author: GREEN, Chief Justice.

text:
    Lawrence P. GWIN et al., Appellants, v. James P. S. GRIFFITH et al., Appellees.
    No. 98.
    Court of Civil Appeals of Texas. Corpus Christi.
    Sept. 23, 1965.
    Rehearing Denied Oct. 14, 1965.

      Lawrence P. Gwin, Bay City, pro se.
    Frank W. Stevens, Angleton, for appel-lees.
   GREEN, Chief Justice.

This appeal is from a summary judgment for appellees, who were plaintiffs in a trespass to try title suit involving 1.58 acres of land in Matagorda County, Texas. We affirm.

In the trial court, the parties entered into a stipulation, pertinent portions of which are as follows:

I.
B. E. Norvell is the common source of title having acquired the property here involved by a Deed from Joseph Korn dated December 9, 1912, recorded December 16, 1912, in Volume 38, at Page 301 of the Deed Records of Matagorda County, Texas, and attached hereto and marked “Exhibit No. 1”.
II.
Plaintiffs have succeeded to such record title as the Grantees owned by virtue of the following Deed of Trust and Deeds:
Exhibit No. 2 — Deed of Trust from B. E. Norvell and wife, Carrie A. Norvell, to Malcolm Graham, Trustee, dated January 27, 1914, and recorded February 3, 1914, in Volume L, at Page 605 of the Deed of Trust Records of Matagorda County, Texas;
Exhibit No. 3 — Deed from William Cash, Substitute Trustee, to P. S. Griffith, dated September 5, 1916, and recorded September 5, 1916, in Volume 49, at Page 414 of the Deed Records of Matagorda County, Texas;
Exhibit No. 4 — Deed from B. E. Norvell and Carrie A. Norvell to P. S, Griffith dated September 30, 1916, and recorded November 24, 1937, in Volume 123, at Page 386 of the Deed Records of Matagorda County, Texas.
III.
Defendants have succeeded to such record title as the Grantee owned by virtue of the following Deed:
Exhibit No. 5 — Deed from B. E. Norvell to W. M. Moseley dated February 11, 1914, and recorded March 12, 1918 in Volume 23, at page 589 of the Deed Records of Matagor-da County, Texas.

Herein, where we use the term “evidence”, we refer to the stipulated facts and the affidavits and one deposition which were before the trial court at the time the motion for summary judgment was presented and ruled on.

In determining this cause, we shall of course be guided by the pronouncement of the Supreme Court in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, page 931, that the court “ * * * accepts as true all evidence of the party opposing the motion which tends to support such party’s contention, and gives him the benefit of every reasonable inference which properly can be drawn in favor of his position.”

As shown by the affidavit of E. N. Gus-tafson, then county surveyor of Matagorda County, in 1913 B. E. Norvell requested him to subdivide the eastern portion of the 213.-54 acre tract of land conveyed by deed from Korn to Norvell referred to in paragraph I of the stipulation of facts, which contained the 1.58 acres in litigation, and he did subdivide said eastern portion into five tracts of ten acres each, and one of 15.02 acres. The statement of Gustafson relied on by appellant to establish an equitable title in Moseley as early as 1913, which appellant claimed ripened into legal title by the subsequent deed from Norvell to Moseley, is:

“As I recall the matter at this time Mr. Norvell, either shortly before or shortly after these lands were surveyed, told me that he had sold them to the individuals whose names I placed on the plat of said survey prepared by me and marked Exhibit A. The subdivided tracts referred to are: J. T. Lowe — 10 acres; J. M. Lowe — 10 acres; W. B. Lowe — 10 acres; A. C. Edison — 10 acres; J. Preddy — 10 acres; William Moseley — 15.02 acres.
“I am sure that the names of the above owners were furnished to me by Mr. Norvell at some time as early as November, 1913, because I typed in the name of each individual owner on the field notes * * * Copies of these field notes and the plat have remained on file with the records of the County Surveyor of Matagorda County, Texas, since their preparation by me in 1913. * * ^ »

The deed from Norvell to Moseley, dated February 11, 1914, mentioned in paragraph III of the stipulation, which was executed 15 days after the deed of trust referred to in paragraph II of the stipulation, and 8 days after such deed of trust was recorded, purpurted to convey this 15.02 acre tract to William Moseley. This deed was not placed on record until March 12, 1918.

Appellees claim superior title by foreclosure of a deed of trust from Norvell and wife, both prior in time and prior of record to the conveyance from Norvell, the common source, to Moseley, under whom appellants claim. Appellees also claim title by a subsequent deed from the common source, title by prior possession, and by limitation under the five and ten years statutes.

Appellants present this appeal on four points, as follows:

FIRST POINT
The Affidavits and Depositions on file raise genuine issues as to material facts and the Trial Court erred in holding that the Appellees were entitled to a judgment as a matter of law.
SECOND POINT
The Affidavits filed by Appellants reflect admissible evidence sufficient to sustain a finding that the common source had transferred the title to the strip in issue to Moseley prior to the acquisition of any title by Appellees to the land in dispute.
THIRD POINT
The recitals in the Deed of Trust and Deed under which Appellees claim to the effect that Appellants’ predecessor in title, Moseley, owned the land, charged Appellees with notice as to the extent of his claim, and the force of the rule is not altered by either mistakes or misrepresentations on the part of Appellees’ Grantor in:
(1) The number of acres in Moseley’s tract or
(2) An incorrect course and distance to the stake set for Moseley’s southwest corner.
FOURTH POINT
The Affidavits filed by Appellees are insufficient to establish the possession and use of the land in question under the circumstances and for the requisite period required to mature title by adverse possession.

The deed of trust referred to as Exhibit 2 in paragraph II of the stipulation, executed by the common source January 27, 1914, recorded February 3, 1914, was to secure payment of a $4,500.00 note given by Norvell to Security Trust Company. It contains a detailed field note description recited to have been prepared by Gustafson of the property conveyed to the trustee, the security being 150 acres (actually 149.8) of the 213.54 acre tract acquired from Korn in 1912, and did not include the five ten-acre tracts of J. T. Lowe, J. M. Lowe, W. P. Lowe, A. C. Edison and J. Preddy, or 13.54 acres of the tract surveyed by Gustafson for Moseley. The east line of the 150 acre tract described in the deed of trust commenced at the:

“Northwest corner of a 10 acre tract belonging to J. T. Lowe; Thence S 17 W along the west end of five 10 acre tracts belonging to J. T. Lowe, J. M. Lowe, W. B. Lowe, A. C. Edison, and J. Preddy, respectively, 2083.5 feet to a stake for corner, said stake being the southwest corner of the 10 acre tract belonging to J. Preddy, and being the extreme West corner of a 13.54 acre tract belonging to Wm. Moseley.; Thence S. 40 20' E along the southwest edge of the Wm. Moseley tract 300.4 ft. to a stake in a fence for corner, said stake being the extreme south-west corner of the Moseley tract;”.

The description then proceeds in a southwesterly direction, and eventually joins the point of beginning.

We have prepared and made a part of this opinion a plat, not exact as to scale, of the eastern portion of the Norvell 150 acre tract as described in the deed of trust, showing also the 5 ten acre tracts and Moseley’s tract, with a broken line to designate the western boundary of said Moseley tract as shown by the Gustafson plat. The triangular 1.58 acre tract thus formed is the land in litigation.

All calls for course and distance.on this plat are identical with such calls on Gus-tafson’s plat except the call concerning the west or southwest edge of the Moseley tract. The deed of trust next call from the southwest corner of the J. Preddy tract reads:

“S 40° 20' along the south-west edge of the Wm. Moseley tract 300.4 feet to a stake in a fence for corner, said stake being the extreme south-west corner of the Moseley tract; thence with the meanders of said fence as follows: S 531/i W. 456.3 ft. * * *.”

The Gustafson plat called for the western boundary line of the Moseley tract to be a continuation of the west boundaries of the five ten acre tracts, and to extend from the S W corner of the J. Preddy tract S 17° W 510 feet for its S W corner, as shown by the dotted line on our plat.

The property described in -the deed of trust, including the land in litigation, was sold-at trustee foreclosure sale to P. S. Griffith September 5, 1916, (see stipulation) and the trustee deed containing the same description of the land as did the deed of trust, was filed for record September 6, 1916, one and a half years before the deed purporting to convey the 15.02 acre tract from the common source to Moseley was filed for record.

Appellees in their counter points contend (1) that no genuine issue of any material fact was raised as to the superior title of appellees from the common source; (2) title by the prior possession of appellees, and limitation title; (3) that the record revealing no evidence of a prior transfer to Moseley, appellant’s predecessor in title, of the land in dispute, appellees, as owners of the prior legal title without notice of any claim of Moseley to any land except the 13.54 acres mentioned in the deed of trust, correctly recovered judgment; (4) that the recitals in the deed of trust and trustee’s deed to the adjoining 13.54 acre tract owned by William Moseley and describing a boundary line of the Moseley tract did not place any burden on appellees’ predecessor in title to look outside their chain of title to investigate a possible claim by Moseley to property included within the deed of trust, or trustee’s deed.

Appellees, and those under whom they hold, claim title to the land in controversy under deeds duly registered since the recording of the deed of trust on February 3, 1914. The evidence discloses without dispute that an old fence, strong enough to turn cattle, enclosed the 149.8 acres described in the deed of trust and in the trustee’s deed prior to 1952 when lessees holding under appellees went into possession of the tract, and pastured cattle and farmed rice therein, and that such fence was still standing in 1963.

Appellants contend that the recitals of ownership of the tract by Moseley in the deed of trust and trustee’s deed, and the calls for the Moseley corner were sufficient to put the Security Trust Company on notice of an unrecorded claim of title, and that such inquiry would have resulted in knowledge that Moseley possessed equitable title to the 15.02 acres, -including the triangular shaped 1.58 acres in controversy at the time of and prior to the deed of trust. We do not agree with this contention. There was nothing of record to give legal notice of the claimed equitable title of Moseley to a 15.02 acre tract, and there was no evidence to show that the trust company had notice, actual or constructive, that Moseley owned any of this property, other than the reference in the deed of trust to Moseley’s 13.54 acre tract, and the description of its western boundary as contained in the deed of trust. According to this description, Moseley’s tract did not include the land in litigation.

To show that the description in the deed of trust was no mistake, and was intended as stated, the deed of trust called for a 150 acre tract to serve as security for the loan. Excluding the five ten acre tracts and the 13.54 acre Moseley tract from the original 213.54 acres owned by Norvell, there remained the 150 (149.8) acres included by the description. To adopt appellants’ reasoning that the call for the southwest edge of the William Moseley 13.54 acre tract in the deed of trust should be construed as a call for the west line of the Moseley 15.02 acre tract as it appeared on Gustafson’s unrecorded plat would require the following changes in the field notes contained in the deed of trust and trustee’s deed: (1) the call would have been for the Moseley 15.02 tract; (2) the call “thence S 40 20' E along the southwest edge of the Wm. Moseley tract 300.4 feet to a stake in a fence for corner,” would have been “thence south f7° W along the west or northwest edge of the Moseley tract 510 feet to a stake in a fence for corner”; (3) the call for the first meandered section of the fence along the south line of the deed of trust tract would have been omitted; (4) the acreage included in the property serving as security for the loan would have been reduced to 148.22 acres, instead of 150 acres (actually 149.8).

The affidavit of Gustafson, together with his unrecorded field note descriptions and plat, is. entirely irrelevant to the record title held by appellees unless it is shown by appellants that Security Trust Company had notice of Moseley's claims at the time of the execution of the deed of trust. Hill v. Moore, Tex.Sup.Ct., 62 Tex. 610; Connor v. Lane, Tex.Civ.App., 355 S.W.2d 223. There was no effort made by appellants to offer any evidence that the trust company had such knowledge. The facts do show, however, that Moseley received his deed with legal notice of the existing deed of trust lien on a portion of the property purportedly conveyed to him. The rule is well established that one who purchases land in good faith at a deed of trust foreclosure succeeds to all of the rights of the mortgagee. Hall v. Wilson, Tex.Civ.App., 215 S.W.2d 204, writ ref., n. r. e.; 39 Tex.Jur.2d, Mortgages and Trust Deeds, § 165, pp. 227-228.

In Connor v. Lane, supra, the Court of Civil Appeals, in reversing the case and rendering judgment for the holder of the legal title, stated:

“Where the holder of an equitable title relies on it in this type of case to prevail over the subsequent purchaser of the legal title, the burden rests on the former to establish the holder of the legal title had notice, and was not an innocent purchaser.”

See that- opinion for other cases supporting this statement.

There was no evidence that Moseley had taken possession of the land claimed by him at the time of the execution and placing of record' of the deed of trust. The mortgagee was justified in accepting the description of the land as described in the deed of trust, and was not put on inquiry concerning any unrecorded equitable title of Moseley’s, or any unrecorded plat or survey. Bounds v. Little, 75 Tex. 316, 12 S.W. 1109; Strong v. Strong, 128 Tex. 470, 98 S.W.2d 346, 109 A.L.R. 739.

Appellants wholly failed to prove any legal title to any of the 15.02 acre tract except the title acquired by the deed from Norvell to Moseley given subsequent to the deed of trust, and recorded subsequent to the trustee’s deed. The description of the property included in the deed of trust and trustee’s deed conflicted with the description of the land purported to be conveyed in the deed to Moseley, in that all three instruments included the small tract in litigation. No issue is raised concerning Moseley’s title to the 13.54 acre tract. The appellants failed to offer any evidence to carry out their burden of showing that the mortgagee had any knowledge or notice of an equitable title in Moseley prior to the execution and placing on record of the deed of trust. The record establishes title to the tract in issue in appellees as a matter of law, under the stipulation that they had succeeded to such record title as the grantees owned by virtue of the deed of trust and trustee’s deed in evidence. Gulf, Colorado & Santa Fe Railway Co. v. McBride, Tex.Sup.Ct., 322 S.W.2d 492; Connor v. Lane, supra; Strong v. Strong, supra; Hall v. Wilson, supra.

In February, 1963, appellant forcibly entered upon the property in litigation, tore down the boundary fence between it and the 13.54 acre tract not in litigation, and erected a new fence along the line contended for by him. At that time, appellees were in possession of the land, and had through tenants been in possession for a number of years. The record does not disclose evidence of any prior possession of the tract by appellants though it is shown that, because Gustafson’s plat was a part of the county tax assessor’s records, appellants had been paying taxes on 15.02 acres. Since appellants have failed to establish any title in them to the 1.58 acres in litigation, appellees were also entitled to judgment by reason of the doctrine of prior possession.

In Reiter v. Coastal States Gas Producing Co., Tex.Sup.Ct., 382 S.W.2d 243, the Court, in reversing the judgments of the lower courts, and rendering judgment for appellants by reason of prior possession, said: (p. 251)

“The doctrine of ‘prior possession’ should be a simple one as it is designed to maintain public peace and order. In essence it proceeds upon the theory that one in possession should not be disturbed unless it be by one having a better title. In Bradshaw v. Ashley [180 U.S. 59, 21 S.Ct. 297, 45 L.Ed. 423] which undoubtedly represents the prevailing American rule, the United States Supreme Court categorically stated:
“ ‘[T]he presumption of title arises from the possession, and, unless the defendant prove a better title, he must himself be ousted. * * * ’ ”

The appellees having established their superior legal title to the property in litigation as a matter of law, and that no material fact issue existed as to their cause of action, and appellants having failed to show that any material fact issue existed upon any affirmative defenses, the court properly rendered summary judgment for appellees. Gulf, Colorado & Santa Fe Railway Co. v. McBride, Tex.Sup.Ct., supra; McDonald, Texas Civil Practice, Volume 4, Sec. 17.26.1.

Appellants’ first three points of error are overruled.

We find that fact issues are present concerning appellees’ claim of title by limitation under the five and ten years statute of limitations. The evidence presented by the affidavits only cover the period from 1952 to 1962, and there appears doubt as to whether they include any consecutive period of ten years. Appellants’ evidence, except for the affidavit of Gustafson, for the most part is applicable to the claimed title by limitations, and raises definite controverted fact issues concerning payment of taxes and use by appellees of the property for the period necessary to mature limitation title.

We sustain appellants’ fourth point. This does not affect the disposition of the appeal.

Judgment affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    E. E. HOOD & SONS, Appellants, v. Maria V. TORRES et al., Appellees.
    No. 4398.
    Court of Civil Appeals of Texas. Waco.
    Sept. 2, 1965.

      Keys, Russell, Watson & Seaman, Corpus Christi, for appellants.
    Lloyd, Lloyd, Dean & Ellzey, Alice, for appellees.
   McDONALD, Chief Justice.

This is an appeal from a judgment overruling a plea of privilege.

Plaintiffs, the widow and children of Reynaldo Torres, sued defendants Hood, in Nueces County for the wrongful death of Torres. Plaintiffs alleged that defendants in constructing improvements to U. S. Highway 77, cut a dropoff or trap some 3|/2 to 4 inches below the road level on the paved surface of U. S. Highway 77, and left no warning or signal light to advise travelers of the danger thereof; that the deceased was driving his truck on such highway and that the right front wheel went off into the cutout made by defendants, causing deceased to turn over and be killed. Plaintiffs alleged that defendants’ acts and omissions were negligence proximately causing the death of the deceased, and prayed -for damages for his death.

Defendants filed their plea of privilege to be sued in Bexar County, the county of their residence. Plaintiffs filed controverting plea, alleging venue in Nueces County under- Subdivision 9a, Article 1995, Vernon’s Ann.Tex.Civ.St., “and other exceptions.”

Trial was before the Court without a jury which, after hearing, found that defendants committed an omission and act of negligence in Nueces County in cutting out a dropout in the paved surface portion of the highway and leaving no warning or signal lights to advise deceased of the danger of same, and that such negligence was a proximate cause of deceased’s death and plaintiffs’ damages.

The trial court found that venue was properly in Nueces County by virtue of Exception 9a “and other exceptions”' to Article 1995 V.A.T.S., and overruled defendants’ plea of privilege.

Defendants appeal, contending the trial court erred in overruling their plea of privilege because plaintiffs failed to establish that any negligence on the part of defendants was a proximate cause of the death of the deceased. Defendants assert that there is no evidence, or insufficient evidence, to establish any causal connection between the cut out portion of the highway and the death of the deceased;

The record establishes that defendants had a contract with the State of Texas to improve U. S. Highway 77 in Nueces County; and that defendants made the 3 to 4 inch excavation dropoff along the edge of the paving of such highway. Some 4 witnesses who were at the scene of the accident shortly after the accident testified that they did not observe any flares or warning devices. There is no evidence that there were any flares or warning devices. The accident occurred before daylight about 5 :15 A.M. on December 7th.

Highway Patrolman Patterson, who investigated the accident shortly after its occurrence, testified there was a gouge mark on the east portion of the highway and skid marks leading from the gouge mark to where the vehicle came to rest; and that the truck had gotten back on the paved portion of the highway where the gouge mark was located and where the skid mark started. From the foregoing and from the photographic evidence, the trial court had a right to conclude that the truck’s right wheels hit the dropoff on the highway and the accident ensued when the deceased tried to get the truck hack on the elevated portion of the highway; and that hut for the dropoff and the failure to post warning flares, the accident would not have occurred. We think venue established in Nueces County under subdivision 9a, Article 1995. See: Dunn v. Johnson, Tex.Civ.App., (n. w. h.) 274 S.W.2d 108; Strakos v. Gehring, Tex.Sup.Ct., 360 S.W.2d 787.

Defendants’ points and contentions are overruled.

Affirmed.


author: WILSON, Justice.

text:
    TOWN & COUNTRY MODEL MARKET, INC., Appellant, v. Zeb SMITH et ux., Appellees.
    No. 4391.
    Court of Civil Appeals of Texas. Waco.
    Aug. 26, 1965.
    Lewright, Dyer & Redford, W. N. Wool-sey, J. M. Burnett, Corpus Christi, for appellant.
    Cullen, Mallette, Maddin & Edwards, Victoria, for appellees.
   WILSON, Justice.

Appellee attempted to maintain venue under subdivision 9a, Art. 1995, Vernon’s Ann.Civ.St., alleging negligence generally. The question presented is whether the essential venue facts of negligence and proximate cause under that subdivision were established. In our opinion they were not, and we reverse.

Appellee was shopping in appellant’s grocery store where aluminum chairs were stacked against the wall for sale. She testified two of the chairs “were setting up”. She saw her son-in-law sitting in one of these, and while her purchases were being checked she “went over there to sit and talk with him.” She did not know, and there is no evidence to show how long the two chairs had been up, and there is no evidence as to who removed them from the stack and placed them in an upright position.-

Appellee testified: “Just as I went to sit down, and I put my hand on the side of the chair and just went to sit down, and as I did that it slipped out from under me, and my hand went down and hit the floor.” She did not know in which direction the chair slipped. “I just don’t know how it done. It was so quick I didn’t know anything.” The chair was on a terrazzo floor which she testified she knew was slick. “They always are”, she said.

The only grounds of negligence suggested by appellee are that there were “no rubber tips or other safety devices attached to the chair”, and there were “no signs saying, ‘do not sit in these chairs’, or ‘do not use these chairs’ ”.

There is no evidence of negligence. Great Atlantic & Pacific Tea Company v. Giles, Tex.Civ.App., 354 S.W.2d 410, 412, writ ref. n. r. e.; Sherwood v. Medical & Surgical Group, Tex.Civ.App., 334 S.W.2d 520, 521, writ ref., and cases cited; H. E. Butt Grocery Company v. Russell, Tex.Civ.App., 391 S.W.2d 571.

The judgment is reversed, and judgment here rendered that the cause be transferred to Bexar County, Texas.


text:
    William Burke REYNOLDS et al., Appellants, v. Bette Reynolds SKINNER et vir, Appellees.
    No. 4407.
    Court of Civil Appeals of Texas. Waco.
    Sept. 9, 1965.
    Rehearing Denied Oct. 7, 1965.
    Lee Mahoney, Mahoney, Shaffer & Hatch, Corpus Christi, for appellants.
    James R. Sorrell, Jr., Sorrell, Anderson, Porter & Stone, Corpus Christi, for appel-lees.
   McDONALD, Chief Justice.

This is an appeal from a judgment for plaintiff on a note, attorneys’ fees, and foreclosure of a mortgage lien securing such note.

Defendant Reynolds and plaintiff Skinner were formerly husband and wife. Just pri- or to their divorce in July, 1959 they entered into a property settlement agreement. In connection with such agreement defendant executed a note payable to plaintiff for $27,000, payable $273.38 on or before the first day of August, 1959, and $273.38 on or before the first day of each month thereafter. The note was payable in Corpus Christi, Nueces County, Texas, but no specific place was given at which payment could be made. The note provided for a lien on certain properties to secure its payment; provided that failure to pay any installment when due shall at the election of the holder of said note mature the said note, and same shall become at once due and payable and subject to foreclosure proceedings under the lien described; and provided for reasonable attorneys’ fees not to exceed 10% if the note be collected by suit.

Plaintiff’s petition alleged that the defendant did not pay the installment due on November 1, 1963 and that plaintiff, on November 4, 1963 elected to accelerate the maturity of the note, and sought judgment for the matured unpaid balance of the note in the amount of $17,010.81, plus interest, plus $1750 attorneys’ fees.

Defendant answered that he had regularly paid each monthly installment of $273.38 since August 1, 1959 prior to the November 1, 1963 installment, and that plaintiff had accepted same; that prior to any notice or demand by plaintiff that she had elected to mature the note, defendant had on November 4, 1963 mailed plaintiff the November 1, 1963 payment, which plaintiff refused to accept.

Trial was before the court without a jury which, after hearing, rendered judgment for plaintiff for $17,914.73; foreclosure of lien; and $1750 attorneys’ fees. (The trial court credited the judgment with $4,374.08 paid into the registry of the court in $273.38 installments each month during the pendency of suit).

Defendant appeals, contending: the trial court erred in granting judgment because plaintiff did not have the right to accelerate maturity of the note: 1) without first notifying defendant and giving defendant an opportunity to pay such installment before accelerating maturity of the note; and 2) without presenting such note to defendant and demanding payment.

The record reflects that all monthly payments on the note prior to the November 1, 1963 payment were paid by defendant and accepted by plaintiff.

The record further reflects that defendant mailed the November 1st payment to plaintiff on November 4, 1963; that she received it on November 5, 1963; refused to accept it; and subsequently filed the instant case.

It is undisputed that plaintiff did not present the note to defendant for payment of the November 1, 1963 installment, or demand payment of the defendant of the November- 1, 1963 installment after it became due before accelerating the note and filing suit.

The rule is, that where the holder of an installment note containing an optional acceleration clause, wants to exercise his option, he must as a condition precedent to the exercise of his option, present the note and make demand upon the payor to pay the installment due. Faulk v. Futch, 147 Tex. 253, 214 S.W.2d 614, 5 A.L.R.2d 963; Luczynski v. Sevier, Tex.Civ.App. (n. r. e.), 302 S.W.2d 474; Griffith v. Griffith, Tex.Civ.App. (n. r. e.), 252 S.W.2d 517; 5 A.L.R.2d 977; Jernigan v. O’Brien, Tex.Civ.App. (n. w. h.), 303 S.W.2d 515; Bischoff v. Rearick, Tex.Civ.App. (n. r. e.), 232 S.W.2d 174; Brown v. Hewitt, Tex.Civ.App., Er.Ref., 143 S.W.2d 223; Curtis v. Speck, Tex.Civ.App., Er.Ref., 130 S.W.2d 348.

Under the facts plaintiff was required to present the note and demand payment of the installment due before she could accelerate it.

Defendants’ contentions are sustained.

Reversed and rendered.


author: PARKER, Justice.

text:
    E. T. FULLER, Jr., et al., Appellants, v. The STATE of Texas, Appellee.
    No. 6780.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 16, 1965.
    Rehearing Denied Oct. 6, 1965.
    Weller, Wheelus & Green, Strong, Pipkin, Strong & Nelson, Carl Griffith, Beaumont, for appellants.
    W. G. Walley, Jr., Beaumont, for appel-lee.
   PARKER, Justice.

The opinion and judgment rendered in this cause on the 8th of July, 1965, are withdrawn and this opinion in all things substituted therefor with judgment rendered as hereinafter set forth.

Summary judgment was granted on the motion of the State of Texas declaring the deed dated May 15, 1937, from Edna French to the State of Texas conveyed a fee simple title, less the mineral estate, to a 4.5 acre tract. Further, that by reason of such fee ownership the State of Texas upon the abandonment of a railroad right of way 100 feet in width abutting 4.5 acres to the east, the westerly 50 feet by 680.55 feet of the abandoned railroad right of way belonged to the State of Texas. Appellee, the State of Texas, recovered title and possession of the surface of said portion of the west half of the abandoned railroad right of way as against E. T. Fuller, Jr., individually and as Independent Executor of the Will and Estate of Sarah Bell Fuller, Deceased; Anne B. Teichmann and husband, Charles F. Teichmann; Minnie B. Justus, a feme sole; Edna Brooks, a feme sole; Robert Dixon and wife, Edna Ruth Dixon; Frank W. Brooks and wife, Virginia L. Brooks; and Bronson Gay, Trustee; Lee C. Holland, Trustee; James E. Mason, Trustee; Edward J. Britt, Trustee; and Bill J. Lazenby, Trustee, all as Trustees of the ilth Street Baptist Church, with the relief prayed for by defendants and cross-plaintiffs E. T. Fuller, Jr.,, Anne B. Teichmann and husband, Charles F. Teichmann, being in all things denied. Appeal has been perfected by all parties except the Trustees of the Eleventh Street Baptist Church. The parties will be designated by name or the State of Texas will be called appellee and the defendants in the court below will be called appellants.

John J. French owned all of the lands including the railroad right of way and is the common source of title. By deed dated September 9, 1880, John J. French and wife, Sally French, conveyed a right of way for railroad purposes to Sabine & East Texas Railway Company. This right of way was 100 feet in width and, roughly, ran north and south. See sketch below:

On April 20, 1889, John J. French conveyed to Mrs. C. C. Blanchette lands abutting and to the east of the railroad right of way. There is a regular chain of title from Mrs. Blanchette to E. T. Fuller whereby he acquired the fee simple title to an 8 acre tract shown on the plat above. This 8 acre tract abutted the railroad right of way 680.55 feet. Upon the death of E. T. Fuller and his wife, title to such 8 acre tract by will and inheritance vested in E. T. Fuller, Jr. and Anne Fuller Teichmann. The railroad right of way was the sole easement or right of way across the land involved at the time Mrs. C. C. Blanchette acquired title to a larger tract on the east side of the railroad right of way of which the E. T. Fuller tract is a part. The railroad abandoned its right of way in 1961. In the adjoining railroad right of way E. T. Fuller, Jr., and Mrs. Teichmann owned the east one-half of same adjoining and abutting their 8 acre tracts burdened with the right of way. On such abandonment their title in fee simple was complete to the east half of the railroad right of way abutting their 8 acres. No one disputes this.

This brings us to the question as to who owns the west half of the surface of the abandoned railroad right of way west of the eastern half thereof vested in E. T. Fuller, Jr., and Mrs. Teichmann. On May 15,1937, Mrs. Edna French, individually and as independent executrix of the estate of T. A. French, deceased, owned the fee simple title, minerals as well as surface, to all of the lands abutting the railroad right of way to the west containing 32.6 acres. On that date she conveyed by general warranty deed the tract of land hereinafter described to the State of Texas for $2,056.50. The description is as follows:

“The land herein conveyed is a strip out of the T. A. French 32.6 acre tract in the A. Williams survey, Abst. #385, in Jefferson County, Texas, said strip of land lying within the limits of the right of way of the proposed State Highway No. 40 in Jefferson County, Texas, as surveyed by the Division Engineer of the State Highway Department of Texas, and being of such width that the right of way contained on East side of the centerline of said Highway No. 40 shall be seventy (70') feet and on the West side sixty (60') feet; the centerline being more particularly described as follows:
“TRACT I: Beginning at a point in the centerline of State Highway No. 40 at Sta. 167†29 said point being in the south line of the T. A. French 32.6 acre tract and seventy (70') feet measured at right angles, from the right of way of the S. & E. T. R. R. THENCE N 40° 4FW along the centerline of Highway No. 40 for a distance of ope thousand five hundred and nine (1509') feet to Sta. 182†38, said point being in the N. line of the T. A. French tract and eighty-two (82') feet, measured along said N. line, from the NE corner of T. A. French tract.
“It being the intention in this deed to convey to the State of Texas, all the land now being owned by me/us within the above described limits and containing 4.50 acres of land.
“There is reserved, however, to the Grantor herein all oil, gas and other minerals on in and under the land hereby conveyed.
“And it is further agreed that the said grantor/s in consideration of the benefits above set out will remove from the property above described such fences, buildings and other obstructions as may be found upon said property.”

Within a year or two thereafter a highway was built upon such 4.5 acres, known as Highway 40 or Highway 69. Hereafter, the word land will mean surface only. It is the contention of appellants that the State of Texas did not acquire the land to the east of such 4.5 acres to the center of the abandoned railroad right of way. Appellants contend that upon abandonment of the railroad right of way the State of Texas was not vested with the title to the strip 680.55 feet north and south X 50 feet east and west, the directions being general, (hereinafter called the land in controversy) and being the west half of the railroad right of way. Appellants rely upon the Supreme Court case of Haines v. McLean, 154 Tex. 272, 276 S.W.2d 777 (1955), wherein the deed from Haines to Scurry County was construed as conveying a determinable fee in a 100 foot strip. The Supreme Court held that since this deed was a donation to Scurry County and had restrictive limitations, to contend that it conveyed an “[additional] fee half again or more greater in adjoining property, simply shocks the conscience * * The deed from Edna French to the State of Texas was executed for $450.00 an acre, had no limitations or restrictions, and the intention of the grantor, Edna French, is to be had from the written instrument, not from hearsay conclusions of third persons of no probative force as evidence. There is nothing in said Edna French deed to shock the conscience. Accordingly, the State of Texas by virtue of its deed from Edna French acquired the fee simple title to the western 50 feet of the 100 foot railroad right of way burdened with its use by the railroad, being the land in controversy. After the railroad abandoned its right of way in 1961, the State of Texas owned the surface to the west half of such right of way without being so burdened. Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 85 A.L.R. 391 (1932). In Joslin v. State (Tex.Civ.App.1940) 146 S.W.2d 208, wr.ref., it was held that private grants of land bordering upon railroad right of ways convey title to the center of such right of way “unless such deed contains a clause which expressly declares the contrary intention or contains some other declaration equivalent to such express declaration”, Rio Bravo Oil Co. v. Weed, supra; Cox. v. Campbell, 135 Tex. 428, 143 S.W.2d 361. Such holding where there is no express reservation is applicable to the instant deed from Edna French to the State of Texas.

The points of error of E. T. Fuller, Jr., and Mrs. Teichmann urging that the deed from Mrs. Edna French to the State of Texas did not convey the land in controversy are each and all overruled. The above involves questions of law with no fact issues to be passed on.

Subsequent to the 1937 deed from Edna French to the State of Texas, she conveyed certain small tracts of land on the west side of and abutting the 4.5 acres. At the time of each of these conveyances State Highway 40 had been constructed on the 4.5 acre tract of the State of Texas and was being used as a highway. These deeds from her were:

(a) to Minnie B. Justus dated April 28, 1942.
(b) to E. T. Fuller, Jr. dated April 28, 1942, and by the same description conveyed by him to John S. Parigi on February 15, 1950. Parigi conveyed such tract to the Trustees of the Eleventh Street Baptist Church. No appeal was perfected by the latter. This is a 1.14 acre tract.
(c) to Edna Brooks dated June 29, 1945.
(d) to F. Y Faulkner dated June 29, 1945. Robert Dixon and wife, Edna Ruth Dixon, acquired this tract from Faulkner.
(e) to Frank W. Brooks, Jr. dated June 29, 1945. This tract is owned by Frank W. Brooks, Jr. and wife, Virginia L. Brooks.

Minnie B. Justus’ points of error are:

1. The trial court erred in denying the Motion for Summary Judgment of the appellant, Minnie B. Justus, because as a matter of law, the conveyance to the State of Texas of the right of way did not divest Mrs. Edna French, nor her heir, successors or assigns, of their title in and to the right of reversion to the west 5O' of the East Texas Railroad Company’s right of way abutting the right of way conveyed to the State of Texas.
2. The trial court erred in sustaining the Motion for Summary Judgment of the appellee, the State of Texas, because as a matter of law the conveyance to the State of Texas of the right of way did not divest Mrs. Edna French, nor her heirs, successors or assigns, of their title in and to the right of reversion to the west 50' of the East Texas Railroad Company’s right of way abutting the right of way conveyed to the State of Texas.

Such points of error are overruled because the land in controversy is owned by the State of Texas for the reasons stated here-inbefore.

Appellants Edna Brooks, Robert Dixon and wife, Edna Ruth Dixon, and Frank W. Brooks and wife, Virginia L. Brooks, as to their respective tracts have identical points of error as Minnie B. Justus which points of error are overruled for the same reasons that the points of error of Minnie B. Justus are overruled.

The points of error of E. T. Fuller, Jr. and Anne B. Teichmann and husband based on E. T. Fuller’s former ownership of the 1.14 acre tract conveyed by him to Parigi are overruled for the same reasons the points of error of Minnie B. Justus, et al., are overruled and also because all right, title and interest E. T. Fuller, Jr. ever had in such 1.14 acre tract and adjoining right of way was owned by the Trustees of the Eleventh Street Baptist Church at the time this suit was brought.

As a matter of law appellants Fuller and Teichmann are the owners of the E. T. Fuller 8 acre tract and the east one-half of the abandoned railroad right of way adjacent to such 8 acres, abutting the land in controversy. This is admitted by appellee. The State of Texas acquired its property from Edna French with funds from a Jefferson County Road Bond Issue furnished the State Highway Commission “for the purpose of constructing State Highways in Jefferson County, Texas.” The land so purchased is impressed with and has been used for such purpose but this does not change the character of the State’s title to its land from fee to the surface to an easement. Should the State of Texas in the future attempt to use its land for a purpose inconsistent with the construction, maintenance, operation, etc., of a State Highway, then the appellants Fuller and Teichmann would have a cause of action to prohibit such unlawful use, which would not be precluded by the judgment of the trial court. There being no unlawful use and no threat of an unlawful use by the State of Texas, there is nothing for a court to determine.

Appellants Fuller and Teichmann assert error on the part of the trial court in adjudging that they take nothing on their claim of right of aecess to the Highway. Such appellants simply seek a declaration to that effect. No party hereto has attempted to invoke condemnation proceedings under the law of eminent domain in this proceeding.

Fuller and Teichmann are abutting land owners on the east side of the land in controversy. The record shows that the State of Texas had instituted condemnation proceedings for highway purposes against E. T. Fuller, Jr., and Anne Fuller Teich-mann and her husband as the owners of the east fifty feet of the abandoned railroad right of way adjoining the land in controversy. This suit is pending. All of the abandoned railroad right of way is planned to be used for highway purposes. Fuller and Teichmann have a right of access' to Highway 69 as an incident to their ownership of land abutting thereon subject to the proper exercise of the police power for the health, safety and welfare of the public in the plan of construction as well as the control of use and access to a highway of this nature. City of San Antonio v. Pigeon Hole Parking of Texas, Inc. (1958) 158 Tex. 318, 311 S.W.2d 218, 73 A.L.R. 640; The State of Texas v. Baker Bros. Nursery, 366 S.W.2d 212 (S.Ct.1963) and authorities cited therein; Art. 6674w, Vernon’s Ann.Civ.St.Tex., and other applicable statutes.

The judgment of the trial court is affirmed in all things except it is reversed, reformed and rendered as to the following: Appellants E. T. Fuller, Jr. and Anne B. Teichmann and husband, as owners of the land east of and abutting the land in controversy, are declared to have right of access to Highway 69 subject to the right of the State of Texas under the provisions of Article 6674w, supra, and its police power to control the design, use and access to Highway 69 as set forth in the preceding paragraph.

Appellants’ motions for rehearing are overruled.


author: HUGHES, Justice.

text:
    J. M. FALKNER, Commissioner of Banking of Texas et al., Appellants, v. ALLIED FINANCE COMPANY OF BAY CITY et al., Appellees.
    No. 11326.
    Court of Civil Appeals of Texas. Austin.
    July 21, 1965.
    Rehearing Denied Oct. 6, 1965.

      Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., Stanton Stone, T. B. Wright, Executive Asst. Attys. Gen., Paul Phy, Joe R. Long, Ralph R. Rash, Asst. Attys. Gen., Austin, Locke, Purnell, Boren, Laney & Neely, J. L. Shook, John D. Crawford, Dallas, for appellants.
    Locke, Purnell, Boren, Laney & Neely, J. L. Shook, John D. Crawford, Dallas, for appellees and cross-appellants.
   HUGHES, Justice.

Allied Finance Company of Bay City and forty-three other Allied Finance Companies, all Texas Corporations, sued J. M. Falkner, Commissioner of Banking of Texas, H. L. Bengtson, Deputy Commissioner of Banking, R. S. Calvert, Comptroller of Public Accounts of Texas, Jesse James and Wag-goner Carr, Treasurer and Attorney General of Texas, respectively, in their official capacities, for injunctive relief and a declaratory judgment based on their primary contention that they are not subject to supervision or regulation under Art. 1524a, Vernon’s Ann.Tex.Civ.St.

To this petition the officials sued filed a plea in abatement to the effect that no cause of action was alleged against them and that it constituted a suit against the State filed without legislative permission. These same officials filed an answer consisting principally of a general denial and a cross-action on behalf of the State against all corporations bringing the suit alleging that they were all Texas Corporations and subject to the provisions of Art. 1524a, V.T.C.S. and that they had not paid the filing fees required by Section 4 of such Article. The State asked judgment for these fees and for penalties as therein provided.

Trial was nonjury and resulted in a judgment in behalf of all Allied Corporations bringing suit for the relief sought except the four Allied Finance Corporations (Baton Rouge, LaFayette, Lake Charles, Shreveport) who were not licensees under Art. 6165b, Texas Regulatory Loan Act. As to these corporations, injunctive relief was denied and judgment was rendered against each of them for $200.00 for failure to file statement of condition and pay the statutory filing fee on or before April 1, 1964, as required by Sec. 4, Art. 1524a.

This judgment also dismissed from the suit all officials sued except the Commissioner and Deputy Commissioner of Banking.

Appeals from this judgment have been perfected by the four Allied Corporations against whom judgments were rendered and the two Banking Commissioners on behalf of the State.

The material facts are undisputed.

All of the Allied Corporations, except Bryan, Fairmount, Temple and Arlington, were organized on August 7, 1963. Bryan was organized November 20, 1963, Fair-mount and Temple December 17, 1963, and Arlington on January 14, 1964.

All Allied Corporations except the four Louisiana named Corporations are licensed under the Regulatory Loan Act.

All forty-four Allied Corporations have identical purpose clauses in their charters. This purpose clause is as follows:

“ARTICLE THREE
The purposes for which the corporation is organized are:
To obtain one or more licenses and operate under The Texas Regulatory Loan Act, Chapter 205, Acts 1963, 58th Legislature, Vernon’s Ann.Civ.Stats. Art. 6165b;
To accumulate and lend money without banking or discounting privileges;
To purchase, sell and deal in notes, bonds and securities;
To subscribe for, purchase, invest in, hold, own, assign, pledge and otherwise deal in and dispose of shares of capital stocks, bonds, mortgages, debentures, notes and other securities or obligations, contracts and evidences of indebtedness of foreign or domestic corporations ;
To borrow money or issue notes, bonds, debentures and commercial paper for carrying out any or all purposes above enumerated;
To purchase, hold or sell installment obligations and contracts of every kind;
To obtain licenses and permits where appropriate and permitted by law to carry on any and all of such purposes; and
To do such things as may be necessary or convenient in carrying out any and all of the foregoing purposes.”

Art. 1524a was last amended in 1959. We quote the following portions of Sections 1, 2, 4, 5 and 7 of such Article which indicate its purport and scope:

“Art. 1524a. Corporations for loaning money and dealing in bonds and securities without banking and discounting privileges; regulations
Application; acting as agent; capital
Sec. 1. This Act shall embrace corporations heretofore created and hereafter created having for their purpose or purposes any or all of the powers now authorized in Subdivisions 48, 49 or SO of Article 1302, Revised Civil Statutes of Texas, 1925, and heretofore or hereafter created having in whole or in part any purpose or purposes now authorized in Chapter 275, Senate Bill Number 232 of the General and Special Laws of the Regular - Session of the 40th Legislature.
Sec. 2. The Banking Commissioner of Texas shall examine or cause to be examined such corporations annually or oftener if he deems it necessary. Said corporation shall pay the actual traveling expenses, hotel bills, and all other actual expense incident to such examination and a fee not exceeding Twenty-five Dollars ($25) per day per person engaged in such examination. If such corporation had not sold in Texas its bonds, notes, certificates, debentures, or other obligations and does not offer for sale or sell in Texas its bonds, notes, certificates, debentures, or other obligations, the Banking Commissioner of Texas, in lieu of an examination, shall accept a financial statement made on such form and containing such information as he desires.
******
Sec. 4. Such corporation that has sold in Texas its bonds, notes, certificates, debentures or other obligations, or is offering for sale in Texas its bonds, notes, certificates, debentures or other obligations, shall publish in some newspaper of general circulation in the county where it has its principal place of business, on or before the 1st day of February each year, a statement of its condition on the previous 31st day of December, in such form as may be required by the Banking Commissioner of Texas, showing under oath its assets and liabilities, and shall file a copy of such statement with the Banking Commissioner of Texas together with a fee of Twenty-five ($25.00) Dollars for filing.
Such corporation that has not sold in Texas its bonds, notes, certificates, debentures or other obligations, and does not offer for sale or sell in Texas its bonds, notes, certificates, debentures or other obligations, shall file with the Banking Commissioner of Texas on or before the 1st day of February of each year a statement of its condition on the previous 31st day of December, in such form as may be required by the Banking- Commissioner of Texas, showing under oath its assets and liabilities, together with a fee of Twenty-five ($25.00) Dollars for filing; which report, when so filed, shall not be open to the public but shall be for the information of the Banking Commissioner and his employees.
Sec. 5. If any such corporation shall fail to comply with Section 4 of this Act in the manner and within the time required, such failure shall subject such corporation to a penalty of not less than Two Hundred ($200.00) Dollars nor more than One Thousand ($1,000.00) Dollars, which shall be collected at the suit of the Attorney General if not paid within thirty (30) days after February first of each year.
Sec. 7. All bonds, notes, certificates, debentures, or other obligations sold in Texas by any corporation affected by a provision of this Act shall be secured by securities of the reasonable market value, equaling at least at all times the face value of such bonds, notes, certificates, debentures, or other obligations. If such corporation sells in Texas, bonds, notes, certificates, debentures, or other obligations upon which it receives installment payments, such bonds, notes, certificates, debentures and other obligations shall be secured at all times by securities having the reasonable market value equal to the withdrawal or cancellation value of such obligations outstanding. Said securities shall be placed in the hands of a corporation having trust powers approved by the Banking Commissioner of Texas as Trustee under a trust agreement, the terms of which shall be approved in writing by the Banking Commissioner of Texas, or at the option of any such corporation which sells in Texas, bonds, notes, certificates, debentures, or other obligations upon which it receives installment payments, such corporation may upon application to, and approval by, the Banking Commissioner of Texas deposit securities having a reasonable market value equal to the withdrawal or cancellation value of such obligations outstanding with the State Treasurer of Texas in lieu of such deposits with a Trustee as set forth hereinabove, provided that, in the event such deposit is made with the State Treasurer of Texas in lieu of such Trustee: (1) Such corporation shall file a certified statement of reserve liability and detailed list of securities so deposited, semiannually with the Banking Commissioner of Texas, which certification shall be made by a Certified Public Accountant, who shall be approved by and be satisfactory to the Banking Commissioner. The Corporation shall pay a fee of Fifteen Dollars ($15) for filing each such statement. (2) Said securities shall be deposited with the State Treasurer under a trust agreement, the terms of which shall be approved by the Banking Commissioner.”

Article 1302, V.A.C.S., stating the purposes for which private corporations might be formed, at the time of the enactment of Article 1524a, read in part as follows:

“48. To accumulate and lend money without banking or discounting privileges.
49. For any one or more of the following purposes: To accumulate and lend money, purchase, sell and deal in notes, bonds and securities, but without banking and discounting privileges; to act as trustee under any lawful express trust committed to them by contract and as agent for the performance of any lawful act. Acts 1919, p. 134.
50. To subscribe for, purchase, invest in, hold, own, assign, pledge and otherwise deal in and dispose of shares of capital stock, bonds, mortgages, debentures, notes and other securities, obligations, contracts and evidences of indebtedness of foreign or domestic corporations not competing with each other in the same line of business; provided the powers and authority herein conferred shall in no way affect any provisions of the anti-trust laws of this State.” Acts 1921, p. 265.

Acts of 1927, 40th Leg.,. Chapter 275, -p. 414 (codified as Art. 1303b, V.A.C.S.), referred to in Article 1524a, then provided in part as follows:

“Sec. 1. A private corporation may be formed for any one or more of the following purposes without banking or insurance privileges: to accumulate and loan money, to sell and deal in notes, bonds and securities; to act as trustee under any lawful express trust committed to it by contract, and as agent for the performance of any lawful act; to subscribe for, purchase, invest in, own, assign, pledge, and otherwise deal in, dispose of shares of capital stocks, bonds, mortgages, debentures, notes and other securities, obligations and contracts and evidences of indebtedness of foreign or domestic corporations not competing with each other in the same line of business; to borrow money or issue notes, bonds, debentures or commercial paper for the purpose of carrying out any or all purposes above enumerated. * * *”

It will be noted that every word of-the second, third and fourth corporate purposes stated in appellees’ charters appear in subdivisions 48, 49 and SO of Article 1302 and in Article 1303b.

Arts. 1302 and 1303b were repealed in 1961, Acts. 57th, Leg.Reg.Sess., Ch. 229, p. 458. This repealing Act provides, in part:

“With the exception of Section 49 of Article 1302 and Article 1303b, Vernon’s Civil Statutes of Texas, the repeal by this Act of any purpose clause shall not give rise to the inference that corporations may not hereafter be organized for the purpose so repealed.”

The Texas Business Corporation Act, enacted in 1955, Arts. 1.01-11.01, inc., Vol. 3A, V.T.C.S., provides in Art. 9.15, in part, as follows:

“B. Except as provided in Section B of Article 9.16 of this Act, any special limitations, obligations, liabilities, and powers, applicable to a particular kind of corporation for which special provision is made by the laws of this State, including, (but not excluding other corporations) those corporations subject to supervision under Article 1524a of the Revised Civil Statutes of Texas, shall continue to be applicable to any such corporation, and this Act is not intended to repeal and does not repeal the statutory provisions providing for these special limitations, obligations, liabilities, and powers,”

Art. 6165b, Texas Regulatory Loan Act, was enacted in 1963. It applies exclusively to loans of $1500.00 or less.

Sec. 16(a) of this Act provides:

“Sec. 16. (a) A licensee may conduct the business of making loans under this Act, within any offices, suite, room or place of business in which any other business is solicited or engaged in, or in association or conjunction with any other business, unless the commissioner shall find, after' a hearing, that the conduct by the licensee of such other business in the particular licensed office has concealed evasions of this Act and shall order such licensee, in writing, to desist from such conduct in such office.”

Sec. 29 of-this Act reads:

“Sec. 29. Chapter 144, Acts of the 48th Legislature, Regular Session, 1943, compiled as Article 4646b, Vernon’s Annotated Civil Statutes of Texas, and Articles 5069, 5071 and 5073, Revised Civil Statutes of Texas, 1925, where inconsistent with this Act shall not apply to licensees under this Act, nor shall the provisions of Chapter 165, Acts of the 42nd Legislature, Regular Session, 1931, as amended, compiled as Article 1524a, Vernon’s Annotated Civil Statutes of Texas, apply to such licensee.”

The title to this Act reads, in part, as follows:

“An Act to classify loans and lenders and provide for their regulation; stating legislative intent; providing a short title; defining terms; * * * prohibiting any person from engaging in the business of making loans with cash advances of One Thousand Five Hundred Dollars ($1,500) or less under certain conditions without first obtaining a license, and providing a penalty and loss of all principal and interest for violation thereof; * * * prescribing maximum rates of interest and other charges, according to the size of the loan, on loans of One Thousand Five Hundred Dollars ($1,500) or less, * * * providing that Chapter 144, Acts of the 48th Legislature, Regular Session, 1943, (compiled as Article 4646b, Vernon’s Annotated Civil Statutes of Texas), Articles 5069, 5071 and 5073 of the Revised Civil Statutes of Texas, 1925, and Chapter 165, Acts of the 42nd Legislature, Regular Session, 1931, as amended, (compiled as Article 1524a, Vernon’s Annotated Civil Statutes of Texas), where inconsistent with this Act shall not apply to licensees under this Act;”

One of the grounds upon which certain Allied Corporations defend the judgment in their favor is that when they were organized in August 1963, Arts. 1302 and 1303b, supra, had been repealed and that Art. 1524a could not apply to corporations organized after such repeal. We do not agree.

We have set out the language of Sec. 1 of Art. 1524a, and, in our opinion, it plainly encompasses all corporations having or which may “hereafter” have the designated purpose clauses found in the statutes referred to regardless of the repeal of such statutes. It is clear from the authorities that Art. 1524a is, what has been denominated, a reference statute. The rule applicable to such statutes is stated in Quinlan v. Houston & T. C. Ry. Co., 89 Tex. 356, 34 S.W. 738, from which we quote:

“In the absence of any constitutional restriction, we are of opinion that one statute, by a proper reference to another, may incorporate in it the provisions of the former law, although the former may have expired, or may have been repealed. A law so referred to in another, and made a part of it, does not operate by its inherent force, but takes effect from the statute in which it is incorporated.”

See also Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070, Western Casualty & Surety Company v. Young, 339 S.W.2d 277, Tex.Civ.App., Beaumont, writ ref.

In United States ex rel. Kessler v. Mercur Corporation, 83 F.2d 178, U.S.Cir.Ct. 2d Cir., cert. denied 299 U.S. 576, 57. S.Ct. 40, 81 L.Ed. 424, the Court stated the rule applicable here as follows:

“It is well settled that where a statute incorporates another, and the one incorporated is thereafter amended or repealed, the scope of the incorporating statute remains intact and ‘no subsequent legislation has ever been supposed to affect it.’ ”

Our holding that the repeal of these statutes (1302, 1303b) did not affect the operation of Art. 1524a is augmented by the quoted portion of the repealing Act, supra, to the effect that such repeal should not give rise to the inference that corporations may not thereafter be organized for the purposes so repealed.

Similar support is found in Art. 9.15, Sec. B of the Texas Business Corporation Act, supra, which by express reference to corporations subject to supervision under Art. 1524a carries forward and makes applicable to such corporations all “special limitations, obligations, liabilities, and powers * * * for which special provision is made by the laws of this State. * * * ”

Thus, it appears to us, the Legislature has affirmatively continued in effect the supervisory authority expressed in Art. 1524a over corporations coming within its purview.

A more formidable and more difficult ground is presented by Allied Corporations holding licenses under the Texas Regulatory Loan Act for denying their amenability to supervision under Art. 1524a in their reliance upon the express provision of that Act that Art. 1524a shall not apply to licensees under the Act.

It is our opinion that this portion of Sec. 29, Art. 6165b, V.T.C.S., is invalid for the reason that the Title to the Texas Regulatory Loan Act is, in this respect, misleading, deceptive, and is not in keeping with Art. 3, Sec. 35 of the Texas Constitution, Vernon’s Ann.St., which reads:

“35. Subjects and titles of bills
Sec. 35. No bill, (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof, as shall not be so expressed.”

The purpose of this provision of the Constitution is well stated by Justice Garwood in Shannon v. Rogers, 159 Tex. 29, 314 S.W.2d 810, from which case we quote:

“The constitutional provision is, of course, directed at pending legislation. Doeppenschmidt v. International & G. N. R. Co., 100 Tex. 532, 101 S.W. 1080, 1081. In so far as it deals with captions of bills, as distinguished from the matter of multiple subjects thereof, its object is to facilitate and protect the legislative process by affording legislators and other interested people a ready and reasonably accurate means of knowledge of the contents of bills without their having to read the full text.
The Constitution plainly assumes, however, that the entire caption will be read; and if such a reading necessarily discloses the bill to contain a particular provision, no more is required.”

If one reads the title or caption of the Texas Regulatory Loan Act one will readily be made knowledgeable that the Act classifies loans of and lenders lending $1500.00 or less and, inter alia, that as to compliance with and subjection to the provisions of Art. 1524a that they “[Wjhere inconsistent with this Act shall not apply to licensees under this Act.”

Yet, in the face of this plainly stated objective in the title, the body of the Act completely exempts licensees under the Act from -the provisions of Art. 1524a. That this is a deceptive and misleading title is patent. That it has, in fact, caused confusion is witnessed by the compilers of Vernon’s Annotated Texas Civil Statutes when it is stated under Art. 1524a in the 1964 Supplement, “Inapplicability of article 1524a to licensees under the Texas Regulatory Loan Act where inconsistent with this Act, see Article 6165b, § 29.” (Italics added)

If this Section (29) of the Regulatory Loan Act is valid in its exemption of licensees under it from the provisions of Art. 1524a, then such licensees having charter powers as these Allied Corporations have are not subject to statutory regulations by any State agency in their loan business involving loans in excess of $1500.00 and in their bond and securities business.

There is no evidence in this record that Allied Corporations do not make loans in excess of $1500.00, or that they have amended or abandoned their charter authority under which they may make loans in any amount, and buy and sell securities. In this regard, Mr. Francis A. Miskell, Regulatory Loan Commissioner of Texas, testified:

“Most of the people engaged in this type of lending, they are engaged in what we call multiple fields of lending. It is rare where you will find a lender who will restrict himself to fifteen hundred dollars. If he is in that business, he will make loans up to three, four, five thousand dollars. * * *

Mr. Harry L. Bengtson, Deputy Banking Commissioner of Texas, testified regarding the enforcement procedures of the Banking Commissioner under Art 1524a. This included investigation into the solvency and management of the corporations subject to the Act, the collateralization of their obligations, the filing of reports and payment of fees.

All of these beneficent and protective measures, the public would lose as to all, licensees under the Regulatory Loan Act in large measure, if the judgment of the trial court is to be sustained in its construction of such Act. We invoke the wise provision of Art. 3, Sec. 35, of our Constitution to forestall this predicament.

In Rotner v. State, 122 Tex.Cr.R. 309, 55 S.W.2d 98, it was stated, quoting from one of its prior cases, “It has been held by the courts that when the express verbiage of such title limits and restricts the purpose of the bill, any attempt to legislate otherwise in such bill variant from the purpose prescribed, is in excess of legislative power, and that a law subject to this complaint is unconstitutional.”

This is precisely what was done here. The body of the Act exceeds the restrictions and limitations placed upon the application of Art. 1524a in the title of the Act. To this extent constitutional legislative power was lacking.

There is an exhaustive opinion on this subject by Chief Justice Alexander in Gulf Ins. Co. v. James, 143 Tex. 424, 185 S.W.2d 966. The Court there struck down an Act of the Legislature on the ground that the title was misleading and not sufficient to advise the Legislature and the public as to the subject of the Act. The Court quoted from Cooley, Constitutional Limitations (8th ed.) Vol. 1, p. 300, as follows, “But the title must be such as to reasonably apprise the public of the interests that are or may be affected by the statute.”

We believe that the public was entitled to notice plainly stated in the title of this Act that it authorized Corporations dealing in securities and bonds and making loans in excess of $1500.00 to completely escape inspection and regulation by a State Agency by the simple expedient of acquiring a license under the Regulatory Loan Act if the Legislature so intended. The Title to this Act did not so state; in fact, it stated very close to the opposite.

It is our opinion that the variance between the title to the Regulatory Loan Act and the Act offends our Constitution, and, to the extent indicated, the Act is void.

The result of this decision is that the law to be applied in construing Art. 1524a and the Texas Regulatory Loan Act is the same as if the restrictive application of Art. 1524a as stated in the Title of the Regulatory Loan Act had been incorporated in the Act for the reason that such Act, being a later Act, would constitute an implied repeal of previous laws which were inconsistent with it. Statutes, 53 Tex.Jur. 2d, Sec. 101, p. 149.

Allied Corporations pointing to Sec. 16(a) of Art. 6165b, copied above, state that it demonstrates that the Legislature did not intend that licensees under the Act should be subjected to “two systems of regulations, reports and fees.”

The logic of this contention is not clear to us. Surely, if one of the other businesses in which a licensee ünder the Act was engaged in the same office was the liquor business, it would hardly be contended that liquor licensing laws were inapplicable to such licensee. If Allied Corporations are subjected to two systems of regulations, it is because they engage in two businesses each of which is subject to regulation.

Sec. 16(a), in our opinion, relates solely to the physical location of a loan business established under the Act.

In the above discussion we have disposed of all points raised by the parties in their briefs except a point made by the four Allied Corporations with Louisiana names who appealed from the judgment against them for penalties to the effect that such judgment was without evidence to support it for the reason that it conclusively appears that the reports required to be filed by Art. 1524a were filed, and there was no evidence that they were not timely filed.

Mr. Bengtson testified:

“Q But you never did send the forms to any of these forty-four plaintiffs?
A No. Now, wait a minute; you said forty-four; those four in Louisiana, we did give you the forms on those.
Q Well, did they file the returns ?
A Yes, sir, they did subsequently, and paid their twenty-five dollar filing fee.
Q So the four Louisiana ones did go ahead and comply and pay the filing fee?
A Yes, sir. There is still the question of penalty, though, for late filing.”

No judgment was rendered for the $25.00 fees for filing annual reports, only a judgment for penalties for failure to timely file such reports.

It is our opinion that the testimony is sufficient to sustain a finding that the reports of these corporations were not timely filed. If we are in error in this holding, we would not reverse and render judgment, we would reverse and remand.

We affirm the judgment of the trial court insofar as it rendered judgment against the four appealing Allied Corporations.

We reverse the judgment of the trial court insofar as it granted injunctive relief, and we render judgment denying such relief.

We reverse the judgment insofar as it denied the State recovery of $25.00 filing fees, not paid as required by law, against all Allied Corporations except the four with Louisiana names who have paid such fees and Allied Arlington which owed no fee when this suit was filed, and we render judgment against each of such corporations for $25.00, plus 6% interest from this date.

We reverse the judgment of the trial court insofar as it declined to fix the amount of penalties required under Art. 1524a of those Allied Corporations against each of whom $25.00 judgments have been rendered by us in the preceding paragraph and remand this cause for such purpose.

We declare the law t'o be as stated herein.

Affirmed in part, reversed and rendered in part and in part reversed and remanded.

      . The State concedes that Arlington owed no fees under Sec. 4, Art. 1524a when this suit was filed.

      . 58th Leg.Reg.Sess., Ch. 295, p. 550.


author: FANNING, Justice.

text:
    Lloyd WALLACE, Appellant, v. W. A. DENTON et ux., Appellees.
    No. 7629.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 31, 1965.
    Rehearing Denied Oct. 12, 1965.

      Lowell C. Holt, Milton Greer Mell, Gilmer, for appellant.
    Garrison & Bolding, Gilmer, for appel-lees.
   FANNING, Justice.

A venue case. W. A. Denton and wife, Mae Denton, sued Lloyd Wallace in the District Court of Upshur County, Texas, for damages for personal injuries and property damages sustained as a result of a collision in Upshur County, Texas, between the motor vehicles operated by Mrs. Denton and Mr. Wallace. Defendant Wallace, a resident of Dallas County, Texas, filed a plea of privilege. Plaintiffs controverted the plea, relying on Subd. 9a of Art. 1995, Vernon’s Ann.Tex.Civ.St. The trial court, after hearing the evidence adduced, overruled the plea of privilege. Defendant has appealed.

Appellant presents four points on appeal wherein he contends to the effect that the evidence as a matter of law fails to support the judgment in that it affirmatively appears that plaintiffs failed to show by a preponderance of the evidence any negligence in Upshur County, Texas, on the part of appellant proximately causing any injury sustained by appellees; that there was “no evidence” and that the evidence was “insufficient” to show any negligence on the part of appellant in Upshur County, Texas, proximately causing any injuries to appellees, and that the judgment and implied findings of the trial court are so contrary to the great weight and preponderance of the evidence as to be manifestly unjust and unfair.

For a comprehensive discussion of the law applicable to the determination of “no evidence” and “insufficient evidence” points see Chief Justice Calvert’s article, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error”, 38 Tex.Law.Rev., No. 4, p. 361.

Plaintiffs plead several acts of negligence on the part of defendant proximately causing the injuries complained of, among which was the alleged failure of defendant to keep a proper lookout.

Only two witnesses testified in the case: appellee, Mrs. Mae Denton and J. B. Wallace, a brother of the appellant. Lloyd Wallace, the appellant, did not testify. His brother, J. B. Wallace, was not an eyewitness to the automobile collision in question.

Mrs. Denton, among other things, testified to the effect, that on 15, 1962, in Upshur County, Texas, she was driving her automobile at a rate of speed of approximately 30 to 35 miles per hour in a generally westerly direction along FM 554, a paved road, on a clear day; that appellant Lloyd Wallace approached the scene from her left as he was headed in a generally northerly direction and coming up a dirt road; that she saw appellant’s car just before the crash, but that she did apply her brakes and swerved to her right just before impact, which was between the side of her left front fender and appellant’s right bumper and that the crash occurred well over on her right hand side of the road she was travelling. Mrs. Denton further testified to the effect that about two minutes after the collision, appellant came to her automobile and stated to her as follows:

“And Mr. Wallace came up at that time and he wanted to know if I was hurt and I said, I don’t think so. And he said that he was thinking — he had been down to his brother’s house and he was going back to his place over at Rhonesboro and he was thinking of going deer hunting the next day and was thinking of the buck that might jump up in front of him; that he just wasn’t paying attention; that he did not see me. He was — he just did not see me, because he was down from Dallas for a yearly hunt, I suppose. He'said he was. down to go deer hunting the next day when the deer season opened and he said he was thinking of the deer trip; that he just wasn’t paying attention.”

Plaintiffs and defendant both offered exhibits depicting the general area of the intersection, although neither purported to be drawn to scale. These exhibits reflect that the dirt road in question (Pritchett Road) approached FM 554 from the south at a point several feet west of the point where it continues on north of FM 554. Appellees contend in their brief that the physical facts show that Mrs. Denton necessarily entered the intersection first. We quote from said brief in part as follows:

“Both plaintiffs’ and defendant’s exhibits showing the scene of the collision reflect that the Pritchett Road on the South is offset West a good many feet from the entrance of this road as it leaves FM 554 going North. Mae Denton was driving in a westerly direction and the physical surroundings on the scene show conclusively that she necessarily entered the intersection first. The defendant had only a few feet to go whereas she had more than 100 feet to go to the impact area in front of Bullock’s store, and yet she was hit on her left front side!”

Mrs. Denton also testified as to her personal injuries and damages to her automobile, received as a result of the collision, which occurred in Upshur County, Texas.

Originally there was a controversy between the parties as to whether there was any stop sign on the dirt road in question where it intersected FM 554, but after all the evidence was completed it appeared that there was no stop sign on said dirt road at said place on the date in question, although one was put there three or four days later.

J. B. Wallace testified as to the absence of a stop sign on the date in question, and also testified as to the physical facts on the scene as he observed them. He told of skid marks on the FM 554 road which he estimated to be 100 feet in length. Mrs. Denton testified to the effect that she saw appellant Lloyd Wallace just before the impact and applied her brakes just before the impact. There is no testimony in the record which would indicate that appellant Lloyd Wallace applied the brakes of his automobile before the collision. Mrs. Den-ton also testified to the effect that there was nothing to obscure appellant’s vision of the intersection in question and oncoming traffic thereon, as she saw it. Mr. J. B. Wallace testified to the contrary and to the effect that such visibility was obscured.

Appellant in his brief takes the position that Mrs. Denton by her own testimony shows that she did not keep a proper lookout for appellant’s vehicle and contends to the effect that as a matter of law her failure to keep a proper lookout was the proximate cause of the collision in question. Appellant in this connection quotes testimony of Mrs. Denton from which we think it is shown that Mrs. Denton was negligent in failing to keep a proper lookout and that a trier of the facts could have found that such negligence was a proximate cause of the collision in question. However, the negligence of Mrs. Denton in failing to keep a proper lookout could not be the sole proximate cause of the collision in question if appellant was negligent in failing to keep a proper lookout and if such negligence was a proximate cause of the collision in question. In this connection see Sinclair Refining Company v. Chandler, Tex.Civ.App., 305 S.W.2d 650, no writ (1957) (opinion by Chief Justice Chadick of this Court) and authorities cited therein, wherein it was stated in part as follows:

“ * * * In their brief the appellants state:
* * * this aged man’s own admission that he was following a truck from two to three car lengths behind it dictates that such action must be held to be the sole cause of collision. It, of course, is settled law in this state that “sole cause” on the part of the plaintiff is an issue to be considered on a plea of privilege hearing even though contributory negligence on his part is not.’
and cite Horton & Horton v. House, Tex.Com.App., 29 S.W.2d 984; Page v. Paterson, Tex.Civ.App., 180 S.W.2d 660; Sutherland v. Cotter, Tex.Civ.App., 226 S.W.2d 476, in support of their position.
* * * * * *
“The test as to whether or not Mr. Chandler’s action as shown by the evidence was the sole proximate cause of the collision and the resulting injuries and damages he and his wife sustained is to examine the pleadings and evidence to determine if there is evidence to support one or more of the acts of negligence and proximate cause alleged against the truck driver and impliedly found by the trial judge. Such procedure has been approved by the Supreme Court in refusing writ of error in Wichita Valley Ry. Co. v. Durrett, Tex.Civ.App., 174 S.W.2d 329, 331. The rule is stated as follows:
‘Defendant contends that the undisputed evidence shows, as a matter of law, that the negligence of the driver of the automobile was the sole proximate cause of the collision. The jury found to the contrary. While there can be little doubt, if any, that the negligence of the driver was a proximate cause of the collision, the question of whether it was the sole cause of the collision depends in part upon whether there is any evidence to support the jury finding of negligence, and proximate cause, on the part of the defendant, which we shall next discuss. If the negligence of the defendant was a proximate cause of the collision, then the negligence of the driver of the automobile could not have been the sole cause of the collision.’
“Appellees allege in their trial pleading that the truck driver was guilty of negligence próximately causing the collision in (1) failing to keep proper look-out; (2) stopping the truck suddenly on the traveled portion of the highway- and (3) failing to give a visible signal of his intention to stop. If the evidence will support a finding of negligence and proximate cause in connection with any one of the three, then Mr. Chandler’s action cannot be the sole proximate cause of the collision. El Paso City Lines, Inc., v. Smith, Tex.Civ.App., 226 S.W.2d 498, wr. ref.
“This test applied to the facts shown by Mr. Chandler’s testimony leaves no doubt but that the trier of the facts might reasonably find the act of the gasoline truck driver to be a proximate cause of the collision and resulting injury and damage.
* * * * * *
“The Court as trier of the facts would have no difficulty in finding that Mr. Chandler was negligent and that his negligence was a proximate cause of the collision, but since the facts also support' a finding that the truck driver’s act of suddenly stopping was negligence and a proximate cause of the collision Mr. Chandler’s acts could not be said, as a matter of law, to be the sole proximate cause of the collision. El Paso City Lines, Inc., v. Smith, supra. * * * ”

Also in this connection see Page v. Paterson, Tex.Civ.App., 180 S.W.2d 660, no writ, (1944) (opinion by Justice Norvell) wherein it was stated in part as follows :

“Appellant also argues that the evidence demonstrates that the negligence of White and of Paterson contributed to the injuries sustained by them. In our opinion the evidence does not establish as a matter of law that the negligence of either White or Paterson, or their joint negligence, was the sole proximate cause of their injuries.
“Evidence demonstrating that a plaintiff’s negligence or the negligence of some person other than the defendant was the sole proximate cause of plaintiff’s injuries rebuts a charge that defendant’s negligence was a proximate cause of plaintiff’s injuries, and shows that no cause of action in fact exists. Horton & Horton v. House, Tex.Com.App., 29 S.W.2d 984, holdings approved by the Supreme Court. It follows that the issue of sole proximate cause may be an element of a venue fact where the existence of a cause of action in fact is made material by the wording of a particular exception of the venue statute.
“Where, however, the negligence of the defendant is a proximate cause of plaintiff’s injuries and likewise the plaintiff’s negligence Is a proximate cause of said injuries, the contributory negligence of the plaintiff is described as constituting a defense to plaintiff’s cause of action. Gulf, Colorado & Santa Fe Railway Co. v. Shieder, 88 Tex. 152, 30 S.W. 902, 28 L.R.A. 538; Houston & Texas Central Railroad Company v. Anglin, 99 Tex. 349, 89 S.W. 966, 2 L.R.A.,N.S. 386. Proof of contributory negligence of the plaintiff does not rebut or destroy the charge of -negligence and resultant injury made against defendant but avoids liability therefor. Where the issue is venue and not liability, the matter of contributory negligence is not material, i. e., it is not a venue fact. Martin v. Cable, Tex.Civ.App., 140 S.W.2d 894; Heard & Heard v. Kuhnert, Tex.Civ.App., 155 S.W.2d 817.
“The orders of the trial court overruling the pleas of privilege of appellant in both cases are affirmed.”

The evidence of the physical facts was of some probative force. Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407 (1943).

Both negligence and proximate cause may be inferred from circumstances. Bock v. Fellman Dry Goods Co., Tex.Comm.App., 212 S.W. 635 (1919).

The trial judge, as the trier of the facts, was the judge of the credibility of the two witnesses who appeared before him. Mrs. Denton and J. B. Wallace, and of the weight to be given their testimony.

Also the failure of appellant to testify added force to Mrs. Denton’s testimony. 17 Tex.Jur., pp. 306-8.

We hold that this record does not show as a matter of law that the negligence of Mrs. Denton in failing to keep a proper lookout was the sole proximate cause of the collision in question.

We hold that there was evidence of probative force in the record to support implied findings by the trial court that appellant was negligent -in failing to keep a proper lookout and that such negligence was a proximate cause of the collision and damages in question, occurring in Upshur, County, Texas. We further hold that the evidence was sufficient to support such Implied findings and that such implied findings were supported by a preponderance of the evidence.

Also, after carefully considering and reviewing the entire record in this cause in the light of the rules announced in the case of In Re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660, it is our further holding that the implied findings of the trial court that appellant was negligent in failing to keep a proper lookout and that such negligence was a proximate cause of the collision and damages in question, all occurring In Up-shur County, Texas, were not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

Appellant’s points are overruled. The judgment of the trial court overruling appellant’s plea of privilege is affirmed.

Affirmed.