author: HAWKINS, J. LATTIMORE, J.

text:
    SPEARS v. STATE.
    (No. 11329.)
    Court of Criminal Appeals of Texas.
    Feb. 1, 1928.
    Rehearing Denied April 18, 1928.
    1. Criminal law &wkey;>829(l) — Refusal of applicable special instructions covered by main charge is not error.
    In criminal case, refusal of applicable special instructions is not erroneous, where main charge is sufficiently comprehensive to embrace principles contained in refused instructions.
    On Motion for Rehearing.
    2. Gaming &wkey;>98(5) — Evidence held to support conviction for keeping room as resort for gambling (Pen. Code 1925, art. 625).
    Evidence showing that men were found gambling in room kept by defendant which contained domino tables, pool table, and cold drink stand held sufficient to support conviction for keeping building or room as resort for gambling, under Pen. Code 1925, art. 625.
    3.Gaming <&wkey;l02 — In prosecution for keeping resort for gambling, instruction to acquit if premises constituted public place and gambling was merely permissible held properly refused (Pen. Code 192,5, art. 625).
    In prosecution under Pen. Code 1925, art. 625, for keeping building or room as resort for gambling, refusal of charge that, if premises constituted public place and gambling was merely permissible, jury could not convict, held not error, since it was only necessary that accused permit gambling in order to be guilty, provided he kept, place for such purpose.
    Appeal from District Court, Tom Green County; J. E. Sutton, Judge.
    Ed Spears was convicted of keeping a resort for gambling, and he appeals.
    Affirmed.
    Wright & Gibbs and Glenn R. Lewis, all of San Angelo, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is under article 625, P. C. 1925, which makes it a felony to keep a building or room as a resort for gambling. The punishment assessed was two years in the penitentiary.

We have not been favored by a brief for appellant. Examination of the evidence shows it to be quite sufficient to support the verdict. The bills of exception complain only of the refusal of certain special instructions. Some of these are deemed inapplicable. The refusal of those which might be applicable is not thought to be erroneous, as the main charge seems to be sufficiently comprehensive to ■ embrace the principles contained in the refused instructions.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

In his written motion and oral argument appellant submits, first, that evidence of a single gambling transaction is not enough upon which to base a conviction for keeping a house for the purpose of gaming; also that such evidence is not sufficient to support a conviction for keeping a house as a place where people resort to gamble, etc. On the point thus made we observe that in the case of Sanchez v. State, 90 Tex. Cr. R. 159, 233 S. W. 982, we said that the law would be violated by one who .kept premises for the purpose of being used as a place to which people resorted, etc., or in which they kept and exhibited a table, etc., regardless of whether the purpose for which it was kept had been carried into actual execution or not, i. e., whether there had yet been an actual resorting or an actual betting. In the instant case the testimony shows beyond question that appellant was keeping the place referred to, and that it was kept byhim and fitted up for the purpose of being kept as a place to which people should resort, and that the tables in said place were put there for the purpose of being used to play games on. This would seem to leave in the ease but the one question as to whether the proof shows that his purpose in fitting up said place and keeping it was that it might be kept for the purpose of gaming, or as a place to which people resorted for the purpose of betting and wagering upon a gaming table or bank. As we understand the record, it shows that appellant had some kind of a place downstairs to which people resorted, in which a number of men were arrested by the officers on an occasion prior to the one here in question, the fines of which parties were paid by appellant. It further appears that, when the officers talked to him about the character of place he was keeping, he informed the officers that he was going to get a charter and move the place. Thereafter he put an outside stairway over a garage and fitted up the room, in question and-kept it under lock and key. In the room were four domino tables, a pool table, a cold drink stand, etc. On the night in question three officers went to said place, and two of them remained at' the foot of the stairs while the third ascended the stairs and endeavored to effect an entrance. Presently, upon some one coming out of the place which was called a club, the officer at the head of the stairs forced his way in. He said there were about 30 men in the place and that they were shooting craps upon one of the tables; -that they threw the dice in one corner and grabbed up money from the table. We would be unwilling to say that this evidence does not show sufficiently that appellant’s purpose in fitting up this place and keeping it was not shown by the testimony to be for purposes forbidden in the statute and set out in the indictment. On the contrary, we aré inclined to believe that the evidence does support the conclusion reached-. See Fridge v. State, 90 Tex. Cr. R. 75, 233 S. W. 979; Snow v. State, 91 Tex. Cr. R. 1, 237 S. W. 563, 20 A. L. R. 1180; Harvey v. State, 92 Tex. Cr. R. 645, 244 S. W. 1004. We do not think the bawdyhouse cases cited in appellant’s motion have .application. Nor that the gaming cases decided under the old misdemeanor statute, which forbade one to permit people to resort to a certain place for the purpose of gaming, and in which it was held that proof of one act of resorting did not suffice to show the general custom and practice of the accused, are in point.

Complaint is made of the refusal of the fifth special charge which sought to have the jury told that, if the premises described in the evidence constituted a public place and gambling thereon was merely permissive on thé part of defendant, the jury could not convict.- We do not think this charge correctly presents tie law. One would be guilty under thé statute covering the" prosecution in this case whether he kept the premises as a public or as a private gambling house. We see no. ground for believing that one would be less guilty whose house was a public gambling house than if it was of a private character. It is not necessary to the guilt of the accused that he do more than permit the gaming, provided he keeps the place for that purpose.

The motion for rehearing will be overruled.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RANDOLPH, J.

license: Public Domain

text:
    HARWELL v. JORDAN CONST. CO.
    (No. 2908.)
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 1, 1928.
    Rehearing Denied April 11, 1928.
    1. Municipal corporations &wkey;>562(!) — Landowner, not objecting on original hearing to letting paving contract, held not estopped, in suit for assessment, from raising defense of altered contract.
    Where city council entered into a contract for paving nine blocks, but, when six blocks were completed, work was stopped, whereupon lot owner at terminus of pavement was sued by paving company to recover special assessment, ⅞eld,, that defendant was not estopped from presenting defense that contract was not carried out as agreed, and that he had received no benefit from paving on account of failure to carry out contract merely because he had not objected to the letting of the contract at the hearing before city council at time contract was entered into.
    2. Municipal corporations <&wkey;>36l — That paving contractor could not have recovered from certain lot owners held insufficient excuse for abandoning contract, precluding recovery of assessments.
    Where city entered into contract with paving company for paving of nine blocks, but only six blocks were paved, whereupon contractor sued owner of lot at terminus of pavement for his special assessment, held, that fact that some of the property- abutting on the three unpaved blocks constituted homesteads, and cost of pavement could not be recovered, furnished no defense to paving company for its abandonment of contract, precluding recovery from owner, who had been given no opportunity to show that paving completed was of no benefit to him.
    3. Municipal corporations <&wkey;365 — City could not accept paving, where contract was uncompleted; without giving owner opportunity to show lack of benefits.
    Where city had entered into a contract for paving nine blocks, and contract was abandoned on completion of six, whereupon paving company sued owner of lot on terminus of paving for special assessment, held, that -city was without authority to contract for or accept the work as done without giving property owners an opportunity for hearing to show lack of benefit from improvements, precluding paving company’s recovery from lot owner on uncompleted contract. '
    Appeal from District Court, Hardeman County; Robert Cole, Judge.
    Suit by the Jordan Construction Company against Mason Harwell. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Marshall & Perkins, of Quanah, for appellant.
    C. Y. Welch, of Quanah, and Williams & Day, of Plainview, for appellee.
   RANDOLPH, J.

This suit was filed in the district court of Plardeman county by appellee to recover of appellant upon a special assessment-paving certificate issued by the city of Quanah, on account of the paving of a part of Main street in said town, and which paving, in part, abutted upon real estate constituting the defendant’s homestead.

On trial before the court, without the intervention of a jury, judgment was rendered for the plaintiff, appellee, and the defendant has appealed to this court.

The plaintiff’s petition alleged substantially, that the city of Quanah, on the 4th of December, 1919, adopted a charter, as is provided for by title 22, c. 17, of the Revised Statutes of Texas, at an election then held for that purpose; that said charter provides that the city council shall have power to provide for the improvement of all streets and alleys in said city by draining, grading, and otherwise improving the same, and to charge the cost of making such improvements against the abutting property by fixing a lien against same and a personal charge against the owner thereof, not exceeding three-fourths of the total cost of said improvements ; that, in pursuance to the provisions of said charter, and under the provisions of the laws of the state of Texas, the city council of said city did, on the - day of -, declare a necessity of improving certain streets in the town of Quanah, to wit, a portion of Main street, from Fifth street to Fourteenth street, as shown by resolution passed by said city council on the date above mentioned, and thereafter the Elrod Engineering Company, acting under employment by said city, prepared plans and specifications for the improvement of said street, which plans and specifications were adopted by the city council by resolution; that, after the approval of said plans, the city council advertised for bids for the improvement of said street by paving, etc., and that the bid of the plaintiff was th'e lowest bid received for so improving said streets, and that the city council did, on the 31st day of March, 1924, accept said bid of the plaintiff, as shown by resolution passed on that date; that, after the acceptance of said bid, the city of Quanah entered into a contract with plaintiff for the paving and improvement of said portion of Main street, and that, in pursuance to said contract, the plaintiff entered into a bond for the completion of said work; that the city council did have said engineer to prepare a statement showing the cost of so improving said Main street, and did give to each owner on said street a notice of the cost of improving each piece of property on said street, and did publish said notice in a newspaper in the city of Quanah, Tex.; that the city council, by ordinance passed April 9, 1924, set a time for the hearing of protest of any property owner on the improvement of said street in front of the property owned ' by such person, and that on the day set for said hearing the defendant, Mason Harwell, did not appear and protest said improvements ; that the city council by resolution on the 9th day of April, approved the contract and bond of plaintiff for improving said street; that, ih accordance with said contract, resolutions, -and ordinances, the plaintiff did begin the improvement of said street, and said work was completed under the • direct supervision of the city engineer; that the city ■ ordinances providing for the method of paying for said improvements requires the owner of the property to pay one-third and the city one-third, and the owner of the property to pay for the curb and gutter; that said work was accepted by said city council of the city of Quanah; that, by an ordinance passed May 5, 1924, the city council provided the manner of paying for said improvements, and assigning against the owner of the property two-thirds of the cost thereof, and fixing a lien on the property and a personal charge against the owner. Plaintiff further alleges that defendant is the owner of lots 6, 7, and 8, in' block 147, in the'town of Quanah, located on Main street, and being a part of the property 1 in front of which said street was so improved by paving, etc.; that, after said work was completed and accepted, the city of Quanah did execute and deliver to plaintiff a special assessment certificate in the principal sum of $1,074.73, payable in three equal annual installments against defendant, and lots 6, 7; and 8, in block 147, in the town of Quanah, and that said certificate is in the amount specified in the contract between the city and the plaintiff, and is a reasonable amount for said work; that said certificate bears interest from August 5, 1924, at the rate of 8 per cent, per annum, and further provides for a reasonable attorney’s fee in case suit is brought on the same; that plaintiff has placed said certificate in the hands of their attorney for collection, and has agreed to pay him the sum of $200, which is a reasonable attorney’s fee for the same.

Plaintiff prays for a judgment against defendant for the amount due as principal and interest on said certificate, and for the sum of $200 as attorney’s fees', and, in the alternative, in the event the court should find the certificate void, for a sum of the value of the material and labor placed on said street, and for general relief.

Defendant answered by general demurrer, special exceptions, all of which were overruled by the court, and further answered by general denial, and specially denied that the city of Quanah had ever, at a special election held for that purpose, adopted chapter 2, title 22, of the Revised Statutes of Texas. Further answering, the defendant alleges: That in said contract between ap-pellee and the city, and in all the ordinances and resolutions adopted, and in all proceedings had in connection with said street improvements, it was contemplated and provided that the part of Main street to be so improved and paved extended from the south line of Fifth street to the south line of Fourteenth street, or a distance of nine blocks, which said portion of Main street was generally designated in said proceedings as district No. 6. That, in the notice given to defendant and other owners of said property abutting said' portion of Main street, it was expressly recited that said entire district No. 6 was to be improved by paving, etc., and that the assessments made by the city council against this defendant and other abutting property owners were made upon the theory that said entire district should be so paved and improved; and that the amounts to be assessed against property owners should be payable in three equal installments, as follows: One-third upon the completion of said improvements, and one-third in one and two years respectively from that date; that plaintiffs had never completed said improvements, and had never, in any way, paved any part of said district No. '6, except six blocks, i. e., the six blocks between Fifth and Eleventh streets; that a makeshift paving and curb was completed on said Main street from Fifth street to Eleventh street on or about the 5th day of August, 1924, and that at that time plaintiff wholly abandoned said work, and wholly defaulted in the completion of said contract, and had not attempted to pave or improve any part of said Main street between Eleventh street and Fourteenth street, and had no intention of ever paving said three remaining blocks of said district. That said improvements on said three blocks were not omitted by reason of the fact that the property abutting thereon- was exempt property, but were omitted'for the sole reason that the plaintiff abandoned said work and defaulted in its said contract, and that, by reason of the fact that the city council, in violation of said contract, and in violation of the rights of the defendant and of other property owners on said street similarly situated, permitted plaintiff to abandon said work. Further, that the defendant’s property, lots 6, 7, and 8, in block 147, is situated abutting on the west side of said Main street,, at the intersection of said street with Eleventh street, and that the pavements as constructed, now extends from the north end of said district No. 6, to and even with defendant’s said property, and that all that part of said district No. 6 lying south of defendant’s-property is wholly unpaved and unimproved; that, as a result of the abandonment of said work, and as a result of its failure to complete said improvements in accordance with said contract, the conditions were such (which conditions were set forth in detail) that defendant had not received the benefits and enhancement in the value of his property that he would have received had said improvements been completed in accordance with said contract, and that in truth and in fact the improvements, as made, had not enhanced his property in any amount, but had been and were an injury and damage to said property; that the finding of the city council to the effect that defendant’s property would be enhanced in value in an amount equal to the amount proposed to be assessed against him was not binding or conclusive upon defendant, for the reason that the improvements which it was contemplated by said city council would so enhance the value of defendant’s property had not been constructed and had not been substantially completed, and for the reason that the failure on the part of plaintiff to complete said improvements worked a positive damage to defendant’s said property. Further, alleging that, by virtue of said contract, ordinances, and resolutions and proceedings in connection with said contract, and by virtue of the assessments subsequently levied against this defendant and other owners of property abutting on said street, which assessments were made upon the theory and premise that said improvements would be constructed in accordance with said contract, the city council-only acquired jurisdiction of said work as a whole, and had no authority to contract for or accept less; that the action of the city in issuing the certificates sued on when said work was only partially completed and which had never been completed, was not binding upon the defendant; that said certificate was prematurely issued, and that this suit was prematurely brought' and should be abated.

Defendant further alleges, by verified plea, that the consideration for which the assessment was made against him had wholly failed, and that the certificate sued on was without consideration. Further, that the certificate sued on was void and not binding on the defendant, for the reason that the city council was without authority to make said certificate payable in any number of installments less than five; and further for the reason that said certificate includes a certain amount as part of the cost of paving street intersections; that no assessment certificates have been issued against any owner of abutting property in said district No. 6, south of Eleventh street, which owners have received all the benefits and suffered none of the damages received and suffered by defendant on account of the construction of said pavement, as constructed'; and that the certificate sued on was therefore void, for the reason that the cost of paving said street was not distributed uniformly among the property owners in said district whose properties abutted on said street. Further, that the defendant was never given an opportunity to be heard on the question of special benefits received, or that would be received, by him by virtue of the paving of that part of said street or district, which was actually paved, and that the only notice ever given to this defendant as to the assessment proposed to be made against him was notice of the assessment proposed to be made ■ on account of the paving of said entire district No. 6 — extending from Fifth street to Fourteenth street, and that the assessment as made against him and the certificate sued on are void, for the reason that said assessment was made and said certificate was issued in violation of section 1 of the Fourteenth Amendment of the Constitution of the United States, and in violation of section 19, art. 1, of the Constitution of the state of Texas, for the reason that the “due process” and “due course of law,” guaranteed by said provisions of the Constitution of the United States and of the state of Texas,, required that, before said city council was authorized to make said assessment and to issue said certificate, this defendant be given an opportunity to be heard upon the question of the special benefits received or which would be received by him by virtue of the paving of said street, as the same was actually paved.

The ordinance which levied the assessment against the defendant provides:

“That for the purpose of evidencing the several sums of money payable by said property owners, and the times and terms of payment, and to aid in the enforcement and collection thereof, assignable certificates shall be issued by the city of Quanah upon the completion and acceptance of said work of improvement.”

The contract for paving executed by the city and plaintiff provided for the paving of the nine blocks on Main street, which would have extended the paving three blocks beyond defendant’s residence. The plaintiff notified the defendant of the hearing upon this contract. The defendant appeared at this hearing, arid testifies that he had no objection to the contract as made. When the paving was completed to the end of defendant’s property, the contractor and city seem to have agreed to abandon the work, and, at any event the contractor, plaintiff, ceased work, and, in the language of the party charged with the oversight of same by the plaintiff, moved out of Quanah, “lock, stock, and barrel,” leaving three blocks unpaved beyond the.defendant’s property, which was included or called for in the contract. When the defendant discovered that the work had been abandoned, he filed his protest to such action. The city council gave the defendant no opportunity for a hearing on their action or on the question of benefits received by him by reason of the paving constructed, but, without any notice to him, abandoned the work as stated above.

The defendant’s contention is that the contract was a contract for the paving of the whole of the nine blocks, and that the city was not authorized to issue assessment certificates against the owner of any abutting property on the street so improved until the plaintiff had completed said 'contract; and further that, the contract being for the paving of the nine blocks, and the defendant having acquiesced in said whole contract, a performance of such contract as a whole must have been had before the defendant could be bound thereby.

The plaintiff answers this contention that the defendant, not having voiced his objection to such contract at the time' of the hearing on the question of benefits, and not having instituted his suit within the time prescribed by the statute, is estopped from now doing so.

The plans and specifications attached to and made a part of the contract between the plaintiff and the city contained the following provision for a decrease in the construction provided for in the contract:

“(c) Decreased work within the subject of this contract in such proportionately small amounts as may not affect the performance and completion of the undertaking may, when necessary, be ordered by the engineer in writing.
“(d) In the event of the contractor abandoning the work to be done under this contract, or if the said work is unreasonably delayed, the .city reserves the right and option to annul and cancel this contract upon five days’ written notice to the contractor, and to complete the remainder of the work to be done in such manner or by such means as he may deem advisable.
“(e) The city of Quanah undertakes and agrees to execute and deliver to the contractor, up.on the completion of each particular street or portion thereof named to be improved, assignable certificates declaring the amounts due from property owners, and th'e interest thereon, etc.
“(f) Payments: (1) The abutting property owners are required to pay two-thirds of the costs of said improvements, according to the front foot plan or rule. * * * (3) The owners of property upon said improvements shall pay the whole cost of installing curbs, and two-thirds of the cost of the entire improvement of said streets, exclusive of that portion paid for ty railroad companies. * * * When the 'work on any street is completed and accepted i&y the city, one-third of the cost assessed against the property owners thereon shall be payable and due by them, and one-tliird on or before one year from date thereof, and one-third on or before two years from date thereof.”

The. evidence discloses that some of the lots abutting on the three unpaved blocks were the homesteads of parties, and that possibly some of the owners thereof had no other property out of which the cost of paving could be made, and that it had a right to abandon such work, under the terms of the contract above set out.

It is agreed that the property in question here is the defendant’s homestead, and the court recognizes this by not enforcing a lien — only rendering a personal judgment. Further, there is evidence that the pavement as laid inflicted damage upon the defendant’s property, However, the fact that some of the property owners on the three blocks un- , paved have their homesteads on same, against which a lien could not be fixed, does not enter into the question here discussed. Neither will the question of damage to the defendant’s property be considered as an offset here, for the reasons which will later be stated.

The defendant was not estopped from presenting his defenses to this suit by reason of his failure 'to object to the contract at the hearing before the city council. He was notified and was present to consider a contract which was to be let and which would embrace nine city blocks, passing three blocks beyond his home, and furnishing him an out-' let to the south, and also furnishing proper drainage. He had no objection to this contract, but was desirous of having the street thus paved. But, when such contract was abandoned, so that only six blocks were paved, leaving him on the terminus of the pavement, instead of furnishing him a south outlet and a proper drainage, he then had a right to be heard, and any action taken without affording him an opportunity to show that-such a pavement could not benefit him was not binding on him in any respect.

We are not considering the question of the want of proper drainage, as a question of damages, but we are considering it as entering into the question of benefit to the property.

The fact that some of the property abutting on the three unpaved blocks constituted the homesteads of various parties, and that, as to some of them, the cost of the street paving could not be recovered, furnishes no defense. This should have been ascertained in advance of the signing of the contract. The contract should not have been entered into on the basis of the paving of the nine blocks, but, as it was entered into, the defendant had the right to estimate his benefits from the whole contract, and not from a part performance thereof.

The case of Berwind v. Galveston & H. Inv. Co., 20 Tex. Civ. App. 426, 50 S. W. 413 was an action brought by Berwind against the company upon certain improvement certificates issued by the city of Houston to the Litho-Carbon Rubber Company, for the construction of sidewalks abutting appellee’s property in the fair ground addition in the city'of Houston, and which had been assigned by said company to Berwind. The work was done under a contract entered into between said rubber company and the city council, acting under the charter of the city. Berwind prayed for judgment against the investment company for the amount of the certificates, together with interest, costs, and attorney’s fees, and a foreclosure of the lien given by the charter for the payment thereof. The investment company’s answer was a general demurrer, general denial, and a special pipa denying the authority of the city to issue the certificates, and alleging that the sidewalks built by the contractor were not continuous, connecting and uninterrupted sidewalks, as provided for in the contract, and had not been built in accordance with the specifications therefor, and that the amounts called for in the certificates were more than called for by the contract, plans, and specifications, and that .there was a want of consideration. That case was tried without a jury, and resulted in a judgment against the right of Berwind to recover upon the certificates or for any sum whatever.

In that cáse, as in the case at bar, the contract was a whole contract, and not one providing for the performance of piecemeal projects. The Court of Civil Appeals, in passing upon the case, held:

“The contract of the appellant’s assignor was to construct sidewalks throughout the entire system, and this the owners of the abutting property may have had no objection to being taxed for, as it provided them with good walks communicating with the various parts of the district. A sidewalk immediately in front of a lot, and not extending beyond it on either side, is of very limited advantage. So, it is obvious that the work was to be done as a whole, and not in disconnected parts, and that to construct only a portion of the sidewalksj leaving intervening spaces of greater or less extent, would not be a performance of the contract. The city council would have no right to accept part performance for the whole, and this would not be involved in its discretionary power to decide as to the sufficiency of the material used and the manner of construction. While the action of council was conclusive as to the thickness of concrete and asphalt as laid, and quality thereof, it would not be binding in the acceptance o.f work done which was not in fact done. All of the steps and conditions precedent to the work taken and complied with were in reference to the work as a whole, which the abutting property owners made no objection to, and the council by its action only acquired jurisdiction of the work as a whole, and had no authority to contract for or accept less, and its action in accepting the disconnected, parts of the work done was not binding on the owners of the lots abutting upon the constructed parts. No authority was conferred on the council to act upon any other or different work” — citing various authorities, including the case of Dougherty v. Hitchcock, 35 Cal. 523.
“The certificates were not negotiable instruments, and they were subject, in the hands of the appellant, to whatever defenses might have been available against the Litho-Carbon Rubber Company. Since the city council was without authority to contract for or accept the work that was done, there could be no recovery by the appellant, either for quantum valebat or for any benefit that may have accrued to the property of the appellee. The provision of the charter allowing such recovery can only apply where the council has acquired jurisdiction of the subject-matter. This remedy is allowed by the charter in the suit required to be brought by the property owner to restrain further action by the city officials in reference to the matters contained in the petition to the city council objecting to the proceedings after the same have been acted on adversely by the council. * * * But it cannot apply where the action of the council is void.”

The Supreme Court refused an application for writ of error in the above-quoted case.

Under authority of the opinion in the Berwind Case, supra, we hold that the city council of Quanah was without authority to contract for or accept the work that was done by the plaintiff, and, as their action was void, no recovery can be had in the ease at bar.

The judgment of the trial court having been rendered upon void proceedings of the city council of Quanah, we hereby reverse the judgment of that court, and here render judgment that the plaintiff take nothing by its suit.
      <&wkey;For other cases see same topic and KEY-NUMB.ER in all XCey-Numbéred Digests and Indexes


author: COBBS, J.

text:
    LEAL v. LEAL.
    (No. 7962.)
    Court of Civil Appeals of Texas. San Antonio.
    March 14, 1928.
    Rehearing Denied April 4, 1928.
    1. Deeds <&wkey;>26 — Under statutes, no particular form is required to convey title to land (Rev. St. 1925, arts. 1293, 1297).
    Under Rev. St. 1925, arts. 1293, 1297, relating to conveyances, no particular form is required to convey title to land.
    2. Deeds <S=’I2I — “Quitclaim deed,” in contradistinction to conveyance of land, conveys only vendor’s chance of title.
    A “quitclaim deed,” in contradistinction to conveyance of land, conveys only vendor’s chance of title.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Quitclaim Deed.]'
    3. Tri'al <&wkey;35!(5) — Requested special issues which were interrogations seeking answers to issues covered by court’s special charges were without merit.
    Requested special issues which were mere interrogations seeking answers to issues covered by court’s special charges held without merit.
    4. Deeds &wkey;>l 11 — Deed held conveyance of grantor’s interest in father’s estate and receipt for settlement with his mother.
    Legal effect of conveyance, stating in substance that grantor, in consideration for §2,-000, bargained, sold, released, and forever quit-claimed unto grantee and acknowledged “same was for the 1st and 2d distribution of the following estate his heirs and assigns,” all his right, title, and interest in and to certain tract of land, to have and to hold premises together with rights, privileges, and appurtenances unto grantee, his heirs and assigns forever, hel'd to be conveyance of all interest which gTantor had in his father’s estate and receipt for settlement with his mother.
    5. Appeal and error ¡&wkey;-l062(l) — Submitting to jury question whether plaintiff, by written instrument, sold his expectancy in mother’s estate to defendant held harmless.
    Submitting to jury question whether plaintiff, by written instrument, sold his expectancy in his mother’s estate to defendant held not harmful, where legal effect of instrument was to convey plaintiff’s interest in father’s estate and a receipt for settlement with his mother, and jury answered question in affirmative.
    Error from District Court, Bexar County; Robt. W. B. Terrell, Judge.
    Action by E. R. Leal against Santos Leal, Jr. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    Drew Pruitt, of'San Antonio, for plaintiff in error.
    . George G. Clifton, J. H. Ragsdale, and J. T. Sluder, all of San Antonio, for defendant in error. ,
   COBBS, J.

Plaintiff in error sues defendant in error for an accounting and for damages. It is the same cause of action asserted in Leal v. Leal, 291 S. W. 340, once before this court. That case shows the nature of the suit, except that the pleading was amended in this case. It was designated plaintiff’s fifth original petition, upon which this case proceeded to trial. The amended pleading does not materially change the original pleading nor the cause of action. Defendant in error answered by general demurrer, pleas of two, three, and five years’ limitation, and general denial. For special answer alleged that he had acquired the interest of plaintiff, E. R. Leal, in the estate of Santos Leal, Sr., by having purchased the same of A. A. Gray, on October 20, 1909, who executed his general warranty deed conveying to him all of the undivided interest of E. R. Leal in the estate of Santos Leal, Sr. On June 19, 1908, said E. R. Leal conveyed such interest to the said A. A. Gray.

Prior to February 5, 1918, Santos Leal purchased of the plaintiff, E. R„ Leal, 'all his right, title, and interest in and to the estates of Santos Leal, Sr., and Joaquin Leal, and on that date said E. R. Leal made, executed, and delivered unto Santos Leal his certain release receipt and quitclaim, acknowledging the full and final payment of all sums due him out of the community estate of Santos Leal, Sr., and Joaquin Leal. That at her death the mother, Joaquin Leal, owned no estate, having divided it among her children; E. R. Leal haying received his full share and interest therein.

By a verified supplemental pleading plaintiff denied the execution of the receipt, release, and quitclaim deed of date February 5, 1918, and alleged that the same was a forgery.

The case was submitted to the jury on three special issues, and they were answered in favor of defendant. The court thereupon entered judgment in favor of defendant in error.

Plaintiff in error presents an original brief containing 59 pages and a supplemental brief containing 14 pages.

This seems to .be a fact ease, but plaintiff in error in addition has presented a brief con-táining 81 assignments of error and 43 propositions based thereupon.

Plaintiff in error’s first and second propositions complain substantially that the two issues were not proper because there was no evidence to show, that Santos Leal purchased E. R. Leal’s expectancy or interest in his mother’s estate. That issue was properly submitted to the jury, and they found upon sufficient evidence in the affirmative. So it was a proper issue to submit to the jury, and their finding is supported by the evidence, and the propositions are overruled.

The third proposition challenges as error the submission of the third special issue to the jury, alleging it involved a question of law for construction alone by the court, claiming the deed “shows on its.face that it is a quitclaim deed, free from doubt and uncertainty, and hence purely a question of law to be determined by the court as to the legal effect and meaning of said instrument, and what interest in said real estate was thereby conveyed to defendant.” The proposition is not clear, What is meant here by “free from doubt and uncertainty?”

The deed under discussion is as follows:

“That I, Emilia R. Leal of the county of Bexar and state of Texas, for and in consideration of the sum of two thousand dollars, to me in hand paid by Santos Leal of the county of Bexar and state of Texas,. the receipt of which is hereby acknowledged, do, by thesé presents, bargain, sell, release and forever quitclaim unto the said Santos Leal and also acknowledge the same was for the 1st and 2d distribution of the following estate his- heirs and assigns, all my right, title and interest in.and to that certain tract or parcel of land lying in the county of Bexar and state of Texas, described as follows, to wit:
“Lots Nos. 10, 11, 12, 14, 15 & 16, in block No. 20. N. O. B. No. 801.
“To have and to hold the said premises, together with all and singular the rights, privileges and appurtenances thereto in a'ny manner belonging, unto the said Santos Leal his heirs and assigns forever, so that neither I the said Emilio Leal nor my heirs, nor any person or persons claiming under me shall, at any time hereafter, have, claim or demand any right or title to the aforesaid premises or appurtenances, or any part thereof.
“Witness my hand at San Antonio, this 5th day of February A. D. 1918.”

The issue was, no doubt, submitted to the jury in response to plaintiff in error’s insistence that the title to the property did not pass thereunder. Under our statute (Rev. St. 1925, arts. 1298 and 1297), no particular form is required to convey title to land.

There is language in this conveyance that brings it within the purview of the case of Cook v. Smith, 107 Tex. 119, 174 S. W. 1094, 3 A. L. R. 940. The discussion by Mr. Justice Phillips, who writes the opinion, does not appeal to the writer clearly as to what constitutes a quitclaim deed conveying a chance of title in contradistinction to a conveyance of land itself. On that subject the writer prefers the views presented by Presiding Judge Acker, in Garrett v. Christopher, 74 Tex. 453, 12 S. W. 67, 15 Am. St. Rep. 850, as follows:

“Whether the conveyance be a quitclaim or not is (dependent upon the intent of the parties to it as that intent appears from the language of the instrument itself. If the deed purports and is intended to convey only the right, title, and interest in the land, as distinguished from the land itself, it comes within the strict sense of a quitclaim deed and will not sustain the defense of innocent purchaser.”

In regard to this latter case Mr. Justice Phillips says in Cook v. Smith, supra:

“It is proper that we should call attention to the manifest conflict between the holding in Garrett v. Christopher, that notwithstanding the other features of the instrument may be those peculiar to a quitclaim deed, the use of the term ‘premises’ in the habendum clause will enlarge the effect of the instrument into that of a deed, and the later decisions of the court in Threadgill v. Bickerstaff and Dunham v. Eastham; since in neither of those cases is it recognized that the mere use of that term in such connection has, of itself, any such force. Garrett v. Christopher is not referred to in either opinion, but it cannot be otherwise regarded than as distinctly qualified by the ruling announced in each of these later cases.”

If this case does not overrule the opinion of Judge Acker in Garrett v. Christopher, supra, as to what constitutes a quitclaim deed, it qualifies it somewliat.

In regard to the proposition presented and urged by plaintiff in- error, that the evidence showed the instrument was a quitclaim deed, which would not estop plaintiff from inheriting his mother’s interest, is without merit and is overruled.

In the first place, the instrument conveyed the property absolutely, and there is nothing to show or warrant the claim that it was a ■“quitclaim and conveyed only the vendor’s -chance of title,” which is the real-and true meaning of a quitclaim deed, in contradistinction to a conveyance of land. Garrett v. ■Christopher, supra.

The seventh and eighth propositions do not seem very relevant, -because the court submitted the controlling and essential issues to the jury in the three issues.

The special issues requested.by plaintiff in error, most of which seem mere interrogations seeMng answers to issues covered by the court’s special charges, are without merit.

The seventh, eighth, and ninth propositions involve, it is true, questions of law in perfect harmony with, but not adverse to, the court’s ruling, and are overruled.

The tenth proposition, which desired the jury to find how many tenant houses were upon 13 lots known as the Laredo street property, was not material, since that issue was a fact already before the jury which it necessarily had to consider under the evidence permitted to go before them, which enabled them to find the verdict they did.

- To the same effect are the eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twenti-eth, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth, thirti-eth, thirty-first, thirty-second, thirty-third, thirty-fourth, thirty-fifth, thirty-sixth, thirty-seventh, thirty-eighth, thirty-ninth, fortieth, forty-first, forty-second, forty-third.

It is inconceivable how a court is expected to submit so many collateral issues to a jury when the only real and substantial ones were already submitted.

Plaintiff in error urges that the most important question from his standpoint is one of law involving the doctrine of resulting trusts. That doctrine is so old and so well established that it need not be amplified or here discussed. Aside from that, plaintiff in error does not controvert the doctrine, but does not admit its applicability here. All the questions of fact involved in the case have -been submitted to the jury by the three questions they were asked to answer. They found: (a) That Santos Leal purchased from Emilio Leal his expectancy in his mother’s estate; (b) that the alleged instrument dated February 5, 1918, executed by Emilio Leal to Santos Leal, was not a forgery, as claimed by plaintiff in error; and (c) that by such instrument he sold his expectancy in his mother’s estate to Santos Leal.

These findings cover all the issues of fact necessary to be found, and they are supported by the testimony.

It would have been no aid to the jury for the court to have submitted the many interrogatories (so-called issues), requested by plaintiff in error, for a finding by the jury.

We held in the prior presentation of this case, on the former appeal, that it presented a cause of action and should not have been dismissed upon the demurrer but heard upon the facts. A trial has now been had on that theory, and, of course, on such alleged facts, jury questions were raised, and we do not think it proper to disturb the findings of the jury on those issues.

The evidence shows that some time before the death of Joaquin Leal, she had parted with her interest, and that at the time of her death she owned no estate. The deed of June 11, 1908, from E. R. Leal to A. A. Gray conveyed Emilio’s interest in his deceased father’s estate, which was acquired by defendant in error.

The legal effect of the conveyance of February 5, 1918, from E. R. Leal to Santos Leal was, as stated, a conveyance of all the interest which Emilio had in his father’s estate, likewise a receipt for a settlement with his mother. Because of the language of the deed perhaps the court thought the recitals therein were ambiguous, so in the third issue submitted the question, “Did Emilio Leal by such instrument sell his expectancy in his mother’s estate to Santos Leal?” and they answered this question in the affirmative.

We think the evidence supports the findings of the jury; ' at least, no harm was done by its submission: So after fully considering plaintiff in error’s briefs, argument, assignments, and propositions, we find no error assigned that should cause a reversal of the judgment, and therefore the judgment of the trial cour.t is affirmed.
      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, O. T.

text:
    MIDDLETON v. MOORE.
    (No. 2916.)

    Court of Civil Appeals of Texas. Amarillo.
    Nov. 30, 1927.
    Rehearing Denied Jan. 18, 1928.
    1. Vendor and purchaser &wkey;>329 — Where vendor agreed to furnish abstracts showing merchantable title, abstracts tendered but not examined hy purchaser are admissible in vendor’s action for forfeit money.
    Where contract for sale of land required vendor to furnish abstracts of title showing good merchantable title in him and purchaser pleaded that abstracts, which were not examined by him when tendered, did not show such title, such abstracts are admissible in vendor’s action to recover forfeit money for purchaser’s breach.
    2. Vendor and purchaser <&wkey; 130(2) — Vendor’s title depending on judgment on constructive service against third parties who may have interest is not merchantable for two years after rendition of such judgment (Rev. St. 1925, art. 2236).
    Where title of vendor depends, in part, on 1 judgment rendered against third parties who may have interest in land and on constructive service of process, title is not merchantable, under Rev. St. 1925, art. 2236, until after expiration of two years from date of rendition of such judgment.
    3. Judgment <&wkey;!42 — Court must review whole case if defendánts on whom constructive service was had file petition alleging no notice of suit and good defense.
    Where constructive service of process was had on defendants in suit involving title to land, court must review whole case, if any of defendants file petition averring that they had no notice in fact of suit and that they had good defense.
    4. Judgment <&wkey;93 — Statutes governing default judgments are strictly construed.
    Statutes relating to default judgments are strictly construed.
    5. Vendor and purchaser &wkey;>130(2) — For vendor’s title depending on default judgment to be merchantable, compliance with statutes must appear unless compliance may be presumed from recitals in judgment.
    Where vendor’s title depends in part on default judgment, strict compliance with all requirements of statutes relating to default judgments must appear to render title merchantable unless recitals in judgment itself are such that compliance may be presumed.
    6. Vendor and purchaser t&wkey; 129(1) — Purchaser need not carry out his part of contract when there is defect in vendor’s title.
    So, long as contract for sale of land is ex-ecutory, purchaser is not bound to accept defective title or one which does not comply with requirements of contract, and he need not proceed to carry out his part of contract when such defect in title exists.
    7. Vendor and purchaser &wkey;>!4l — In absence of express provision in land contract, purchaser need not point out defects in title.
    In absence of provision in contract for sale of real estate, specifically requiring purchaser to point out defects in title, he is not bound to do so.
    8. Vendor and purchaser <&wkey;>l4l — Vendor, knowing he has not merchantable title which he agreed to convey, cannot complain that purchaser failed to notify him of defects.
    Vendor who has contracted to convey good, merchantable title, and who knows he has no such title; cannot complain of purchaser’s failure to notify him of defects.
    9. Vendor and purchaser <&wkey;>170 — Purchaser need not tender performance, wheré vendor’s abstract shows defect of title which cannot be cured within reasonable time.
    Purchaser is not required to tender performance where title shown by vendor’s abstract was not good and merchantable as provided in contract, in that it depended on judgment against persons on whom constructive service was had and two years had not elapsed so that defect could not be cured within reasonable time, notwithstanding purchaser’s failure to examine abstract, since purchaser is never bound to do vain thing.
    10. Vendor and purchaser t&wkey; 143 — Purchaser by' refusing to examine abstract held not to waive failure of title; “waiver.”
    Defect in vendor’s title, in that it depended on judgment against persons on whom constructive service was had and two years had not elapsed, held, not waived by purchaser’s failure to examine abstract where purchaser knew nothing of condition of title at time, since knowledge is essential element in .establishing “waiver,” which is intentional reliquishment of known right based on consideration.'
    [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Waiver.]
    11. Appeal and error &wkey;>930(3) — Reviewing court cannot presume in support of judgment that trial court found issues of waiver and estoppel in plaintiff’s favor, where such issues were not submitted to jury.
    Where in action involving land contract issues of waiver and estoppel as to defect in vendor’s title were not submitted to jury, reviewing court cannot presume in support of judgment for vendor that trial court found either issue in his favor, where abstracts tendered in evidence showed title was not good, since judge’s power to make findings where none are submitted or requested does not extend to independent grounds of recovery or defense.
    Appeal from District Court, Lubbock County ; Clark M. Mullican, Judge.
    Suit by Louie F. Moore against J. P. Middleton. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    See, also,. 289 S. W. 1045.-
    Bean & Klett, of Lubbock, for appellant.
    Lockhart & Garrard, of Lubbock, for appel-lee.

      writ of error granted.

   HALL, O. T.

This suit was filed originally by the appellee, Moore, to enforce specific performance of a contract for the sale of certain lands, and, in the alternative, to recover $500 forfeit money deposited in the First National Bank, said bank being made a party.

Upon the first trial, the district court decreed specific performance of the contract. This judgment was reversed by this court, and the cause was remanded for trial upon the rights of the parties to the $500 in the bank. See 289 S. W. 1045.

After reversal, Moore amended his petition, eliminating his action for specific performance, and sought to recover the forfeit money which had been reduced to $450 by the court in awarding $50 to the bank’s attorneys. By the amended petition, plaintiff sought to recover this $50.

He alleged, in substance, that on November 2, 1925, he entered into a contract with Middleton by the terms of which he was obligated to sell and convey to Middleton certain land described therein for a total consideration of $11,000, of which $3,750 was to be paid in cash upon delivery of the deed, and the execution by defendant of one noté for $3,000, and the assumption of a debt against 20 acres of the land; that the $500 was placed in the First National Bank as forfeit money, but was to be applied as part of the cash payment if the deal was closed; that in the event of the failure on the part of defendant to close the deal according to the terms of the contract, on the 1st day of December, 1925, the bank was authorized to pay plaintiff said $500 as liquidated damages. Plaintiff alleged that he performed all the things required of him under the contract, but that Middleton had wholly failed and refused to perform, to plaintiff’s damage in the sum of $500; that $50 of the $500 had been awarded to the bank’s attorneys, and that Middleton, in justice and equity, was due said amount to plaintiff; that he had caused to be prepared an abstract of title to the land, and in accordance with the contract offered the same to Middleton for examination, but the latter had failed and refused to accept the abstract and have the title examined, and failed to perform said contract, by reason whereof he waived all exceptions and objections to the title, and had never given plaintiff an opportunity to correct the defects in the title, if any there were, shown by the abstract.

The defendant, Middleton, answered by general demurrer, special exception, and that plaintiff had pleaded no facts showing that defendant had waived the furnishing of an abstract showing merchantable title. The answer further admitted that he did enter into a contract on November 2, 1925, for the purchase of 20 acres of land in Lubbock county, and by verbal agreement the time of performance was extended to about January 1,1926; that he would have consummated the transaction but for the fact that plaintiff failed and refused to- carry out and perform the whole contract, as actually agreed upon; that part of the agreement was left out of the original written contract by fraud, accident, or mistake, to wit, that it was agreed that $3,000 of the purchase price of the land was to be secured by a lien for that amount on a tract of land in Kent county, which said indebtedness, however, was hot to be a personal obligation of the defendant, but merely a lien against the land; that when the parties un- ' dertook to close the deal the plaintiff, Moore, refused to accept a deed of trust and note fixing a lien on the Kent county land, said note not carrying with it the personal liability of Middleton; that he would have closed the transaction, if the title" had been found merchantable, except for the fact that plaintiff refused to comply with his agreement as to the personal liability of defendant on the note, but that plaintiff breached the contract and is therefore not entitled to the forfeit money.

It is further alleged that the contract for the purchase of the two 10-acre tracts of land provided that the $500 forfeit money placed in the bank be applied as a part of the cash payment, but.in the event of Middleton’s default in closing the deal, after sufficient title had been made, the bank was authorized to pay over the forfeit money as liquidated damages; that it was, under the contract, the duty of plaintiff to furnish, by December 1, 1925, or in all events by the time the deal was closed, an abstract to the 20 acres of land, showing plaintiff to be the owner thereof by merchantable title, subject only to the notes that were to be assumed. He alleged that plaintiff did not, by December 1st or any other time, tender or furnish an abstract to said premises which showed him to be the owner thereof by merchantable title, although that was a condition precedent to any obligation on defendant’s part to permit the earnest money to be paid to plaintiff. He further alleged that the abstract which plaintiff Moore had to the 20 acres of land did not' show a good and merchantable title, but was defective in that it failed to show the payment of taxes for the year 1925, and for the further reason that the validity of the title depended upon a judgment based upon citation by publication, which said judgment had not been rendered as much as two years.

The plaintiff filed a supplemental petition consisting of general demurrer and special exceptions, a general denial, and further alleged that immediately after entering into the contract he had his abstract brought down to date of November 27, 1925, and on said date he tendered the abstract to defendant for examination, but defendant asked for more time in which to close the transaction, and by mutual agreement the time was extended ; that later on he again tendered the abstract to defendant, wbo refused to accept it or bave it examined, giving as the sole and only reason for such refusal the fact that plaintiff would not accept defendant’s note for $3,000 without his personal liability, said note to be secured only by a lien upon the Kent county land; that defendant refused tb receive the abstracts or have them examined and never, at any time, pointed out any defects in the title or gave plaintiff any opportunity to have them corrected, and only objected to the title after the suit was filed; that by reason of the fact that Middleton refused to accept the abstracts or have them examined he had waived all defects and he denied that he ever, at any time, agreed to accept a note of $3,000 secured by a lien upon land only, and upon which Middleton would not be personally liable, and further alleged that if Middleton had offered any objections to the title, he would have cured them, in accordance with the contract.

The cause was submitted to a jury upon special issues, the findings being, in substance, as follows:

(1) It was not agreed and understood between the parties, at the time or prior to the making and executing of the written contract, that the note for $3,000 was to be secured by a lien upon the Kent county land only and without the personal liability of Middleton.

(2) It was not a fact that a stipulation that $3,000 was to be secured by lien on the Kent county land, and not by personal obligation of the defendant, was omitted or left out of said Contract by mutual mistake.

(3) The plaintiff, Moore, did, on or prior to the day they attempted to (dose the deal, furnish or offer to defendant, Middleton, abstracts to the two tracts of land in Lubbock county for examination.

(4) That the defendant, Middleton, refused to receive said abstracts.

Based upon this verdict, the court rendered judgment in favor of plaintiff, Moore, for $500 and costs, with interest at the rate of 0 per cent, per annum from January 1, 1926, ■ordering the $450 in the registry of the court to be credited upon the judgment.

The effect of the jury’s findings is that the writing constitutes the entire contract between the parties; that on or prior to the day they met for the purpose of closing the deal, Moore had tendered to Middleton abstracts of title, which the latter refused to accept and have examined. It is conceded that the date fixed for consummating the transaction was, by agreement, extended from December 1, 1925, to about January 1, 1926, and that on the last-named date Middleton refused to close, because Moore insisted that Middleton give a note for $3,000 upon which the latter would be personally liable, it being the contention of Middleton that such note should be secured only by a lien upon some Kent county land, and that he was not to be personally liable for the amount. The jury found against Middleton upon this issue.

The material stipulations in the contract of sale are as follows:

“Party of the first part agrees to furnish to party of the second part one complete abstract covering tracts Nos. 1 and 2 aforesaid, showing good and merchantable title in him, subject only to the amounts to be assumed by party of the second part. In the event title is not merchantable, it is agreed a -reasonable time is to be allowed in which to perfect same.
“Second party places with this contract in the First National Bank of Lubbock, the sum of $500 as forfeit money, which shall be applied as part cash payment when deal is closed, and in the event of failure on the part of second party to close deal after sufficient title has been made on or before December 1, 1925, hereafter, said bank is hereby authorized to pay over to said party of the first part the said forfeit as liquidated damages. It is further agreed if title has been approved by November 15, this deal is eloseable on that date; however, it is mutually agreed that failure to close same on that date shall, in no way, afEect the closing of said deal on December 1st thereafter, which is agreed by both parties to be the final date |or the closing of this deal.”

The record shows that Moore tendered Middleton the abstracts, in accordance with the findings of the jury, and that Middleton did not accept them, nor were they examined for him. The appellant contends that the court erred in refusing to allow defendant, Middleton, to offer in evidence the two abstracts of title to the land in question, as they had been identified by the plaintiff, Moore, as being the ones he had prepared and intended to deliver to Middleton in closing the transaction. We sustain this contention. The contract bound Moore to furnish abstracts of title showing good, merchantable title in him. The appellant pleaded that the abstracts did not show such title, and this court held, on the former appeal of this case, that the title shown by the abstracts was not good and merchantable. See 289 S. W. 1045.

The principal contention of the appel-lee on this appeal is that because Middleton refused to accept and have the abstracts examined he has waived the alleged defect in the title. It appears that Middleton had never seen the abstracts and knew nothing of the defect in the title until this suit was filed. If the title of the vendors depends, in part, upon a judgment rendered against third parties who may have an interest in the land, and upon constructive service of process, the title is not merchantable, under R. C. S. art. 2236, until after the expiration of two years from the date of its rendition. Smith v. Hunter, 241 Ill. 514, 89 N. E. 686, 132 Am. St. Rep. 231. If any of the defendants in this judgment should file a petition averring that they had no notice in fact of the suit, and that they had a good defense to the suit, it would be the duty of the court to review the whole case. Snow v. Hawpe, 22 Tex. 168. The judgment shown in the abstract does not recite that service by publication was legally and properly perfected, and nothing in the abstract shows compliance with the statutes relating to default judgments. These statutes are strictly construed, and strict compliance with all the requirements of the statutes must appear, unless the recitals in the judgment itself are such that compliance may be presumed. Davenport v. Rutledge (Tex. Civ. App.) 187 S. W. 988; Fowler v. Simpson, 79 Tex. 611,15 S. W. 682, 23 Am. St. Rep. 370; Byrnes v. Sampson, 74 Tex. 79, 11 S. W. 1073; Lopez v. Calzado (Tex. Civ. App.) 281 S. W. 324; McCarthy v. Burtis, 3 Tex. Civ. App. 439, 22 S. W. 422; Reitz v. Mitchell (Tex. Civ. App.) 256 S. W. 697.

At the time of the alleged breach, the defendants in this judgment had more than four months in which to institute proceedings to vacate it. Even though they should not succeed in their attempt, appeRant’s deposit would have been held for an indefinite period, and upon an uncertain contingency. This court said in Sweet v. Berry, 236 S. W. 531:

“Until the conditions upon which the deposit was made had been performed, the appellants [vendors] were not entitled to recover it or to retain it and demand further cash payment. An abstract showing a merchantable title was a condition precedent to the execution of the ■ contract or to enforce it. * * * They are presumed at least to have known the condition of their title, and they showed the title they had, and, if it was not marketable, it would be a very unreasonable rule that would require the appellee to tie himself up by the contract together with his money an indefinite time, in order to permit appellants to institute a suit to perfect their title and to await the contingencies of a law suit. Instead of giving them a reasonable time, it would have been giving appellants an unreasonable advantage. The situation was through no fault of appellee.” 5 Thomp. Real Prop. §§ 4295, 4314.

So long as the contract is executory, the purchaser is not bound to accept a defective title or one which does not comply with the requirements of the contract in this particular (Burks v. Neutzler [Tex. Civ. App.] 289 S. W. 436; Sweet v. Berry, supra; Cooper v. Singleton, 19 Tex. 260, 70 Am. Dec. 333; Baldridge v. Cook, 27 Tex. 565; Greer v. International Stockyards Co., 43 Tex. Civ. App. 370, 96 S. W. 79), and he need not proceed to carry out his part of the contract when such a defect in the title exists (Cline v. Booty [Tex. Civ. App.] 175 S. W. 1081; Ferguson v. Mounts [Tex. Civ. App.] 281 S. W. 616).

While it may be inferred from the contract in this case that Middleton would point out any defects found in the title, there is no stipulation expressly requiring him to do so. It is held that, in the absence of a provision in the contract specifically requiring the purchaser to point out the defects in the title, he is not bound to do so. 39 Cyc. 1521; Sweet v. Berry, supra; Crutcher v. Aiken (Tex. Civ. App.) 252 S. W. 844; Lessenich v. Sellers, 119 Iowa, 314, 93 N. W. 348; McCroskey v. Ladd, 3 Cal. Unrep. Cas. 433, 28 P. 216.

A vendor who has contracted to convey a good merchantable title, and who knows he has no such title, cannot complain of the vendee’s failure to notify him of the defects. 39 Cyc. 1522; Newberry v. French, 98 Va. 479, 36 S. E. 519.

The rule which requires a tender 'of performance on the part of the purchaser does not apply where the title shown by the abstract is not good and merchantable, as provided in the contract. If Middleton had accepted and examined the abstract, Moore could not have cured the defect within a reasonable time and the purchaser is never bound to do a vain thing. Maupin on Marketable Title (3d Ed.) p. 213; 1 Sugd. Vend. (8th Ed.) 367; Bowles v. Umberson (Tex. Civ. App.) 101 S. W. 842; Faulkner v. Otto (Tex. Civ. App.) 230 S. W. 447.

From what we have heretofore said, we are of the opinion that there has been no waiver of the defect which may properly be termed a failure of title, because of Middleton’s refusal to accept the abstract and have it examined and report the defect to Moore. The issues of waiver and estoppel were not submitted to the jury. We cannot presume in support of the judgment that the trial court found either issue in appellee’s favor, since the abstracts tendered in evidence showed that the title was not good and merchantable, either when the contract was executed or at the time the parties met to consummate the deal. The only theory of ■the case upon which appellee could recover was that appellant had either waived the defect or was estopped to assert it by his failure and refusal to examine the abstracts and point out the defects.

Ás said in Citizens’ National Bank v. Texas Compress Co. (Tex. Civ. App.) 294 S. W. 331, 337:

“In a trial by jury on special issues there must be an affirmative finding on every issue necessary to support the judgment. The power of the judge to make findings where none are submitted or requested does not extend to independent grounds of recovery or defense, but only to incidental or subsidiary findings necessary to support the judgment in connection with the issues in fact submitted to and found by the jury. A party may waive an issue upon which he relies for recovery or defense by not requesting its submission. In such case, the issue is treated as abandoned, and goes out of the case. There is no affirmative finding made thereon and the judge is not given the power to make such affirmative finding, merely because the opposing party, upon whom no duty in that regard rests, has not requested its submission. The duty to request issues under any circumstances extends only to those respectively which are essential to the cause of action or defense of a party. There is no duty on the plaintiff to present purely defensive issues, and no duty on the defendant to present such as are essential to plaintiff’s recovery, and where no duty is imposed, no waiver can be imputed.”

The evidence wholly fails to sustain Moore’s contention that Middleton waived the defect. Middleton knew nothing of the condition of the title -until after he had asserted his right to rescind, and possibly until after Moore had filed this suit. Knowledge is an essential element in establishing waiver. A waiver is defined to be the intentional relinquishment of a known right based upon a consideration.

“The fundamental rule is that no one can be bound by a waiver of his rights unless such waiver is distinctly made with full knowledge of the rights which he intends to waive, and a knowledge of all the facts and circumstances affecting such rights.” Ferguson v. Mounts (Tex. Civ. App.) 281 S. W. 619, 621; M., K. & T. Ry. Co. v. Hendricks, 49 Tex. Civ. App. 814, 108 S. W. 745; Id., 103 Tex. 667; Adams v. Paton & Co. (Tex. Civ. App.) 173 S. W. 546; Crutcher v. Aiken, supra ; 40 Cyc. 255-265; Payne v. Beaumont (Tex. Civ. App.) 245 S. W. 94, 99; 2 Black on Rescission and Cancellation, § 591; 27 R. C. B. 908, 909.

The case seems to have been fully developed, and nothing can be gained by remanding it for another trial. The judgment is therefore reversed and is here rendered that Moore take nothing and that Middleton recover the amount of the deposit, with interest thereon at 6 per cent, from January 1, 1926.

Reversed and rendered.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGIÑS, J.

text:
    BEACON LUMBER CO. v. BROWN.
    (No. 2133.)
    Court of Civil Appeals of Texas. El Paso.
    March 22, 1928.
    Rehearing Denied April 19, 1928.
    Appeal and error <&wkey;65 — County court’s judgment for not over $100, on appeal from justice court in forcible detainer, is conclusive, and no further appeal lies (Rev. St. 1925, art. 3992).
    County court’s judgment, on appeal • from justice court in action of forcible detainer, is conclusive, and no further appeal lies, unless judgment awards damages in excess of $100, under Rev. St. 1925, art. 3992.
    Error from County Court at Law, No. 1, Bexar County; McCollum Burnett, Judge.
    Action by the Beacon Lumber Company against J. M. Brown. Judgment of dismissal, and plaintiff brings error.
    Writ dismissed.
    Thomson, Dilworth & Marshall and Bert Thompson, all of San Antonio, for plaintiff in error.
    A. J. Bell and Bell & Bell, all of San Antonio, for defendant in error.
   HIGGIÑS, J.

This is an action of forcible detainer instituted by the plaintiff in error in the court of a justice of the peace, where judgment was rendered in its favor against defendant in error, for possession of the premises and $180 rents, from which an appeal was prosecuted by the defendant in error to the county court at law.

In the latter court, the action was dismissed ; the court holding that the relation of landlord and tenant did not exist between the parties. From this judgment this appeal is prosecuted by writ of error.

In actions of this nature, the judgment of the county court is conclusive, and no further appeal lies, unless the judgment awards damages in excess of $100. Article 3992, R. S. 1925.

No such judgment was rendered; hence this court is without jurisdiction of the appeal. The writ of error must be dismissed. Delgado v. Chapa (Tex. Civ. App.) 173 S. W. 1169; Boyle v. Grubbs (Tex. Civ. App.) 268 S. W. 277; Tibbitts v. Lacy (Tex. Civ. App.) 225 S. W. 190; Kerlin v. Bassett (Tex. Civ. App.) 152 S. W. 526; Lane v. Jack (Tex. Civ. App.) 61 S. W. 422; Stein v. Stely (Tex. Civ. App.) 32 S. W. 861.

Dismissed.


author: FLY, C. J.

text:
    FLATO et al. v. WEIL et al.
    (No. 7965.)
    Court of Civil Appeals of Texas. San Antonio.
    March 14, 1928.
    Rehearing Denied April 4, 1928.
    1. Mines and minerals &wkey;>73(/2 — Agreement that lessees had brought in producing well operated to put lease in effect for five years pursuant to its terms.
    Where oil and gas lease for period of five years, provided that lease should be in full force and effect on discovery of oil and gas in paying quantities, and payment of certain sum in cash, agreement subsequently entered into after discovery of gas to effect that lessees had brought in a well that was producing gas -in paying quantities as contemplated in original agreement, operated to put lease in full force and effect for period of five years from and after its date.
    2. Mines and minerals &wkey;j73!/2 — Continuation of oil and gas lease depended on whether one or more minerals was being produced in paying quantities as required.
    Under oil and gas lease providing for its continuance for five years and year to year thereafter, so long as premises should yield gas, oil, sulphur, in paying quantities, continuation of lease depended not on number of wells dug by lessees, but on -whether one or more minerals was being produced in paying quantities.
    3. Mines and minerals &wkey;>73i/2 — Evidence that gas was flowing in paying quantities perpetuated vitality of oil and gas lease.
    Under oil and gas lease providing for continuation after five-year period in case gas, oil, sulphur, or other minerals were being produced in paying quantities, evidence to effect that at end of five-year period, gas was flowing from well on premises in paying quantities, was sufficient to perpetuate vitality of contract.
    4. Mines and minerals &wkey;>78(2) — Lessees were entitled to perform proper work to recondition gas well, after five-year period of lease authorizing continuation.
    Where at end of five-year period, under oil and gas lease authorizing continuation in case minerals were being produced in paying quantities, gas was flowing but well thereafter became out of order, lessees were entitled to proceed with proper work' on well in order to recondition it.
    5. Mines and minerals <&wkey;78(2) — Oil and gas lease will not be forfeited, because lessees on closing gas well merely capped it.
    Oil and gas lease is not subject to forfeiture because of fact, that lessees at time of closing gas well merely capped it on theory, that such was not. a sufficient precaution to preserve well where it appeared that well was so well protected, that it took only a few days to recondition it.
    6. Mines and minerals <&wkey;>78(2) — Lessees making two contracts to sell gas during five year period made sufficient effort to negotiate for development.
    Lessees under oil and gas lease, having during five-year period made at least two contracts to sell gas produced thereon, held to have made sufficient effort to negotiate for development of premises so as to avoid forfeiture of lease, in view of fact that lessors made no complaint, and by their conduct led lessees to believe, that all would Be agreeable.
    7. Mines and minerals &wkey;>77 — Temporary cessation of developments or operation does not as matter of law constitute “abandonment” of oil and gas lease.
    A temporary cessation of developments or operation under an oil and gas lease, does not as a matter of law, constitute an abandonment.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Abandon —Abandonment.]
    8. Mines and minerals <©=378(2) — Lessors not considering lessees have abandoned lease will not be permitted to declare abandonment of oil and gas lease.
    Where lessors evidently did not consider that lessees under oil and gas lease had abandoned lease at end of five-year term, and only took action of forfeiture at the beginning of next year, thereby causing heavy expense to lessees, they will not be permitted to declare an abandonment of contract.
    9.Mines and minerals <&wkey;73¡/2 — Time consumed by lessors in attempted forfeiture of lease, will be deducted from year added to length of lease under provision for continuation.
    Where lessees after expiration of five-year term, under oil and gas lease authorizing continuation year after year, were compelled by acts of lessors to cease operations shortly after five-year period, they will not be limited as to certain time within which to resume operations, except that time consumed by lessors endeavoring to compel an abandonment, will be deducted from year added to length of lease according to provision for continuation.
    Appeal from District Court, Kleberg County ; W. B. Hopkins, Judge.
    Action by R. G. Flato, for himself and as agent and attorney in fact for A. A. Clark, and as trustee for Robert J. Kleberg, Jr., and others against Alex Weil and another. Judgment for defendants, and plaintiffs appeal.
    Modified and as modified, affirmed.
    E. H. Crenshaw, Jr., of Kingsville, for appellants.
    Boone & Savage and F. A. Raymer, all of Corpus Christi, for appellees.
   FLY, C. J.

R. G. Flato, for himself and as agent and attorney in fact for A. A. Clark, and as trustee for Robert J. Kleberg, Jr., C. A. Roberts, B. S. Roberts, Mrs. J. B. Roberts, Kate Roberts, A. D. East, L. H. Litton, Charles H. Flato and R. E. Welhaum, brought this action, in effect one of trespass, to try title to farm lots 11, 12, 13 and 14, in block or section 40 of the Kleberg Town & Improvement Company’s subdivision, containing 160 acres of land, against Alex Weil and Moise Weil. All the parties represented by R. G. Flato, as agent and trustee, asked to be made plaintiffs in the suit and adopted the pleadings of R. G. Flato. The ease involved the vitality of a lease given by appellants to. Hirsch and others for a period of five years, for the sole purpose of drilling for oil, gas, and other minerals. It was tried by the court, without a jury and resulted in a judgment in favor of appellees, who were granted six months from the time when the judgment became final in which to resume active operations on the land.

The facts show, that on February 28, 1&22, an escrow agreement was made by and between the parties, by which a lease to the land was placed with bankers in Kingsville to be delivered to the Frances Oil Trustees if they started drilling operations in thirty days, and if oil or gas was obtained in paying quantities, and further that they paid to lessors the sum of $16,000 in cash, then the lease would be in full force and effect. The lease was for five years from February 28, 1922, and from year to year thereafter so long as the premises should yield gas, oil, sulphur, or other minerals in paying quantities..

On March 5, 1923, an agreement, was made between tlte parties, in writing, that the lessees had brought in a well that; was producing gas in paying quantities, as contemplated in the original escrow agreement and lease. The lessees paid to the lessors $6,000 in cash, and executed promissory notes for $10,000, which were accepted by the lessors and the lease, was delivered to the Frances Oil Trustees and was duly recorded. The well produced gas in paying quantities for about four months, when water interfered with its operation and it was disconnected from the Kle-berg County Oil and Gas Company which was taking the gas. After the well, was disconnected, it was capped and precaution taken to protect it. Afterward sand entered the well and caused the gas to cease to flow.

The lease was assigned by the Prances Oil Trustees to the appelleés herein, who sought to negotiate for the development of the premises or to sell the lease, but put forth no effort to rehabilitate the well until on or about, December 22, 1926, when an arrangement was made with the Kleberg Oil and Gas Company, to purchase all gas produced on the premises. This was the first time ap-pellees had been able to procure a contract for the sale of sufficient gas to justify reconditioning the well. Appellees began at once to put the well in condition. Appellants knew of the attempt to rehabilitate the well, and on or about February 20, 1927, before the expiration. of the five years’ lease, the well was brought in as a gas producer and the machinery of those working on the well was removed. The well was producing gas in paying quantities prior to February 28, 1927, and continued to do so until about March 5, or 6, 1927.

No notice was given appellees until March 7, that the lease was terminated, and after that appellants prevented appellees from operating on the premises, although they offered to rehabilitate the well again. The finding of the court as to appellees acting in good faith is not challenged by appellants, and .this court indorses the finding. This court agrees substantially with all the findings of fact of the trial judge, and particularly finds that the lease was not abandoned by appellees. They were compelled by appellants to cease operations.

The first proposition, based on the first assignment of error is that the obligation rested on the lessees to use reasonable diligence to explore for oil, gas, or other minerals, as that was the real consideration for the lease, and such obligation had not been met by drilling, in five years, only one well and when it failed to produce, made no effort to further explore for a period of two and a half years. The lease was dated on February 28, 1922, and shortly thereafter, appellees began operations on the land and brought in a well producing gas in paying quantities and it was accepted by the appellants as such, on March 5, 1923. That acceptance was evidenced by a written agreement dated, March 5, 1923. After the well was dug and gas was brought in, no further efforts were put forth .by ap-pellees until December,. 1926, when efforts were made to bring in the well again, which had filled with sand and was not producing, at least from June, 1924.

We are of opinion, that the court properly found that the agreement of March 5, 1923, put the lease into full force and effect for five years from and after, February 28, 1922, and that if a forfeiture of the lease took place, it must have been on account of matters occurring between March 5, 1923, and February 28, 1927. A provision of the lease contract is that the lease shall continue for five years and year after year thereafter, so long as the premises shall yield gas, oil, sulphur, or other minerals in paying quantities, not, to exceed fifty years.

The continuation of the lease for five years did not depend, upon 'the number of w:ells dug by appellees, but upon whether one or more-of the minerals was being produced in paying quantities. The production of gas or oil for a short time during the first five years in paying quantities, would not meet the terms of the contract and continue the lease longer than the five-year period. Even though efforts had been made to bring in other wells, or to recondition the well that had been dug, under the terms of the contract the lease expired at the fend of five years, unless the premises were yielding gas, oil, sulphur, or other minerals. The well was producing at the end of the five years. Robinson v. Jacobs, 113 Tex. 231, 254 S. W. 309; Texas Co. v. Davis, 113 Tex. 335, 254 S. W. 304, 255 S. W. 601.

There is no express agreement as to forfeiture in the contract, the only provision that hints at such a result, is the fourth clause, in which it is provided that if lessees should discover oil in paying form, that within the limit of the lease they should “reasonably exploit such discovery in good faith to the end, that all such wells as may be necessary to fully develop and get the maximum value from each such discovery shall be drilled and operated with reasonable diligence.” The only circumstances under which a forfeiture is provided, is where it is stipulated in the fourteenth clause:

“It is agreed and understood in the event that lessees shall fail to comply with any of the terms of this lease after thirty (30) days’ written notice has been served on lessees by lessors, notifying lessees, of such failure, this lease shall terminate as to both parties and be of no further force and effect.”

No notice was given to lessees of any discontentment with the actions of appellees, or that a forfeiture would be claimed.

If, at the termination of the five years provided for in the lease, gas, oil, sul-phur, or other mineral was not being produced in paying quantities, the contract was at an end, without notice and without declaration of forfeiture. It automatically ceased to exist. But there is evidence that shows, that at the end of the five-year period the gas was flowing in paying quantities and under the terms of the contract that was sufficient, to perpetuate .the vitality of the contract. After the well again became out of order, the notice of forfeiture was given over the protests of appellees that they he permitted to again recondition the well. The gas was there ready to flow, with proper work on the well, and appellees should have been permitted to perform that work. It would not matter that, appellees had begun operations in December, 1926, in order to preserve the vitality of the lease, they succeeded in starting afresh the flow of gas before the end of the five-year term and thereby preserved to themselves rights acquired under the contract.

The second proposition is, that merely capping a gas well is not sufficient precaution to preserve it. The fact remains that the well was so protected that it took only a few days to bring it back to its original state. The proposition is overruled.

The court was authorized to find that appellees “made some effort to negotiate for 'development of the premises.” They made ’at least two contracts to self the gas. During all the five years, appellants entered no objection to the manner in which the well was being handled, and near the end of the five-year term conversed with appellees as to the feasibility of reopening the well, without making any complaint as to the manner in which the well had' been handled. Their conduct was such, as to lead appellees to believe that all would be agreeable if the well was reconditioned. Thornton, Law of Oil & Gas, §§ 208-209. The third proposition is overruled.

Appellants had by their silence, permitted appellees to expend money in bringing in the well about the end of the five years, and made no effort to claim an abandonment of the lease for at least a week on the sixth year from the date of the contract. The acts of appellees did not show an intent to abandon the lease as a matter of .law. The question was one of fact to be determined by the court in view of the circumstances surrounding the case.

. “The law is well settled that a temporary cessation of developments or operation under an oil and gas lease does not, as a matter of law, constitute an abandonment.” Wisconsin-Texas Oil Co. v. Clutter (Tex. Com. App.) 268 S. W. 921.

Appellants evidently did not consider that appellees had abandoned the lease at the end of the five-year term, and only took action after the beginning of another lease year. By their acts they caused heavy expense to appellees and. should not be allowed to declare an abandonment of the contract. The fourth and fifth propositions are overruled.

There is evidence to sustain the finding, that appellees are ready, able, and willing to continue operation^ under the contract, but we see no ground for attempting to give appellees six months within which to resume operations after the entry of final judgment. Appellees were compelled by the acts of appellants to cease operations, and the time consumed by appellants in endeavoring to compel an abandonment of the.lease, should not be deducted from the year added to the length of the lease by a rehabilitation of the well, and appellees should be placed in the same position they occupied under the contract when they were compelled to cease operations by appellants on March 7, 1927. Appellees would be entitled to use the time remaining of the added year, to begin and prosecute the work of seeking for minerals under the terms of the contract. The court had no authority to fix a time that should be accorded appellees in which to begin op- ' erations, and that portion of the judgment of the trial court will be eliminated. Appellees,. in case the final judgment should be in their favor, should proceed under the terms of the • contract as though operations thereunder had not been interrupted by appellants.

The remaining propositions are overruled and, with the provision as to the six months’ time sought to be given appellees, eliminated and stricken out, the judgment will be affirmed.
      @3»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      &wkey;For otter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes