author: JACKSON, J.

text:
    BATSON v. BENTLEY et al.
    (No. 2955.)
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 25, 1928.
    Rehearing Denied March 7, 1928.
    1. Judgment <&wkey;326 — Contract and pleadings held to authorize court to enter judgment nunc pro tunc adding name of defendant omitted from original judgment (Rev. St. 1925, art. 2229).
    Where, in original judgment, court stated that plaintiff was entitled to recover as to either defendant omitting name of one defendant, written contract sued on, petition, and answer furnished sufficient evidence in writing to authorize entry of judgment nunc pro tunc by adding omitte’d name of one of defendants under Rev. St. 1925, art. 2229.
    2. Brokers <&wkey;86(l) — Ruling holding contract unenforceable for failure of consideration held not error on ground that written contract purported consideration, where evidence showed plaintiff failed to perform.
    In suit on contract to convey share of royalties in land in consideration of plaintiff selling royalties to pay- off incumbrance on land, where evidence authorized conclusion that plaintiff did not sell royalties or leases or perform services contracted for and that foreclosure suit had been filed before defendants succeeded in making sale, ruling by trial court that contract was unenforceable for plaintiff’s failure to perform services was not error on ground that written contract reciting payment of one dollar purported consideration and because testimony showing failure of consideration, not pleaded though unobjeeted to, could not be made basis for defeating written instrument.
    3." Brokers &wkey;>7 — Agreement for sharing royalty and proceeds of royalty sold by plaintiff held not to grant exclusive agency to sell royalty.
    Royalty agreement reciting agreement by defendants to give plaintiff one-half of royalty in land described and to .divide equally all money obtained for certain royalties and to execute to deeds therefor, royalty when sold to be satisfactory to both parties, did not give plaintiff exclusive agency to sell royalties.
    4. Mines and minerals &wkey;>79 (I) — Agreement providing for division of proceeds from royalties and execution of deeds therefor, sale to . be satisfactory to defendants, held not conveyance or sale of royalty.
    Royalty agreement reciting agreement by defendants to give plaintiff one-half of royalty in land described and to divide equally all money obtained for certain royalties and to execute deeds therefor, royalty when sold to be satisfactory to both parties, held not conveyance, since providing for execution of deed for royalties nor was it sale since it provided that sale should be satisfactory to defendants.
    5. Brokers c&wkey;84(l) — Plaintiff not relying on contract to prove consideration was required to show performance of services agreed on to recover.
    In suit under contract to recover share of royalties for services performed in selling royalties in land to pay off incumbrances, plaintiff not relying on contract to prove consideration was required to show that he performed services agreed on and thereby paid consideration in order to recover.
    Appeal from District Oourt, Wheeler County; W. R. Ewing, Judge.
    Action by J. A. Batson against W. E. Bentley and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    See, also, 295 S. W. 316; 297 S. W. 769.
    Elliott & Moss, of Memphis, and Underwood, Johnson, Dooley & Simpson, of Amarillo, for appellant.
    Clayton Heare, of Shamrock, for appellees.
   JACKSON, J.

This suit was instituted in the district court of Wheeler county, Tex., by the appellant, J. A. Batson, against the appellees, W. E. Bentley, his wife, Bertie Bentley, and M. Reynolds.

The appellant alleges that in 1925 W. E. Bentley was the owner of certain lands known and described as sections Nos. 42 and 64 in block 24, H. & G. N. Ry. Co. survey in Wheeler county, Tex.; that W. E. Bentley was indebted to the Oklahoma Farm & Mortgage Compány and to the Fidelity Bank & Trust Company, in the aggregate sum of $28,000, which was past due and secured by a valid lien against said land; that suits were about to be instituted to collect said money and foreclose said liens, which, if done, would result in the loss of the land by the Bentleys, all of which was well known to them and the appellant; that W. E. Bentley, by ■ written contract, gave to appellant the exclusive right, assisted by said appel-lee, to sell the royalty in and under the land, and to obtain and assist in obtaining purchasers for a sufficient amount of said royalty to pay off and discharge said indebtedness and liens, and thereby save the land for the Bentleys; that by the terms of the written contract, appellant was to receive one-half of one-eighth of the royalty to be retained by the Bentleys on the southeast one-fourth of said section 42; that in compliance with said agreement, the appellant devoted his time and money to looking after and perfecting the interest of the Bentleys in said land, obtained an agreement from the lienholders to delay foreclosure of their liens long enough to permit the oil developments to approach up to and near said land, which delay was necessary in order to obtain the best prices for the royalty; that thereafter it became possible to sell said royalty for a sum sufficient to liquidate said indebtedness and discharge said liens; that in compliance with this contract, the appellant did all in his power to save said land for the Bentleys and sell the royalty; that subsequent to the written contract above mentioned, because of the labor done and money he had expended in an effort to carry out said contract, W. E. Bentley agreed that if appellant would continue his efforts to save said land and to obtain purchasers for the royalty that he was to be entitled to one-half of the royalty interest retained by Bentley in the west one-half of the southwest one-fourth and the west one-half of the northwest one-fourth and the southwest one-fonrth of said section No. 42; that said last agreement was reduced to writing and delivered to Bentley, who agreed to and assured appellant of the execution thereof, but that he fraudulently neglected the execution of said instrument, and after appellant had performed the services therein provided for, willfully refused to execute 'said contract; that M. Reynolds, having full notice of appellant’s rights under and by virtue of said contracts, was contracting to purchase for himself and associates a part of the said royalty, and any right obtained by M. Reynolds and his associates would be subject to appellant’s contracts.

The appellant alleges that he, in all things, complied with his part of said contracts, completing the services he was to perform, and through his efforts and assistance a sufficient amount of the royalties were sold, the proceeds thereof applied to the payment of the indebtedness of $28,000, the liens released, and the land saved; that he is entitled to the royalties as alleged, and the failure of the Bentleys to comply with Said contracts has resulted to his damage in the sum of $64,000, which is the market value of the royalties he was to receive; that if he is not entitled to recover on the second contract above alleged, in all events he is entitled to recover the market value of the royalty in and under the southeast one-fourth of said section 42, which he alleges to be of the market value of $30,000. He seeks to recover title and possession to the royalty he alleges he was to receive, and, in the alternative, for his damages.

The appellees answered by general demurrer, special exception, and general denial.

The case was tried before the court, without the intervention of a jury, at the September term thereof, 1926, “and the court having heard the pleadings, evidence, and argument of counsel, and fully understanding the same, is of the opinion that plaintiff is not entitled to recover as to either defendant herein.” He entered judgment that “the plaintiff, J. A. Batson, take nothing as to either the defendant W. E. Bentley or the defendant M. Reynolds by his suit, but that said defendants each go hence without day,” etc., omitting from the judgment the name of Mrs. Bertie Bentley.

The appellant prosecuted an appeal from this judgment to this court, which was dismissed because not a final judgment. Batson v. Bentley et al. (Tex. Civ. App.) 295 S. W. 316.

Thereafter, in response to a motion by appellees, the trial court, on August 22, 1927, during a regular term of the distriiet court of Wheeler county, Tex., after due and legal notice, heard said motion and entered judgment nunc pro .tunc against the appellant and in favor of each of the appellees, W. E. Bentley, Bertie Bentley, and M. Reynolds, and appellant again prosecutes his appeal.

The appellant urges as error the action of the court in rendering the judgment nunc pro tunc, because the effect thereof is to change the substance of the original decree, which is not authorized under the law.

It will be noted that in the. original judgment the court states he “is of the opinion that plaintiff is not entitled to recover as to either defendant herein.” Affecting the question here presented, article 2229, R. O. S., 1925, provides:

“Where in the record of any judgment or decree of a court, there shall be any omission * * * of any name or names, if there is among the records of the cause any verdict or instrument of writing whereby such judgment or decree may be safely amended, it shall be corrected by the court wherein such judgment or decree was rendered, * * * upon application of either party, according to the .truth and justice of the case. The opposite party shall have reasonable notice of the application for such amendment.”

The written contracts sued on, appellant’s petition, and appellees’ answer furnish sufficient evidence in writing to authorize the entry of the judgment nunc pro tunc. International & Great Northern Ry. Co. v. Dawson (Tex. Civ. App.) 193 S. W. 1145; Batson V. Bentley (Tex. Civ. App.) 295 S. W. 316, and authorities cited.

Appellant challenges as error the action of the trial court in holding that the written instrument covering the southeast one-fourth of section 42 was unenforceable on the theory that appellant had failed to perform the services which he alleged were the consideration therefor, because the record shows that appellant sued on and offered in evidence said written instrument, which in law purported a consideration, and the ap-pellees having failed to plead failure of consideration, the oral testimony, though offered without objection, could not be made the basis for defeating the written instrument.

Articles 7092 and 7093 of the Revised Civil Statutes of 1911 have been combined, and appear now as article 27 in R, C. S. 1925. Whether or not the article, as now written and adopted by the Legislature, still provides that a written instrument, such as the one under consideration, not under seal, imports a consideration, it is unnecessary for us to determine. The instrument upon which appellant relies reads as follows:

“Royalty Agreement.
“That W. E. Bentley and wife of Shamrock, Texas, for and in consideration of the sum of $1.00 (and other good and valuable consideration), receipt of which is hereby acknowledged, have bargained and do by these presents bargain and agree with the said J. A. Batson, of Amarillo, Texas, the following property, estate, right, title and interest, to wit:
“An undivided one-half of (⅛) royalty interest in all of the oil, gas, coal and other minerals now, or at any time hereafter lying in or under the following described tract of land (or any part thereof): S. E. ¼ of section 42, block 24, H. & G. N. Sur. situated in the county of Wheeler, state of Texas.
“It is expressly agreed and understood that the said J. A. Batson is to have ½ of ,⅛ royalty of the above-described royalty, and we agree to divide equally with the said J. A. Bat-son, all amounts (money or otherwise) that he may obtain for said royalty and agree to execute proper deeds for same, showing good and merchantable title.
“This royalty when sold shall be satisfactory to both parties herewith and well divided equally to both parties.
“Witness our hands Jan. 30, 1925.
“W. E. Bentley.”

Examination of this instrument discloses that it did not give to appellant, as alleged, the exclusive agency to sell royalty; it is not a conveyance to appellant, because it provides that the Bentleys shall divide equally with appellant all that he may obtain for the royalty under the land described, and that they will execute a proper deed thereto, if sold; that it is not a sale because it provides that any sale of the royalty made shall be satisfactory to the Bentleys as well as to appellant. The consideration of one dollar and other good and valuable consideration recited in the contract manifestly was not the consideration to be paid for the royalty, even though the instrument was an assignment or a contract to assign.

The appellant placed W. E. Bentley on the stand, by whom he proved that a one-half of one-eighth of the royalty under the south-' east one-fourth of section 42 was to be assigned to Batson for his services in selling royalty; that after eleven months, appellant had failed to sell any royalty; and that he himself found purchasers and sold and assigned the royalty to such purchasers without any assistance from appellant.

Appellant testified that when the .trade was made, Bentley said, “If I would stay with him and help him get out of debt, he would give me half the royalty on 'the southeast quarter of section 42, block 24”; that part of the agreement was evidenced in writing; that Exhibit A, which we have heretofore set out, is a copy of the original agreement that he entered into with Mr. Bentley; that in consideration of that agreement he was to sell and assist Bentley in the sale of royalties and oil leases, from the proceeds of which the indebtedness would be paid and the land saved, and at that time, they agreed on the value of the royalty and what royalty would be offered for sale and the price to be asked for it; that the documents “B,” “O,” and “D” represent the prices at which royalty was to be sold; that he did not sell any leases to anybody; that he spent some money and devoted considerable time in his efforts to get the foreclosure suit delayed and to find purchasers and make certain corrections in the title. Exhibit D, which was never executed and which describes the southeast one-fourth of said section 42, provides that J. A. Batson is to have the sale thereof at $50 per acre, and'to receive. one-half of the price he may obtain for the lease, and that Bentley and hin wife should execute a proper release thereto when the sale should be made.

Without stating the testimony in detail, suffice it to say that it is amply sufficient to authorize the conclusion that appellant did not sell either royalty or leases, did not assist in the sale that was made, and did not perform the services he had contracted to perform .for the royalty. The testimony discloses that suit had been filed for foreclosure of the liens before Bentley succeeded in finding a purchaser and making a sale.

If this instrument is a contract for the sale of royalty, it is an executory contract. Speaking of a bond for title, tbe Supreme Court says:

“They evidence a contract of sale; and they bind the obligor to make a conveyance, in case the obligee shall not make default in the performance of his part of the contract. But they do not pass the title absolutely. In case of the default 'of the vendee, the. vendor may elect to abandon the contract, and recover back or alienate the land, upon giving notice to the ven-dee and his refusal to perform his part of the 'contract, although by its terms the making of the title and payment of the purchase money be not dependent covenants. * * * The evi-deuce would have well warranted, the jury in, finding that the price had been paid, especially after so great a lapse of time, and that thereby the title became vested absolutely in the vendee, Eitchett. But that was a question for the jury.” Secrest v. Jones, 21 Tex. 121-132.
‘‘That the payment of a valuable consideration must be proved where the instrument itself does not recite payment, in order to.make such contracts valid muniments of title, enforceable against the obligor or those holding under him has long been the established law in this state.” Randell v. Bobinson (Tex. Civ. App.) 172 S. W. 735.

In construing a contract entered into between John Charles Beales and his wife, as first parties, and J. 0. Kerbey and O. R. Johns, as second parties, on May '30, 1867, which provided that first parties would convey a one-half interest in the land involved to second parties, in consideration that second parties should settle and adjust the title to said lands granted to Beales’ wife by the government of Mexico, the Supreme Court holds that it was necessary “to prove such performance of the terms of the contract of May 30, 1867, as would entitle J. C. Kerbey and C. R. Johns to the interest in the land thereby provided for.” Carothers v. Alexander, 74 Tex. 309, 12 S. W. 4.

The appellant did not rely on the written contract sued upon, to prove the consideration, but undertook, by oral testimony, to show that he had performed the services agreed Upon and thereby paid the consideration agreed upon between himself and the Bentleys. This, under the foregoing authorities, it was incumbent upon him to do in order to recover. The testimony being sufficient to warrant the court in concluding that he had not performed the services. which were to be the consideration for the royalty, this assignment is overruled.

The judgment is affirmed.
      <§r=JFor other oases see same topic and KE.Y-NUMBER.in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LESLIE, J. Appellees

license: Public Domain

text:
    BRALY et ux. v. WEBSTER et al.
    (No. 468.)
    Court of Civil Appeals of Texas. Eastland.
    March 23, 1928.
    Execution <&wkey;472(6)— Plaintiff making prima facie case held entitled to temporary injunction restraining sale under execution of alleged business homestead (Vernon’s Ann. Civ. St. 1925, art. 4642).
    Where pleadings and evidence of plaintiffs suing to restrain sale under execution of an alleged business homestead of plaintiffs presented a prima facie homestead right in the property, held, that under Vernon’s Ann. Civ. St. 1925, art. 4642, a temporary injunction should have been granted plaintiffs, since they have right to have merits of main cause of action determined without having any cloud cast upon title to property prior to such determination.
    Appeal from District Court, Stephens County; C. O. Hamlin, Judge.
    Suit by Neely Braly and wife against A. A. Webster and others. From an interlocutory order refusing a temporary injunction, plaintiffs appeal.
    Reversed, and temporary writ of injunction granted.
    B. B. Chappell, of Breckenridge, and Davis, Synnott & Hatched, of Dallas, for appellants.
    Ben J. Dean, of Breckenridge, for appellees.
   LESLIE, J. Appellees

A. A. Webster et al. were judgment creditors of appellants Neely Braly et al., and this suit was instituted by the latter to restrain the sale under execution of an alleged business homestead of the Bralys. There was a preliminary hearing of the cause, and this appeal is from an interlocutory order of the court refusing a temporary injunction.

The appellants’ pleadings are sufficient in form and substance to present a prima facie homestead right in the property, and the evidence apparently goes to that extent. Article 4642, Vernon’s Civ. St. vol. 14, provides that—

“Judges of the district * * * courts shall, in term time or vacation, hear and determine applications for and may grant writs of injunction returnable to said courts in the following cases: * * *

“4. Where a cloud would be put on the title of real estate being sold under an execution against a party having no interest in such real estate subject to the execution at the time of. the sale, or irreparable injury to real estate or personal property is threatened, irrespective of any legal remedy at law.”

The emergency clause of the act containing the provision quoted.is:

“The fact that there is now no well-defined and settled statutes on law and equity to properly prevent a cloud on title of real estate * ⅜ ⅜ being sold under an execution against a person * * * having no interest in such real estate * * * without resorting to the legal remedy-at law, creates an emergency and an imperative public necessity * * * that this act take effect * * * from and after its passage.” Acts 1909, c. 34, § 6.

The phrase, “cloud would be put on the title,” as here used, means a claim of a right in land. 5 R. C. L. 634; Stolte et al. v. Karren (Tex. Civ. App.) 191 S. W. 600; Winkie v. Conatser (Tex. Civ. App.) 171 S. W. 1017.

As stated, the pleadings and the testimony present, at least, a prima facie case in favor of the Bralys upon the homestead issue. That being the case, they clearly have a right to have the merits of the main cause determined without having any cloud cast upon the title to said property, prior to such determination, by reason of a levy thereon and sale of the same under execution. Canales et ux. v. Canales et al. (Tex. Civ. App.) 190 S. W. 842; Osborn v. T. P. Coal & Oil Co. (Tex. Civ. App.) 229 S. W. 359.

The briefs of each party have been considered. They present propositions outside of any issue involved on this appeal. Such propositions relate more to the merits of the litigation that must necessarily be determined upon a final trial. We shall not pass upon them in advance of such determination.

For the reasons assigned, the judgment of the trial court is reversed and a temporary writ of injunction is granted as prayed for, restraining the sale of the land described in the petition, until the cause is finally disposed of upon its merits. Such writ will issue upon the execution by appellant of a bond in the sum of $500 in terms and provisions as by law required.

It is so ordered.
      (§=?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BAUGH, J.

text:
    CLEARMAN et al. v. GRAHAM et ux.
    (No. 7147.)
    Court of Civil Appeals of Texas. Austin.
    Feb. 15, 1928.
    Rehearing Denied March 28, 1928.
    1. Appeal and error <&wkey;930(3) — One issue being submitted to jury and others not requested, all other issues of fact raised' must be resolved in support' of judgment.
    Where but one issue was submitted to jury and no other issues were requested, held, that all other issues of fact raised by pleadings and proof must be resolved in support of judgment.
    2. Mortgages <&wkey;370 — Where mortgagor’s attorney bid in land for mortgagor and trustee made second sale to mortgagee after bidders had dispersed, second sale was void.
    Where sale was made under trust deed and attorney for mortgagor bid in land, but left without making payment, and trustee prepared deed and, having failed to locate attorney who &ad left town, sold land two hours later to mortgagee at another sale, held, that second sale was invalid, being made after bidders had dispersed, without knowledge or presence of mortgagor who had already been declared successful bidder.
    3. Mortgages &wkey;>370 — Resale under trust deed after commencement of suit to set aside former sale, if authorized, held subject to rights established by suit.
    Trustee’s sale made after readvertisement and after suit was filed to set aside former sale held subject to whatever rights parties established by suit, if in fact trustee did not lose authority to sell land while suit was pending.
    4. Appeal and error <&wkey;-930(3) — On appeal, trial court was presumed to have found against-mortgagee where good faith of mortgagor’s attorney in bidding was not requested to be submitted. .
    On appeal, in mortgagor’s action to set aside sale to mortgagee made aftgr mortgagor’s attorney had bid in land at sale held two hours prior, where questions of intention and ability of attorney to make payment were not requested to be submitted to jury, upon conflicting testimony, trial court was presumed to have found against mortgagee.
    5. Mortgages <&wkey;364 — Mortgagor should have reasonable time to comply with bid at trustee’s sale, where jury found mortgagee prevented him from paying.
    Where jury found that mortgagee had, by misleading mortgagor, prevented him from being present in person at sale with sufficient funds to pay bid made by "his attorney and court found, of necessity, that attorney made said bid in good faith, held, that mortgagor should have been allowed reasonable time, under circumstances, in which to comply with such bid.
    6. Mortgages <&wkey;364 — Mortgagor need not make tender to preserve rights where his attorney bid in land and trustee resold, refusing to recognize first sale.
    Where mortgagor’s attorney made bid, and trustee, assuming bad faith of mortgagee in keeping mortgagor from being present at sale, resold land' within two hours after first sale, thereafter continuously refusing to recognize any sale to mortgagor, or to accept any payment thereunder, or to make, deed to mortgagor, held, that mortgagor was not required to make and maintain legal tender .in order to preserve his rights in matter.
    7. Mortgages <&wkey;378 — Mortgagor purchasing under senior lien held not thereby to cancel junior lien, being primarily liable.
    ' Where mortgagor owning tract of land executed trust deed on entire tract giving at same time another trust deed on 80 acres of tract not claimed as homestead, and at sale of latter tract under trust deed mortgagee bid in, while at sale of whole tract mortgagor’s attorney bid in, but it was subsequently resold and action brought for specific performance of trustee’s sale of entire tract, held, that mortgagor, being primarily liable on both first and second lien notes, could not therefore by piirchasing under senior mortgage pay off or in any manner satis-' fy junior mortgage.
    8. Mortgages <&wkey;378 — Mortgagor did not acquire priority by purchasing entire track under senior lien as against mortgagee purchasing portion of tract at prior sale under junior lien.
    Where tract of land was subject to two mortgages, and at sale made under junior lien of portion of tract covered thereby mortgagee became purchaser, and at second sale under first mortgage of entire tract mortgagor became purchaser, held, that mortgagor did not thereby acquire any priority.
    9. Mortgages <&wkey;295 (I) — Mortgagor having purchased under senior lien, equity will treat legal and equitable titles as separate in mortgagee having junior lien to protect rights.
    Where lien on portion of tract of land was foreclosed and sale made to mortgagee which was not shown to have been consummated, and at second sale of entire tract mortgagor purchased, held, that as between mortgagor and mortgagee equity will treat legal and equitable titles separate in mortgagee in order to prevent injustice and protect rights of creditor, if his interest require such severance.

      10. Mortgages <&wkey;*378 — After purchase by mortgagor under first lien, what had theretofore been second lien upon portion of tract then became first lien on same.
    Where portion of tract of land was sold under trust deed to mortgagee, and at subsequent sale of entire tract under senior trust deed mortgagor purchased, held, that, after such purchase, what had theretofore been second lien upon portion of tract then became first lien on same.
    Appeal from District Court, Bell County; Lewis H. Jones, Judge.
    Action by I. P. Graham and wife against J. S. Clearman and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded.
    M. E. Monteith, of Houston, for appellants. I. F. Graham, of Kerrville!, and J. W. Thomas and Walter Miller, both'of Belton, for appellees.
   BAUGH, J.

In their motion for rehearing appellants have for the first time called our attention to matters now claimed as fundamental error neither raised by assignment nor adverted to in their original brief, which require a reformation of our original opinion herein and a reversal of this case. To avoid confusion, and in the interest of brevity, we have decided to withdraw our original opinion herein and substitute therefor this opinion.

The appeal is from a judgment of the district court of Bell county awarding to Graham specific performance of a trustee’s sale to him of 200 acres of land. The material facts involved are substantially as follows: Graham and wife owned 200 acres of land in Bell county, 120 acres of which was their homestead. In 1920 they borrowed from Clearman $1,250, evidenced’ by their promissory note, to take up and extend purchase-money notes on the 200 acres, and gave him a deed of trust on said land to secure its payment. At the same time fhey borrowed from him $750 additional, also evidenced by their note, for other purposes, and gave a second deed of trust on the SO acres not, claimed as a homestead'to secure that. Upon default in interest payments, both notes were declared due and all of said land was advertised for sale on October 6, 1925, under both deeds of trust. About 11 o’ clock a. m. on October 6th, the SO acres were cried out first by the substitute trustee under the second lien and sold to J. S. Clearman, the creditor, upon his bid of the full amount of the $750 note. No deed, however, is shown to have been made him under that sale. Immediately after that sale, the entire 200 acres, which included the 80 acres just sold under said second lien, were cried out by the substitute trustee under the first lien, and upon a bid by Graham’s attorney, Graham not being present in person, of $1,613.65, the full amount of the $1,250 note, the trustee accented said bid and declared the land sold to Graham. A trustee’s deed was prepared immediately and after efforts to locate Graham’s attorney who had left town, had failed, the trustee again sold said 200 acres of land at the courthouse door, at 12:45 p. m. of the same day, to J. S. Clearman for $1,-100, without any notice to Graham or his attorney of the second sale. Upon the following day Graham’s attorney demanded of the trustee a deed and repeatedly thereafter did so, making a tender on October 14th of the amount of his bid. The trustee at all times, after the 12:45 p. m. sale of the 200 acres, refused to make a deed to Graham or to accept payment of his bid, asserting the validity of the second sale to Clearman to whom he had made a deed. This suit was filed by Graham in October, 1925, seeking to compel the trustee to make liim a deed under his bid, to set aside the second sale on the same day to Clearman, and to cancel all liens upon said lands. Thereafter in January, 1926, the trustee readvfertised said land under the deeds of trust and again sold it to Clear-man without Graham’s actual knowledge, on February 2, 1926. By amendment Graham also sought to set aside this sale and deed made pursuant thereto.

The good faith of Graham’s attorney in making his bid on October 6th, his intention to comply with it, and his ability to comply with it were attacked. Only one issue was submitted to the jury, which was:

“Do you find from a preponderance of the evidence that the plaintiff herein, I. F. Graham, would have been present at the time of the sale on the 6th day of October, 1925, with the money in hand with which to pay the bid made for the said property by J. W. Thomas but for the misrepresentations or conduct of J. S. Clearman, his agent, or representatives?”

The jury answered this question “Tes.” No other issues were requested. Hence all other issues of fact raised by the pleadings and the proof must be resolved in support of the judgment. Jenkins v. N. W. Pipe & Supply Co. (Tex. Com. App.) 299 S. W. 857.

Under the facts and circumstances of this' case, did appellees show themselves entitled to demand that the substitute trustee execute and deliver to them a deed to the 200 acres of land in accordance with their bid of October 6, 1925? The second sale of the of the 200 acres made by the trustee at 12:45 p! m. on October 6th was invalid. It was ■made after the bidders at the first sale had dispersed, without tlie knowledge or presence of Grakam, wlio had already been declared tbe successful bidder for tlie property less than two hours before, and sold to Clearman, the holder of the notes, for much less than Graham’s former bid. Even if Thomas’ bid for Graham had been in bad faith with no intention to comply with it, after the bidders had dispersed, the property should have been readvertised for sale. 41 C. J. 986; Love v. Harris, 156 N. C. 88, 72 S. E. 150, 36 L. R. A. (N. S.) 927, Ann. Cas. 1912D, 1065. The subsequent resale, after readvertisement, on February 2, 1926, and after this suit was filed, was, of .course, subject to whatever rights the parties established by the suit, if in fact the trustee did not lose authority to sell said land at all while the suit was pending.

The question of the good faith of the bid by Graham’s attorney and of his intention to and ability to make payment were not requested to be submitted to the jury, and upon the conflicting testimony the trial court is presumed to have found against appellants thereon. The jury having found that Clear-man had, by misleading Graham, prevented him from being present in person at the sale with funds sufficient to pay the bid made by Thomas, his attorney, and the court having found, of necessity, that Thomas made said bid in good faith, we think he should have been allowed a reasonable time, under the circumstances, in which to comply with such bid.

Nor was tender of their bid necessary in this case. Assuming bad faith, Clearman and the trustee resold said lands within less than two hours after the first sale, and thereafter continuously refused to recognize any sale to Graham, to accept any payment thereunder, or to make any deed to Graham, so advised Graham’s attorney, Thomas, and the trustee so testified on the trial. Under such circumstances, Graham was not required to make and maintain a legal tender in order to preserve his rights in the matter. 38 Cyc. 134; Creager v. Beamer Syndicate (Tex. Civ. App.) 274 S. W. 323; Karnes v. Barton (Tex. Civ. App.) 272 S. W. 317; Poff v. Miller (Tex. Com. App.) 235 S. W. 570. The conduct of the trustee excused the making of such tender.

However,' the trial court’s judgment was clearly erroneous in-this: Graham was primarily liable on both first and second lien notes, being the original maker of such notes and of the mortgages securing them. He could not, therefore, by purchasing under the senior mortgage, pay off or in any manner satisfy the junior mortgage as against Clear-man, the. mortgagee. Beitel v. Dobbin (Tex. Civ. App.) 44 S. W. 299; Ayer v. Safe Brick Co., 157 Mass. 57, 31 N. E. 717; 41 C. J. 978. The judgment of the trial court in so far as it undertook to cancel the junior lien, or in any manner declare the junior note satisfied, was clearly erroneous. Nor did the sale first made under the junior lien, at which Clear-man became the purchaser, give to Graham any priority under his purchase at the second sale. The first sale to Clearman is not shown to have ever been consummated, but even if it had been, as between him and Graham, equity will treat the legal and equitable titles as held separately in Clearman in order to prevent injustice and to protect the rights of the creditor, if his interest require such a severance. Silliman v. Gammage, 55 Tex. 365; Pugh v. Sample, 123 La. 791, 49 So. 526, 39 L. R. A. (N. S.) 834, and extensive note; Elliot v. Slaughter (Tex. Civ. App.) 236 S. W. 1114. After the purchase by Graham, under the first lien, what had theretofore been a second lien upon the 80 acres then became a first lien on same. •

Appellant also insists that the trial court’s judgment is fundamentally erroneous, in that it is not capable of definite enforcement. The decree orders the trustee to make and deliver a deed to Graham, and that Graham forthwith pay to the trustee the amount of his bid, whereupon said decree should then become absolute. But it does not order the parties to place either the deed or the amount of the bid in the registry of the court, so that the court could finally dispose of it.

Since we have concluded, however, that, because of the errors pointed out, the case should be remanded, and such objection to the decree can be avoided upon another trial, we do not deem it necessary to enter upon a discussion of it here. For the reasons stated, the judgment of the trial court is reversed and the causé remanded for another trial.

Reversed and remanded.
      @=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: HICKMAN, C. J.

text:
    HIGGINBOTHAM-BAILEY-LOGAN CO. v. HANCOCK et ux.
    (No. 413.)
    Court of Civil Appeals of Texas. Eastland.
    March 9, 1928.
    Rehearing Denied April 6, 1928.
    Appeal and error &wkey;>5 — Judgment overruling plea of privilege cannot be appealed from by writ of error (Rev. St. 1925, art. 2008).
    Right of appeal from judgment overruling plea of privilege, accorded by Rev. St. 1925, art. 2008, does not include right to appeal by writ of error.
    Error from District Court, Haskell County ; Bruce W. Bryant, Judge.
    Action by T. H. Hancock and wife against the Higginbotham-Bailey-Logan Company. Judgment overruling plea of privilege, and defendant brings error.
    Proceedings by writ of error dismissed.
    Read, Lowrance & Bates, of Dallas, for plaintiff in error.

      Ratliff & Ratliff, of Haskell, for defendants in error.
   HICKMAN, C. J.

The judgment under review overruled the plea of privilege of plaintiff in error to be sued in Dallas county, the county of its residence. The two exceptions to exclusive venue in the county of one’s residence, relied upon by defendants in error in their controverting plea, are subdivisions 4 and 14 of article 1995, R. S. 1925. We shall consider in this opinion subdivision 14 only, which reads as follows:

“Lands. Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, my lie.”

In their original petition, defendants in error, who were plaintiffs below, and will be so designated here, alleged : That they were husband and wife, and were the owners of a certain lot and building thereon situated in the city of Haskell, which was and had been for many years their business homestead. That defendant was engaged in the wholesale dry goods business at Dallas. That in 1925 plaintiff T. H. Hancock and defendant M. H. Hancock, doing business under the name of Hancock & Co., had become indebted to defendant, Higginbotham-Bailey-Logan Company. That said defendant was urging plaintiffs to .give it a lien on their said homestead to secure said indebtedness, and procure additional credit for Hancock & Co., and that said defendant advised, suggested, and procured plaintiffs to make a deed to such property to their son, M. H. Hancock, in which deed a lien was retained to secure a $5,000 first lien note and a $10,000 second lien note, the said fitst lien note to be assigned to said' defendant, after which the said property could be reconveyed to plaintiffs. The petition alleges that all the things suggested by said defendant were done, including the re-conveyance by M. H. Hancock to plaintiffs, in which deed of reconveyance the $10,000 second lien note was canceled and plaintiffs assumed the payment, of the $5,000 note then owned by said defendant. The allegation is made that said defendant was aware of all the facts in connection with the execution of the said $5,000 note, and was aware at all times that the sale was a sham,' simulated for the sole purpose of attempting to create a lien on their homestead, and that said transaction was advised, suggested, and procured by said defendant. The prayer is for a judgment removing the incumbrance from their title, for the quieting of their title, that said note and lien securing same be canceled and held for naught, and that the cloud east upon the title to said property be removed, etc.,

The nature of the cause of action is clearly within the language of exception 14 above quoted, particularly that portion thereof as follows: f‘To remove incumbrances upon the title to land, or to quiet the title to land.” The uncontradicted evidence offered by plaintiffs establishes that the land is situated in Haskell county. Since the statute above quoted provides that suits of this character must be brought in the county in which the land or a part thereof may lie, the conclusion readily and necessarily follows that the plaintiffs have the right to try this case on its merits in Haskell county.

To our minds this question is not involved in difficulties; but, since able counsel for defendant entertain views of the law so far at variance with the view above expressed, we think it due them that we state our reasons for the above conclusion at greater length. It is the contention of defendant that it was incumbent upon plaintiffs to prove, by a preponderance of the evidence, or at least to introduce sufficient evidence to make out a prima facie case of their right to have this alleged inpumbrance removed from their land. Just how such theory could be built upon our statutes, we are unable to understand. When a controverting plea to a statutory plea of privilege is filed, showing that the plaintiff relies upon a particular exception of article 1995 to sustain venue in the trial court, the merits of the controversy are not thereby put in issue, but only such facts as are necessary to' show that plaintiff’s case comes clearly under such exceptional provision. In cases of trespass to try title or suits to remove incumbrance upon the title to land, there can be but two questions put in issue on a plea of privilege; namely, the nature of plaintiff’s cause of action and the location of the land. The best evidence of the nature of the cause of action in a suit of that character is the pleading itself. What more proof should plaintiff be required to make in order to maintain venue than that his action is clearly one of trespass to try title, or to remove an incumbrance, and that the land is situated in the county where suit is filed? Nothing short of proof of these facts would hold the venue, and we can conceive of nothing more as being required.

The confusion has arisen because of the nature of certain exceptional provisions. For illustration: Exception 7 permits suits based upon fraud to be brought- in the county in which the fraud was committed. In a case where this particular exceptional provision is relied upon in the controverting plea, the applicability of that provision is directly brought in issue in the hearing on the plea of privilege., It might require a greater quantum of proof to establish that a fraud was committed in a county than that land was situated in a county.. In making proof of the fact that a fraud was committed in a particular county in w.hich suit was filed, a plaintiff must necessarily make out a prima facie ease of fraud. This is required, not on the ground that a plaintiff must make out a prima facie case to recover on the merits in order to sustain venue, hut upon the ground that the plea of privilege and controverting affidavit have put into issue a fact; namely, Was a fraud committed in a particular county? The logic of the situation might lead to the conclusion, as an original proposition, that a plaintiff would have to prove that fact by a preponderance of the evidence; but it seems to be well established that, although the burden is upon him to establish his right to bring the defendant away from his home to answer to a suit, yet that burden is discharged by proof that a transaction which probably constitutes an actionable fraud occurred in the county where the suit was filed. Probable fraud seems to be as much as a plaintiff is required to prove in that case. Edmonds v. White (Tex. Civ. App.) 226 S. W. 819; Kelly et al. v. Britton et al. (Tex. Civ. App.) 240 S. W. 1114; First National Bank of Jacksonville v. Childs (Tex. Civ. App.) 231 S. W. 807.

What has been stated regarding exception 7 applies to other exceptions, as, for instance, exception 4, where venue is sought to be fixed in a county where one of the defendants resides. In such case it would clearly be necessary for plaintiff to prove, not only that one of the defendants resides in that county, but also to introduce sufficient evidence to show that he has a prima facie cause of action against the resident defendant, on which such resident defendant could properly be joined with a nonresident defendant in one suit. This evidence is not required for the purpose of showing that a plaintiff would likely win on the merits, but for the purpose of establishing a fact put in issue by the plea of privilege and controverting plea. It is not the purpose of the law to have a case tried twice on its merits, the first time to deter-' mine venue, and the second time to obtain final judgment. This question is discussed clearly and forceably by Justice Phillips in the case of I. & G. N. Ry. Go. v. Anderson County, 106 Tex. 60, 156 S. W. 499.

Attention is called to the ease of Greenville Gas & Fuel Co. v. Commercial Finance Co. (Tex. Com. App.) 298 S. W. 550. We think the decision in that case is in entire harmony with what we have stated in this opinion. Just before that decision was reported, this court had the identical question decided therein before it in the case of Ketner v. Radford Grocery Co., 299 S. W. 680, We arrived at the same conclusion as that arrived at by the Commission of Appeals. In those cases the exception relied on was No. 5, providing that a person may be sued in a county in which he has contracted in writing to perform an obligation. The fact issue in controversy under this exception is whether the defendant signed a contract in writing performable in the particular county. Clearly, in order to hold a defendant to answer a suit in a county not his residence under this exception, the plaintiff'must establish the fact, or, at least, introduce evidence making prima facie proof of the fact that the defendant did in fact execute' the written instrument declared upon. Incidentally, some phases of the merits of the case will have to be inquired into in order to establish this fact, and a determination of the fact that a signature was not authorized is indicative of the probable results on the trial of the case on its merits; but 'that is immaterial to a decision in a trial on ⅛ plea of privilege. We believe the cases may be harmonized by bearing in mind that the merits of the controversy are put in issue in a trial on a plea of privilege in those cases only where the applicability of the provisions of the particular exception relied upon can be shown in no other way.

To return to the case at bar, we have a record in which the plaintiffs went farther than we think they were required by law to go, and introduced evidence upon the hearing of the plea of privilege, showing prima facie a' right to remove the incumbrance, unless the evidence creates an estoppel against them. Campbell et al. v. Crowley (Tex. Civ. App.) 56 S. W. 373.

We deem it improper, in view of a trial of this case upon its merits, to comment upon this evidence or express an opinion thereon.

The judgment of the trial court overruling the plea of privilege will be affirmed.

On Motion for Rehearing.

In considering this case on motion for rehearing, it became impressed upon our minds for the first time that it had been brought here by writ of error. The right of appeal from a judgment overruling a plea of privilege accorded under article 2008, R. S. 1925, does not include the right to appeal by writ .of error. Western Electric Co. v. Wilson (Tex. Com. App.) 299 S. W. 868.

The order heretofore entered affirming the judgment of the trial court will therefore be set aside by the court on its own motion, and judgment will be entered, dismissing the proceedings by writ of error.
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author: HIGHTOWER, O. J.

text:
    CITY OF BEAUMONT v. SAM’S LOAN OFFICE, Inc.
    (No. 1510.)
    Court of Civil Appeals of Texas. Beaumont.
    March 19, 1928.
    1. Injunction <&wkey;>85(2) — Equity will not enjoin enforcement of void criminal ordinance, where no property rights of applicant are involved and no multiplicity of suits is to be enjoined.
    Court of equity will not grant writ of injunction to prohibit enforcement of criminal ordinance, where no property rights of applicant for writ are involved,' and where no multiplicity of suits is to be enjoined, even if ordinance complained of is void.
    2. Injunction <&wkey;l36(3)-— Owner of jewelry desiring to sell it at auction held entitled to temporary injunction restraining enforcement of ordinance relative to such sale.
    Owner of jewelry desiring to sell it at public auction held entitled to temporary injunction, in suit against city, enjoining enforcement of ordinance relating to sale at public auction of certain articles of merchandise, where applicant’s use of property would be seriously impaired if ordinance was enforced, and applicant would bé charged with criminal offenses if he violated ordinance.
    3. Injunction <&wkey;>l7l — City held not entitled to have court: consider motion to dissolve temporary injunction restraining enforcement of ordinance, in absence of answer denying allegations on which relief was sought (Rev. St. 1925, arts. 4657 and 4658).
    Under Rev. St. 1925, arts. 4657 and 4658, city held not entitled to have court consider its motion to dissolve temporary injunction restraining enforcement of ordinance, in absence of answer by it denying material allegations of fact on which equitable relief was sought by plaintiff.
    4. Injunction &wkey;>l75 — Motion to dissolve temporary injunction, if treated as demurrer to plaintiff’s petition, must be considered as admitting truth of fact allegations.
    ' Motion to dissolve temporary injunction, if treated as demurrer to plaintiff’s petition in suit for injunction, must be considered as having admitted truth of all allegations of fact in plaintiff’s petition, under rule of pleading in Texas.
    5. Injunction <&wkey;>ll — Enforcement of criminal ordinance may be enjoined without showing actual arrest for violation.
    Plaintiff held not required to show actual arrest for violation of criminal ordinance in order to obtain injunction restraining its enforcement.
    Appeal from District Court, Jefferson County; Geo. C. O’Brien, Judge.
    Suit by Sam’s Loan Office, Inc., against the City of Beaumont, in which, a temporary injunction’ was granted in favor of plaintiff. From an order overruling the city’s motion to dissolve the injunction, it appeals.
    Affirmed.
    J. B. Morris and F. M. Sheffield, both of Beaumont, for appellant.
    C. A. Lord, of Beaumont, for appellee.
   HIGHTOWER, O. J.

This is an appeal by the city of Beaumont from an order of hon. George C. O’Brien, judge of the' Fifty-Eighth judicial district, overruling the city’s motion to dissolve a temporary writ of injunction that had been granted by the judge in favor of appellee, enjoining the enforcement by the city of a certain ordinance of the city relating to the sale at public auction of certain articles of merchandise owned and kept by ap-pellee in its place of businéss in the City of Beaumont, and further enjoining the city and its officers from in any manner interfering with appellee in the sale at public auction of such articles of merchandise.

The appeal comes to this court upon the following facts:

On November 6, 1926, the appellee, Sam’s Loan Office, Inc., presented to Hon. George C. O’Brien, judge of the Fifty-Eighth judicial district, in chambers, its petition and prayer for a temporary injunction against the city to enjoin the city and its officers from interfering with in any manner the sale at public auction of certain articles of jewelry, such as watches, diamonds, precious stones, etc., owned and kept by appellee in its place of business in the city of Beaumont, which articles of merchandise it was alleged appellee desired to dispose of at auction sale. Appellee’s petition alleged, in substance, that it owned a large stock of merchandise at its place of business in the city, consisting of articles of jewelry, etc., above mentioned, and that appellee was desirous of selling such articles of merchandise at auction sale so that it may realize a profit from the sale of its property, and that it had engaged the services of an expert auctioneer for the purpose of making sales at auction of its merchandise, and that it had the right to proceed with the sale of its merchandise without interference or molestation by the city or its' officers, but that the city had passed an ordinance which it claimed to be then in effect prohibiting ap-pellee from making sale at auction of its merchandise above mentioned, and that the city was threatening to enforce the ordinance and to arrest appellee’s officers and agents and charge them with a criminal offense, in the event appellee should proceed to make sale of its merchandise at auction, without first obtaining and procuring from the city a license authorizing such-sales at auction, and that the city was demanding and insisting that appellee pay to it the sum of $5 per day for each day that appellee should offer its merchandise for sale at auction, and that the city had no authority to pass such an ordinance requiring appellee to take out suck a license and to pay to the city the sum of $5 per day demanded by the city for the privilege of selling its merchandise at auction. It was alleged, in substance, that the ordinance (especially section'No. 7 thereof) was null and void and inoperative, not only because the city was without lawful authority to enact the same, but that, in addition thereto, the ordinance was null and void and inoperative because it was unreasonable, oppressive, discriminatory, arbitrary, and prohibitive, and that, therefore, the same was unconstitutional, null, and void, and should not be enforced against appellee for all these reasons. The facts were stated by appellee upon which it claimed that the ordinance in question was unreasonable, oppressive, discriminatory, arbitrary, and prohibitive. It was further alleged that if appellee should proceed with the sale of its merchandise at auction, as it desired to do, its officers and agents would be arrested by the city of Beaumont and charged with criminal offenses, and that under another section of the ordinance (section 13), appellee’s officers and agents would be-subject to a penalty of not to exceed $200 for each sale that it might make of its merchandise at auction, and that each day that appellee should sell its merchandise at auction would, under the ordinance, constitute a separate offense. Appellee alleged that it had no adequate legal remedy, and that if the ordinance of the city here complained of should be enforced, it would, in effect, destroy appellee’s property, that is, its merchandise covered by the ordinance, and would impair its use by appellee, to its irreparable damage and injury. A temporary writ of injunction -was granted upon presentation of the petition and four days later the city of Beaumont filed a motion to dissolve the temporary writ, on the ground, as stated in the motion, that a court of equity could not and ought not grant a writ of injunction to prohibit the enforcement of a criminal city ordinance, because the plaintiff had an adequate legal remedy by testing the validity of the ordinance if its officers and agents should be arrested for its violation. This was, in substance, all of the motion. There was no answer filed of any character, verified or otherwise, and the court, after hearing the motion, overruled it, and the case is before us in that condition.

Learned counsel for the city of Beaumont presents three separate assignments of error in this court, but, in fact, they all three raise one and the same question. Counsel for the city contends that a court of equity should not and will not grant a writ of injunction to prohibit the enforcement of a criminal city ordinance where no property rights of the applicant for the writ are involved, and where no multiplicity of suits is to be enjoined, even if the ordinance complained of be void. As an abstract proposition this is correct; but the proposition can have no application here, for the reason that appellee’s petition for the writ in this case shows clearly that its property rights are involved, and that the use of its property will he seriously impaired in the -event the ordinance should be enforced, and that is sufficient to afford appellee equitable relief against an invalid or void ordinance, under an unbroken line of decisions in this state. Since the case is not before ns on its merits, we shall not enter upon a discussion of the question as to whether the city of Beaumont had authority to pass the ordinance in question; but as appellee’s petition clearly alleges that the ordinance complained of is arbitrary, unreasonable, discriminatory, oppressive, and prohibitivé, stating the facts upon which those allegations are made, and since there is no character of denial of these charges, and since it appears from the petition that, appellee’s property rights are involved, and that the privilege of selling its merchandise will be denied it, and that its officers and agents, in the attempt to sell the same, will be arrested and charged with criminal offenses, the trial judge was authorized, and we think was correct, in declining and refusing to set aside the temporary writ of injunction.

Our .statute (article 4657, Be vised Statutes, 1925) reads as follows:

“The defendant to an injunction proceeding may answer as in other civil actions; but no injunction shall be dissolved before final hearing because of the denial of the material allegations of the plaintiff's petition, unless the answer denying the same is verified by the oath of the defendant.”

Article 4658 provides:

“In all cases of injunction, motions to dissolve the same without determining the merits, may be heard after answer filed, in vacation or in term time, at least ton days’ notice of such motion being first given to the opposite party or his attorney. In such cases, the proceedings upon such hearing, including the action of the judge upon the motion, shall be entered upon the minutes of the proper court by the clerk thereof, on or before the first day of the succeeding term of such court, and thereafter shall constitute a part of the record of the same.”

As we have stated above, there was no answer of any- character filed by the city in this case, and no denial in any form of the allegations of fact contained in the plaintiff’s petition. As we view these statutes just quoted, appellant was not entitled to have its motion to dissolve considered by the trial court, in the absence of an answer by it denying the material allegations of fact upon which equitable relief was sought by appellee. If, however, we were to treat the motion as a demurrer to the plaintiff’s petition, still, under the rule of pleading in this state, the demurrer must be considered as having admitted the truth of all the allegations of fact contained in the plaintiff’s petition. As we have shown, these material allegations of fact were, in- substance, that the ordinance complained of was arbitrary, oppressive, unreasonable, and discriminatory, the facts upon which such allegations are based being stated. Therefore, without regard to the authority of the city to regulate the sale at auction of appellee’s merchandise, and conceding-ihat it had such authority to regulate, yet it could not pass and enforce an arbitrary, unreasonable, discriminatory, and prohibitive ordinance under the guise of regulation. That is what appellee has charged in this case, and, there being no denial by the city of these charges, the trial judge was authorized to grant the temporary injunction and to overrule the city’s motion to dissolve it upon the face of the pleadings as they stood.

Counsel for the city, by way of argument in his brief, intimates that appellee, in no event, was entitled to the writ of injunction, in the absence of an actual arrest for violation of the ordinance in question, and that there was no claim in the petition in this case that appellee’s officers or agents had been actually arrested for violation of the ordinance, the granting of the writ being premature, in any event. We cannot agree with learned counsel in this contention, and we do not understand that any of the authorities cited by him sustain that contention. A threatened arrest for violation of the ordinance in question, which is shown by the petition in this case, is sufficient, as we construe the authorities, to entitle appellee to resort to a court of equity, as it did. True, in some of the eases cited by counsel for appellant, actual arrests had been made looking to the enforcement of invalid city ordinances, but the decisions in those cases were not rested upon the fact that an actual arrest had been made; but it is clear from them that where one is terrorized by threats of arrest under an invalid ordinance, and is thereby prevented from a lawful use of his property, a court of equity will inquire into the validity of the ordinance, in advance of an actual arrest, and protect the applicant in' his property rights. City of Austin v. Cemetery Association, 87 Tex. 330, 28 S. W. 528, 47 Am. St. Rep. 114; Dibrell v. City of Coleman et al. (Tex. Civ. App.) 172 S. W. 550. In City of Austin v. Cemetery Association, just cited, Chief Justice Gaines of our Supreme Court, among other things, said:

“No one, we apprehend, without some considerable inducement will do an act which may cause him to be arrested and prosecuted, however clear he _ might be in his own mind that the act constituted no violation of the criminal law. A criminal prosecution is unpleasant to all people who have due respect for the law, and almost necessarily involves inconvenience and expense. As long as the ordinance remains undisturbed it acts in terrorem, and practically accomplishes a prohibition.”

See, also Lossing v. Hughes (Tex. Civ. App.) 244 S. W. 556; City of Dallas v. Urbish (Tex. Civ. App.) 252 S. W. 258; City of Houston v. Richter (Tex. Civ. App.) 157 S. W. 189.

What we have stated above is sufficient for the disposition of the appeal as now before us, and it follows that we are of opinion that the trial court did not err in overruling appellant’s motion to dissolve the temporary writ, and that judgment is affirmed.
      <S=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    HALVERSON et al. v. LIVENGOOD.
    (No. 3543.)
    Court of Civil Appeals of Texas. Texarkana.
    March 15, 1928.
    1. Executors and administrators <&wkey;20(8) — ■ “Domicile” of decedent held for jury in administration proceedings (Rev. St. 1925, art. 3293).
    Under Rev. St. 1925, art. 3293, relative to ' administration of estates, trial court improperly directed verdict to effect that county court, wherein deceased had at one time resided, had jurisdiction of administration proceedings where evidence was such as to warrant finding that domicile had been changed prior to Ms death; since “domicile” as used in such statute means home or place or permanent residence of deceased.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Domicile.]
    2. Executors and administrators <&wkey;10 — Law relative to administration of estates required administration in county where deceased had established fixed place of residence (Rev. St. 1925, art. 3293).
    Rev. St. 1925, art. 3293, requiring administration in county where deceased resided, if be had domicile or fixed place of residence, held to require administration in county where fixed place of residence had been established rather than residence as commonly used.
    Appeal from District Court, Grayson County ; E. E. Wilcox, Judge.
    Application by Mrs. Bird Fielder Livengood for administration of estate of B. L. Fielder, deceased. From a judgment sustaining the jurisdiction of county court, Mrs. Laura Hal-verson and others, contestants, appeal.
    ■ Reversed and remanded.
    Cone Johnson, of Tyler, and Webb & Webb, of Sherman, for appellants.
    Freeman, McReynolds & Hay, of Sherman, for appellees.
   HODGES, J.

B. L. Fielder died in the city of Dallas on the 14th day of October, 1926. Pie left an estate valued at $200,000. At the time of his death Fielder was a widower and -was occupying a room in a house owned by him in the city of Dallas. He was survived by one child, Mrs. Livengood, and by two* sisters, who are appellants in this proceeding. Soon after his death Fielder’s daughter, Mrs. Livengood, joined pro forma by her husband, filed in the county court of Grayson .county an application for appointment as temporary administratrix of the estate of her father. The application alleged the necessary facts to give the court of that county jurisdiction, and further stated that the deceased died intestate. She also asked that the temporary appointment be made permanent at a later date. In December following Mrs. Halverson, a sister of the deceased, joined by other collateral relatives, filed a plea to the jurisdiction of the county court of Grayson county and a contest of the appointment of Mrs. Liv-engood as permanent administratrix of the estate. They allege, among other things, that Fielder left a will in which he bequeathed a portion of his property to the contestants; that he died in Dallas county, where the greater portion of his estate was situated; that he did not at the time of his death have a domicile or place of residence in Grayson county,' but that such domicile or fixed place of residence was in Dallas county or in Smith county. The contest in the county court resulted in a judgment sustaining the jurisdiction of that court. An appeal was prosecuted to the district court, where the same issues were presented. After hearing the evidence the court gave a peremptory instruction directing a verdict against the contestants, thus again sustaining the jurisdiction of the county court of Grayson county. In this appeal it is contended that the state of the evidence was such that the jury should have been permitted to determine the issue of fact as to where the domicile of Fielder was located at the time of his death, and that the probate court of the county in which his domicile was situated had exclusive jurisdiction of the probate proceedings.

The appropriate provisions of the statute fixing the venue of probate proceedings of this character are found in article 3293 of the Revised Statutes of 1925, and are as follows:

“Wills shall be admitted to probate, and letters testamentary or of administration shall be granted: (1) In the county where the deceased resided, if he had a domicile or fixed place of residence in the state. (2) If the deceased had no domicile or fixed place of residence in the state, but died in the state, then either in the county where his principal property was at the time of his death, or in the county where he died. (3) If he had no domicile or ■fixed place of residence in the state, and died without the limits of the state, then in any county in this state where his nearest of Mn may reside. (4) But if he has no kindred in this state, then in. the county where his principal estate was situated at the time of his death.”

Article 3294 reads as fallows:

“When two or more courts have concurrent jurisdiction of an estate, the court in which application for letters testamentary or of administration thereon is first filed shall have and-retain jurisdiction of such estate to the exclusion of such other court or courts.”

The judgment of the trial court is defended upon the ground that the word “domicile,” as used in the first subdivision above quoted, .should be interpreted to mean “residence” ; that the evidence shows that Fielder had at least a temporary residence in Gray-son county, and for that reason the county court of Grayson county had concurrent' jurisdiction with the probate court of any other county in which he maintained a domicile or residence; that the county court of Grayson county having first acquired jurisdiction should be allowed to retain it under the provisions of article 3294.

The evidence shows that until about 10 years before his death Fielder’s home, his fixed place of abode, was in Grayson county, and had been for a number of years. During that time he was engaged in business in Sherman. Some time before his death he retired from active business, and thereafter divided his time between Sherman, Dallas, and Tyler. The home of his daughter was in Sherman. One sister lived in Dallas and another ⅛ Tyler. He owned considerable real and personal property in both Dallas and Sherman, and owned some stock in a bank ih Tyler, in Smith county. In Sherman he owned a two-story brick building, the lower part of which he rented to tenants for business purposes. The second story was rented for a rooming house, but he reserved one room and furnished it for his own use while in Sherman. Some years prior to his death he purchased a residence in Dallas, to which he moved some of his household goods from Sherman, and where he resided at intervals for a number of years. The house was occupied a few years by his sister Mrs. White and her daughter. One of the rooms was reserved and furnished by Fielder for his own use, and that room was occupied by him while he was in. Dallas. He also had a private desk in one of the banking institutions of Dallas in which he was financially interested. The evidence further shows that he frequently visited Tyler, where one of his sisters resided, and in whose house he had a room furnished for his exclusive use, and that during his visits to Tyler he occupied that room. According to the testimony he at different times claimed each one of those places as his home. Some of the witnesses testified that he spent the greater portion of his time in Dallas,while others testified that he spent most of his time in Sherman. The state of the evidence is.such that the jury might have found that his domicile, or fixed place of residence, was in either place — Dallas or Sherman.

Counsel for appellee contends, and apparently the trial court took the same view, that the term “domicile,” as used in article 3293, means “residence,” or a temporary place of abode,, and not a fixed habitation or legal domicile. If that construction be correct, then the probate court of Grayson county had' jurisdiction, and the judgment of the district court should be affirmed. '

The evidence is conclusive that Fielder resided in each of those counties a large portion of his time during the last 10 years of his life. The evidence was sufficient to warrant the court in concluding as a matter of law that he had at least a temporary residence in Grayson county. As supporting her construction of article 3293 appellee refers to the case of Pearson v. West, 97 Tex. 238, 77 S. W. 945, in which a similar construction was given to the word “domicile” as used in article 1995. That article is as follows:

“No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases: [Then follow the numerous exceptions to this article.]”

In discussing that question the court said:

“The case of Brown v. Boulden [18 Tex. 431] was decided in the year 1857, and the law construed was enacted in the year 1840. In 1863 the Legislature amended the law of 1846, but re-enacted that part quoted above in the exact language of the original law. See Laws 10th Leg., p. 10. The Legislature has frequently amended the law, adding new exceptions to those already enacted, but has made no change in the language as it was construed in Brown v. Boulden. In 1876 there was a revision of the laws of this state, and the same language was embraced in the Revised Statutes without any alterations; and in 1895 there was a revision of the laws of this state in which the same language was embraced as article 1194. In the twenty-seven exceptions to the general rule there are ten which depend upon the residence or domicile of a party, and of these there are four in which the word ‘domicile’ is u.sed and six in which the word ‘residence’ is used to designate the place of venue, showing that the word domicile and residence has been used by the Legislature interchangeably. We think that these facts show conclusively that the Legislature used the word ‘domicile’ in view of the construction which the court had placed upon it, and that its use was in the sense of residence.”

Statutes regulating the local venue of legal proceedings are generally designed to provide for the convenience of the parties involved. The provisions fixing the venue of actions against living persons were, in the main, manifestly adopted to prevent serious inconveniences and probable injury to defendants from the bringing-of suits against them in counties remote from where the defendants resided and transacted their business. Such inconvenience, however, could not be claimed by a defendant when sued in a county where he spent so large a portion of his time as to make that county a place of residence. Hence, in construing article 1995 the court was probably influenced by the real purpose of the enactment, as well as by the manner in which the word “residence” was indiscriminately used in the exceptions to the general provision. But in fixing the venue for the administration of an estate the Legislature was dealing with a-situation entirely different from that which existed during the lifetime of the owner of the estate. Generally in actions against a living person the location of his property is of no importance in determining his convenience in defending the suit. But in the probate proceedings which become necessary after his death the location of the property is an important factor in determining where the administration may be most conveniently conducted and upon what court jurisdiction should be conferred. As a general rule the bulk of one’s property is situated in the county of his domicile, the county in which he has established a home. It is also generally the case that most of the creditors reside in that vicinity. That being true, the county in which the home of the deceased had been established and maintained would usually appear to be the county where it is most convenient and least expensive to- conduct the probate proceedings necessary for the settlement of the estate. If we are correct in stating the purpose of the Legislature in fixing the venue for proceedings of this character, there is little reason for saying that the word “domicile” should be given a meaning different from its true legal signification —that is, the home or place of permanent residence of the deceased. Evidently the words “fixed place of residence,” following the word “domicile,” in the statute are intended as explanatory of the sense in which that word is used, and to signify a permanent residence as distinguished from one which is only temporary.

However, it may be contended that even if the deceased did have a domicile in a county other than Grayson, the proof conclusively showed that he had a temporary residence in that county, and for that reason the probate court of Grayson county had concurrent jurisdiction with the probate court in the county of his domicile. It is conceded that Fielder had a domicile in this state, and it is insisted that under the terms of the statute letters testamentary or of administration may be granted in any county where he resided. We do not think the statute is subject to that construction. Its meaning would not be altered if the language were transposed so as to read thus: “If the deceased had a domicile, or fixed place of residence, in this state, letters testamentary or of administration shall be granted in the county where he resided.”

When we take into consideration the purpose for which the statute was enacted and the language, “in the county,” used in designating the place where probate proceedings shall be instituted, we think it clear that the Legislature was i*eferring to the county where the fixed place of residence had been established, or the domicile of the deceased.

In view of the evidence adduced upon the, trial we think the court should have submitted to the jury the issue of fact as to where the deceased had his domicile, or fixed place of residence, at the time of his death. "While it is true the proof conclusively showed that Fielder had formerly established his domicile in Grayson county, there was sufficient evidence to warrant the jury in concluding that prior to his death he had changed that domicile to another county.

The judgment is reversed and the cause remanded.
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author: HALL, C. J.

text:
    COMMERCIAL PRINTING & LETTER SERVICE CO. v. O’KEEFE.
    (No. 2981.)
    Court of Civil Appeals of Texas. Amarillo.
    March 7, 1928.
    Rehearing Denied April 4, 1928.
    Landlord and tenant <&wkey;48(l) — Lessor’s breach of lease by failure to furnish heat held question for jury, notwithstanding provision excusing temporary failure to heat premises.
    Evidence of repeated failure of lessor to _ furnish heat for leased premises, as required by lease, held, to make issue for jury as to breach of lease in lessee’s action for resulting damage to his business, notwithstanding provision in lease which exempted lessor from liability for temporary failure to furnish heat.
    Error from District Court, Dallas County; Thomas A. Work, Judge.
    Action by the Commercial Printing & Letter Service Company against R. W. O’Keefe. Judgment for defendant, and plaintiff brings error.
    Reversed and remanded.
    Turner & Rodgers and C. R. Winn, all of Dallas, for plaintiff in error.
    Clark & Clark, of Dallas, for defendant in error.
   HALL, C. J.

On the 24th day of April, 1922, plaintiff in error leased from -defendant in error, O’Keefe, certain premises ,on Main street, in the city of Dallas. The leased premises consisted of something like 3,000 feet of floor space. The written lease contained this stipulation:

“The rent of an office will include occupancy of office, steam heat yffien necessary, electric lights, electric fans, when necessary, refrigerated water and drinking fountains in main corridors, and elevator service from 7:30 a. m. until 9:00 p. m.”

Plaintiff in error alleged that it moved into the premises about the 1st of May, 1922, and that from that" time up to and including the late autumn 'months of 1923, and the wimr ter months of 1924, plaintiff in error complained to O’Keefe’s agent of the failure, on the part of O’Keefe, to comply with the foregoing stipulation, and failure to furnish' sufficient heat to enable plaintiff in error to conduct his business, which was that of a commercial printing and letter service, consisting in the typing and printing of personalized letters, cards, etc. It is further alleged, with sufficient detail, that because of the default on the part of O’Keefe to furnish sufficient heat during the period specified, plaintiff could not carry on its business and was thereby damaged in the sum of $1,806. O’Keefe pleaded, in defense, the third provision of the contract, which is, in part, as follows:

“That the said lessor shall not be liable for any damage to personal property sustained by the lessee * * * Or for temporary default on the part of the said lessor to furnish steam, lights, water or power, or by reason of accident to the machinery in said building.”

A jury was impaneled, and after both sides had closed, in the introduction of testimony, the court peremptorily instructed the jury to return a verdict for O’Keefe, which was done, and judgment was entered upon said verdict.

It is first insisted by plaintiff in error that the evidence is sufficient to make a prima facie ease of a breach of the contract to furnish heat,'and that the evidence is also sufficient to establish the damages suffered by plaintiff in error and of notice required for the recovery of such damages, the third contention being that plaintiff’s testimony showed that the numerous breaches of the lease contract by defendant in error were more than temporary in their character and extent.

It appears from the record that the court’s action in directing a verdict was predicated upon the last above-quoted provision of tbe contract, which relieved the léssor of damages resulting from a temporary default in furnishing heat.

Whether, under the evidence, the court was warranted in directing a verdict, is the sole question to be considered.

W. ,M. Newman, who was president and general manager of the plaintiff company in 1924, testified that there were radiators for steam heat in the premises occupied by his company, as the only facilities for heating the room; that there were gas jets, without gas in them, and no stoves; that one winter, a great number of times tbe employees of the company could not work; that the girls operating the typewriters tried to do a little work, secured all the coats and sweaters and things they could find and put them on, and did what actually had to be done; that the male employees wrapped themselves up and did only what was absolutely necessary to be done at that time; that the company was crowded witti a heavy line of customers. He said that these conditions existed on the 4th, 5th, 11th, 14th, 21st, and 27th days of January, on the 19th, 20th, 22d, 26th, and 27th days of December, prior thereto, and on the 4th, 5th, 21st, and 27th days of February óf 1925. He further said that during December, January, and February, he went to Ryan, the manager of the building, and told him that his company would have to have heat in order to carry on their work; that Ryan said it was hard, but he would not buy it and did not have sufficient revenue to do so; that there were nine months between January and February, and December, 1924, that the boiler could have been repaired and that Ryan said- he would not stand the expense. ' He further testified that Ryan personally attempted to fix the boiler, and something would happen to it and he would turn off all the heat to let the boiler cool and would tell plaintiff’s employees to go home about 11:30 and to be back at 2 o’clock; that the rag in the boiler would blow out and it was all off again.

Miss Oliver, one of the typesetters for the plaintiff company for six years, testified that she worked in that capacity in 1924, and that on days when it was cold, it was very uncomfortable for all of the employees'; that there were cracks around the windows where air would come in; and that it was very uncomfortable every time it was cold. She said she went home one day in December, she could not give the exact date, because it was cold, and that it was very uncomfortable right after Christmas, and that the employees, on that account, could not do their work very well.

Another employee, who had worked for plaintiff about three years as a typesetter, said that in January and February it was very uncomfortable, and on account of the cold she was'not able to work much in the premises; that her hands would get cold and stiff; she could hardly use them at all; that there were plenty of cold days in December just before Christmás, and one spell so cold they could not work at all.

Miss Lancaster testified that she was stenographer for plaintiff and began work for them about the first of January in the building in question; that for two or three days they did not have any heat at all; that the radiators were old ones, did not have enough steam; that she was there just before Christmas'when they did not have any heat at all until about 10 o’clock, and that the manager, Newman, told the employees to go home and that the next day there was no heat; that they were able to work a little bit during the next, week, but not very much.

W. M. Newman testified that he was working in the premises in question in January and February, and that the premises were just too cold to work and the employees had to be let off, but that a few of the men worked, with their overcoats on, on rush work that had to go.

While the evidence is conflicting upon this issue, we think the court erred in holding that the failure to furnish heat, as O’Keefe was required by the contract to do, was temporary. The contract bound O’Keefe to furnish heat enough to make the premises comfortable for plaintiff’s employees, and this testimony raised the issue as to whether this term of the contract was complied with during three months of the term, and, in our opinion, it was an issue of fact which should have been submitted to the jury. Ollwerter v. Escher, 78 Misc. Rep. 154, 137 N. Y. S. 881.

For the reason stated, the judgment is reversed and the cause is remanded.

RANDOLPH, J., not sitting.
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author: WALKER, J.

text:
    BRADFORD et al. v. CITY OF HOUSTON.
    (No. 1662.)
    Court of Civil Appeals of Texas. Beaumont.
    March 14, 1928.
    Rehearing Denied March 28, 1928.
    1. Constitutional law <&wkey;208(l) — Municipal Corporations <&wkey;>626 — Legislature and lawmaking bodies of municipalities may make reasonable classification of persons or things for various purposes of legislation.
    Legislature and lawmaking bodies of incorporated cities and towns, acting within their grant of power, may make reasonable classification of persons or things for various purposes of legislation; the only limitation on such power being that it must not be arbitrary, unreasonable, and unjust.
    2. Constitutional law <&wkey;287 — Licenses (3) — Ordinance regulating and prescribing license for stationary steam engineers and excluding mobile steam engineers held not arbitrary and unjust classification, nor viola-tive of due process clause (Const. U. S. Amend. 14).
    Ordinance prescribing qualifications and fixing license fees of stationary steam engineers and excluding mobile steam engineers held not an. arbitrary, unreasonable and unjust- classification nor violative of the due process of law provision of the Fourteenth Amendment to the Federal Constitution, in view of greater and different kind of skill required to operate mobile engine and boiler than stationary engine and boiler, and the greater perils to the public in operation of stationary -engine and boilers.
    Appeal from District Court, Harris County ; Chas. E. Ashe, Judge.
    Suit for injunction by J. R. Bradford and others against the City of Houston. From a judgment denying injunctive relief, plaintiffs appeal.
    Affirmed.
    Stephen L. Pinckney and Richard T. Fleming, both of Houston, for appellants.
    . Sewall Myer and T. J. Harris, both of Houston, for appellee.
   WALKER, J.

The city of Houston has a duly enacted ordinance creating the office of boiler and elevator inspector and a board of examiners to examine and license stationary steam engineers and prescribing the qualifications and fixing the license fees of stationary engineers. Without giving the ordinance in full, it is sufficient to say, for the purposes of this opinion, that its provisions relate only to stationary engineers. This suit was brought by appellants, stationary engineers of the city of Houston, to enjoin the enforcement of this ordinance,- invoking the legal proposition that a classification of steam engineers, including only stationary engineers and excluding mobile steam engineers, is “arbitrary, unreasonable, and unjust,” and therefore violative of the due process of law provisions of the state and Federal Constitutions. The trial court denied the injunc-tive relief, holding the ordinance constitutional, and the case is before us for review against that judgment. Since appellee concedes that the allegations of appellants’ pétition are sufficient to invoke the equity jurisdiction of the district court, it is not necessary to review the petition nor to discuss appellants’ propositions on that issue. This leaves in the case only the proposition that the ordinance is violative of due process of law and denies appellants the equal protection of the law, in that the classification of stationary engineers, excluding mobile engineers and imposing burdens and restrictions upon stationary engineers not required of mobile engineers, is in violation of the Fourteenth Amendment to the Federal Constitution. As a statement of the case, we give the following concessions from appellants’ brief:

(a) “As officers of the court, attorneys for appellants have attempted in their brief to be as frank and candid as possible, and in so doing, admit that an ordinance regulating steam boilers is essential to public safety, and that the license fees charged under the existing ordinance are not unreasonable, and that in exempting locomotive engineers and boilers carrying not over 10 pounds’ pressure and used for heating houses, this' is a reasonable exception.”

(b) “At this point, also, it is submitted that plaintiff raises no question relative to the exemption of locomotive boilers, and parties agreed below that they were inspected and passed on by several inspectors, which we candidly admit differentiates them as to subject-matter by a reasonable use of the power of classification.”

(c) “We submit, as previously stated herein, that the city is attempting to achieve the wholly laudable purpose in the exercise of its police power, in passing and seeking to enforce this ordinance, but that in so doing the city has transgressed the rules of classification which must be observed in the use of its police power, and that there is no rational basis, such as is required by law, in discriminating between the stationary engineer and the mobile engineer and requiring an examination of the stationary engineer and not making the same requirement for engineers on mobile boilers, and that to permit such a classification to stand is to permit an unreasonable, capricious, and arbitrary classification to exist that does not achieve the purposes of the ordinance.”

(d) The following excerpt from the testimony of D. F. Beeman, an expert, which appellants accept as true:

“Q. Mr. Beeman, in connection with the installation of- steam boilers and your knowledge and experience, suppose that you had a boiler of a certain type, of the same character of construction or the same capacity, equipped with the same safety devices, figured out mathematically to the same factors of safety, and that you had two boilers embodying all those elements, and suppose one of those boilers was placed out on a lot in a fixed stationary position, uninclosed, and you had another boiler of identical type and of identical features with respect to the stationary boiler, the second boiler having the added attribute or quality of being capable of moving under its own power, bearing in mind that each is identically the same in construction and safety devices, and that the only difference is in the mobility of the one and the immobility of the other, in your opinion, is there any difference with respect to the safety of the two boilers? A. I should say that they both would be equally as safe to operate, depending upon the knowledge and experience of the operator. So far as the boiler itself was concerned, each would be equally as safe or equally as dangerous, subject to the qualifications of the operator. Assuming that you have these two steam boilers, differing only with reference to their mobility, I would say that the only question entering into the factor of safety of the operation would be the skill of the operator. I imagine that a mobile boiler should be better cared for and watched closer than a stationary boiler.”
(e) “It is submitted that the undisputed facts in this case reflect that there is no rational distinction between a stationary steam boiler and a mobile steam boiler, and the purposes sought to be attained, to wit, the public safety. The evidence shows that as between a stationary boiler and a mobile boiler, each being identical and differing only .in mobility or immobility, they are equally as safe or equally as dangerous, and that the primary factor of any distinction as to safety is in the skill of the operator, and further, that the mobile boiler must be cared for and watched closer than a stationary boiler. Is it not reasonable to conclude that in the operation of a mobile boiler the operator thereof has greater duties to perform? Not only must he be engaged in the mechanics of the operations of the boiler, but being on a moving object, his attention must be directed to its progress, thereby diminishing the attention which should be paid to the mere operation of the boiler itself, hence in the face of this rather obvious fact, the ordinance complained of provides for no examination of the operator of mobile boilers and no inspection of the sainé, but the stationary boiler, requiring a lesser degree of skill and knowledge to operate, is subjected to inspection and its operator must be examined. Erankly, it is bdyond our comprehension to detect the rationality of such procedure.”

(f) To this we add the following conclusion of fact taken from appellee’s brief, and not contested by appellants:

“The physical conditions under which a stationary boiler and a mobile boiler are operated are entirely different, as is, of course, self-evident. The mobile boiler is one moving from place to place, out in the open, and is few in number and of smaller capacity..
“Stationary boilers, in most instances, are located in buildings such as sckoolhouses, churches, hospitals, office buildings, and other places where numerous persons collect. These boilers are usually inclosed in basements and in more or less inaccessible places. Such stationary boilers are usually of much larger size than mobile boilers.. Certainly these stationary boilers are much more numerous, and being in buildings the damages likely to result from explosions are much greater.”

By their briefs appellants recognize three classifications of steam engineers, (a) locomotive, (b) mobile, (c) stationary, and concede that there is such a difference between locomotive engineers on the one part and mobile engineers on the other part as to warrant a separate classification for locomotive engineers. Also, they concede that “an ordinance regulating steam boilers is essential to public safety,” and “the license fees charged under the existing ordinance are not unreasonable,” and “in exempting locomotive engineers and boilers carrying not over 10 pounds’ pressure and used for heating houses is a reasonable exemption.” On the foregoing statement, it requires more skill and of a different kind to operate a mobile engine and boiler than a stationary engine and boiler. The perils to the public and to the operator of a mobile engine and boiler, created by their operation, are different from those created by the operation of a stationary engine and boiler. Mobile engines and boilers are operated on the streets, moving from place to place, and are few in number, while stationary engines and boilers, for the most part, are operated in buildings, such as schoolhouses, hotels, office buildings, and other places where many persons collect, being placed for the most part in basements and in more or less inaccessible places where the risks of an explosion would be immensely greater than from mobile engines and boilers. Stationary boilers are used much more than mobile boilers. On the facts stated, we have before us the simple question: Did the exclusion of mobile engineers render the classification of stationary steam engineers arbitrary, unreasonable, and unjust, and therefore violative of the Fourteenth Amendment to the Federal Constitution?

Class legislation, as such, is not pro--hibited by any provision of the state or Federal Constitution. The Legislature and the lawmaking bodies of incorporated cities and towns, acting within their grant of power, may make reasonable classifications of persons or things for the various purposes of legislation. The only limitation on that power is that it must not be “arbitrary, unreasonable, and unjust.” 12 C. J. 1128, § 855. In said section 855, the following affirmative statement of the rule is announced:

“If there is a reasonable ground for thé classification and the law operates equally on all within the same class, it is valid.”

Here no point is made that,the ordinance does not operate equally on all stationary engineers. It is also said by said section 855, C. J.-, that the classification will be sustained provided it could have seemed reasonable to the legislative body, even though it seems to thé courts unreasonable; and that all reasonable doubts as to the classification are to be resolved in favor of its validity. On these principles of law the classification of stationary engineers, excluding mobile engineers, rests upon differences so fundamental that the ordinance must be sustained as constitutional. This classification and the principles upon which we sustain it have full support in the following authorities taken. from appellants’ brief, and nothing we could, say would add to their force or application: Southwestern T. & T. Co. v. City of Dallas (Tex. Civ. App.) 174 S. W. 936; Booth v. City of Dallas (Tex. Civ. App.) 179 S. W. 301; Lossing v. Hughes (Tex. Civ. App.) 244 S. W. 556; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 S. Ct. 431, 46 L. Ed. 679. The following authorities are interestingly in point on a constitutional definition of “classification”: People v. Gordon, 274 Ill, 462, 113 N. E. 864; Hubbell v. Higgins, 148 Iowa, 36, 126 N. W. 914, Ann. Cas. 1912B, 1007; Johnson v. Gunn, 148 Cal. 745, 84 P. 665. Petit v. Minnesota, 177 U. S. 164, 20 S. Ct. 666, 44 L. Ed. 716, defines the court’s power to take judicial notice of physical facts in connection with certain matters in cases of classifications.

The judgment of the trial court is affirmed.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes