise was considered as liable upon the Klep-per note. It is true his name appears upon the Klepper note for $400 sued upon, but it was merely as a “witness to the signature,” thus repelling any presumption that he became liable thereon. Article 5934, § 35, Revised Statutes of 1925. The judgment against Klepper was by default, he having failed to appear, as the judgment recites; but, as stated, there is no evidence of probative effect that he is insolvent.

The'trial court had the witnesses before himj doubtless knew the parties, heard all the evidence, and' we think he was justified in concluding that the lien had been waived. It is true that, as appellant urges, some days after the trade Mr. Lewis executed an instrument purporting to convey the lien held by him on the lot in question; but neither Guinn nor Klepper is shown to have been a party to this instrument, or to have, consented thereto, and we cannot think that it can be given the effect insisted upon. It Is also true that the note given by Klepper to appellant contains recitations indicating that a lien was held upon property conveyed, but the nature of the recitations are such, as to indicate that the property referred to was personal property but, even ijf not so, there was no description of either personal or real property contained in the note, and hence, in no event can it be said to have conferred a lien upon anything. Rosen v. Phelps (Tex. Civ. App.) 160 S. W. 105; Penn v. Yellow Pine Lumber Co., 35 Tex. Civ. App. 181, 79 S. W. 842; Continental Supply Co. v. M., K. & T. Ry. Co. (Tex. Com. App.) 268 S. W. 444; Id. (Tex. Com. App.) 269 S. W. 1040.

We conclude that the judgment below must be affirmed.
      <§s*For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GUESS et al. v. HARMONSON et ux.
    (No. 11896.)
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 14, 1928.
    I. Mines and minerals <⅞=>79(1) — Instrument conveying one-half royalty interests held to show intention grantees should receive royalty only on minerals’ severancé from land and should not receive rentals from lease.
    Instrument stating landowners.had granted, sold, bargained, conveyed, assigned, and set over one-half their equity in oil and other 'mineral royalties held to show parties’ intention grantees should receive only one-half of royalty in oil and other minerals after severance from land, and should not be entitled to bonus or rentals arising from oil and gas lease or other mineral lease.
    2. Mines ajid minerals <⅜=»79(1)— Conveyance stating mineral rights, etc., were conveyed held to mean rights, title, etc., in royalties only.
    In instrument by landowners conveying one-half their oil and other mineral royalties, expressions to the effect that the rights, title, interest, powers, equity and revenues derived were conveyed held to refer to and include only the rights, title, interest, powers, equity, and revenues arising out of the royalties, to which the expressions were, apparently, limited by the instrument when construed as a whole.
    Appeal from District Court, Young County; E. G. Thornton, Judge.
    Suit by Zatthu Harmonson and wife against J. I. Guess and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Penix & Penix, of Graham, for appellants.
    Marshall & King, of Graham, for appellees.
   CONNER, C. J.

Zatthu Harmonson and wife, Sallie K. Harmonson, were the fee-simple owners, on May 11, 1918, and long prior thereto, of 240 acres of land situated in Young county, Tex., to be hereinafter more particularly referred to. On October 15,1917, for a recited consideration of $1 in cash, they leased the land to N. C. Harlan, trustee, “for the purpose of prospecting for oil, gas, and sulphur and the production of the same therefrom.” This lease, which was duly recorded and generally in a familiar form, granted the right of ingress and egress in and over the land to prospect, drill, mine the same, and with the right to erect, maintain, and remove all necessary and proper structures, etc. The lease conveyed to Harlan “all of the oil, gas and sulphur in and under said land,” subject to certain royalties. The royalties specified were on oil “a quantity equal to one-eiglith of all- produced and saved, the same to be delivered at the well or to the credit of the lessor in the pipe line to which the wells may be connected; on natural gas, at the rate of $200 per annum, payable quarterly for each well producing gas exclusively, and from which gas is then being used or sold off the premises.”

The lease further provided:

“If operations for the drilling of an oil or gas well are not begun on said land on or before the 25th day of September, 1918, this lease shall terminate as to both parties unless the lessee on or before shall pay or tender to the lessor or to .the credit of the lessor in the Beck-ham National Bank at Graham * * * the sum of $300, which payment or tender may be made by check or draft of the lessee and, however made, shall operate to confer on the lessee the privilege of deferring the time limit for six months from said date. Thereafter in like manner and upon like payments or tenders of said amount the time limit may be further deferred for additional periods of six months successively provided always that this lease cannot be kept in force by such payments in the absence of drilling operations for a longer period than five years from the date above set forth. But nothing in this paragraph contained shall obligate the lessee against its wish or option to make any such payment or to drill or otherwise carry on operations hereunder.”

It also provided that:

“If the lessee shall sink a well or shaft and discover oil, gas or sulphur in paying quantities, in and under the above described land, then this lease shall remain in full force and effect for ten years from such discovery and as much longer as oil, gas or sulphur shall be produced therefrom in paying quantities.”

The lease expressly conferred upon the parties the privilege of assigning their interests, and contained other provisions which we have not specified since they are not thought to be material in our determination of this appeal.

On the same day, to wit, October 15, 1917, N. O. Harlan, trustee, and others interested therein, duly assigned the above lease to the Clear Fork Oil & Gas Company, a corporation. It was agreed that the lease so as-: signed expired and terminated previous to December 10, 1925. Previous to December 10, 1925, however, to wit, on May 11, 1918, Har-monson and wife executed and delivered to J. I. Guess the following instrument:

“The State of Texas, County of Young:

“Know all men by these presents:
“That Z. Harmonson and wife, ———• Harmon-son, of Young county, state of Texas, for and in consideration of the sum of seven hundred twenty dollars cash to us in hand paid by J. I. Guess, the receipt of which is hereby acknowledged, have this day granted, sold, bargained, conveyed, assigned and set over and by these presents do grant, sell, bargain, convey, assign and set over unto the said J. I. Guess the following described rights, title, interest, powers and equity in and to the royalties in oil, gas and other minerals in and under the following described land and premises, to wit: It is the intention to convey and assign to the said J. I. Guess an undivided one-half (½) interest in and to the royalties to be derived from the production of oil, gas and other minerals in and under the following described 240 acres, located in the county of Young, state of Texas, known and designated as follows: [Here follows a complete description of the land.]
“It is the intention of this instrument to convey to the said X I. Guess, as above set forth, an undivided one-half (½) interest in and to the royalties derived, or to be derived, from the development, mining and production of oil, gas and other minerals from the above mentioned 240 acres, and this conveyance and assignment transfers an undivided (⅛) interest in and to all the royalties in the oil, gas and other minerals in place, and by the term royalty or royalties is meant all such royalties and revenues as shall be derived by the grantor and the grantee herein, proportionately, from the exploration, mining, drilling, development and production of oil, gas and other minerals, ftom the aforesaid tract of which the grantee herein shall receive undivided (½) of the total royalties and revenues to be so derived. The grantors covenant that they have good and indefeasable title in fee simple to the land above described, except a certain oil and gas lease heretofore made to Clear Fork Oil & Gas Company dated October 15, 1917, and recorded in the Deed Records of Young county, Texas, vol. 67, p. 58, which lease is referred to and made a part hereof for a better description of the royalties reserved by the grantors in said lease, which are the royalties contemplated by this assignment. The grantors covenant that they will make, execute, acknowledge and deliver to the grantee herein mentioned all the necessary and proper division orders or other appropriate instruments necessary for the division of said royalties at such time as the grantee shall request same.
“The grantors further covenant and agree that in the event the lease now on said land shall for a reason or for no reason be canceled, abandoned, surrendered, or forfeited, either by lawful action, or without such action, that the rights of the parties hereto shall nevertheless remain in full force and effect and that in -the event of the abandonment, cancellation, surrender or forfeiture of the said lease, the parties hereto will and shall join each other in the erection and delivery to others, that is to some other solvent oil company or individual, in a lease substantially like the one now in force, the royalties, however, to such additional lease, if any, are to be agreed upon.
“The consideration first mentioned applies to all the covenants herein set forth, and it is expressly stipulated that this contract is not personal, but is a contract and covenant running with the land and to be held as an interest therein, and this contract in all its provisions shall be binding upon the heirs, administrators, assigns, executors, and legal representatives of whatsoever name, of the parties hereto and that it, this contract, would not otherwise be made and that the rights, privileges and benefits thereto shall inure to the heirs and assigns of the parties hereto as herein stipulated.
“If the estate of either party hereto is assigned, sold or conveyed, and the privilege of assigning same either in' part or in whole is expressly allowed, the covenants hereof shall extend to the same assigns and their successive assigns.
“It is expressly understood, however, that the grantors herein in nowise pass title to the surface or realty either in part or in whole to the land above described, but this instrument is only intended to convey an undivided one-half (½) interest in and to the royalties as above set forth.
“To have and to hold unto the said J. I. Guess and to his assigns forever, in the proportion and interest above set forth and subject to the terms of the original lease, or any lease that may hereafter be made in accordance with the provisions of this contract.
“In testimony whereof we have hereunto set our hands at Graham, this the 11 day of May, A. D. 1918. Zatthu Harmonson.
“Sallie K. Harmonson.”

At the time of the execution of the above conveyance by Harmonson and wife to Guess, the oil and gas lease, executed by Harmonson and wife to N. O. Harlan, trustee, and assigned by said trustee of the Clear Pork Oil & Gas Company, had not expired and was in full force.

After the termination of the lease by Har-monson and wife to Harlan, to wit, on December 10, 1925, Harmonson and wife and J. I. Guess, and others who in the meantime had acquired specified interests under conveyances from J. I. Guess, executed and delivered to P. P. Nigh an oil and gas lease, for a consideration of $10 in cash and covenants specified, on 160 acres out of the 240 acres originally leased by Harmonson and’ wife to Harlan, the lessee Nigh therein agreeing to deliver to the credit of the lessors, free of cost, “the equal one-eighth part of all oil produced and saved from the leased premises,” and “one-eighth of the net proceeds of the sale for the gas from each well where gas only is found."

The lease to Nigh was made to terminate before the 10th day of December, 1926, in the event no well was commenced on the land before that time, unless the lessor should pay or tender at a bank specified the sum of $300, which should operate as a rental covering the privilege of deferring the commencement of a well for 12 months. In like manner and upon like payments or tender the commencement of a well might be further deferred for like periods of the same number of months, etc. This lease was thereafter duly assigned by P. P. Nigh to the Humphreys Corporation on May 14, 1926. It further appears that in accordance with the terms of the Nigh lease there had been paid into the specified bank to the credit of Nigh’s lessors $800 as an annual rental for the privilege of deferring the commencement of a well for 12 months from December 12, 1926.

Harmonson and wife testified that the names of J. I. Guess and others claiming under him were not signed to the lease dated December 10, 1925, when executed by them to P. P. Nigh, that Nigh paid no bonus therefor, and that no lease rental under the lease to Harlan, trustee, and later-assigned to the Clear Fork Oil & Gas Company, was paid to any defendants; that none of the defendants ever made any claim for rentals due and payable under the Clear Pork Oil & Gas Company lease, which was in force at the time of the conveyance by plaintiffs to J. I. Guess; that rentals under said lease were duly paid for several years; that they never orally agreed with the present defendants to take one-half of the rentals and bonus money, and that no claim therefor by said defendants had been made until some time after the Nigh lease was executed and about the time the annual rentals were due thereunder, when they heard that the defendants were claiming one-half of the rentals due under the lease.

J. I. Guess testified, in substance, that he was not to receive any rentals under the oil and gas lease to him of the 240 acres executed by Harmonson and wife on the 11th day of May, 1918, nor under the lease to Harlan, assigned to the Clear Pork Oil & Gas Company, but that the agreement between him and plaintiffs at the time he purchased the mineral lease was that he should receive his proportionate part of the rentals due under any other lease after the expiration of said lease to the Clear Pork Oil & Gas Company, and that when he first saw the lease to Nigh it had already been signed by Har-monson and wife.

The foregoing state of facts was máde the basis of this suit, instituted by Harmonson and wife against J. I. Guess and others claiming under him and the First National Bank of Graham, to determine the rights of the parties under the conveyances referred to and settle the controverting claims of the defendants.

The contention of plaintiffs was and is that they were the fee-simple owners of the land in question covered by the lease to. Guess, and that such lease conveys only a one-half interest in the royalties from oil and gas and other minerals when and after they are severed from the land, and does not entitle the defendants to share in any of the rentals or bonus money arising from any lease made at any time covering said land.

The defendants, however, contend that under the proper construction of said instruments they are entitled to one-half of the bonus money and rentals arising from the lease at any time made on said land described in said instrument.

It is thus seen that the crux of the controversy presented by the record is, which of the litigating parties is entitled to the rentals or sums paid and to be paid as bonuses, or for the extension of time limits within which actual drilling and development of the land in controversy under the terms of the leases executed by Harmonson and wife after the termination of the lease to Harlan, which was in full force on the date .of the lease to J. I. Guess. It is undisputed that the aggregate sum of $800 of such rentals so paid is now on deposit in the First National Bank of Graham. The right of J. I. Guess and those claiming under him must depend on the legal effect of the instrument executed by Harmonson and wife to J. I. Guess on the 11th day of May, 1918.

The case was tried before the court without, a jury, and the court found:

“That the intention of the instrument in controversy as a whole shows the evident intention of the parties that the grantees or parties holding under said instrument should have, take and receive only one half of the royalty in and to oil, gas and other mineral after the same should be severed from the land, and that they should not be entitled to any bonus or rentals arising from an oil and gas lease or mineral lease made at any time from said land.”

Judgment was accordingly rendered in favor of plaintiffs Harmonson and wife for the $800 rental money on deposit in the First National' Bank of Graham, denying to defendants any right thereto, from which judgment the defendants have prosecuted this appeal.

We are of the opinion that the court correctly construed the conveyance to J. I. Guess and rendered the proper judgment. This instrument, which is the basis of the rights claimed by appellants, as we construe it, does not convey a fee-simple estate to the minerals in place or in the lands therein described. The express intention was to convey and assign an undivided one-half interest in and to the royalties derived from the production of the oil, etc.

The conveyance in not less than four different places is limited to a one-half interest in the “royalties.” The instrument refers to the lease executed by the Harmonsons, dated October 15,1917 (evidently the one to Harlan hereinabove described), for “a better description of the royalties reserved by the grantors in said lease, which are the royalties contemplated by this assignment.” By reference to the Harlan lease it will be seen that the royalties mentioned on oil were “a quantity equal to one-eighth part of all oil produced and saved from the leased premises,” the same to be. delivered at the wells or to the credit of the lessor in the pipes to which the wells may be connected. It may be further noted that in the lease to Guess the grantors covenant to “execute, acknowledge and deliver to the grantee [Guess] herein mentioned all the necessary and proper division o.rders, or other appropriate instruments necessary for the division of said royalties at such time as the grantee shall request them.” These expressions, and others, exclude in our judgment the conclusion that the lease to Guess as a whole was intended to convey an undivided interest in minerals in place, within the meaning of those authorities holding that a grant to oil or other minerals in place is a conveyance of real estate. Nor do we think expressions in the lease, relied on by appellants, to the effect that “the rights, title, interest, powers, equity and revenues” derived are conveyed, require a construction of the instrument other than that given it by the trial court and which we approve. We think that such expressions must be held to refer to, and only include, the rights, title, interest, powers, equity, and revenues arising out of the “royalties” to which the expressions are apparently limited by the instrument when construed as a whole. In Thornton’s Law Relating to Oil and Gas (2d Ed.) p. 288, it is said:

“Royalty is another term for rent, but is limited * * * to rents due for the right or privilege of taking minerals, oil or gas out of a designated tract of land. * * * its true significance must be read or determined in connection with the rights granted. So care must be taken to distinguish between rent and royalty in connection with gas and oil leases. Rent is the term applied to the privilege given to bore for gas and oil and for delay in beginning operations; while royalty is a certain percentage of the oil after it is found, or so much per gas well developed.”

In Summers’ “Oil and Gas,” c. 17, in discussing the subject of rents and royalties, it is said, among other things, in section 189, that:

“The consideration most usually given for the privilege of producing oil is a share of the oil produced from the land, usually one-eighth, to be delivered to the lessor in tanks or pipe lines on the premises.”

In the ease of Caruthers v. Leonard (Tex. Com. App.) 254 S. W. 779, in an opinion by Section B of the Commission of Appeals, approved by the Supreme Court, it is held, in substance, that a lease conveying oil and gas in place with a right to enter and appropriate creates a determinable fee, or fee-simple determinable in the oil and gas in place, and not an. estate upon condition subsequent, the only estate remaining in the lessor being a mere possibility of reverter, and that while such possibility of reverter is assignable that a conveyance of an undivided one-half interest in minerals, in terms subject to existing mining lease, conveyed only a one-half undivided interest in possibility of reverter under a prior lease to another, not including rentals payable under such former lease.

Without further discussion, we conclude that the judgment below should in all things be affirmed.
      ®s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLY, C. J.

text:
    LUNDBERG v. CITY OF RAYMONDVILLE.
    (No. 7934.)
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 20, 1928.
    I. Municipal corporations <§==>655 — Commissioners’ court was unauthorized to change street on plat of lots not in incorporated city, where change was not made to lay out, open, or change county road (Rev. St. 1925, art. 6703).
    Where, in 1906, town site, not within incorporated city, was platted with streets and alleys, dedicated as shown on plat, and thereafter the lots were sold in the town site according to the plat, commissioners’ court was not authorized,' under Rev. St. 1925, art. 6703, to make alterations in street as shown on map, where alterations, as made by it, were not done in order to lay out, open, or change a public county road.

      2." Adverse possession <@=⅛36 — Lot owner held not to have had such exclusive possession as would support limitation claim to platted street.
    Where plat of town site was made showing dedication of streets and alleys, and thereafter lots were sold according to the town-site map, plaintiff, as successor of original purchaser of lot, claiming title to street adjoining his lot, held not to have had such exclusive possession thereof as to support claim of limitation.
    Appeal from District Court, Willacy County; A. M. Kent, Judge.
    Suit for injunction by A. W. Lundberg against the city of Raymondville, in which C. J. Henninger intervened. From a judgment denying relief to the plaintiff, but 'granting relief to the intervener as prayed for, plaintiff appeals.
    Affirmed.
    See, also, 299 S. W. 539.
    Davis E. Decker, of Raymondville, for appellant.
    Wright & Crane, of Raymondville, for ap-pellee.
   PLY, C. J.

This is an application for an injunction to restrain appllee from going upon, molesting, or in any manner appropriating a certain strip of land, off the eastern part of park lot G, now called reserve lot G, in the city of Raymondville, described as 51.3 feet fronting on Hidalgo avenue, 300 feet on Seventh street, and 10.6 feet on Main avenue, containing 9,300 square feet off the east side of said lot, and to quiet the title to said strip of land in appellant. A temporary injunction was granted, which on a final hearing on the merits was dissolved, and all relief denied appellant, and it was adjudged that he pay all costs of suit. C. J. Henninger intervened in the suit, claiming to be the owner of the north half' of lot one of block 34, directly across Seventh street from reserve lot G, claimed by appellant, seeking to restrain appellant from obstructing Seventh street and creating a nuisance therein. The court granted that relief to the intervener, and assessed the costs of intervention against appellant.

Appellant interposes no objection but a minor immaterial one to the findings of fact of the trial court, and they are approved substantially, as follows:

“On the 1st day of September, 1906, the Kle-berg Town & Improvement Company platted the town of Raymondville and dedicated streets and alleys; said plat having been made by Fred Warren and filed for record on the 28th day of September, 1906. On the 1st day of November, 1909, Adam M. Davidson conveyed by warranty deed to Willis E. Crane seven tracts of land, among which were included Raymondville town site park G, and Raymondville town lots Nos. 1 and 2 in block 34, as designated and shown by and on the map of the Kleberg Town & Improvement Company. That by deed dated November 2, 1910, Russell McChesney et ah, conveyed to Willis E. Crane lots numbered 11, 12, and 13 in block 34, in the town site of Ray-mondville, Tex., according to the map of said town site of Raymondville, as prepared by Fred Warren, engineer for the Kleberg Town & Improvement Company. That on the 2d day of November, 1910, the commissioners’ court of Cameron county, Tex., at a special session of the court, with three commissioners and the county judge present, passed an order vacating a strip of land being a portion of Seventh street at Raymondville, Tex., which said land lies between Main and Hidalgo avenues, a copy of said order being set out in defendant’s answer. That previous to the passing of said order of the commissioners’ court and previous to the conveyance to Willis E. Crane of lot 13, block 34, Crane had fenced in and inclosed with his park G property the part of Seventh street in question in this case.
“By deed dated March 12, 1912, Willis E. Crane conveyed to Margaret T. Sullivan all of reserve lot G and ‘all of block 34, excepting four lots in said block 34 numbered 7, 8, 9, and 10 according to map, plat, and surveys of the town site of Raymondville, Tex., as the same appears of record in the office of the county clerk of said Cameron county, Tex., special reference being herein made to the plat of said Raymondville town site made by Fred Warren, engineer for the Kleberg Town & Improvement Company, and filed for record on the 28th day of September, 1906.
“By a quitclaim deed dated March 20, 1912, Margaret T. Sullivan conveyed to Adam M. Davidson the land as above described. That by warranty deed dated December 26, 1914, Adam M. Davidson conveyed to Oscar W. Anderson and A. W. Lundberg ‘park lots F and G, Ray-mondville, as designated and shown by and on the map of the Kleberg Town & Improvement Company, as prepared by Fred Warren, engineer, special reference is now here made, and they are each and in all things made part hereof for greater certainty, and forms part of the land conveyed to me, said Adam M. Davidson, by the Kleberg Town & Improvement Company, by its certain warranty deed thereto of date May 11, 1906.’
“By trust deed dated January 5, 1917, Arthur W. Lundberg and Oscar W. Anderson conveyed to Walter Evensen, trustee, park lots F and G, and reference is made to the Warren plat above set out.
“By warranty deed dated December 9, 1909, Adam M. Davidson conveyed to William P. Gano ‘lots 1 to 6, inclusive, in block No. 34, and subject to the easement of highways of the town site of Raymondville as so designated and shown by and on the map of the Kleberg Town & Improvement Company as prepared, by Fred Warren,’ etc.
“By warranty deed dated November 23, 1921, W. P. Gano conveyed to C. F. Henninger ‘lots 1 and 2, block 34, lying within the surveyed and platted limits of the town of Raymondville, Wil-lacy county, Tex.’
“Park lot G is now owned by A. W. Lund-berg, and the north 90 feet of lot 1, block 34, is owned by C. F. Henninger.
“That, after the fencing of the part of Seventh street, as originally platted, the public detoured around this fence, and used the adjacent land as a roadway.
“That in the year 1910 one hundred or more lots had been conveyed in the town site of Ray-mondville as described and platted by the Fred Warren map heretofore referred to.
“In the year 1910 the population of Ray-mondville was very small, probably not exceeding 100 people.
“About the year 1920 various persons were demanding that Seventh street be opened for use by the public, in accordance with its designation of the Fred Warren map.
“That on or about the 8th day of June the commissioners of the city of Raymondville passed a resolution declaring it necessary to improve Seventh street, and have the same cleared of obstructions and graded, as designated in the Fred Warren map.
“On the —-day of June, 1927, A. W. Lund-
berg petitioned for, and was granted, a temporary writ of injunction restraining the city of Raymondville from improving or using said Seventh street.
“A. W. Lundberg has, since the purchase of park lot G from Adam M. Davidson, laid claim to all the land within his inelosure, which included that portion of Seventh street now in question, and the said Lundberg has paid taxes to the state and county for the past five years on park lot G, which, by assessment rolls, is designated as having a frontage on Hidalgo avenue of 160 feet,' which amount of frontage would include the part of Seventh street here in question.
“Lot 13, block 34, for the years 1921 to 1927, inclusive, was not rendered" nor assessed for state and county taxes, said lot being marked on the assessor’s plat book as ‘street.’ ”

The land claimed by appellant lies on the west side of Seventh street, as originally designated, and is a part of Seventh street as platted on the map of Raymondville and recorded in Cameron county records. Seventh street, as platted, was a straight street running nearly north and south from Riggs avenue to Yturria avenue, eight blocks. As fenced by Crane, Seventh street was deflected so as to run over and cover all of lot 13 and most of lot 1, in black 34. Appellant has all the land conveyed to him by his deed from Adam Davidson. The land in the deed to appellant and Oscar W. Anderson was described as park lots F and' G, as “shown by and on the map of the Kleberg Town & Improvement Conrpany, as prepared by Fred Warren, engineer, and now on file in the office of the county clerk of said county of Cameron, Texas, to which said map and its said records special reference is now here made, and they are each in all things made part hereof for greater certainty.” That deed was dated December 26, 1914. In the deed from Osear W. Anderson to A. W. Lundberg, dated October 15,1915, reference was made to the deed from Adam Davidson to Lundberg and Anderson. The map, referred to as one prepared for the Kleberg Town & Improvement Company by Fred Warren, shows Seventh street with straight lines along the property of appellant, and gives no warrant, for crooking the line so as to take a large portion of Seventh street on which said property abuts. None of the deeds to the lot claimed by appellant recognize any deflected line on the east side of the property. The map was made by Warren on September 1, 1906. In January, 1917, appellant recognized the location of Seventh street as laid out on the Kleberg Town & Improvement Company.

The action of the commissioners’ court of Cameron county in attempting “to vacate” a part of Seventh street, in 1910, was not recognized in any of the conveyances, but references were always made to the plat made by Warren. The order of the commissioners’ court was never placed on the records of the county. The evidence showed that the fence out in Seventh street, in 1920, was broken down — only a few posts left. Nat Wetzel swore that “there wasn’t any fence out there on the east side; at any rate, we drove right in from every direction; there was no fence at all on the east, there was.a long tier of wood, cordwood, for fuel, on the place; that pile of wood would.be in the original Seventh street.” Appellant admitted he had not bought any part of Seventh street, and intended to claim it by limitation. The fence which Crane erected was up about four or five years, and then began falling down. The property in Raymondville was bought and sold with reference to the Warren plat, and with no reference to any action of the commissioners’ court in attempting to change the street as laid out on the plat.

The plat of the lots and streets of Ray-mondville was made and recorded in Cameron county, long before the city of Raymond-ville came into chartered existence, and it is the contention of appellant that the potential town was under the control of Cameron county before it was organized, with full authority to change, alter, or discontinue streets indicated on the plat, under the terms of article 6703, Revised Civil Statutes of 1925. That article, after authorizing the commissioners’ court to lay out and open necessary public roads, and discontinue or alter any road whenever it shall be deemed expedient, gives plenary powers to open necessary roads, and provides that public roads shall not be altered or changed, except to shorten the distance from end to end, unless the change will better serve the public interest, and can be made only by unanimous consent of the commissioners. It is also provided that no part of a public road shall be discontinued until a new road is built connecting the parts not discontinued. After the foregoing provisions, the article provides:

“Said court shall assume and have control oí the streets and alleys in all cities and incorporated towns in Texas which have no de facto municipal government in the active discharge of their official duties.”

, There was no city or incorporated town of Raymondville when the commissioners sought to alter and change a street laid off on a plat recorded by a private company, in order to dedicate it to the' public, and there was no-occasion for the commissioners’ court to attempt to change a street designated. It was not done in order to lay out, open, or change any public road of the county. The authority to control the streets and alleys of incorporated towns and cities is given in order to prevent chaos and disorder when for some reason municipal government has temporarily lapsed or been abandoned, and, while the statute provides for the changes in public roads under some circumstances, it does not grant such power to commissioners’ courts in regard to cities and towns with no necessary officers to conduct the affairs of the municipality. Several cases are cited by appellant in his endeavor to sustain the action of the commissioners’ court in connection with Seventh street, and a review of them has been deemed appropriate, if not necessary. The case of Morris v. Cassady, 78 Tex. 515, 15 S. W. 102, has no reference to streets in an actual or prospective town or city, but it is in regard to the powers of the commissioners’ courts in changing established public roads. Seventh street on Warren’s plat of the city of Raymondville was not a public road or a part thereof, but was a blind street at both ends, running against blocks at both ends. It had not been laid out regularly or irregularly as a public road. The order of the commissioners’ court did not claim that the street was a part of any public road, but claimed the authority to vacate any street on the Warren plat. The case of Sneed v. Falls County, 91 Tex. 168, 41 S. W. 481, is about public roads, and not applicable to the present case.

In the case of Uvalde County v. Oppenheimer, 53 Tex. Civ. App. 137, 115 S. W. 904, decided by this court, appellee had brought an action of trespass to try title to certain lots and blocks of land laid out by him and called “North Uvalde.” He had subdivided. 200 acres of land into blocks and lots, and laid out streets. No public roads had ever been regularly laid out over the subdivision, according to the allegations of appellee, and he had obtained an order from the commissioners’ court permitting him to change certain roads running from the town of Uvalde to the depot of the railway company. He claimed to have incurred great expense in laying out the streets, but subsequently the commissioners’ court had rescinded its order in permitting the roads to be changed, and ordered them back where they were originally. The issues- in the case were thus stated:

“The matter in controversy is the right and title to certain roadways claimed by the defendant, Uvalde county, which roads defendant alleged to be public roads, and Which traverse or run over the lots sued for by plaintiffs. Defendant answered the petition of plaintiffs by general denial,- plea of not guilty and pleaded title to said roads- by prescription and by ten years’ limitations.”

This court held' that the 'commissioners’ court had the authority to discontinue its public roads leading from Uvalde to the depot, and to consent that appellee might open streets according to his plat running to the depot. The judgment was reversed because the trial court assumed that appellee had shown title to land covered by the town site. There is not a fact in that ease that makes it applicable to the facts of this case. The commissioners’ court in its original order did not seek to alter or discontinue any street on the town site, but merely discontinued roads in order to permit the town site to be laid out. This court was not called upon, and did not attempt, to define the powers of a commissioners’ court over the streets of a possible town or city. The cases of Smith v. Ernest, 46 Tex. Civ. App. 247, 102 S. W. 129, Rankin v. Noel (Tex. Civ. App.) 185 S. W. 883, and Bradford v. Moseley (Tex. Com. App.) 223 S. W. 171, have no applicability to the rights and powers of commissioners’ courts in connection with the proposed streets on a map or plat of a proposed town or city, where no public road' is involved. The three cases are in regard to changes in public roads.

It would not matter if Seventh street had never been used as a street, the commissioners’ court had no authority over it, no right to change, alter, or discontinue it, and no action on their part could add to the size of the lots on the west side of Seventh and decrease the size on the east side of the street.

Regarding the authority of the commissioners’ court to assume control over the streets of a town existing only by reason of a plat and which had not been incorporated, we call attention to Benat v. Dallas County (Tex. Civ. App.) 266 S. W. 539, wherein it is held:

“Commissioners’ courts are authorized to assume control over the streets and alleys of incorporated cities and towns only when the city or town government has ceased to function as such.”

That is the view we entertain of the matter. Without direct and positive authority to interfere with the streets platted on a map of land intended for a town, no such authority or power exists. No such authority has been conferred on commissioners’ courts.

The evidence failed as to ten years’ limitation. There was no exclusive possession of the strip of land; no such adverse claim as would support limitation; no such use as would meet the demands of the statute. Appellant’s deeds nor any of those in his chain of title conveyed any right to him in the land, but each one of them conveyed the lots as laid off and 'bounded by Warren’s plat, wbicb was referred to and made a part of tbe deeds.

Tbe judgment of tbe trial court will be affirmed.
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author: GALLAGHER, C. J.

text:
    DOZIER v. CITY OF GATESVILLE.
    (No. 622.)
    Court of Civil Appeals of Texas. Waco.
    March 8, 1928.
    I' 1. Municipal corporations <⅜=>358 (I) — Plaintiff furnishing city stone under paving contract held entitled to recover at contract price, though amount delivered exceeded estimate; provision for arbitration on dispute as to “alteration” being inapplicable.
    Under paving contract with city, plaintiff held entitled to recover for stone delivered at price stipulated in contract, without submission to arbitration, since such delivery, though requiring greater amount than at first anticipated, was not “alteration,” within meaning of paragraph of contract providing for arbitration in ease of disagreement as to alterations in plans or work.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Alter— Alteration.] '

    2. Contracts <⅜=>127(2) — Contract provision for submitting disputes thereunder to arbitration is no defense to action on contract.
    Provision in contract that entire subject-matter of disputes thereunder should be submitted to arbitration cannot be interposed as defense to action on such contract.
    Appeal from District Court, Coryell County ; Joe H. Eidson, Judge.
    Action by W. E. Dozier against tbe City of Gatesville. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Wilcox & Graves, of Georgetown, and McClellan & Cross, of Gatesville, for appellant.
    Robt. W. Brown and T. R. Mears, both of Gatesville, for appellee.
   GALLAGHER, C. J.

This suit was instituted by appellant, W. E. Dozier, against appellee, city of Gatesville, to recover a balance of $5,594.31, alleged to be due bim under a paving contract between bim and appellee. The contract sued on was based on a proposal by appellant and acceptance thereof by appel-lee. According to tbe terms of such proposal appellant offered to do all tbe work contemplated and listed therein in accordance with certain plans and specifications upon wbicb it was based. Such proposal was not to do tbe work as a whole, but was to do each separate item thereof for a specified price per unit. Fifteen different items of work were included therein and tbe price for tbe performance of each item per unit was stated. Only one of said items is in controversy in this case and the same is as follows: “6,468 cubic yards local stone from pit shown east of town for base, $1.54 per cubic yard.” Said proposal was incorporated in said contract. According to said plans and specifications, which were referred to and made a part of said contract, tbe quantities listed in said proposal were to be construed as approximate only and to serve as a basis for the comparison of bids. In that connection it was expressly stipulated in said specifications that the quantities of tbe several items of work might be increased or decreased by tbe engineer with the concurrence of the city and contractor, provided that, in event of a variation of more than 25 per cent, of the amount of such work, it should be the duty of the contractor to determine- whether such variation would be to his disadvantage before proceeding therewith, and that, if he did proceed without a readjustment of compensation, he should not be allowed any increased price per unit on account thereof. Said specifications further provided that such rock base should -be laid in two courses, the first course to be four inches thick afid the second course to be not less than three inches thick, and further provided:

“The engineer may increase or decrease the thickness of either course or both courses as the exigencies of the case may demand, and he shall be the sole judge as to whether it is necessary or expedient to do so. *. * * Payment for macadam base shall' be made on the basis of the cubic yard in place on the street.”

Said specifications also provided in that connection that, if any of the material then in place on the street was in the judgment of the engineer suitable for a,portion of said base, sufficient material should be added thereto to bring such base up to the grade established by the engineer. Said specifica- ’ tions further provided that the engineer should make monthly estimates, setting forth the approximate amount of work then performed on each of the various items listed in said proposal and the contract price and total value thereof, and that 90 per cent, of ap-pellee’s part thereof should be paid to appellant, the remaining 10 per cent, being retained as a reserve to secure complete performance of the contract. Said specifications further provided that final payment should be made only for the amount of work performed on each of said items at the price fixed for the.same; that the engineer should prepare a final estimate showing the amount of such work done and the balance due the contractor therefor; that appellee should pay appellant the balance due for its part of the same in cash, and issue assessment certificates against the abutting property owners for the remainder; that appellant should accept said cash payment and said assessment certificates in full, complete, and final payment for tlie performance of said contract. Said contract also gave tlie engineer tlie usual full, complete, and arbitrary control of the work, with' power to require appellant to do extra work, to remove unsatisfactory work, to suspend' work, to hasten work, and to do various other things in connection with the execution of said contract, and also gave said engineer power to declare a forfeiture of the contract and to proceed to complete the work at appellant’s expense. • Said specifications further provided that the engineer’s interpretations thereof" should govern; that said engineer should act as referee in all questions arising under' the terms of the contract ; and that his decision in all such cases should be final, conclusive, and binding alike upon both parties. Said specifications also contained the following:

“Alterations.
“The right is reserved by the engineer to make from time to time such alterations in the plans or-in the work as may be considered necessary or desirable to complete more fully and perfectly the said work. If such alterations should increase the cost of doing the work the contractor shall be entitled to due credit for same. And, if it should reduce the cost, then the city'shall have due credit and the engineer shall make such adjustment, subject to the approval of both" the city and the contractor. If either the city,or the contractor fail or refuse to approve such adjustment or to abide by any and all decisions of the engineer in connection with the execution of this contract, then in that event there shall be a board of arbitration appointed, consisting of three responsible engineers, one of whom shall be selected by the city, one by the contractor, and the third .by the district judge of this judicial district. The decision of the. arbitrators or a majority of them shall be final, conclusive, and binding on the parties hereto and the loser in the controversy shall pay the cost of such arbitration.”

Appellant in bis original petition alleged that be laid in place under said contract 9,180 cubic yards of stone base; that tbe city bad paid bim according to tbe terms of bis contract for 5,287.59 cubic yards of sucb base; that be bad not been paid for 3,892.41 cubic yards of sucb base, amounting at tbe contract price to $5,994.31; that be was-entitled to receive therefor from appellee in cash the sum of $2,916.23, and in assessment certificates tbe further sum of $3,078.08; that appellee bad refused to pay in cash tbe amount owed by it and bad refused to assess tbe remainder against abutting property owners and to issue to bim assessment certificates therefor; that by reason of tbe premises ap-pellee was liable to bim for tbe entire sum so remaining unpaid.

Appellee pleaded in abatement tbe paragraph of tbe specifications under tbe bead of “Alterations,” as above quoted, and alleged that it bad demanded an arbitration of tbe issues involved under tbe provisions thereof. Appellee further pleaded tbe provisions above referred to with reference to monthly and final estimates; tbe issuance of five monthly estimates and a final estimate showing that appellant bad laid in place only 5,287.59 cubic yards of stone base; tbe .payment of said estimates by appellee in full in cash and assessment certificates; that appellant accepted all tbe same in accordance with tbe terms of the contract, which provided that the same should be accepted in full settlement'^and discharge of all obligations of appellee thereunder; that by reason thereof appellee was not liable to appellant in any amount. Appellee further alleged that an actual physical measurement on tbe ground of the stone base laid in place by appellant showed that tbe same amounted to 5,287.59 cubic yards and no more. Appellant by supplemental petition reiterated his allegation that be bad laid in place 9,180 cubic yards o C stone base, and alleged that tbe final estimate of tbe engineer allowing bim for only 5,287.59 cubic yards of said stone base was grossly inaccurate and untrue; that tbe same was not determined by actual measurement and calculation, but was arbitrarily and fraudulently fixed by said engineer; and that tbe same constituted sucb fraud on bis rights as should not in good conscience and morals be allowed to stand. Appellant also made various allegations in rebuttal of appellee’s claim that be bad accepted tbe voucher issued on tbe final estimate in full settlement of all of bis demands against appellee.

Tbe case was tried before tbe court. Tbe contract, including tbe original proposal and tbe plans and specifications, was introduced in evidence. Tbe parties then agreed in open court that:

■ “Appellee offered to arbitrate the matters in controversy in accordance with said contract and agreement, and that appellant refused and still refuses to arbitrate said matters in accordance with said agreement and contract.”

Tbe parties further agreed that said contract was made and executed by tbe parties thereto before any work provided for therein had been done. No other testimony was introduced. Tbe court sustained said plea in abatement and dismissed tbe cause. Said judgment is presented for review by this appeal.'

Opinion.

Tbe proper disposition of this appeal requires a construction of said paragraph of tbe specifications entitled “Alterations.” Appellant contends in this connection that tbe amount of stone base laid by bim in excess of 6,468 cubic yards, tbe amount stated in tbe original estimate, was not an “alteration” within tbe meaning of said paragraph. We agree with this contention. Said specifications expressly provided that sucb amount was an estimate only and tliat the amount to he actually laid could be increased or decreased by the engineer, with the further provision that, if such increase or decrease amounted to more than 25 per cent, of such estimate, appellant should determine whether the same would be to his disadvantage, and that, if he proceeded to perform the work as so varied without readjustment of compensation, he should not be allowed any increased price per unit on account of such variation. There is no contention that appellant ever raised any question about whether the variation from the estimate in the amount of stone base laid by him was to his disadvantage or not. Neither is there any contention about the fact that he proceeded to lay said stone base in place as directed by the engineer, without any claim for readjustment of compensation. Under the very terms of said specifications he was limited in his claim for compensation therefor to the sum of $1.54 per cubic yard, the compensation per unit originally agreed upon. While appellant claims that the amount of such stone base was increased slightly in excess of 25 per cent, of the original estimate, appellee claims that the amount of such base was in fact materially decreased, but not as much as 25 per cent. In neither event was there any adjustment of cost to appellant of performing the work to be made by the engineer. Consequently, there was no such adjustment to be approved or disapproved by either of the parties or to be submitted to arbitration if they disagreed.

We do not deem it necessary to determine whether such arbitration provision is limited by the terms of said paragraph as a whole to alterations within the meaning thereof, or to other provisions of the specifications with reference to changing or adding to appellant’s compensation for doing the work as a whole, since no such issue is involved in fixing appellant’s compensation for the stone base laid by him. If such provision is not so limited, then it applies generally to all controversies arising out of the execution of such contract, whether such controversies involve issues of law or of fact, or both. Such an agreement in an executory contract such as the one here sued on will not oust the courts of jurisdiction. The rule is stated by Mr. Page in volume 2, p. 1240, § 721, of his work on Contracts, as follows:

“It has become thoroughly settled at English law that a provision in a contract that the entire subject-matter of disputes thereunder shall be submitted to arbitration cannot be interposed as a defense to an action on the contract, and the same view has been taken by the American courts.”

The rule so announced is also supported by the following authorities: American Central Insurance Co. v. Bass Bros., 90 Tex. 380, 382, 38 S. W. 1119; Florida Athletic Club v. Hope Lumber Co., 18 Tex. Civ. App. 161, 44 S. W. 10, 14, and authorities there cited; Bell v. Campbell (Tex. Civ. App.) 143 S. W. 953, 956 (writ refused); Queiroli v. Whitesides (Tex. Civ. App.) 206 S. W. 122, 123; El Paso & S. W. R. Co. v. Eichel (Tex. Civ. App.) 130 S. W. 922, 946, par. 21 (writ refused); 2 R. C. L. p. 360, § 11. Neither appellee’s plea in abatement nor the evidence introduced thereunder discloses when its demand for arbitration was made. The terms of the agreement on this matter indicate that the offer was to-arbitrate the several matters in controversy as disclosed by the pleadings of the parties herein. Such issues involve questions of law as well as questions of fact and the ultimate liability of appellee to respond to appellant’s demand. Under the authorities cited, the court erred in sustaining appellee’s plea in abatement.

The judgment of the trial court is reversed, and the cause remanded.
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