author: CONNER, C. J.

text:
    KIRKLAND et al. v. OIL INV. CO. et al.
    No. 12454.
    Court of Civil Appeals of Texas. Fort Worth.
    April 18, 1931.
    B. Y. Cummings and Fischer & Fischer, all of Wichita Falls, for appellants.
    Weeks, Morrow, Francis & Hankerson, of Wichita Falls, for appellees.
   CONNER, C. J.

This suit was instituted by Lloyd Kirkland, for himself and as next friend for his mindr brothers and sisters and Clara Miller and Lavelle Muldrow, joined pro forma by their respective husbands, against the Oil Investment Company and others, to recover an undivided one-half interest in 1,507.4 acres of land situated in Archer county, Tex., which had been purchased by said Oil Investment Company from L. J. Kirkland, the mother of plaintiffs. Since the date of its purchase, to wit, April 7, 1923, it was alleged that the investment company had been in possession of the property, and to have unlawfully removed from and under said land crude oil during the respective years since the date of its possession of the reasonable value of $270,006.50, one-half of which plaintiffs sought to recover by virtue of an alleged undivided one-half interest in the land. Plaintiffs further alleged that since April 7, 1923, the investment company had' conveyed to divers and sundry third persons and corporations, who were innocent of the plaintiffs’ rights, oil and gas leases, and collected rentals thereupon, appropriating the proceeds amounting to $51,-949, one-half of which they also 'sought to recover, less the sum-of $12,000, alleged to be one-half of the mortgaged indebtedness upon said land, which the defendant Oil Investment Company paid off at the time it took possession.

In addition to demurrers and a general denial, the defendants specially pleaded that R. C. Kirkland was the husband of L. J. Kirkland, now Mrs. L. J. Nickol, and that the plaintiffs are children of the marriage of R. C. and U. J. Kirkland; that R. C. Kirkland died on January 6, 1923, and that for several years prior to said death, L. J. Kirkland, the wife, was the owner of the land described in the plaintiffs’ petition; that she continued to be such owner until the sale of the land to the defendant Oil Investment Company. That at the time L. J. Kirkland acquired said land, it was mortgaged to the Texas. Land & Mortgage Company for about the sum of $17,500, which debt was assumed by the said L. J. Kirkland. That prior to the death of R. C. Kirkland, said loan and interest note was long past due, and payment thereof was being pressed at the time of the investment company’s purchase, whereupon, in answer to the suggestion, and to avoid total loss, L. J. Kirkland qualified as community administrator and sold the land to the defendant investment company at $20 per acre, making conveyance for herself individually and also as community administrator. It was further alleged that L. J. Kirkland, in making said sale, and the investment company making the purchase, acted in good faith and without design of defeating any right of the plaintiff children.

The land in question was conveyed by general warranty deed to Mrs. L. J. Kirkland by W. R. Pace and Mary E. Pace on the 17th day of July, 1914. The conveyance recited that it was for Mrs,. Kirkland’s “sole and separate use.” At the time, the land was incumbered by a mortgage due the Texas Land & Mortgage Company, Limited, of Dallas, in the sum of $17,500, which was assumed by Mrs. Kirkland as part of the consideration. Later on, to wit, the 28th day of September, 1914, R. O. Kirkland, by warranty deed and for a recited consideration of “$5,000 .cash and the further consideration of the love and affection I have for my wife, the said L. J. Kirkland,” conveyed the land to Mrs. Kirkland “for her sole and separate use.” Nothing having been paid upon the indebtedness to the mortgage company, R. C. and L. J. Kirkland secured an extension, maturing the indebtedness on January 5,1920,1921,1922, and 1924, and $11,500 on January 5, 1926, all to bear interest from January 5, 1917. Both L. J. and R. C. Kirkland bound themselves in the extension agreement for the payments there specified. Neither principal nor interest on the indebtedness due January 5, 1920 or 1921 or 1922, had been paid at the time of the sale to the appellee investment company, so that at that time there was some $6,000 principal, plus interest on the indebtedness, due- and unpaid.

Beginning with July 21, 1922, prior to the death of R. C. Kirkland, which, as stated, was on January 5, 1923, and up to March 9, 1923, when Mrs. E. J. Kirkland contracted .with the investment company for the sale of the land at $20 per acre, the mortgage company wrote and received some 71 letters to and from various and sundry parties, including Mr. Kirkland, Mrs. Kirkland, W. E. Forgy, an attorney at Archer City, A. A. Cooper, a land agent at Olney; E. C. Stovall, a land agent and owner near Graham; and Stehlik & Baber, land agents at Wichita Falls; and Z. T. Burkett, friend and adviser of Mr. and Mrs. Kirkland, who, for Mrs. Kirkland, negotiated the sale after Mr. Kirkland’s death. These letters are too voluminous to set forth, but they, without dispute, show that the mortgage company was pressing for payment, and that, unless Mrs. Kirkland could provide payment by a sale of the property, there was danger of its total loss to her. Z. T. Burkett, a stock farmer, testified to the effect that he lived near the home of the Kirkland’s, was an intimate acquaintance of Mr. Kirkland, and in daily attendance upon him most of the year preceding his death, and had discussed with him, prior to the time he became very ill, his situation with reference to the land and mortgage against it, and his desire to sell the land; that at the time- of Kirkland’s death, and for several months before, “he had $20.00 an acre on it” ; that the situation had been frequently discussed with Mrs. Kirkland after Mr. Kirkland’s death, and at various times she expressed herself to the effect that she would be willing to close a sale on that basis at any time. There was also evidence tending- to show that for some time efforts by various parties had been made to secure a purchaser of the land at $20 per acre, and that several people had visited the land and viewed it and refused to buy at that price, and that the first buyer’s effort to purchase at that price was that of the Oil Investment Company. Mrs. Kirkland testified, among other things, that: “I sold the property because I was afraid I would lose it; I knew I wasn’t getting what I ought to have, but I was afraid I would lose it and maybe not even have a home for myself and children. I was afraid if I did not take what they offered I might not get anything.”

The evidence also shows that Mr. Burkett was the confidential adviser of Mr. Kirkland before his death, and of Mrs. Kirkland thereafter ; that Mrs. Kirkland was not experienced in business, and that, as she testified, she was “leaving everything to Burkett as I didn’t know what to do or how to start to do anything.” The evidence further tends to show that Burkett, with the assistance perhaps of Mr. Stehlik, a land agent of Wichita Falls, interested the officers of the appellee investment company, who were told by Bur-kett that they could have the land if closed at once at $20 per acre; that the officers of the company and Stehlik and Burkett repaired to the residence of the Kirkland’s and the offer by the company of $20 per acre was made and accepted by Mrs. Kirkland. No evidence has been called to our attention that Burkett had any pecuniary interest in the matter whatever, but Mrs. Kirkland testified that, immediately prior to the offer in behalf of the investment company, a Mr. Griffin also appeared and offered $21 per acre, free of commissions, with reservation on her part of royalty interest in the land, and build a house in town for her upon a lot that he would buy; that she wanted to take this, but that Burkett insisted that their word was out, giving the investment company an option to purchase at $20 per acre, and that he did not think Griffin’s offer was made in good faith; that while Griffin had stated that he desired to buy the land for grazing purposes, that as a matter of fact, he, Burkett, thought that he desired to tie the matter up by contract, offering to give a deposit, until he could learn the result of an oil well that was being drilled some mile or mile and one-half distant, and that he thought the offer of the investment company should be accepted and the chance of a sale not lost, and that she had finally signed the contract with the investment company. Color perhaps of good faith on Burkett’s part in his statements referring to Griffin was shown by evidence to the effect that Griffin had had frequent differences and frequent cases of litigation with individuals with whom he dealt; that after being informed of the Griffin offer, he, Burkett, visited the well being drilled, that had been referred to, and found that they had abandoned it; that it in fact was a dry hole.

In relation to the title held by Mrs. Kirkland, which appellees insist was vested in her solely, Mrs, Kirkland testified, among othe’r things, substantially that the survey sold had been acquired'by an exchange therefor of five pieces of property, all in the name of Mr. Kirkland, except one given to her; that not a dollar of her money was put into the land; that all of the property exchanged for the ranch in question was acquired after their marriage; that the deed was made in her name for two reasons; that Mr. Kirkland was having trouble ,in making payments on some indebtedness on property in Corpus Christi and “he thought he would be sued, and by putting it in my name we would have a home left; also I did not want to come to this country, and he told me he would deed the property to me if I would be satisfied.” That later the Corpus Christi indebtedness was paid and the property in question put back “into Mr. Kirkland’s name and my name due to the fact that my husband had some business dealings in which some questions arose as to why the property was in my name, as the parties dealing with my husband thought it was community property. They told my husband that it should be back in the community name, so Mr. Kirkland made a deed to his father and then his father deeded it back to us. Mr. Kirkland and I executed a deed back to Mr. Kirkland’s father and then he deeded it right back, as it had to go through a third person. I don’t know what became of the deed. ⅛ * * The men we were dealing with took the deeds to be recorded or sent Mr. Kirkland or I, I couldn’t say which one took them. I thought the deeds were recorded until later. In the fall before Mr. Kirkland died, he had the abstract on the land brought down to date and the abstract didn’t show that deed. We then drew up a deed before he got worse and the deed was at the bank, but at that time he was unconscious at all times and it was never completed, so at his death it was left in my name. By reason of the deed not being recorded, it was left in my name. I don’t know where those two deeds are now. I have never seen them since I signed them.”

In this connection, it should be said that there is no evidence showing or tending to show that the contracting officers of the investment company had notice that the land in question had been acquired by exchange of community property, or that Mr. and Mrs. Kirkland had at any time ever executed a deed to the father of Mr. Kirkland, or that later the father had reconveyed the land to Mr. and Mrs. Kirkland so as to constitute it community property, unless, as appellants insist, they were- put upon inquiry as to the community character of the land by the fact to which we shall now refer: That Mrs. Kirkland, after the execution of the contract with the investment company, was upon her application regularly appointed community administrator of the estate of herself and husband, and later, in executing the deed to the investment company, did so in her own right, and also signed as community administrator.

The evidence shows that the appointment of Mrs. Kirkland as community administrator was at the suggestion of the mortgage company. As to this, among other things, Mrs. Kirkland (Mrs. Nickol) testified that: “After Mr. Kirkland’s death, when I came to Archer City to qualify as community survivor, Judge Eorgy (acting for the mortgage company) fixed up the papers. I don’t know just what I told him about the deeds, etc., but I asked him why I must he made executor when it was left in my name, and he told me it was community property; that we had lived together and accumulated it together and for that reason it was community property. Everyone told me I could not handle the property without being appointed administrator.”

Mr. Eorgy, it appears, was not familiar with the status of the title, and Mrs. Kirkland testified that at the time she went to sign the contract for the sale of the land, Mr. Eowler, one of the appellees, “asked me at that time if I had been appointed administrator. I asked him why that made any difference. The land was left in my name. He then said because the hoys might grow up and some time sue for their part. That was all the conversation I had with any of them. I said the land was in my name because the deeds were not put of record and the original deed showed in my name.”

The fact of Mrs. Kirkland’s appointment as community administrator was presented 'to appellees in the opinion given by Mr. Hanker-son, of the law firm of Weeks, Morrow, Francis & Hankerson, of Wichita Falls, to whom the abstracts of title were submitted for examination after the contract for the sale and before the closing of the same. The ofnnion in relation to this matter reads thus: “R. O. Kirkland seemed to have died in January of this year and Mrs. B. J. Kirkland has taken out a community administration. The property appears to have been the separate property of Mrs. U. J. Kirkland. It was deeded to her by Pace, and R. C. Kirkland also deeded his interest to her. But it is listed by the appraisers as her part of the community. She seems to have qualified as such community survivor. We suggest that in accepting deed from her, that she make the conveyance to you both individually and as community survivor, and that the deed also recite that she is selling said property for the purpose of paying the debts of the community.”

Other testimony, if thought to be necessary, will be stated in connection with our further discussion of the case.

The case was submitted to a jury upon twenty special issues, of which the jury answered the following:

“Special Issue No. 1: Do you find from a preponderance of the evidence that Z. T. Burkett, in advising Mrs. L. J. Kirkland to execute the contract with the Oil Investment Company, was acting in bad faith toward her and her children ? Anwer as you find the facts to be. Answer: No.
“Special Issue No. 2: Do you find from a preponderance of the evidence that Mrs. L. J. Kirkland in making the contract with the Oil Investment Company, acted in bad faith toward her children? Answer as you find the facts to be. Answer: No.
“Special Issue No. 3: Do you find from a preponderance of 'the evidence that R. C. Kirkland and wife executed and delivered to the father of R. C. Kirkland the instrument referred to by Mrs. Kirkland as a deed, covering the property in question? Answer as you find the facts to be. Answer: No.
“Special Issue No. 17: Do you find from a preponderance of the evidence that Mrs. L. J. Kirkland at the time in question believed the statements made to her by the said Burkett with reference to the Griffin offer to be true? Answer as you find the facts to be. Answer: Tes.”

The jury reported that they were unable to answer the remaining issues, whereupon the defendants moved the court to discharge the jury and enter judgment in their favor upon the answers returned. The motion was granted, and judgment entered accordingly, to all of which the plaintiffs excepted and later presented their motion for new trial, which, being overruled, they thereupon duly prosecuted the present appeal.

Appellees insist that the legal title to the land in controversy at the time of the sale in question was in Mrs. L. J. Kirkland, and that the same was her sole and separate property, and, if so, that the appellant children have no such interest as to entitle them to the recovery sought, and we find ourselves in agreement with this contention. It is to be noted that Mrs. Kirkland, now Mrs. Nickol, is not a party to this suit and is not making any legal effort in her own behalf to set the sale aside. On the contrary, as will hereinafter be more fully shown, she received from the land in controversy several thousand dollars in excess of the indebtedness- resting thereon. Of this excess she invested some $2,500 in property in Archer City, taking the title in her own name and not as community survivor. It further appears that there was later found to be an excess in the survey of land in controversy, and this she recovered and utilized by making leases and otherwise in her own name and right. With us, the most convincing evidence of title to land is the written instrument conveying the same, and this evidence of title in Mrs. Kirkland is presented in the original deed from W. R. Pace and wife, in which it is expressly stated that the conveyance is for her “sole and separate use.” In addition to this, the husband himself, as he undoubtedly had the power to do, formally executed conveyance declaring it to be for tbe sole and separate use of bis wife. Tbe fact that sbe listed tbe land in the administration proceedings as community property cannot be given tbe legal effect of divesting her separate right. It was expressly decided by our Supreme Court in Koppelmann v. Koppelmann, 94 Tex. 44, 57 S. W. 570, that tbe act of a surviving husband in placing lands on tbe inventory of property held in common with the deceased wife, on giving •bond to administer and account for it as survivor, would not estop him, in a suit by tbe heirs against him and bis bondsmen, from showing that it was in fact bis separate property. In the case of Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825, it was held that, where a deed from tbe husband to tbe wife clearly expressed an intention to make tbe property conveyed her separate estate, parole evidence was not admissible without proof of fraud or mistake in tbe recitals to show that tbe grantor did not intend to convey- to her as her separate property. To tbe same effect is tbe case of Johnson v. Johnson, by this court, 147 S. W. 1167.

Nor do we think tbe fact that R. C. Kirkland, tbe husband, bound himself, together with bis wife, in tbe extension agreement made with tbe appellee mortgage company, as hereinbefore cited, divested tbe separate estate of Mrs. L. J., Kirkland. This indebtedness was assumed by Mrs. Kirkland in tbe original conveyance to her as a part of tbe consideration therefor, and, as between the husband and wife, the debt continued to be hers and not that of tbe community. We see no reason why as between those two tbe husband would not have been entitled to reimbursement out of tbe wife’s separate estate bad be been required to pay tbe debt for which he obligated himself in the extension agreement. See Fox v. Kroeger (Tex. Sup.) 35 S.W.(2d) 679. In this connection, it is to be also borne in mind that there was an express finding by the jury that Mr. and Sirs. Kirkland did not in fact convey the land to tbe father of R. O. Kirkland, and he convey the property to the Kirklands as a part of their community estate, and the sufficiency of the evidence to sustain this finding is not questioned by any assignment of error in behalf of appellants. Nor do we think effect can be given to testimony by Mrs. L. J. Kirkland that tbe land was originally conveyed to her in order to avoid hazard from the Corpus Christi indebtedness. It was held in Scarborough v. Blount, 154 S. W. 312, 313, by the Galveston Court of Civil Appeals, that where a person conveyed land by a deed absolute on its face and without consideration, in fraud of bis creditors, although with an understanding that tbe land is only to be held in trust, that neither be nor his heirs could enforce tbe trust against a grantee or purchaser from tbe grantee, even though such grantee might have notice of the fraud; tbe ruling being

that such conveyances are subject to impeachment only by subsequent creditors-and purchasers without notice. In the case before us there is neither finding nor evidence that the appellee investment company had notice of the trust, if any, indicated by this testimony of Mrs. Kirkland’s. On the contrary, there is an express finding by the jury, which is not assailed, that the investment company in the purchase acted in good faith. ■

In Lewis v. Simon, 72 Tex. 470, 10 S. W. 554, it is held that a voluntary conveyance by husband to his wife of land, the community property of the parties, vests the land in her in her separate right and as her separate property. It is also said in the later case of Evans v. Opperman, 76 Tex. 293, 13 S. W. 312, that .it is well settled that the husband may make a gift to the wife of the community property so as to make it her separate estate. See, also, Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825. So that, as stated in tbe beginning, we think the deeds to Mrs. Kirkland vested in her, as the appellee investment company insists, full title to the property in question.

Nor do we think that the relief sought by appellants can be granted them on the theory upon which they base their right to recover. At the time of the appointment of Mrs. B. J. Kirkland as community administrator of the community estate of herself and husband, authority therefor was given under the terms of the statute. See Vernon’s Sayles,’ vol. 2, article 3595. As such, she had full power of alienation under article 3600 of that statute. See Pierce v. Gibson, 108 Tex. 62, 184 S. W. 502, 1 A. L. R. 1675; James v. Turner, 78 Tex. 241, 14 S. W. 574; Carter v. Conner, 60 Tex. 52; Moody v. Smoot, 78 Tex. 119, 14 S. W. 285. As held by the Court of Criminal Appeals in the case of Pate v. State, 54 Tex. Cr. R. 491, 113 S. W. 767, this power is absolute and will extend to the conveyance of an oil and gas lease. See Tholl v. Speer (Tex. Civ. App.) 230 S. W. 453. In this case, we held that a suit by the heirs of a wife to cancel an oil and gas lease, made by the husband as community administrator, on the ground that- the court was without jurisdiction to appoint an administrator, because there were no community debts, was a collateral attack on the order of appointment. This ease was also cited with approval in Coleman v. Coleman (Tex. Civ. App.) 293 S. W. 695, writ of error refused, where it is said among other things, by the San Antonion Court, that a husband, having unlimited power in the administration of the community estate, could not be required to account as other trustees. Indeed, in the absence of appointment of community administrator, the surviving spouse, as such, has power to sell and convey community property for the payment of debts, if done in good faith, and the purchaser is not required to. see that the proper distribution of tbe proceeds is made. See Sanger v. Moody’s Heirs, 60 Tex. 102; Stone v. Jackson, 109 Tex. 385, 210 S. W. 953; Ashe v. Yungst, 65 Tex. 631; Fagan v. McWhirter, 71 Tex. 567, 9 S. W. 677; Cage v. Tucker’s Heirs, 14 Tex. Civ. App. 316, 37 S. W. 180; Clemmons v. McDowell (Tex. Civ. App.) 5 S.W.(2d). 224, 225.

In the inventory filed in the Probate Court and sworn by the appraisers and Mrs. Kirkland, the land involved was valued at $23,000. Other property, such as cattle, horses, mules, machinery, goats, note, and money in bank, was valued at $1,925, thus making the total value of the entire estate $24,826.50. The total indebtedness then existing amounted to $23,150, leaving a .net estate of $1,676.50. The sale to appellees at $20 per acre amounted to $30,140. The indebtedness paid by the sale amounted to $23,150. The amount received in excess of the indebtedness was $6,990, of which only one-half could be recovered by the children. The evidence shows that Mrs. Kirkland invested $2,250 in 20 acres of land near Archer City, taking the title in her own name and not as survivor of the community. The remainder of the money, together with certain other moneys received from ■ insurance and personal property, she used for living'purposes. Eor one-half of the excess, the children must look to the mother’s bond, the established rule being that the purchaser is not to be held liable for the proper distribution of such an excess. See Sanger v. Moody’s Heirs, supra, and other cases above cited.

It is evident that, exclusive of the land in question, the property inventoried was insufficient to pay off the scheduled indebtedness, so that in no event can it be said that some disposition of the land in controversy would not be necessary. If the sale was in good faith, the fact that it brought more than the debt is immaterial. See Clemmons v. McDowell (Tex. Civ. App.) 5 S.W.(2d) 224, 225. As noted in the beginning, the sale under consideration was found to ha've been made in good faith on the part both of Mrs. Kirkland and of the appellee Oil Investment Company, and the sufficiency of the evidence to support these findings is not questioned. Mere errors of judgment on the part of Mrs. Kirkland and of her adviser Burkett in accepting the offer of the appellee Oil Investment Company rather than that of Griffin cannot be given the effect of invalidating the sale, nor can circumstances merely tending to show that Mrs. Kirkland was influenced to act by reason of any false statement on the part of any of the actors other than those acting for the investment company, and of which the investment company was without notice, have the effect of nullifying the title conveyed. The unanswered issues, we think, were either only evidentiary in character or immaterial, and hence the trial court was authorized to disregard them and enter judgment as he did under the finding of the jury returned and the undisputed facts.

It is accordingly ordered that all assignments of error be overruled, and the judgment affirmed.


source: Caselaw Access Project

author: BAUGH, J.

license: Public Domain

text:
    GIBRALTAR SAVINGS & BLDG. ASS’N v. HARPER et ux.
    No. 7610.
    Court of Civil Appeals of Texas. Austin.
    June 17, 1931.
    Motions for Rehearing Overruled July 15, 1931.

      W. W. Caves, of Henderson, W. A. Keeling, ■of Austin, and Roberts, Monteith, Baring & Wilson, of Houston, for appellant.
    T. W. Gregory and Selden Leavell, both of Houston, for appellees.
   BAUGH, J.

Suit was by appellant upon a promissory note for $10,500, executed by appellees, dated July 23, 1926, and to foreclose a mortgage lien given by the Harpers on certain property situated in the city of Austin to secure its payment. Judgment was by default as to W. A. Harper. T. W. Gregory, appointed by the court as guardian ad litem for Perle Harper, who had become insane since the execution of said note and mortgage, interposed the' defense that said property was at the time of the execution of said instruments the homestead of the Harpers; and that said mortgage, except as to the portion of said loan necessary to pay off outstanding purchase-money notes and taxes against said property, was void and unenforceable. Judgment was in accordance with said plea after a jury trial upon special issues, from which plaintiff below has appealed.

The property mortgaged will be referred to as the Twelfth street property. That designated by the Harpers in said mortgage as their homestead will be referred to as the Carolyn avenue property. The first contention of appellant is that the Harpers by their representations and conduct are 'estopped to assert any homestead rights in the Twelfth street property. The issues.submitted to and found by the jury were:

1. That at the time of the execution of said note and mortgage the Twelfth street property was the homestead of the Harpers.

2. That at that time the Harpers intended to thereafter live in and occupy the Carolyn avenue property as their home.

3. That at that time and prior thereto they had represented to appellant that they owned and had moved into the Carolyn avenue property and were using same as their home.

4. That appellant’s agents believed - said , representations, relied thereon, and would not have made said loan but for such representations.

5. That there was, at the time of the trial, no doubt or’ uncertainty but that the Twelfth street property was the homestead of the Harpers when said note and mortgage were executed.

6. That the presence of Dr. -Harper at the Carolyn avenue property when visited by appellant’s agents prior to 'making the loan, coupled with the representations of the Harpers, led appellant’s agents to believe that the Harpers had abandoned the Twelfth street property as their home.

7. That appellant’s agents, as prudent men, were justified in believing that the Harpers had abandoned the Twelfth street property as their home.

The fifth issue above obviously undertook to submit to the jury an essential element of the estoppel pleaded against the Harpers, that is, whether there was doubt or uncertainty as to which of said places was actually being used by the Harpers at the time as their homestead. We think appellant’s contention that whether such doubt or uncertainty existed at the time of the execution of such instruments, not at the time of the trial, was the proper inquiry for the jury. Under the conclusion we have reached, however, the error was immaterial.

The uneontroverted evidence showed that the Twelfth street property had been the homestead of the Harpers continuously for more than 20 years; and appellant’s agents knew it was their homestead when the loan was applied for. The Harpers were advised by appellant’s agents and attorneys .that they must abandon said property as a homestead before a loan in excess of the outstanding indebtedness against it could be made. Dr. Harper executed said note and mortgage at a downtown office, but instructed appellant’s agent to go to the Twelfth street property to secure the signature and acknowledgment of his wife. Said agent did go there to secure her signature and found Dr. Harper and wife in actual, open, and exclusive possession and occupancy of said premises with their furniture remaining therein. Neither of the Harpers ever occupied the Carolyn avenue property, nor did they ever have any furniture therein. That property was occupied exclusively by H. C. Burt and family as their homestead. The only evidence relied upon, other than the misrepresentations of the Harpers to create an equitable estoppel against them, is the fact that before closing the loan on the Twelfth street property appellant’s agents drove by the Carolyn avenue property and saw Dr. Harper there watering the grass on the lawn. They did not go upon the premises, nor make any inquiry of the occupant, nor examine the deed records. Had they done so, such inquiry would have shown some one else in possession of that property; and that Dr. Harper had conveyed said property by deed duly recorded in March, 1926, to O. H. Wilson. The Harpers did not, at the time of the execution of said note and mortgage, have record- title to said Oarolyn avenue property; and one of the agents of appellant testified that Dr. Harper told him during their negotiations that he intended to use the additional money obtained from the loan on the Twelfth street property to pay part of the purchase price of the Oarolyn avenue property — a matter which should have put appellant upon inquiry as to the ownership of the Oarolyn avenue property.

From these facts it is obvious, we think, that said lien on the Twelfth street property, except as to the outstanding debts then against it, being on the homestead, under the Constitution, statutes, and decisions, was void.

We do not think the facts recited raised the issue of estoppel as against Mrs. Harper. There was never any abandonment of the Twelfth street property as a homestead. While the Harpers were found by the jury to have misrepresented the facts as to their occupancy of the Oarolyn avenue property, the agents of appellant knew that the Twelfth street property had for many years been their homestead; and that same must be abandoned by them as such before a lien could be placed thereon. All negotiations preceding the loan were conducted with that knowledge. It is immaterial what their intentions were £ts to future occupancy of the Oarolyn avenue property as their home, in the absence of some act accompanying that intention which attached to that property. While occupying a piece of property as his homestead, a man cannot, by intention to use it in future, establish a homestead right in another place.” O’Brien v. Woeltz, 94 Tex. 154, 58 S. W. 943, 945, 59 S. W. 535, 86 Am. St. Rep. 829. See, also, Carstens v. Landrum (Tex. Com. App.) 17 S.W.(2d) 803.

The facts in this case are so nearly identical with those in Texas Land & Loan Co. v. Blalock, 76 Tex. 85, 13 S. W. 12, 13, and the law so clearly and tersely stated by Chief Justice Stayton in that case, that we quote the language used by that eminent jurist as peculiarly applicable here.

“The fact of actual possession and use', as the home of the family, was one against which the lender could not shut its eyes'; and this fact, coupled with the interest held by the borrower in the land, made the property homestead in fact and in law. on which the constitution declares no lien, such as claimed in this case, can exist.

“Every person dealing with land must take notice of an actual, open, and exclusive possession; and when this, concurring with interest in the possessor, makes it homestead, the lender stands charged with notice of that fact, it matters not what declarations to the contrary the borrower may make. * * *

“The constitution forbidding the fixing on the homestead of liens other than such as are thereby expressly permitted, no estoppel can arise in favor of a lender, who has attempted to secure a lien on homestead in actual use and possession of the family, based on declarations of the husband and wife, made orally or in writing, contrary to the fact. To hold otherwise would practically abrogate the constitution.

“If property be homestead in fact and law, lenders must understand that liens cannot be fixed upon it, and that declarations of husband and wife to the contrary, however made, must not be relied upon. They must further understand that no designation of homestead, contrary to the fact, will enable parties to evade the law, and incumber homesteads with liens forbidden by the constitution. Mortgage Co. v. Norton, 71 Tex. 683, 10 S. W. 301; Pellat v. Decker, 72 Tex. 581, 10 S. W. 696; Kempner v. Comer, 73 Tex. 203, 11 S. W. 194.”

We have read carefully the line of authorities cited and relied upon by appellant to sustain its contention. They fall into two classes: 1. Where the parties have simulated a sale of their homestead, taken purchase-money notes and sold same to innocent purchasers for the purpose of raising money on the homestead. Such cases present an entirely different situation from that here presented. 2. Oases where two different properties were used by the family, either alternately or both such properties used by parts of the. family simultaneously in such manner as to render doubtful or uncertain which one actually constituted the homestead. In such case, a designation of the one would estop the parties to subsequently claim the other as against bona fide creditors who acted upon such designation. But our courts have not applied the equitable doctrine of estoppel against mortgagors asserting homestead- rights even as against their own misconduct in designating other property as their homestead, unless the facts and circumstances were such as to render it ambiguous and uncertain which of said properties was actually -being used and occupied by the mortgagor as his homestead at the time. Texas Land & Loan Co. v. Blalock, supra; Carstens v. Landrum, supra; Purdy v. drove (Tex. Civ. App.) 35 S.W.(2d) 1078; Under the facts we think there was no ambiguity nor uncertainty as to which of said properties constituted in fact and in law the homestead of the Harpers at the time; and that this ease is clearly concluded by the decision of the Supreme Court in the Blalock Case, supra. As stated- in Speers Law of Marital Rights (3d Ed.) p. 343:

‘‘The reason why parties cannot estop themselves to assert homestead rights in property upon which they actually reside, by their statement that it is not homestead, is that one cannot say he has been deceived by statements which he was bound to know were false.”

The other contention made by appellant relates to the interest rate fixed in the note sued upon. The loan made by the appellant was in part used to pay off outstanding indebtedness against the Twelfth street property, consisting of a purchase-money note and delinquent taxes thereon. The original purchase-money note bore interest at the rate of 8 per cent. The new note executed by the Harpers to cover these items and the additional money advanced to them bore 10 per cent, interest. As to the outstanding indebtedness against said property at the time the loan was made, the trial court awarded a foreclosure thereon, but limited the amount so foreclosed to the amount of the old note with 8 per cent, interest; and the amount of the taxes paid with 6 per cent, interest thereon, instead of the 10 per cent, provided in the note sued upon. Appellant contends that this was error, and that it was entitled to a foreclosure as to all of said indebtedness with the contracted interest rate of'10 per cent.

This presents a new question. No case in point has been cited to us, nor have we found any. The general rule of subrogation applies in such eases. That is, the new creditor who advances the money is entitled to all the security of the old creditor. In the instant case, the security of the note holder extended only to his principal debt and 8 per cent, interest; that of the tax collector to his debt with the legal rate of 6 per cent, interest thereon.

The increase in the rate of interest to the new creditor over that payable to the old creditors undoubtedly adds to the burden placed upon the homestead by the amount of such increase. In the Blalock Case, supra, it was held that, where the old note did not provide for attorney’s fees and same were added in the new note, no lien existed to secure the added attorney’s fees. In passing upon that question the Supreme Court used the following language:

“All appellant was entitled to recover, through enforcement of lien, was by reason of its right to subrogation, which could not extend to any sum the vendor of the land would not have been entitled to receive had he sued.”

Applied literally, such holding would forbid any increase in the interest rate. But the question then before the court was that of attorney’s fees, a distinct and separate burden from the interest charge, and in no way related to the compensation paid by the borrower to the lender for the use of the money. The essential and fundamental charge against the homestead is the indebtedness assumed or paid by the new creditor. The interest charge is but incidental thereto and subject to variation, within statutory limits, according to the exigencies of economic condition's. Had the I-Iarpers in • this instance been able to refinance their indebtedness at 6 per cent, interest, thus reducing the rate of the old note, and had defaulted, it is clear that, though the new creditor be subrogated to the security of the old, he could not recover the old rate of interest, but would be confined to the 6 per. cent, contracted for. In that instance, the benefit would accrue to the borrower. On the other hand, if conditions be such that the homestead owner, whose debt on his property is due and about to be foreclosed, is not able to borrow money in the open market except at the increased rate of interest obtainable in the open market, to hold that he could not give his creditor security for the additional amount necessary to compensate his creditor at the current rate of interest would, in effect, deny him the opportunity to extend his debt and protect his homestead from forced sale. Such a narrow and restricted construction of the constitutional provisions, which would effectually defeat in many instances its spirit and purpose, cannot, we think, with reason, be applied. We hold, therefore, that appellant was entitled to a foreclosure on the homestead for the outstanding debts against it paid by appellant, and at the rate of interest provided in the note sued upon.

This sum is.agreed upon by counsel. The trial court decreed a foreclosure of appellant’s lien on said homestead to the extent same secured $6,172.66, with interest from date of said judgment on $3,917.19 of said amount at 8 per cent', per annum; and on $2,255.47 of said amount at 6 per cent, per annum. The judgment of the trial court is therefore reformed so as to adjudge a foreclosure of appellant’s lien on said property to the extent of $6,887.53, with interest thereon from the date of the trial court’s judgment at the rate of 8.4 per cent, per annum, the appellant having voluntarily reduced the 10 per cent, rate provided in the note to 8.4 per cent. In all other respects, the judgment of the trial court is affirmed.

Reformed and affirmed.


author: LANE, J.

text:
    HOFFMAN v. HOUSTON CLINIC et al.
    No. 9558.
    Court of Civil Appeals of Texas. Galveston.
    June 10, 1931.
    Rehearing Denied July 22, 1931.
    W. J. Howard and E. T. Chew, both of Houston, for appellant.
    King, Wood & Morrow and Sewell, Taylor, Morris & Garwood, all of Houston, for appel-lees.
   LANE, J.

On and for some time prior to the 2d day of August, 1927, S. R. Hoffman, plaintiff in the suit hereinafter mentioned, was an employee of the Keen Wolf Oil Company,-a “subscriber,” as that term is used in the Workmen’s Compensation Statute of Texas, who at such time held a policy issued by the United States Fidelity & Guaranty Company under the provisions of said compensation statute. While Hoffman was performing his usual duties for his employers, and while at labor in their machine shop, a piece of steel struck him in his left eye and lodged therein, and at about the same time and while he was engaged in his work a piece of brass lodged on the outer coating or layer of his eye. Immediately after he so suffered said injuries, he gave notice thereof to his employers. Upon receipt of such notice the employers of Hoffman, as they were authorized and required to do by the provisions of the law, procured medical aid for Hoffman, and in so doing they gave him an order written on a letterhead of the Houston Clinic, a copy of which is as follows:

“THE HOUSTON CLINIC
‘‘Houston, Texas
“Main at Pease Pbone Hadley 4334
“(Connects All Departments)
“W. Burton Tborning,- M. D. A. Philo Howard, M. D.
“M. B. Stokes, M. D. P. R. Cruse, M. D.
“James H. Agnew, M. D. W. A. Clark, M. D.
“C. P. Harris, M. D. Robt. A. Johnson, M. D.
“J. M. Robinson, M. D. Joe B. Foster, M. D.
“J. Thos. Jones, M1. D. Jno. H. Wooters, M. D.
“F. H. Lancaster, M. D. F. E. Dye, M. D.
“Robt. L. Harris, M. D. C. M. Sublett, M. D.
“Ralf A. Graves, D. D. S.
“Date Aug. 2, 1927.
“Please, render necessary treatment to S. R. Hoffman, who was injured while in our employ and (was) engaged in his regular occupation.
“We are insured by U. S. E. & G. Co.
“Sent by Keen & Wolf Oil Co.
“Per R. G. Hill.
“Present to Industrial Department.”

Upon receipt of such order, Hoffman went to the office of the Houston Clinic and presented himself for treatment. He was there placed in charge of Dr. Griffey, an eye, ear, nose, and throat specialist, an employee of the Clinic, for treatment.

Upon Hoffman’s first visit to the Clinic, Dr. Griffey examined his injured eye with a magnifying glass and found a small particle of brass on the eyeball, which he removed with a small pair of tweezers. The doctor then informed Hoffman that there had been a hemorrhage of the eyeball, but told Hoffman after the removal of the piece of brass that there was nothing else in his eye and that he could go back to work. Having received such information, Hoffman returned to his work the next day, and at about 3 o’clock p. m. his eye became so painful he went back to Dr. Griffey and told him of his pain. The doctor, using only the same instrument as he had used on the first examination, examined the eye and then told Hoffman in effect that the pain suffered by him amounted to nothing, whereupon Hoffman told the doctor that he was afraid there was something in his eye which had not been removed. In reply to such expressed fear, the doctor told Hoffman there was nothing left in the eye, that he could see entirely through it, and told Hoffman to go back to work and that it was not necessary, for him to come back for further treatment. Hoffman’s eye continued to pain him, and on the third day after his injury he went back to the doctor and told him that he was suffering great pain from his -injured eye and that he was sure there was something else in the eye which he (the doctor) had not found. The doctor then told I-Ioffman that it was not possible that anything was left in his eye. which he had not discovered. Whereupon Hoffman asked the doctor what caused the eye to pain him so much, to which inquiry the doctor said: “You imagine it, there is nothing wrong with it, * * * for me not to worry, that it was his business to look after the eye.” On the fourth day after the injury occurred the eye was still paining Hoffman and the vision was getting dim and he went back to the doctor and told him that his sight was becoming dim. Upon this fourth visit the doctor told Hoffman that such dimness was caused by medicine which he had put in his eye and that his eye was all right. Hoffman started to work on the fifth day after the accident occurred, but finding that he was unable to work he again went back to the doctor and on that visit the doctor made another examination of the eye and found that it was infected and after discovering such infection he, for the first time, took an X-ray of the eye and found that a piece of steel was embedded therein. After this piece of steel was discovered in the eye, Hoffman was sent to St. Joseph’s Infirmary, where he remained for about five or six days, and later his eyeball was removed by Dr. Griffey and Dr. Slataper.

After the removal of his eye, Hoffman in due time and manner filed with the Industrial Accident Board of Texas his claim for the compensation provided by law for the loss of his eye. His claim was allowed by the Accident Board and an award of $1,750 was made to him, which was paid by the United States Fidelity & Guaranty Company, such sum being the full amount to which he was entitled under the provisions of the compensation statute.

Thereafter S. B. Hoffman brought this suit against the Houston Clinic, a copartnership, and against W. B. Thorning, A. P. Howard, M. B. Stokes, and P. B. Cruse, parties composing such copartnership, and against Dr. E. W. Griffey, to recover of such defendants jointly and severally the sum of $15,000.

The plaintiff alleged that the copartnership held themselves out as parties having skill and ability to practice medicine and surgery, and the skill, learning, and ability reasonably necessary to the diagnosis of diseases and injuries to the human eye and the treatment of such injuries and diseases; that Dr. Griffey was either a partner of the other defendants in the firm’s business, or he was an employee of the firm engaged by the firm to assist in carrying on the practice of medicine, surgery, etc. He then substantially alleged the existence and truth of the matters and things stated by us in our preliminary statement. He further alleged as follows:

“That had the defendants, their agents, servants and employees exercised ordinary care and skill, they could have ascertained upon this plaintiff’s first visit to them the location of said piece of steel in his eye, and the same could have been removed and this plaintiff would not have lost his eye. That by reason of the failure of the defendants to give this plaintiff the proper care and treatment this plaintiff has lost his entire eye and has had to have his eye removed and a glass eye substituted.
“That this plaintiff would have 'had his eye and would not have lost the sight of his eye, but for the following negligent acts and omissions, among others, on the part of defendants, their agents, servants and employees, all of which were a proximate cause of plaintiff losing his eye and sustaining the damages hereinafter alleged.
“(a) The defendants, their agents, servants and employees were negligent in failing to discover the piece of steel that so lodged in plaintiff’s eye and in failing to remove the same from his eye upon his first visit to their office or place of business, as aforesaid.
“(b) The defendants, their agents, servants and employees were negligent in failing to take an X-ray picture of plaintiff’s eye on the occasion of his first visit to their office, or place of business in order to ascertain whether or not any steel remained in plaintiff’s eye.
“(c) The defendants, their agents, servants, and employees were negligent in failing to advise the plaintiff to have an X-ray picture of his eye taken on the occasion of his first visit to their office to ascertain whether or not any steel or other foreign substance remained lodged in plaintiff’s eye, his eye being lacerated at the time.
“(d) The defendants, their agents, servants, and employees were negligent in failing to take an X-ray picture of plaintiff’s eye until five days after the piece of steel had entered his eye and when plaintiff’s eye had become infected, if he had not already lost the sight of his eye, his eye and the sight thereof could have been saved if the defendants, their agents, servants and employees had taken an X-ray picture immediately upon plaintiff’s first visit to their office and discovered the steel which had lodged in his eye and removed same, but this they negligently failed to do.
“(e) The said defendants, their agents, servants, and employees were negligent in not advising the plaintiff to have an X-ray picture of his eye taken before the same became infected in order that the steel in his eye would be discovered and removed before infection of the eye began and infection of his eye thereby prevented and the sight of his eye saved.
“(f) The defendants, their agents, servants, and employees were negligent in failing to make a proper examination of plaintiff’s eye at the time of his first visit to their office, and before the same had become infected, by the use of methods and instruments other than the X-ray that could have been used or adopted and which the defendants in the exercise of ordinary care should have used or adopted in endeavoring to discover the condition of plaintiff’s eye and the steel that had become lodged therein.
“ (g) The said defendants, their agents, servants, and employees were negligent in not bandaging plaintiff’s eye on his first visit to their office and in not taking such precaution as in the exercise of ordinary care they should have taken on such occasion to prevent plaintiff’s eye from becoming infected; it appearing that plaintiff’s eye was lacerated at the time and if same had been properly bandaged, or other reasonable precaution had been taken by the defendants to prevent the infection of his eye the same would not have become infected, as it did become infected, which resulted in the loss of plaintiff’s eye.
“(h) The said defendants, their agents, servants, and employees were negligent in not keeping the plaintiff under observation after he went to them for treatment and they undertook the treatment of his eye and in not exa milling his eye at such intervals as was required by the exercise of ordinary care to determine the condition of the eye and to properly treat the same.
“Plaintiff would further show that prior to said loss of his eye, he was a refinery pumper and capable of earning a large sum of money, per month, but that since the loss of his eye he is unable to continue his said occupation, and is debarred by and blacklisted in nearly all large refineries and prevented from working therein on account of the loss of his eye, and he is prevented from obtaining employment and his ability to obtain employment has been greatly restricted and limited and it is now, and will be throughout his life, very difficult for him to obtain employment, and he is unable to earn the amount of money that he formerly did.
“That by reason of the said negligence of the defendants hereinbefore alleged, plaintiff was caused to suffer and did suffer intense and excruciating pain and great mental anguish and his said eye had to be taken .out and removed, and he is in danger of his remaining good eye becoming affected and his earning capacity has been greatly reduced and his ability to work and earn money is much less than it would have been, but for^he said negligent acts of the defendants resulting in the loss of his eye, and plaintiff’s face has been marred and disfigured causing him great humiliation and great mental anguish, by reason of the foregoing plaintiff has been damaged in the sum of Fifteen Thousand ($15,-000.00) Dollars.”

Defendants answered by general demurrer, general denial, and specially alleged:

“That the plaintiff received an injury while an employee of Keen & Wolf, who were subscribers under the terms and provisions of the Employers’ Liability Act of the State of Texas, and that the insurer, United States Fidelity and Guaranty Company, issued to said Keen & Wolf its compensation policy of insurance and that by the terms thereof the said company became bound and obligated to compensate plaintiff for all injuries received by him in his said employment; that the loss of plaintiff’s eye was proximately the result of the injury which he received while in the employ of Keen & Wolf; that he had received compensation for the loss of his eye from the United States Fidelity and Guaranty Company and that such compensation was accepted by him in full settlement and satisfaction of his injury; that after he had sustained his injury while in the employ of Keen & Wolf, said Keen & Wolf authorized and directed him to go to the defendants for medical treatment and that he did so and that the defendants administered such medical treatment, and in so doing acted as the agents, servants and employees of Keen & Wolf; that in the selection of defendants to provide such treatment Keen & Wolf exercised care and prudence.”

By supplemental petition the plaintiff denied all allegations of defendants’ answer, except such as he expressly admitted. He admitted he was an employee of Keen & Wolf; that they were subscribers, as alleged in defendants’ answer, and that the insurer, United States Fidelity & Guaranty Company, paid, him $1,750 as compensation for the injury he received in said employment. He also alleged that said insurer had failed and refused to prosecute suit against the defendants on account of the negligent acts set up in plaintiff’s first amended original petition. He denied that Keen & Wolf furnished him medical treatment, and denied that defendants were the agents, servants, and employees .of Keen & Wolf, and alleged that if they were such agents, servants, and employees in any sense ■they were not such within the meaning of these terms as used in the statute of the state of Texas known as Workmen’s Compensation Law.

A jury was impaneled and sworn to try the case, and the evidence heard. The facts stated in our preliminary statement were shown by the evidence.

Dr. L. M. Ellis, who qualified as an eye, ear, and nose specialist, called by the plaintiff as a witness, testified that the proper method of determining the condition of the eye when the patient had a piece of brass lodged on the outer coating of the eye and there was a laceration of the eyeball was to make a complete examination of the eye, using the oph-thalmoscope and X-ray to see if anything had entered the eye, and that such was the treatment generally recognized by practitioners in the community engaged in the practice of that branch of medicine which deals in determining injuries to and diseases of tlie eye; that his school of medicine under such circumstances and conditions taught that the X-ray, ophthalmoscope, and magnet should be used in determining the condition~of the eye and whether or not a piece of metal or other foreign body had lodged in the eye; that the well-recognized tests and those generally used by eye specialists in this community in determining whether any metal or foreign substance had lodged in the eye are the X-ray, ophthalmoscope, and magnet; that if a small piece of steel has entered the eyeball or has penetrated the outer coating of the eye and is lodged in the eye, a good X-ray picture should show it, and that the X-ray and oph-thalmoscope should be used, and that his school of medicine so taught; that a lacerated eyeball or a laceration of the outer coating of the eye should cause one to suspect that a piece of metal or other foreign substance had entered the eye, and that under such circumstances his school of medicine teaches that to best preserve and protect the eye an X-ray picture of the eye should be taken and the ophthalmoscope and magnet test used and, if anything is found, to remove it; that when a patient goes to an eye specialist complaining there is something in the eye and the physician removes a piece of brass from the outer coating of the eye and sends the patient away and the patient returns the next day complaining of severe pain in his eye, that he would re-examine to see if there was some foreign body still in the eye, and that a physician or eye specialist under such circumstances should re-examine the eye and have X-ray pictures made again to be sure as possible that nothing was still in the eye, and that his school of medicine taught such practice; that, assuming the patient returns to the physician again on the third day still complaining of pain in his eye, a complete re-examination should be made with further X-ray pictures, and if the patient has been working, to stop him at once and X-ray the eye again' and have consultations; that such is the practice recognized in the treatment of the eye under such circumstances by physicians in this vicinity and also the practice “taught by our school of medicine”; that any foreign body lodged in the eye was very dangerous to the eye and the longer it remains the greater the danger, and also that the tendency of a piece of steel iñ the eye was to work more deeply in the eyeball; that the eye will cause the steel to change position, which in turn will produce irritation of the eye, and that the prompt removal of steel will reduce the danger to the eye from 20 per cent, to 50 per cent.; that infection is always dangerous to the eye, and that the prompt removal of a small piece of steel that has lodged in the eye would greatly diminish the probability of infection of the eye; that had the steel been removed on the first day, the chances for saving the vision would have been much greater; and that if the piece of steel had been removed on the second day there would have been a probability of saving the vision of the eye, in his opinion, but with each day and each hour the chances got less.

Dr. Edward W. G-riffey, one of the defendants, who was appointed by the Clinic to take charge of the plaintiff for the purpose of treating his injured eye, testified that he was 33 years of age and that he was engaged in the practice of medicine as an employee of the defendants, W. Burton Thorning, A. Philo Howard, M. B. Stokes, and P. It. Cruse, by whom he was employed since January, 1927; that his practice was limited to the eye, ear, nose, and throat; that he was so employed by the other defendants on August 2, 1927; that he belongs to the regular or Allopathic School of Medicine; that he had practiced medicine since June, 1924; that he had been practicing as a specialist in diseases of the eye since 1926; that Mr. Hoffman, the plaintiff, came to him for treatment on August 2, 1927; that he received first aid and returned on several occasions thereafter for treatment; that three or four days after first aid he developed pain, which was out of proportion to local eye findings, and an X-ray film was taken which revealed the presence of an in-traocular foreign body; that with the assistance of Dr. F. J. Slataper the foreign body was removed under ether anesthesia; that the operation consisted of making an in-eiéion through the eyeball and by means of an electromagnet a director was inserted and the foreign body was extracted; that when plaintiff came to him for treatment a small splinter of brass was lifted from .the outer coating of the eyeball; that he did not use either the X-ray or the magnet when Mr. Hoffman first visited him for treatment; that he first discovered that a piece of steel had entered Mr. Hoffman’s eye and lodged therein three or four days after he came in for first aid; that he discovered it by X-ray examination, by having an X-ray test made; that it is the proper practice, and that his school of medicine so teaches, that when a patient comes to a physician with a laceration on his eyeball, that some examination should be made to determine whether there is any steel or brass or other foreign substance that has entered the eye through such-laceration and lodged therein, where a laceration to the eyeball is present, and when other signs of intra-ocular damage are found, the history is important ; that one of the well-recognized methods for making such determination is the use of the X-ray; that the X-ray should b.e used under such circumstances to make such determination, when as indicated by the presence of other clinical signs of intraocular damage.

Further testifying he said: “In my opinion, the cause of Mr. Hoffman losing the sight of his eye was infection following the foreign body which was carried into his eye at the time of the injury. With reference to your question, what tests, other than, the use of the X-ray, would have discovered to me, on. the occasion of Mr. Hoffman’s first visit to my office, that a piece of steel had lodged in his eye, my answer is ‘no other’ and the X-ray method of determining the presence of a piece ■of steel was used when and as indicated; that the piece of steel removed from plaintiff’s eye was lxlxl½ millimeters.”

Mrs. Hoffman, wife of the plaintiff, testified in effect that Dr. Griffey told her that he had made a mistake in the treatment of the plaintiff’s eye; that he said: “We all'make mistakes.”

At the close of the evidence, the court, upon the motion of defendants therefor, gave an instruction to the jury to return their verdict for defendants. Such verdict was returned and judgment accordingly rendered. The plaintiff has appealed.

As reasons for the reversal of the judgment, appellant insists that the evidence clearly showed that appellees, the members of the Clinic, a copartnership, their agents, servants, and employees, were negligent in the treatment of the injured eye of appellant, which negligence resulted in and was a proximate cause of the entire loss of appellant’s eye, and therefore the court erred in instructing a verdict for defendants upon any theory, especially upon the fact that the United States Eidelity & Guaranty Company, the insurer <5f Keen & Wolf, paid appellant the full amount allowed to him for the loss of an eye by the compensation statute, and therefore he was not entitled to any recovery from appellees, who were erroneously held by the court to be agents, servants, and employees of Keen <& Wolf, the employers of appellant, as those terms are used in section 3 of article 8306, Revised Civil Statutes of 1925, which provides that employees of a subscriber “shall have no right of action against their employer or against any agent, servant or employee of said employer for damages for personal injuries, * * * but such employees * * * shall look for compensation solely to the association [the insurer].” (Italics ours.)

We think the contention of appellant should be sustained. The evidence shows, and Dr. Griffey practically admits, that he was guilty ■of negligence in the treatment of the eye of appellant. The evidence clearly raised the issue as to whether such negligence was a proximate cause of the loss by appellant of his eye. Such being true, the court could not reasonably have instructed the verdict upon the theory that the evidence did not raise such issue. So, then, the instruction of a verdict for the defendants was no doubt based upon a finding by the court that, since appellant had collected from the insurance company the full amount allowed by the compensation statute for the loss of an eye, he could not recover in this suit, or upon a finding that appellees in treating appellant on account of his injury were acting as agents, servants, and employees of the subscribers, Keen & Wolf, and therefore appellant could not, under the express provision of the compensation statute, collect any sum from appellees by reason of their negligence, in that by the express provisions of section 3 of article 8306 the agents, servants, and employees of the subscriber cannot be held liable for injuries suffered by another agent, servant, and employee of such subscriber while acting within the scope of his employment, or upon both of such findings. An instruction for defendants based upon either of such findings was erroneous.

The fact that the United States Fidelity & Guaranty Company, the insurer of appellant’s employer, had, under the provisions of the Workmen’s Compensation Law, paid appellant the full sum allowed by such law for the loss of his eye, would not bar him from a recovery for damages suffered by him in excess of the compensation allowed by law which were inflicted upon him by a third party, that is, a party who was neither his employer, nor an agent, servant, or employee of such employer. That appellant would have a right of recovery for such excess injuries suffered by him by reason of the negligence of defendants, they being third parties as above defined, is, we think, well settled. William Cameron & Co. v. Gamble (Tex. Civ. App.) 216 S. W. 459; Galveston-Houston Electric Ry. Co. v. Reinle (Tex. Civ. App.) 264 S. W. 783, 789; G., H. & S. A. Ry. Co. v. Wells (Tex. Civ. App.) 15 S.W.(2d) 46, 53 (writ of error refused); Hanson v. Ponder (Tex. Com. App.) 300 S. W. 35; Lancaster v. Hunter (Tex. Civ. App.) 217 S. W. 765; articles 8306-8309, Revised Civil Statutes of 1925, as amended (Vernon’s Ann. Civ. St. arts. 8306-8309).

In the case of Galveston-Houston Electric Ry. Co. v. Reinle, supra, it was clearly held that a “third party,” as herein defined, who causes an injury to an employee of a subscriber, may be sued by such injured employee notwithstanding he had received compensation allowed by the workmen’s compensation statute. It is then said: “The act evidently contemplates that the injured employee is the real beneficiary in cases where the damages exceed, as may often happen, the amount received by the employee from the idemnifying association.”

In the case of Railway Company v. Wells, supra, it is said: “It is now well-settled law that, when an employee’s representatives accept compensation for death under the Workmen’s Compensation Statute (Rev. St. 1925, arts. 8306-8309), they are not precluded from recovering against negligent' third persons, though the compensation insurance company which carried the risk refuses or fails to prosecute such suit; that the right of the insurer to be subrogated to rights of the representatives of the deceased employee is for the insurer’s benefit to the extent of sums advanced to such representatives; and that any excess of any recovery had in such suit is to be for the benefit of such representatives.”

The finding of the trial court that defendants, appellees here, were either the “servants,” “agents,” or “employees” of Keen Wolf, as those terms are used in section 3 of article 8306 of the workmen’s compensation statute, if such was made, cannot be upheld.

Defendants in the present case were not the “agents,” “servants,” or “employees” of Keen & Wolf, as those terms are used in the statute. Accepting the definition of “independent contractors” as stated almost universally by all courts, defendants were independent contractors in rendering treatment to appellant.

In 14 R. C. L. p. 67, the author defines an “independent contractor” as “one who, exercising’an independent employment, contracts to do a piece of work according to his own method, and without being subject to the control of his employer except as to results of hiswork.”

Again, at page 68, it is said: “The control of the work reserved in the employer which makes the employee a mere servant is a control, not only of the result of the work, but also of the means and manner of the performance thereof. Where the employee represents the will of the employer as to the result of the work, but not as to the means or manner of accomplishment, he is an independent contractor.”

Again, on page 76, it is said: “For example, a doctor employed to make an examination of a third person is said to be distinctly free from control or direction of his employer and is not a mere servant.” Many authorities are cited in support of the author’s statements.

In 31 Corpus Juris, p. 473, it is said that generally the term “independent contractor” “signifies one who, exercising an independent employment, contracts to do a piece of work according to his own method, and without being subject to the control of his employer, except as to the result of the work, and who has the right to employ and direct the action of the workmen, independently of such employer and free from any superior authority in him to say how the specified work shall be done; ⅜ ⅜ * one wft0 undertakes to produce a given result without being in any way controlled as to the method by which he attains that result.”

The author cites cases from many states, wherein the term “independent contractor” is defined as “one who, as an independent business, undertakes to do specific jobs of work, without submitting himself to control as to the petty details.” Carlson v. Stocking, 91 Wis. 434, 65 N. W. 58, 59. “One who, exercising an independent employment, contracts to do a piece of work according to his own method, and without being subject to the control of his employer.” Bouvier, L. D. (quoting U. S. Fidelity, etc., Co. v. Lowry [Tex. Civ. App.] 231 S. W. 818). Other cases cited giving substantially the same definition are Hudgins v. Hann (C. C. A.) 240 F. 387; Green v. Soule, 145 Cal. 96, 78 P. 337; Scharff v. Southern Construction Co., 115 Mo. App. 157, 92 S. W. 126; St. Louis Ry. Co. v. Gillihan, 77 Ark. 551, 92 S. W. 793; Messmer v. Bell, etc., Co., 133 Ky. 19, 117 S. W. 346, 19 Ann. Cas. 1; and cases there cited; Kampmann v. Rothwell (Tex. Civ. App.) 107 S. W. 120. Cases holding to the same effect are from Michigan, Minnesota, North Carolina, Illinois, and other states.

Applying the definition given by the cases mentioned, it is clear that defendants were neither “agents,” “servants,” nor “employees” of the employer of appellant, as those terms are used in section 3 of article 8306 of the compensation statute. Clearly, then, the court erred in holding that appellant had no right of recovery in the present ease upon a finding that defendants were the agents, servants, and employees of appellant’s employer.

Having reached the conclusion, as above expressed, that the court erred in instructing a verdict for appellees, the judgment rendered is reversed and the cause is remanded.

Beversed and remanded.


author: BUCK, J.

text:
    DAUGHERTY et al. v. McCALMONT.
    No. 12475.
    Court of Civil Appeals of Texas. Fort Worth.
    June 6, 1931.

      Donald & Donald, of Bowie, and W. W. Alcorn, of Fort Worth, for appellants.
    J. E. Whitehead and Vern D. Adamson, both of Dallas, for appellee.
   BUCK, J.

On December 3,1929, plaintiffs, J. G. Daugherty and wife, Addie Daugherty, and O. T. Bryson, all of Wise county, filed suit in the form of a bill of review against S. M. Mc-Galmont, a resident of the state of Illinois, and George Gage, sheriff of Wise county, and for causé of action pleaded that the defendant S. M. McCalmont instituted a suit on September 24,1928, wherein he sought a judgment on a certain promissory note in the principal sum of $1,300, together with interest, executed by O. T. Bryson and his wife, payable to the Union Mortgage Company, and to foreclose a deed of trust lien executed to secure the note above mentioned, on a certain tract of land about 3½ miles southeast of the town of Sunset, containing 100 acres and located in Wise county.

It was alleged that the land described in the deed, dated January 21, 1924, from J. G. Daugherty and wife to C. T. Bryson, was duly recorded in the deed records of Wise county. It was further alleged that in the suit in which McCalmont was plaintiff it was alleged that said note was executed in lieu of one certain vendor’s lien note executed by C. T. Bryson in the sum of $1,000', dated January 1, 1924, and due January 31, 1934, pay1 able to J. G. Daugherty, or order, to secure which a vendor’s lien was retained upon said land; that said note had been likewise assigned by J. G. Daugherty to the Union Mortgage Company and to evidence which the note and deed of trust was executed by said C. T. Bryson and wife.

■ Plaintiffs in this suit alleged that they were the one and same parties mentioned in the former suit as defendants, and that they employed the firm of Donald & Donald, lawyers of Bowie, Tex., to represent them, and that pursuant to such employment they filed in said cause No. 81009 their answer on October 29, 1928, and did pursuant thereto pay into said court a jury fee of $5, a copy of defendants’ answer being attached to this petition, and marked “Exhibit B,” which in all.things sets forth a good and meritorious defense to the original suit as instituted by said defendant as plaintiff in cause No. 81009.

It was further alleged that the transaction of deeding the land by Daugherty and wife to O. T. Bryson was a simulated transaction, for the reason that at all times said land and farm was in fact the homestead of said Daugherty and wife, and, therefore, that the making of the pretended lien as mentioned and referred to contravened the rights of the said J. G. Daugherty and wife and was void. That the plaintiffs represented that after the issues had been joined in cause No. 81009 the suit was placed on the jury docket of said court and set down for trial, but on account of sickness of the defendant Mrs. Addie Daugherty, a postponement was granted; that the papers in said case showed that the defendants had duly answered and were represented by Donald & Donald, and that Donald & Donald got in touch with W. W. Alcorn, of Fort Worth, who in turn got in touch with the attorney representing plaintiff in said cause, and the case was postponed by agreement as aforesaid. That since said time no further setting for trial was had in said cause and no notice whatsoever given to the attorneys for defendants, or defendants themselves, save and except that on September 23, 1929, J. E. Whitehead, an attorney at Dallas, wrote Donald & Donald a letter wherein the following inquiry was made:

“You filed answer in the above alleged cause, and we understand that the defense is to be abandoned. This is to inquire whether or not we are correct in our understanding.’’

That immediately upon receipt of said letter and on September 24,1929, .Donald & Donald wrote to J. E. Whitehead at his known address, and told him that there was a mistake in his understanding that the defense in the case of McCalmont v. Bryson et al. was to be abandoned; and that the defendant J. G. Daugherty and wife had filed an answer in said cause and intended to prosecute the defense to a conclusion, for beyond question each and every statement as made in said answer was true, and that his agent as well as himself knew, or should know, such to be the case. That counsel for defendants were ready to try the case whenever suitable arrangements could be made to suit the convenience of all parties. That they would like to have three or four weeks’ notice in advance so that they could get all of their witnesses ready to attend court, and they desired to give Whitehead the same opportunity of ample time to arrange for his interest in the case. The letter concluded with this statement:

“Assuring you of our best wishes and kindest regards, and awaiting to hear from you in reference to matter, we are
“Yours truly, Donald & Donald.”

It was further alleged that notwithstanding the fact that they had duly and timely answered in said cause, and notwithstanding the fact that said cause was on the jury docket and one postponement had been granted, and notwithstanding the letters last mentioned between Whitehead and Donald & Donald, on September 25, 1929, a judgment was asked for plaintiff, which judgment purported to be based upon the fact that the defendants had not answered, but had made default when in fact there was then at that time an answer on file and such correspondence, by letter and over the telephone between counsel for defendants, plaintiffs here, and counsel for the plaintiff in the other suit, warranted the conclusion that the case' would not be set for trial without a sufficient time being allowed for the parties to get their witnesses, and to notify the opposite party of the setting. Plaintiffs alleged that they were not advised of this judgment until after the term had expired, some time in November.

Plaintiffs further alleged that as defendants in cause No. 81009' they were ready and willing to proceed to trial at any time to adjudicate the-questions involved in said suit; that they had a meritorious defense to plaintiffs’ suit in that ease, as set forth in the answers filed thereto, beeahse the petition filed in cause No. 81009 was wholly insufficient, either in law or in equity, to show any cause of action against them, or either of them; because in said suit an attempt was made to obtain personal judgment against the defendant Mrs. Addie Daugherty, the wife of J. G. Daugherty, and therefore under coverture; because said petition in the former suit showed that said obligation upon which the suit was predicated was not for her benefit or for the benefit of her separate estate, or for necessities;. because the plaintiffs in the former suit came into possession of said note after maturity, and were not innocent purchasers for a valuable consideration without notice, as alleged in said petition. That the property upon which a foreclosure was sought was the separate property of Mrs. Addie Daugherty, and at all times said property was occupied and used by them as a homestead for herself and her husband and their six children; that said note described in said petition in the former suit was not executed for the purpose of taking care of a part of the consideration paid for said property, or for taxes, or for improvements, but merely was to evidence a plain debt owing by said J. G. Daugherty; that at the time when said property was then and there occupied by said defendants, J. G. Daugherty and wife, the said note in question was executed, and the Union Mortgage Company should have known and could have known by the use of reasonable diligence that the said property was the homestead of J. G. Daugherty and wife, and, therefore, the pretended lien was ineffective and uninforceable; that no title ever passed into the said C. T. Bryson, and that such transaction was only had in an attempt to get around the law, which forbids the giving of a lien on a homestead, and was a simulated transaction for the purpose; that said deed, which it was claimed was executed by J. G. Daugherty and wife, was without force and effect,, in that at the time it was executed it was then their homestead and occupied by them and said deed was insufficient to convey title in that no legal acknowledgment of Mrs. Addie Daugherty was made before a notary public, as required by law, for at the time of the execution of said purported deed, said Mrs. Daugherty was then in Wise county and the notary public who attempted to take said acknowledgment was only a notary in and for Montague county; further, there was no separate acknowledgment of said Mrs. Daugherty taken separate and apart from her husband, as required by law.

It was further alleged in this petition that by virtue of the letter received from the attorney for defendant S. M. McCalmont, plaintiff in cause No. 81009, and the letter written by him to Donald & Donald, and the answer thereto, together with other, various, and sundry letters and verbal understanding over the telephone, there did exist a mutual understanding that said cause was not to be tried without further notice or agreement between the attorneys representing both parties. That notwithstanding such judgment was taken without any notice whatsoever having been given to defendants’ attorneys in that ease, Donald & Donald, Bowie, Tex., who were well known to J. E. Whitehead, attorney for plaintiff S. M. McCalmont, to be attorneys representing plaintiffs, defendant in the original suit No. 81009, and by reason thereof such judgment should be in all things set aside, vacated, and held for naught, and said suit should be reinstated and á trial had upon the merits.

Plaintiffs in this bill of review prayed for a writ of-injunction, restraining the defendant George Gage, sheriff of Wise county, from making a sale of said property until the cause of action- had, been finally determined, and that defendant S. M. McCalmont be also restrained from selling the property. The petition was duly verified by June Donald. The district judge granted the prayer for injunction.

Among the exhibits attached to said petition was plaintiffs’ petition in the former suit and defendants, Mr. and Mrs. Daugherty’s answer thereto, and recitation that in the former suit the jury were peremptorily instructed to find for plaintiff S. M. McCalmont, against J. G. Daugherty and wife and C. T. Bryson and wife, in the sum of $-, with interest and attorneys’ fees, and a foreclosure upon the land described in said original petition.

Defendant S. M. -McCalmont answered the petition of these plaintiffs by a1 number of special exceptions, and specifically denied that the judgment was procured through any fraud on behalf of the defendant or his attorney, and asserted that defendant had been damaged in the actual sum of $200, and prayed for such damages and attorneys’ fees of $150. The answer was verified by J. E. Whitehead. Plaintiff -filed a replication to defendants’ answer, consisting of several special exceptions.

The cause came on for trial, and the defendant requested that the term “negligence” be defined, and also requested the submission of the issue as to whether or not the jury found upon the preponderance of the evidence, that J. G. Daugherty and wife were negligent in failing to appear in their behalf when judgment in cause No. 81009 was rendered on September 25, 1929. These requests for instruction and issues submitted were refused by the court, and the trial court also refused a special issue to the jury as to whether they found upon a preponderance of the evidence that the deed from J. G. Daugherty and wife to Bryson was without consideration and thereby merely a simulated transaction in order to create a mortgage on the homéstead of the Daughertys. And other instructions were submitted but were refused. The court gave a peremptory instruction for the defendant S. M. McOalmont and against the plaintiffs, and in response to said verdict so found upon a peremptory instruction the jury found for the defendant and against the plaintiffs. ■

Thr'ough a misunderstanding by W. W. Alcorn of the instructions given to him, he did not file an answer for Bryson in the former suit, but did file an answer for J. G. Daugherty, in which answer Daugherty adopted the answer of his wife, formerly filed. From this judgment the plaintiffs have appealed to this court.

Opinion.

• The trial court evidently in his action in instructing a verdict for .the defendant, and in entering the judgment, did so upon the theory that a demurrer to the testimony should he sustained. The judgment in part reads as follows: “Whereupon, the defendant, S. M. McOalmont, at the close of plaintiffs’ testimony, then and there in open court entered his demurrer to the testimony adduced by the plaintiffs, and moved the court to instruct a verdict for the defendant and against the plaintiffs; and after hearing argument of counsel, and being fully advised upon the law, the court pn the 30th day of April, 1930, instructed the jury” to find peremptorily for the defendant.

While counsel for appellee argued that the court was authorized under the testimony to. find that W. W. Alcorn had been guilty of laches, and that he had been employed by June Donald to represent J. G.. Daugherty and that he wrote J. G. Daugherty’s answer, the facts show that W. W. Alcorn was not employed to represent either of the Daugher-tys, but that June Donald telephoned to him, from Bowie, to file an answer for C. T. Bryson. Alcorn went over to the courthouse and, finding no answer for J. G. Daugherty, conclnded that an answer should be filed for him, which he did, adopting the allegations in the answer filed for Mrs. Daugherty. Therefore, Alcorn was never employed to file an answer for J. G. Daugherty, and any laches of which he was guilty could not be properly charged against J. G. Daugherty or Mrs. Addie Daugherty. The court did not render the judgment by reason of any laches of W. W. Alcorn, but he sustained * a demurrer to the evidence. The testimony of J. G. Daugherty and Mrs. Daugherty was to the effect that J. G. Daugherty owed the bank at Sunset some $900, and had given a chattel mortgage on some cattle, and probably some horses, and that W. F. Robertson, the president of the bank, accompanied by a Mr. Jones, an employee of the Union Mortgage Cbmpany, came over to the Daugherty farm on or about January 31, 1924, and Robertson said to both of them that he- had to have some money and requested and demanded that Daugherty sign a deed to O. T. Bryson. That Daugherty did affix his signature to said deed, and Mrs. Daugherty also affixed hfer signature to said instrument, but that the notary did not examine her privily and apart from her husband and did not explain the purposes for which the instrument was executed, and that he was not a notary in and for Wise county. But appel-lee urges that a notary’s certificate may not be set aside and vacated on the testimony alone of the interested parties, the grantors. That “the general rule, in the absence pf any statute providing otherwise, is that where a grantor has appeared and makes some kind of acknowledgment before an officer having jurisdiction, a certificate, regular in form, is conclusive as to all those matters which the officer is required by law to certify.” 1 Corpus Juris, p. 886, § 267. This quotation further says, “and in the absence of any showing of fraud or imposition in the procurement of the acknowledgment, cannot be impeached by merely denying that the acknowledgment was taken in the manner certified by the officer.”

In the case of Lummus v. Alma State Bank (Tex. Civ. App.) 4 S.W.(2d) 195, 198, the bank prosecuted a suit against A. J. Lummus and wife for the recovery of a certain house and lot in the town of Alma, Ellis county. The bank sought to recover said property by virtue of what purported upon its ’face to be a warranty deed, duly executed by Lummus and wife to J. W. Richards, and by Richards to” the bank. Lum-mus and wife contended that said purported deed to Richards was intended as a mortgage ; that they understood it to be a mortgage to secure $2,400, which'they owed the bank, and that it was so explained to Mrs. Lummus, and at the time she signed same she thought it was a mortgage; and that she never acknowledged the instrument with the intention of conveying title to the property. The Waco Court of Civil Appeals held that said instrument did not convey the title, and rendered judgment reversing the judgment and remanding the cause. The court said: “The rule seems to be well settled in this state that, where a married woman, who has with her husband signed a deed conveying the homestead or her separate property, appears before an officer authorized to take acknowledgments for the purpose of acknowledging such conveyance, and the officer fails to do his duty in taking such acknowledgment, but makes a certificate which shows a full compliance with the law, such certificate is conclusive upon the married woman in favor of an innocent vendee who paid value for it without notice that the officer failed to perform his duty as required by law. [Citing cases.] But where it is shown that the married woman has not appeared before the officer for the purpose of acknowledging the execution of the deed, and no acknowledgment has in fact been made, she having in no way invoked the exercise of the officer’s authority in that respect, the certificate, however formal, is not binding upon her, even in favor of an innocent purchaser and for value.” (Citing cases.)

This case does not seem to have been passed on by the Supreme Court, but other cases cited in this decision have been passed on by the Supreme Court, and we conclude that the holding in this decision presents the law.

The evidence indicates that the farm was located in Wise county, shown aliunde of the testimony of J. G. Daugherty and wife by the fact that the deed was filed for record in Wise county. The fact that said notary acknowledged the instrument as a notary public in and for Montague county shows that he was not a notary for Wise county. A notary public may not perform his duties in any other county than that for which he was appointed, the county of his residence. It seems from the case of Lummus v. Bank, supra, that where fraud is charged in the taking of the acknowledgment, either by the notary or by some one else, that the signature to the. acknowledgment in due form does not obtain even as against an innocent purchaser, as would be the case where no fraud was alleged and established, and even the testimony of the grantors attacking the instrument may be sufficient to set aside the deed or instrument as against an innocent purchaser.

In Breitling v. Chester, 88 Tex. 586, 82 S. W. 527, the Supreme Court, in an opinion by Chief Justice Gaines, sustained a judgment of the Court of Civil Appeals (30 S. W. 464), reversing the judgment of the district court and remanding the cause. In the cited ease it was held that a casual admission in the presence of a notary, by one who has signed a conveyance, that he had executed a deed, does not empower the officer to certify that he has acknowledged it. Especially so, is this true of a married woman.

It will be remembered that plaintiffs introduced a letter from J. E. Whitehead, the president of the Union Mortgage Company, and evidently the agent of S. M. McCalmont, in the purchase of the mortgage, in which the writer stated that his company' had to purchase the loan back from the investor to whom they had sold it. On the witness stand Whitehead said that this was a mistake, but were not the jury entitled to decide which of the statements were true, whether S. M. Mc-Calmont was the proper party plaintiff in the original suit or the Union Mortgage Company?

For the reasons stated, the judgment below is reversed, and the cause remanded with instructions to the trial court to hear the bill of review on its merits.