text:
    Will G. WADE, Jr., et al., Appellants, v. Oscar M. BROCKMANN et al., Appellees.
    No. 11415.
    Court of Civil Appeals of Texas. Austin.
    June 15, 1966.
    Rehearing Denied July 6, 1966.

      Kinney & Binig, Houston, Coffee, Ritter & Goldston, Donald N. Goldston, Austin, for appellants.
    Fisher A. Tyler, Hardy Hollers, Austin, for appellees.
   ARCHER, Chief Justice.

Appellants filed this suit against appel-lees to remove cloud from title, claiming that a deed from their father and mother to the father of appellees was void for want of a sufficient description of the “Second Tract,” referred' to in the deed.

Appellees answered by a general denial, estoppel by deed, laches, and filed a cross-action in trespass to try title, asserting a good record title, title under the adverse statute, and a title by presumed grant.

Trial was had without the aid of a jury and the court rendered judgment for the appellees.

Findings of fact and conclusions of law were made and filed, in response to the request by appellants, and to which no objections were made and no request for additional findings was made.

The appeal is predicated on thirteen points and are that the court erred in concluding as a matter of law that the deed in issue was legally sufficient to convey the “Second Tract,” the land in controversy, in admitting extrinsic evidence to prove the identity of the “Second Tract” and in holding that the evidence was sufficient to support the use of defendants’ Exhibit No. 4, the deed from Charles J. Anderson and wife to W. G. Wade and wife Jessie O. Wade, in applying the doctrine of presumed grant, principle of estoppel, laches, title under Articles 5519 and 5519a, Vernon’s Ann. Civ.St., because there was no evidence or insufficient evidence to support the conclusion that the terms of Articles 5519, 5519a, and Article 5510 had been met, and finally that the finding of the court that the appellees had claimed or used the land since 1924 is against the great weight and preponderance of the evidence.

The facts are undisputed that by deed dated January 8, 1921, Charles J. Anderson and wife, Emma C. Anderson, conveyed by general warranty deed to W. G. Wade and wife, Jessie O. Wade, two tracts of land both out of the George W. Davis Survey Number Fifteen (No. 15) in Travis County, Texas, designated in said deed as “First Tract” and “Second Tract.” The “First Tract” is described as containing twenty-one and seven-tenths (21%o) acres of land and the “Second Tract” as containing “twenty (20) acres of land more or less (timberland).”

The deed from the Andersons to the Wades recited a total consideration of $4500.00, of which sum $1500.00 was paid in cash and the balance of $3,000.00, represented by four vendor lien notes, payable to C. A. Nelson and Tom Nelson at Round Rock, Texas. Note No. 1 became due on or before March 15, 1921, and Notes Nos. 2, 3 and 4 on or before one, two and three years after date; said deed further providing that a vendor’s lien was reserved on the property to secure the payment of the notes and further, that when the notes had been paid in full “this deed shall become absolute.”

It is also undisputed that W. G. Wade and wife, Jessie O. Wade, by deed dated November 29, 1924, conveyed by general warranty deed to John Brockmann, two (2) tracts of land designated as “First Tract” and “Second Tract” out of the George W. Davis Headright Survey Number Fifteen (No. 15) in Travis County, Texas; and following the description in “First Tract” said deed reading as follows: “ * * * and being the same premises conveyed to us by Charles J. Anderson and wife Emma C. Anderson, Jan. 8, 1921.” Appellants concede that the deed from the Wades to John Brockmann, dated November 29, 1924, was a valid deed and was sufficient to convey the “First Tract” and do not seek to set aside that portion of the deed, but do seek to set aside and hold for nought the conveyance to the “Second Tract” on the ground that the description is insufficient to pass title.

Appellants introduced in evidence the original deed from W. G. Wade and wife, Jessie O. Wade, dated November 29, 1924, above referred to, which recited a cash consideration of $4,000.00. The deed from the Wades to Brockmann, dated November 29, 1924, was filed for record on December 1, 1924. The facts further show that all of the principals appearing in the Wade deed are now dead. W. G. Wade died on November 19, 1938. His wife, Jessie O. Wade, died on January 7, 1959. John Brockmann died on December 13, 1943. The facts are further undisputed that although W. G. Wade lived fourteen (14) years after he had executed the deed to Brockmann and his wife, Jessie O. Wade, lived thirty-five (35) years after she executed said deed, that neither at any time during their lifetime ever asserted any claim in any court of law to Tract No. 2 described in their deed dated November 29; 1924. The appellants sue herein as the heirs at law of W. G. Wade and wife, Jessie O. Wade, and suit is brought against O. M. Brockmann and Fritz Brockmann, the heirs at law of John Brockmann.

The question we are concerned with is the sufficiency of the description in the deed to convey the “Second Tract,” described in the deed and we believe that it is and affirm the judgment of the trial court.

The deed contains the phrase “ * * * and being the same premises conveyed to us by Charles J. Anderson and wife, Emma C. Anderson, Jan. 8, 1921.”

The Second Tract is described:

“Twenty acres of land, more or less . (Timberland) being a part of the George W. Davis Survey No. 15, in Travis County, Texas, but more particularly described by meets and bounds as follows, to-wit: — Beginning at”

Following the description is a penciled notation, “to be inserted after surveying.”

There is no indication as to who inserted the notation.

On June 16, 1953 Orin E. Metcalfe made a survey for “the estate of W. G. Wade, et ux and Mrs. John Brockmann.” Mr. Wade was then dead but Mrs. Wade was living and did not die until 1959.

Marlton O. Metcalfe, a licensed surveyor and who assisted his father Orin E. Metcalfe in making the 1953 survey, testified that in locating the tract:

“Q By going back to the deed from Anderson to the Wades, dated January 8, 1921, could you make a survey of that second tract?
A I would back-track all deeds that I could find. If he gave a reference, if the Anderson deed gave another reference, I would keep back-tracking until I found some legal description that would give me the tract of land that this second tract pertained to be, because in these other deeds it did describe — in one of the deeds — I don’t recall exactly which one — it did give a description of this second tract that they are talking about, and from that description I would attempt to make my survey.”

Appellants objected to the testimony of the surveyor that the field notes set out in Defendants’ Exhibit No. 9 were a description of the “Second Tract” mentioned in the deed dated in 1924 from the Wades to Brockmann, and also in permitting the surveyor to identify the “Second Tract” by referring to the deed from Anderson to the Wades dated in 1921.

Appellants as plaintiffs alleged in their Original Petition that they are the owners of the 17.96 acres, also called “ * * * Twenty-acre tract of land described as ‘Second Tract’ in a deed from Charles J. Anderson and wife to W. J. Wade * * * ” to which petition is attached a copy of the deed from Wade to Brockmann, and sought to cancel the deed as concerns the “Second Tract,”

The court did not err in allowing Marlton O. Metcalfe, the last surveyor, to testify as he did.

The court found that it was the intention of the Wades to supplement the description of the “Second Tract” by a survey on the ground, and that such survey was made on June 16, 1953 by Orin E. Metcalfe and definitely located on the ground the “Second Tract,” and at the time of the execution of the deed to Brockmann the Wades owned only two tracts of land in Travis County, and intended to convey the two tracts by their deed; that the Wades paid taxes on the two tracts for the years 1922, 1923 and 1924 and after 1924 neither the Wades nor the appellants paid any taxes, or assessed the land for taxes.

The surveyor was able by taking the information in the deed from the Wades to Brockmann, and from instruments referred to in the chain of title, to definitely locate the “Second Tract,” and the description was legally sufficient. Rice v. Cook, Tex.Civ.App., 367 S.W.2d 386, error ref., n. r. e.; Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617; Waters v. Ellis, 158 Tex. 342, 312 S.W.2d 231.

We construe the deed from Wade and wife to Brockmann and the release from Tom Nelson together, and the facts are undisputed that the Wades purchased the property which they conveyed to Brockmann from Charles J. Anderson and wife. 13 Tex.Jur.2d 274, § 116; Board of Insurance Commissioners v. Great Southern Life Insurance Co., 150 Tex. 258, 239 S.W.2d 803.

There was no error to admit extrinsic evidence as an additional means of identifying the “Second Tract.”

The court permitted the appellees to introduce into evidence certain instruments in the chain of title to Wade, deed from Anderson to Wade dated January 8, 1921, the release of certain vendor’s lien notes from C. A. Nelson et al dated November 29, 1924.

The deeds in Wade’s chain of title were mentioned in the descriptive matter in plaintiffs’ petition, and were offered for the only purpose of furnishing means by which the property could be identified.

In Maupin v. Chaney, 139 Tex. 426, 163 S.W.2d 380 the rule is set out.

Since we have stated that the deed was sufficient to convey the “Second Tract” the issue of the doctrine of presumed grant, and title under Articles 5519, 5519a and 5510, V.A.C.S., make unnecessary a further determination of these issues other than that such are in support of appellees’ title. Fowler et al. v. Texas Exploration Co., Tex.Civ.App., 290 S.W. 818, error ref.

By their deed the Wades warranted the title to the “Second Tract” and are es-topped to assert anything in derogation of Brockmann’s title. C. D. Shamburger Lumber Co. v. Bredthauer, Tex.Civ.App., 62 S.W.2d 603, error dism.; Duhig v. Peavy-Moore Lumber Co., Inc., 135 Tex. 503, 144 S.W.2d 878, Comm.App., opinion adopted.

We have given careful consideration to the cases and authorities cited by appellants but do not consider them as being authority to support the theory that the deed from the Wades to Brockmann does not contain within itself, or by reference to some existing writing, the means or data by which the “Second Tract” may be identified, but on the contrary, believe the deed to be sufficient to pass the title to the Second Tract.

The cases relied on by appellants are such as: Tidwell v. Cheshier, 153 Tex. 194, 265 S.W.2d 568 and cases cited therein.

The finding of the trial court that there is insufficient evidence to show that the “Second Tract” has been claimed or used by any person other than appellees and those under whom they claim since 1924 until this suit was filed is supported by the evidence.

The only use appellants made of the land, at best, was to get wood by driving a distance of 30 miles, except one of the appellants testified that her father sold fire wood from the land at one time. Of the children testifying one was eleven years old, another eight years old, another six years and the youngest was two years old at the time of the sale.

There was a delay of 38 years in the filing of this suit from the date of the deed and after all of the principals in the deed were dead.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: ARCHER, Chief Justice.

license: Public Domain

text:
    CINBAR ENGINEERING CO., Inc. et al., Appellants, v. DELTA LEASING & INVESTMENT CORP., Appellee.
    No. 11412.
    Court of Civil Appeals of Texas. Austin.
    June 8, 1966.
    Rehearing Denied June 29, 1966.

      J. Malcolm Robinson, Austin, for appellants.
    Carey Williams, Houston, for appellee.
   ARCHER, Chief Justice.

Appellants were defendants in the trial court and appellee was plaintiff.

Summary judgment was granted for plaintiff on its pleadings and the affidavit of its president, J. C. Youdan.

The motion for summary judgment was opposed by the defendants’ pleading and the affidavit of Barnhart, president of Cinbar, and certain exhibits.

The pleadings of the parties consisted of:

(1) Plaintiff’s Original Petition against both Cinbar and Barnhart alleging a sworn account. ■

(2) Defendants’ Answer alleging failure of consideration and a general denial to Plaintiff’s original cause of action and a countersuit by Cinbar against Delta alleging joint adventure, breach of warranties, express or implied, and damages.

(3) Plaintiff’s Answer to Defendant’s eountersuit by general denial and special answer alleging disclaimer of any warranties and no joint adventure.

(4) Defendants’ Supplemental Petition on its eountersuit alleging waiver and es-toppel of Plaintiff’s disclaimer of any warranties.

Cinbar is in the sheet metal business in Austin, Texas; Barnhart is its president. Barnhart was told of a machine manufacturer in Houston, Texas, who reportedly could make a machine which would automatically measure, cut and stack sheet metal from a rolled coil. The manufacturer was Lawler Manufacturing Co., hereinafter sometimes called “Lawler.”'

Cinbar contacted Lawler and Lawler said it could manufacture such a machine for $14,250.00. Cinbar refused because of the terms which were cash.

Cinbar was next contacted by Delta who said it would have the machine built and lease it to Cinbar on a monthly lease of $475.00 for 36 months.

The parties agreed and executed a lease agreement to that effect, and payments were made for about twelve months.

Appellants contend that the machine would not operate automatically and refused to pay a balance on a lease agreement, and Delta filed this suit.

The appeal is predicated on six points and are that the trial court erred in granting the motion for summary judgment because there were disputed material facts as to waiver and estoppel of the disclaimer, that the two writings were one transaction, that there was a disputed question of fact' as to a joint adventure and a fact question as to failure of consideration, that the court erred in treating plaintiff’s- cause as one for a sworn account, and in determining that no warranty had been made.

Appellee takes the position that there were no disputed material facts raised by the evidence as to waiver of or estoppel to assert that plaintiff had made no warranties as to the performance of the machine, and no fact issue raised that the two writings were one transaction, and no fact issue raised as to the existence of a j-oint venture, or as to a failure of consideration, and the court did not err in treating the cause of action as a sworn account, and the contract being in writing and the “no warranty” provisions being unambiguous, the trial court acted properly in determining as a matter of law the effect of the contract; and there was no evidence raising any disputed material fact issues of waiver of or estoppel to assert that plaintiff made no warranties as to the performance of the leased machine.

We believe the court was justified in granting the motion for summary judgment.

A pleading unsupported by evidence is insufficient to raise fact issues, and, the existence of an affirmative defense must be done by “summary judgment evidence,” such as depositions, admissions, affidavits, or the like. Keahey v. Dallas Teachers Credit Union, Tex.Civ.App., 3-74 S.W.2d 450; Smith v. Campbell, Tex.Civ.App., 361 S.W.2d 462.

The equipment lease involved in this case reads in part:

“Lease, dated May 7, 1964, by and between NATIONAL ACCEPTANCE COMPANY OF AMERICA (hereinafter called ‘Lessor’) and Cinbar Engineering Company, Inc. a Texas corporation (hereinafter called ‘Lessee’).
1. EQUIPMENT AND RENT. Lessor hereby leases to Lessee, and Lessee hereby rents from Lessor, at a total rent for the term of this lease of Seventeen thousand one hundred two and 88/100.Dollars ($17,102.88), which Lessee agrees to pay to Lessor as hereinafter set forth, the following personal property (hereinafter called ‘Equipment’) :
(Describe fully, giving name of manufacturer, model, serial no.)
LAWLER SPECIAL PROCESSING EQUIPMENT
2. TERM. This lease, upon the rents, promises, terms and conditions set forth herein, is for a term of Thirty-Six (36) months commencing on the date (the ‘Commencement Date’) that Equipment is delivered to Lessee or shipped via common or other carrier for delivery to Lessee, whichever shall be earlier.
3. PURCHASE AND DELIVERY OF EQUIPMENT. Lessee hereby directs that Equipment (which Lessee has requested Lessor to purchase) be shipped via common or other carrier to Lessee at 711 St. John, City of Austin, County of Travis, State of Texas.
4. PAYMENT OF RENT. Lessee agrees to pay to Lessor the total rent specified above in monthly payments as follows:
36 consecutive payments, each of $475.08; then

The foregoing payments shall be made as follows:

(a) Time: Upon signing this lease, Lessee sliall pay Lessor the sum of $1,-425.24, constituting the payment in advance of the 1st, 35th and 36th. * * *
20. NO WARRANTIES: ENTIRE AGREEMENT. Lessee agrees that Lessor has made no representation or warranty of any kind, nature or description, express or implied, with respect to Equipment. This lease contains the entire agreement between the parties, and may not be changed, modified, terminated or discharged except in writing.”

The provisions of the lease are clear and unambiguous and the lease was executed by Cinbar and attested by its secretary, a lawyer of ability who was well trained in contracts and in no wise was Cinbar overreached or not informed as to the contents of the lease including the “no warranty” provision.

Prior to the execution of the lease appellant had contacted by letter, Lawler Engineering Manufacturing in Houston, Texas in regard to equipment needed, and was advised that a machine such as inquired about could be manufactured for a cash price of $14,250.00. Appellant was unable to pay such sum in cash and Lawler suggested a credit-lease purchase arrangement, and would make such.

J. C. Youdan contacted Cinbar and represented himself as president of a company, now appellant, and said that he had been contacted by Lawler, relative to financing the sale of the machine, and that he would finance the purchase, and would lease the machine to Cinbar on a monthly basis.

Appellant got the machine in Houston and brought it back to its place of business but claimed that the machine would not operate efficiently in a number of particulars, and called Lawler by telephone who sent one man to Austin who worked on the machine, but stated that it would have to be taken to Houston, and Cinbar hauled the machine to Houston and two weeks later Cinbar, upon being notified that the machine was in good operating condition, brought it back to its plant but it would not operate.

Bobby J. Barnhart wrote appellee that he would personally guarantee the payment of the lease.

Appellant advised the appellee in June 1964 that the machine had been received and was satisfactory and accepted unconditionally and understood that no warranties, expressed or implied, had been made.

We do not believe that there was a waiver and estoppel raised by defendants’ evidence as to the right of plaintiff to insist on item No. 20 “no warranties,” so as to meet the requirements of waiver or es-toppel.

The only evidence in the affidavit of Mr. Barnhart is that “each time the machine broke down I contacted Mr. Youdan who in turn contacted Mr. Lawler, or vice ver-sa, and the machine was returned to Mr. Lawler’s place in Houston for repair, although I was paying Mr. Youdan.”

Such acts relied on in this case as constituting waiver do not meet the requirement of a conscious relinquishment of a known right. Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855; Middle States Petroleum Corp. v. Messenger, Tex.Civ.App., 368 S.W.2d 645, er. ref., n. r. e.

The trial court did not err in failing to determine that the two writings were one transaction or that a material fact issue was presented as to such conclusion.

The first contact Cinbar had concerning the machine was with the manufacturer and was a letter dated April 30, 1964 in which appellants contend that representations were made that the machine would number the lengths, number, cut and pull the sheet in a certain size. No contract to purchase was made based on this letter.

The lease agreement is dated May 7, 1964, and provides for terms and describes the machine as “Lawler Special Processing Equipment” and no reference is made as to the contents of the prior dated letter, and the lease agreement contains a no warranty clause, and the appellee did not become the agent of Lawler so as to make the agent liable. Wilson County Peanut Co. v. Hahn, Tex.Civ.App., 364 S.W.2d 468, n. w. h.

The summary judgment evidence raised no fact issue as to the existence of a joint venture between appellee and Lawler.

Mr. Barnhart, an official of Cinbar, testified that it was his understanding that Youdan and Lawler were working together in selling the machine, and that when the machine broke down he contacted Youdan, who contacted Lawler, and the machine was returned to Lawler’s place for repairs, although he was paying Youdan, and that he considered them partners.

From Barnhart’s testimony he only “understood” that appellee and the manufacturer were working together in the sale of the machine, and he “considered” them partners, such testimony are only conclusions, and not material facts, and not affirmatively personal knowledge of such facts, and could not defeat a summary judgment. Williams v. Hill, Tex.Civ.App., 396 S.W.2d 911, n. w. h.

There was no competent evidence as to a joint venture, since there was no showing of, or exercise of any control. Bonney v. San Antonio Transit Co., 160 Tex. 11, 325 S.W.2d 117.

No fact issue or failure of consideration was raised by the evidence. The lease contract provided that appellee had made no warranties or representations respecting the machine. The consideration was to furnish the identical machine which was furnished on an “as is” basis.

There was no error in allowing ap-pellee an attorney’s fee of $500.00, such being provided for in the agreement. Rule 185, Texas Rules of Civil Procedure; Meaders v. Biskamp, 159 Tex. 79, 316 S. W.2d 75.

The contract in question, being in writing and the “no warranty” provision being clear and unambiguous, the meaning and effect of the contract was a question of law, and not of fact, and the court properly entered the judgment.

Tower Contracting Company v. Flores, 157 Tex. 297, 302 S.W.2d 396.

The judgment of the trial court is affirmed.

Affirmed.


author: WERLEIN, Justice.

text:
    KIMBERLY DEVELOPMENT CORPORATION et al., Appellants, v. FIRST STATE BANK OF GREENS BAYOU et al., Appellees.
    No. 14834.
    Court of Civil Appeals of Texas. Houston.
    June 16, 1966.
    Rehearing Denied July 7, 1966.

      Joseph R. Balsón, Houston, for appellants.
    Gerald S. Gordon, Houston, Strickland, Gordon & Sheinfeld, Houston, of counsel, for appellees.
   WERLEIN, Justice.

This suit was brought by Kimberly Development Corp., allegedly a Texas corporation, James S. Taylor, Jr., and wife, Cherry King Taylor, and Howard S. Barksdale and wife, Teresa Barksdale, against First State Bank of Greens Bayou and First State Trust Corporation, for the purpose of having a deed of trust executed by Mr. and Mrs. Taylor and Mr. and Mrs. Barksdale declared invalid, and the foreclosure sale made under said deed of trust of the property described therein declared ineffective and void. The court, having considered the pleadings, consisting of plaintiffs’ original petition and defendants’ original, answer, the motion for summary o judgment of the defendants and their affidavit attached thereto, found that defendants’ motion for summary judgment should be granted, and judgment was accordingly rendered that the plaintiffs take nothing. Only Kimberly Development Corp. timely filed an appeal bond and perfected an appeal to this Court.

During argument of this case, the attorney for appellants was advised that according to the record before the Court only Kimberly Development Corporation had perfected an appeal to this Court, since Mr. and Mrs. Taylor and Mr. and Mrs. Barksdale had not filed an appeal bond. After submission of the case, appellant’s attorney filed herein a motion on behalf of Kimberly Development Corporation, Mr. and Mrs. Taylor and Mr. and Mrs. Barksdale, in which he -refers to all of them as appellants, and prays this Court for leave to file a supplemental transcript to include: (1) a judgment nunc pro tunc as of November 4, 1965, expressing the intent of the original parties to this action by stating “w/ notice of appeal for Plaintiffs,” and (2) an appeal bond filed by Kimberly Development Corp., James S. Taylor, Jr., Cherry King Taylor, Howard S. Barksdale, and Teresa Barksdale, appellants.

The original judgment in this case was entered by the court on November 4,' 1965. Under the signature of the judge who entered such judgment is written in longhand “w/ notice of appeal for Plaintiffs.” On January 3, 1966 a nunc pro tunc judgment was rendered and entered by the Court as of the 4th day of November, 1965. At the end of this judgment and above the judge’s signature and notation of entry, appears the following: “ * * * to which plaintiff excepted thereto and, in open court, gave plaintiff’s notice of appeal.”

It is our view that the notice of appeal given in the nunc pro tunc judgment of the trial court, especially in view of the notice of appeal in the original judgment, is a sufficient notice of appeal by all of the plaintiffs in the suit. Under Rule 3, Texas Rules of Civil Procedure, the singular and plural number shall each include the other.

The original appeal bond filed on Novem-her 24, 1965, by appellant, Kimberly Development Corp., is as follows:

Plaintiffs’ attorney has now produced a supplemental transcript containing an appeal bond changing the style of the case to “Kimberly Development Corp., Et Al v. First State Bank of Greens Bayou, Et Al,” and changing the words “APPELLANT_ ha _s taken an appeal” to the words “APPELLANT¿ have taken an appeal,” and reciting: “NOW THEREFORE, we, said Appellants Kimberly Development Corp., James S. Taylor Jr., and wife Cherry King Taylor; and Howard S. Barksdale and wife Teresa Barksdale as Principal,” etc. Such bond has been signed by James S. Taylor, Jr., Howard S. Barksdale, and Kimberly Development Corp., Et Al, By Howard Barksdale, Principal.

It has been held in numerous cases that the time for filing an appeal bond is jurisdictional and that an appeal bond cannot be waived. Montgomery v. Coates, Tex.Civ.App., 314 S.W.2d 671; 3 Tex.Jur. 2d, p. 553, Appeal and Error, § 299. Rule 430, Texas Rules of Civil Procedure, provides, however:

“When there is a defect of substance or form in any appeal or writ of error bond, then on motion to dismiss the same for such defect, the appellate court may allow the same to be amended by filing in such appellate court a new bond, on such terms as the court may prescribe.”

In the instant case, the original appeal bond and transcript were timely filed and this Court obtained jurisdiction over the suit, at least with respect to Kimberly Development Corporation. The question is whether or not the original bond can be amended in such manner as to include the Taylors and the Barksdales although their names were not included in the original bond. We are of the opinion that the new bond including the names of said individuals may be properly filed as an amendment of the original bond.

In their motion to- permit the filing o-f a new appeal bond, appellants have clearly indicated that it was the intention of all the original plaintiffs to appeal. It seems apparent that through oversight or mistake the names of the individual appellants were not included in the original bond. Permission is given herein to file the supplemental transcript including the new bond which has been executed by all of the appellants.

We have been unable to distinguish the present case from Bean v. Hardware Mutual Casualty Company, Tex.Civ.App., 349 S.W.2d 284, in which the Supreme Court refused a writ, n.r.e. In that case only the plaintiff, Irene Bean, gave notice of appeal and filed her appeal bond. The appeal bond, however, recited that the court entered a judgment to which the “Plaintiffs, Irene Bean, et al” duly excepted and gave notice of appeal. There is no similar recitation in the original appeal bond filed herein, but the record shows that notice of appeal was given in behalf of all the appellants. In the body of the appeal bond in the Bean case, only Irene Bean is named as principal, and the words “et al” are not used. The court permitted the filing of the amended bond to include appellants who had not joined in the original appeal bond, citing Lusher v. First National Bank of Ft. Worth, 260 S.W.2d 621, writ ref., n.r.e., and Marlett v. Brownfield, Tex.Civ.App., 140 S.W.2d 353. The court concluded that any instrument bearing reasonable earmarks of an appeal bond having been filed in due time by any appellant gives the Court of Civil Appeals jurisdiction of the appeal and justifies the appellate court in allowing other appellants, who had given proper notice of appeal but had not theretofore joined in the appeal bond, the right to file an amended appeal bond in which they are joined as appellants.

In the instant case, both the attorney for the appellants and attorney for the appellees filed briefs for their respective clients without raising the question of the inadequacy of the original appeal bond. All of the appellants were represented by the same counsel, and apparently all parties considered that the appeal had been perfected in behalf of all of the plaintiffs in the suit. See also Cornelia Henslee v. State of Texas, Tex.Civ.App., 375 S.W.2d 474; Mullins v. Mullins, Tex.Civ.App., 348 S.W. 2d 69, writ ref., n.r.e.; Holley v. Painters’ Local Union No. 318, Tex.Civ.App., 376 S.W.2d 44, writ ref., n.r.e.; Family Investment Co. of Houston v. Paley, Tex.Civ.App., 356 S.W.2d 353, error dism.

Although for some unknown reason Kimberly Development Corp. was joined as a party-plaintiff with Mr. and Mrs. Taylor and Mr. and Mrs. Barksdale, there is nothing in plaintiffs’ petition showing that Kimberly Development Corp. has any interest whatever in the suit. The only allegation with respect to Kimberly Development Corporation in plaintiffs’ petition is that it is a corporation duly organized and existing under the laws of the State of Texas, engaged in the construction and real estate business in Houston, Harris County, Texas. In the answer filed by appellees, and also in the affidavit attached to appellees’ motion for summary judgment, it is stated: “Kimberly Development Corporation is not known to the First State Bank of Greens Bayou or the First State Trust Corporation as a party in privity or interest in this entire transaction.”

Said appellant has not filed any affidavit nor in any manner denied the allegations in appellees’ answer and the affidavit attached to appellees’ motion for summary judgment. There is nothing whatever in the record to show that said appellant had or has any justiciable interest in the present suit or any right to prosecute the same. Since no genuine issue of material fact has been raised with respect to any interest of Kimberly Development Corporation in this litigation, the summary judgment was properly granted as to it.

Appellants assert that the trial court erred in excluding from the record an affidavit in support of an allegation in the petition of the plaintiffs that an agreement had been entered into by a purported agent for the trustee of the property and plaintiffs, extending the due date of the “trust deed”. The record contains no affidavit by or in behalf of appellants. If there was any error on the part of the trial court in such connection, it has not properly been brought forward, and hence cannot be considered.

Appellants complain that the trial court erred in granting the motion for summary judgment “in that the trust deed mistakenly designated a non-existent corporation as trustee for the property; the purported foreclosure sale was rendered invalid by the mistake in the trust deed,” and that ap-pellees’ remedy was reformation of the trust deed before sale by foreclosure. Appellants in referring to the “trust deed” have reference to the deed of trust, a copy of which is attached to appellees’ motion for summary judgment, and which was executed by James S. Taylor, Jr. and wife, Cherry King Taylor, and Howard S. Barks-dale and wife Teresa Barksdale.

The evidence shows that the Taylors and the Barksdales borrowed $125,000.00 from First State Bank of Greens Bayou, and executed and delivered their promissory note in said amount to said appellee, and executed their deed of trust to First State Corporation, as trustee, on certain real estate to secure said note for the use and benefit of the noteholder. The evidence further shows that there was and is no corporate entity with the name of First State Corporation, but that First State Trust Corporation, one of the appellees herein, is a Texas Corporation, duly incorporated and exercising delegated trust powers under its charter as authorized by former Article 1303b, Vernon’s Annotated Texas Statutes. In the affidavit of Gerald S. Gordon, filed with the motion for summary judgment, it is stated that he is the general counsel for First State Bank of Greens Bayou and that he is cognizant of the facts stated in such affidavit. In his affidavit he stated that immediately prior to October 13, 1964, he dictated the form and contents of a deed of trust from the Taylors and the Barksdales for the use of First State Bank of Greens Bayou on certain property, describing it, to secure the payment of the note in the sum of $125,000.00 executed by the Taylors and the Barksdales, but that in transcribing such dictated instrument the name of First State Trust Corporation was erroneously typed as “First State Corporation,” and that said deed of trust was executed by the Taylors and the Barks-dales in favor of First State Corporation instead of First State Trust Corporation, and that it was duly filed for record and subsequently duly recorded.

In his affidavit affiant further stated that the consideration for the execution of said note secured by said deed of trust was delivered by First State Bank of Greens Bayou to the makers of the note; that such note was not paid; that under the express provisions .and terms of said deed of trust, First State Trust Corporation sold the property in question at trustee’s sale to appellee, First State Bank of Greens Bayou and delivered to said bank its trustee’s deed dated July 6, 1965, recorded in Vol. 5987, page 469, Deed Records of Harris County, Texas, a copy of which was attached to said affidavit; and that it is recited in such trustee’s deed that the name of First State Trust Corporation had been erroneously transcribed as First State Corporation.

The record does not contain a copy of the notice of sale which was posted although the trustee’s deed recites that “First State Trust Corporation, Trustee, ⅜ * * did advertise * * * the time, place and terms of sale, by posting notices thereof in three public places in Harris County, Texas * * *” It also made the sale and executed the trustee’s deed. There is nothing whatever on the face of the deed of trust to show that any mistake was made in the naming of the trustee or that it was the intention of the grantors in executing the deed of trust to make First State Trust Corporation rather than First State Corporation the trustee with power to sell the property at trustee’s sale.

The question arises whether under these circumstances the omission of the word “Trust” in the deed of trust executed by appellants, as was done in giving the name of such trustee as First State Corporation instead of First State Trust Corporation, invalidated the sale under said deed of trust. The law is well settled that deeds of trust must be strictly construed. In Hart v. Estelle, Tex.Civ.App.1930, 34 S.W.2d 665, aff’d by the Supreme Court, Tex.Com.App., 55 S.W.2d 510, it was contended that there was a clerical error of the scrivener in transcribing the trust deed, in that by mistake he inserted the name of the beneficiary of the trust where he should have inserted the name of the trustee, and vice versa. In holding the sale invalid the Court said:

“Unless there was a mistake so palpable that we could say conclusively as a matter of law from the face of the instrument itself that it had been made (see 11 C.J., p. 839, note 60), then, before it could be rectified, the instrument would have to be reformed in a proper proceeding brought for that purpose. In the absence of such proceeding, the power could not properly be exercised, except in the manner expressly provided in the instrument. For a somewhat analogous situation, see Humble Oil & Refining Co. v. Davis (Tex.Civ.App.) 282 S.W. 930.”

There is nothing in the deed of trust in question to indicate that any mistake was made in designating the trustee, much less a mistake so palpable that it can be said as a matter of law from the face of the instrument itself, that such mistake was made. It is a matter of common knowledge that the omission or addition in the corporate name of one word may distinguish one corporate entity from another. Here the deed of trust unequivocally named First State Corporation, and none other, as trustee. That corporation did not post notices, sell the property or execute the trustee’s deed. No authority was vested in First State Trust Corporation to perform such tasks. The fact that there was no corporation by the name, First State Corporation, did not in any way confer upon First State Trust Corporation the power to act as trustee and sell the property at trustee’s sale. Since there was no such corporation as First State Corporation, no one was nominated in the deed of trust capable of serving as trustee, and the sale for such reason also was invalid.

In Chaney v. Maupin, Tex.Civ.App., 153 S.W.2d 187, reversed on other grounds, 139 Tex. 426, 163 S.W.2d 380, in which there was a misdescription of the property in the renewal deed of trust, the court said:

“Indeed, considering the strict construction applicable to deeds of trust and authority of trustees thereunder, we think the renewal instrument of 1934 was insufficient as a contract lien on said Lot 28; the mortgagee’s remedy being by recourse to the courts for reformation of the transaction antecedent to a judicial foreclosure. Hart v. Estelle, Tex.Civ. App., 34 S.W.2d 665, affirmed by Sup. Ct, 55 S.W.2d 510.”

The Supreme Court, in its opinion in said case, stated:

“This description of the property in the deed of trust, standing alone, unaided by any extrinsic evidence to show what property was intended to be conveyed, was insufficient to constitute a valid conveyance to the trustee of the property here in controversy (Texas Savings-Loan Ass’n v. Seitzler, 12 Tex.Civ.App. 551, 34 S.W. 348), and hence any purported sale under the deed of trust would not constitute a valid foreclosure of the lien on the land here under consideration."

In the instant case, it would have been necessary to resort to extrinsic evidence to show that a mistake had been made in naming the trustee, and that First State Trust Corporation and not First State Corporation was the trustee. Anyone intending to bid at the trustee’s sale in question -might well have been deterred from making such bid for the property being sold at trustee’s sale "by First State Trust Corporation, if he had consulted the recorded deed of trust and observed, as he might have done, that First State Trust Corporation was not named as trustee and therefore had no authority to sell the property. Since a summary judgment was granted in this cause in favor of appellees, we must indulge all inferences in favor of those against whom the summary judgment was granted.

Appellees assert that there was a mere misnomer in the name of the trustee, and that it was not necessary for them to bring a suit for reformation of the deed of trust prior to exercising the power of sale conferred therein. They rely on Stith v. Moore, 1906, 42 Tex.Civ.App. 528, 95 S.W. 587, writ den.; Vineyard v. O’Connor, 1896, 90 Tex. 59, 36 S.W. 424; and Knox v. Gruhlkey, Tex.Civ.App., 192 S.W. 334, which cites with approval Staak v. Sigelkow, 12 Wis. 234. The cases cited by ap-pellees are distinguishable from the instant case, in that none of them involves a sale under a deed of trust. In Stith v. Moore, supra, the deed in question was made to Charles Schreiner and the Llano Bank. The Llano County Bank was the firm name of a partnership consisting of two persons by the name of Moore. The court held that the difference between the Llano County Bank and the Llano Bank did not vitiate the deed. The court further said:

“The property was paid for with money which belonged to Schreiner and the two Moores; and, to say the least, the deed vested the legal title in Schreiner, and the Moores have an equitable title thereto in proportion to the amount of the consideration which was furnished by them.”

In Vineyard v. O’Connor, supra, the court held that a deed was not void for failure to name a grantee, since there were recitals in the deed clearly showing who was to have the beneficial interest in the property, and to whom the title was to be warranted. The court said: “The whole instrument is consistent with the theory that Samuel Harvey Vineyard was intended to be a grantee therein, and no other possible construction can reconcile its peculiar provisions.”

We are of the opinion, in construing the evidence and facts most favorably to appellants, that the deed of trust, and the sale thereunder, are invalid, and it is so held. This holding is, of course, not intended to interfere with the pursuit by appellees of such other legal and equitable remedies as they may have.

In view of our decision herein, it is not necessary to discuss appellees’ cross-point in which they assert that appellants’ appeal is frivolous and solely for the purpose of delay, and that a reasonable attorney’s fee should be granted appellees.

It is, therefore, ordered that the summary judgment against Kimberly Development Corporation be affirmed; and that judgment in favor of appellees as to the other appellants be reversed and remanded.

ON MOTION FOR REHEARING

Appellees, in their motion for rehearing, complain of our statement in the foregoing opinion that the “deed of trust, and the sale thereunder are invalid.” In order to clarify the matter, we now state that it was not our intention to hold that the lien on the property in question is invalid since it is apparent that the grantors in the deed of trust intended to create a valid lien, but that the sale made under the deed of trust was invalid. Our opinion is not to be construed as preventing a legal proceeding to reform the deed of trust so that a trustee’s sale might be made thereunder or as preventing a proper proceeding for reformation of the deed of trust and a judicial foreclosure of the lien.

Motion for rehearing overruled.


author: CHAPMAN, Justice.

text:
    Pauline FARRIS, Appellant, v. Billy FARRIS, Appellee.
    No. 7629.
    Court of Civil Appeals of Texas. Amarillo.
    June 20, 1966.
    Frank Gaston and Lee Nowlin, Plain-view, for appellant.
    LaFont, Tudor, Tunnell, Formby & Reep, Plainview, Bill LaFont, Plainview, of counsel, for appellee.
   CHAPMAN, Justice.

In a divorce case involving the settlement of property rights and child custody tried to the court on January 10, 1964, appellant, Pauline Ferris, as cross plaintiff, was granted a divorce and custody of the four minor children, ending a second marriage between the parties. The property settlement theretofore agreed to by the parties was approved by the court.

The transcript herein shows that an emergency having arisen thereafter regarding the ability of appellant to care for, support and control said children, reported to the court by the Hale County Child Welfare Department, the court on April 6, 1964, entered an order holding it was for the best interest of said children that the temporary custody be awarded to said child welfare board with visitation privileges of both parents controlled by said board. On September 4, 1964, another order was entered by the court awarding temporary custody to the mother.

On the tenth day of September, 1964, thereafter the judge of the court who had tried the case and entered the orders filed a lunacy application alleging appellant to be a person of unsound mind. Though such proceedings are not shown in the record, it is stated by brief in appellant’s Statements of the Nature and Results of the Case, without challenge by appellee, that on the same day, September 10, 1964, appellant was taken into custody and on the next day, September 11, committed to the Wichita Falls State Hospital. Approximately two months thereafter she was released.

On the same day that appellant was taken into custody upon the lunacy application, appellee filed an application for temporary custody and a temporary restraining order restraining interference by appellant with appellee’s temporary custody and restraining her from injuring or molesting the children. Temporary custody of the children was awarded to appellee on that same day and a temporary restraining order was entered as requested. On September 19, the date set for a hearing of such temporary restraining order, Mrs. Farris being then confined to the Wichita Falls State Hospital, temporary custody in the father was extended.

More than six months after appellant was discharged from the state hospital she filed application to have the various temporary orders above described set aside. The court set aside such temporary orders theretofore entered and granted appellee temporary custody of the children pending a hearing upon his petition filed on June 18, 1965, for a change of custody. That petition does show in the record. A hearing was had again before the court on October 29, 1965, upon the petition for change of custody, and appellee was awarded custody of the four children. The principal question to be decided is whether there was any probative evidence of a material change of conditions since the original decree of June 10, 1964, such as to make it in the best interest of the children to change custody from the mother to the father.

Appellant’s first two points go to the sufficiency of the probative evidence to support the trial court’s finding of changed conditions of a material nature after appellant was awarded custody of the minor children in the original divorce judgment or after she was judicially declared mentally ill, committed to the state hospital, treated and discharged.

On the first point no authority whatever is cited and the point is in no respect briefed. We may therefore assume such point is waived. McClanahan v. Cook, Tex.Civ.App., 401 S.W.2d 352 and authorities there cited. However, the second point raises essentially the same question.

The two points as presented and argued are both “no evidence” points and present questions of law rather than of fact. Childre v. Casstevens, 148 Tex. 297, 224 S.W.2d 461. In passing upon whether there is sufficient (or any) probative evidence to support the trial court’s judgment we must look to the inferences most favorable to appellee which his evidence will reasonably bear. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97; Truelove v. Truelove, Tex.Civ.App., 266 S.W.2d 491 (writ ref.).

Where there is controversy for custody of minor children between patents the primary and dominant consideration is the best interest of the children. Ex parte Eaton, 151 Tex. 581, 252 S.W.2d 557.

The custody award to appellant being res judicata of the best interest of the children at that time, Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, we must determine from the evidence if a change of conditions has been shown and if such conditions warrant a change of custody. That determination is to be made by a consideration of what is for the best interest of the children. Ex parte Eaton, supra.

It is true that the evidence shows the mother was an emotionally disturbed person before the award of custody of the children to her, but afterwards she grew progressively worse until the judge of the court who had awarded her custody filed a lunacy complaint against her, as heretofore stated. It is true also that she had shown some temper tantrums before custody of the children was awarded to her, but the father had apparently not seriously contested custody, if at all, when custody was granted to the mother, and had agreed upon a property settlement in the original decree. There is not anything in this record showing the testimony in that hearing.

Appellant contends that a commitment to a state hospital following custody cannot be considered in making a determination as to whether there has been such a material change of conditions as to justify a change of custody. Though we do not agree, we specifically avoid passing on that question because it is unnecessary in this case. There is an abundance of probative evidence other than the state hospital commitment which we believe shows a preponderance of evidence making it imperative that the award of change of custody of the children be affirmed.

The testimony shows appellant drank intoxicants and was given to abuse of her children and her husband before the first divorce and custody award but her conduct was much more extreme after she was released from the state hospital. She was arrested for drunkenness in a public place in 1965. Her language and conduct in the presence of the officers and her statements concerning her sexual promiscuity were so vulgar, debase and obscene we would not even think of dictating it to a secretary or permitting it to become a part of an opinion to go into the jurisprudence of the state.

Two of her daughters, one twelve years old and one younger, testified in the case and told of men frequenting their home, drinking beer with their mother in the presence of the children, leaving beer in their refrigerator, and of at least one occasion when a man spent the night with her. The child, Becky, saw him in bed the next morning in her mother’s bedroom under the covers. She also related incidents of her mother staying out all night and leaving the children alone.

All these incidents and others unnecessary to relate show such a change of conditions that we feel the trial court had no choice except to change the custody to the father, whose mother is helping to rear the children in an atmosphere the record indicates to be clean and wholesome. Both daughters who testified stated they wanted to live with their father and the evidence shows their school marks are much improved and their home much more stable than when they were in the custody of their mother.

The judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    Harley Arthur HILL, Jr., Appellant, v. Mary Kathleen HILL, Appellee.
    No. 14839.
    Court of Civil Appeals of Texas. Houston.
    June 16, 1966.
    Rehearing Denied July 7, 1966.

      Skipwith & Muirhead, Ray Carlton Muir-head, Houston, O’Neal & Waitz, Houma, La., for appellant.
    William W. McNeal, Jack Harrison, Alvin, for appellee.
   COLEMAN, Justice.

This is an appeal from a judgment entered in a divorce case. All points of error relate to the validity or propriety of that part of the decree relating to the visitation rights allowed appellant.

The decree states: “ * * * it is accordingly ORDERED, ADJUDGED and DECREED by the Court that the care, custody and control of the minor children be, and they are hereby awarded to Plaintiff, Mary Kathleen Hill, provided that Defendant may have rights of visitation by first obtaining the written consent of Plaintiff, Mary Kathleen Hill.” Appellant contends that the effect of this decree is to make his right of visitation conditional and contingent.

It is the general rule in Texas that the right of a parent to visit with his children placed in the custody of the other parent by the divorce decree, will not be completely denied except where there are extreme grounds to support such a denial. Liddell v. Liddell, Tex.Civ.App.1930, 29 S.W.2d 868; Felker v. Felker, Tex.Civ.App. 1948, 216 S.W.2d 669, error ref., n. r. e.

It is equally well settled that reasonable access by a parent to his children is a right given by law and exists where the decree neither denies the right of visitation nor makes provision for same. Cherry v. Cherry, Tex.Civ.App.1964, 384 S.W.2d 912; Hays v. Hays, Tex.Civ.App. 1939, 123 S.W.2d 968.

The trial court found as a fact: (1) that the defendant was not a fit person to see and visit the children without strict limitations and safeguards being placed upon said visitation privileges; (2) that in all probability visitation by appellant with the children would cause irreparable harm, both psychologically and physically, to said children unless said visitation was first consented to and approved by Mary Kathleen Hill, prior to such time said visitation might take place; and (3) that it would be contrary to the best welfare and interest of the minor children for appellant to be allowed visitation with said children without having first obtained the prior written consent of appellee. These findings of fact are attacked on the ground that they are contrary to the great weight and preponderance of the evidence. The finding, numbered (1) above, is not so against the great weight and preponderance of the evidence as to be clearly wrong. Findings numbered (2) and (3) are supported by no evidence.

The trial court concluded as a matter of law that it would be to the best interest and general welfare of the children that appellant be granted the right of visitation with said children “with the limitation that said visitation privilege shall be conditioned upon his first obtaining the prior written consent” of appellee to each visitation period.

The trial court did not deny appellant visitation rights. He found as a fact that the best interests of the children require that appellant be granted the right to visit under proper limitations and safeguards. His decree, however, conditions the right of visitation upon appellee’s prior written consent. No limitations or safeguards are provided. It would appear that the court felt that the necessary limitations and safeguards would be determined by appellee eaeh time appellant sought to visit the children. The decree might be construed as granting reasonable rights of visitation in which event appellee could be required by the court to give her consent in writing at reasonable intervals. The record in this case indicates that court action would be required. The decree might also be construed as permitting appellee to determine whether appellant would be allowed to visit with his children at all. This appears to be the construction placed on the decree by the parties,

The matter of determining the frequency and duration of visits by a divorced parent with his children, who have been placed in the custody of another, as well as the limitations and safeguards to be placed on such visits, is one peculiarly within the discretion of the trial court and is subject to review only on a showing of abuse of discretion. If the court determines that limitations and safeguards are required, it is his responsibility to set them out in his decree. If the frequency and duration of the visits are to be limited beyond the concept contained in the traditional wording “reasonable times and places”, the limitations should be set out in the decree. Only in this manner can the welfare of the children be guarded and future litigation avoided. The practice of defining visitation rights in the decree is to be commended since it eliminates a source of conflict between divorced parents, Repeated contempt actions growing out of child custody decrees are necessarily contrary to the best interest of the children involved.

While there are exceptions, it is a general rule that judgments must not be in the alternative, conditional, or contingent. 33 Tex.Jur.2d, Judgments, § 44. The trial court erred in making appellant’s right to visit with his children contingent on the possibility that he could secure the written permission of appellee in view of his finding of fact that the best interests of the children required that appellant be granted visitation rights.

The issues in the trial court relating to divorce and property rights are sev-erable from the issues relating to custody of the children of the marriage. Lawler v. Wray, Tex.Civ.App., 8 S.W.2d 524; McLemore v. McLemore, Tex.Civ.App., 285 S.W. 693.

Questions concerning custody, support and visitation are dependent one upon the other. The portion of the judgment relating to visitation will not be severed from that relating to custody and support. Quick v. Lindsay, Tex.Civ.App.1948, 208 S.W.2d 910.

The judgment of the trial court is affirmed insofar as it relates to divorce and property rights, but it is reversed insofar as it adjudicates the custody of the children, the support payments required of appellant, and the visitation rights of appellant, and this portion of the case is remanded for a new trial.

Affirmed in part and in part reversed and remanded.

BELL, C. J., not sitting.


author: NORTHCUTT, Justice.

text:
    R. P. NEFF et al., Appellants, v. M. H. ULMER, Appellee.
    No. 7623.
    Court of Civil Appeals of Texas. Amarillo.
    May 30, 1966.
    Rehearing Denied June 27, 1966.
    Yates & Yates, Abilene, Day & Owen, Plainview, for appellants.
    Guilford L. Jones and John A. Burgess, Big Spring, for appellee.
   NORTHCUTT, Justice.

This suit was filed in the District Court of Hale County, Texas, by M. H. Ulmer against R. P. Neff; R. E. Neff; A. R. Neff; Elizabeth Neff, a feme sole; Mrs. Eva Lee Adams, and husband, Wallace Adams; Mrs. Edna Gould and husband, Oscar Gould; Mrs. Vera Stalcup and husband, Harvey Stalcup; Mrs. Mary Hamlin and husband, Clinton Hamlin; and R. E. Neff and A. R. Neff as joint independent executors of the estate of I. H. Neff and wife, Mrs. L. T. Neff, to recover title and possession of certain land in Hale County, Texas, described in the petition as follows: the northwest one-fourth of Section 14, Block JK 2, Certificate 4/636 containing 160 acres of land located in Hale County, Texas. R. P. Neff, R. E. Neff, A. R. Neff, Elizabeth Neff, Eva Lee Adams, Edna Gould, Vera Stalcup and Mary Hamlin were the children of I. H. Neff and wife, Mrs. L. T. Neff.

On February 10, 1953, I. H. Neff and wife L. T. Neff, executed eight separate deeds deeding to each of their children a certain piece of property and acknowledged each deed before Vera Burdick, notary public in and for Coleman County, Texas, on March 11, 1953. The above mentioned property was deeded to Mrs. Della Ulmer as her own separate property and estate. Each deed provided the consideration to be the execution, by the child mentioned in that particular deed, of a $5,000 note payable to I. H. Neff and L. T. Neff in five annual installments. The deeds here mentioned were not delivered but were left with W. Marcus Weatherred, the attorney of I. H. Neff and wife, L. T. Neff, to hold. On March 31, 1958, I. H. Neff and L. T. Neff executed eight separate releases releasing the $5,000 lien mentioned in the particular deed. The releases were acknowledged by I. H. and. L. T. Neff on April 3, 1958, before W. Marcus Weather-red, notary public, Coleman County, Texas. The releases were left in the possession of Mr. Weatherred. All of the deeds and releases were filed for record on February 18, 1959, at 10:00 o’clock a. m. Mr. I. H. Neff died in September 1961 and his wife, L. T. Neff, died in December 1961.

It is the contention of M. H. Ulmer that the property above described that was deeded to his wife, Della Ulmer, was their community property at the time of the death of Della Ulmer and since there were no children born to them, he owned the entire 160 acres. The defendants contended the property was the separate property of Della Ulmer and that M. H. Ulmer was entitled to receive only one-half of the 160 acres above set out.

The case was submitted to a jury upon seven special issues. In answer to the issues the jury found that in the summer of 1952 I. H. Neff agreed with Mr. and Mrs. Ulmer to compensate them for the care and support of Ann Ulmer; that it was the intent of I. H. Neff and Mrs. L. T. Neff in executing the deed to the land in question as payment to Mr. and Mrs. Ulmer for the care and support of Ann Ulmer and Mary Hamlin; that it was the intent of I. H. Neff, Mrs. L. T. Neff and Della Ulmer that the $5,000 consideration expressed in the deed be paid out of the rents and revenues of the land in question; that the $5,000 consideration was paid to Mr. and Mrs. I. H. Neff out of the rent and revenues of the land in question; that after the execution of the deed and release in question that Marcus Weatherred held said deed and release in his possession exclusively for the benefit of I. H. Neff and wife; and that Marcus Weatherred did not send the deed and release in question to the county clerk of Hale County for record at the request of I. H. Neff and that it was not the intention and purpose of I. H. Neff and wife in executing and recording the deed and release in question to make a gift of the property in question to Della Ulmer as her separate property and estate. The undisputed evidence is that Mr. Neff directed Mr. Weatherred to send the deeds and releases to the county clerk to be recorded.

Judgment was entered by the court granting M. H. Ulmer title and possession of the property involved and holding that the deed dated February 10, 1953, executed by I. H. Neff and Mrs. L. T. Neff as grantors to Mrs. Della Ulmer as grantee vested title in the land in question in Della Ulmer as the community- property of Della Ulmer and M. H. Ulmer. The judgment further ordered that a writ of possession issue directing the sheriff to seize the property and deliver possession to M. H. Ulmer. The judgment further decreed that M. H. Ulmer recover of and from the defendants and each of them jointly and severally the sum of $9,324.11 as the reasonable value of the use of the lands from and after February 28,1960, to the 30th day of March, 1962. From that judgment all of the defendants except Mary Hamlin and husband perfected this appeal. Hereafter the defendants, except Mary Hamlin and husband, will be referred to as appellants and the plaintiff as appellee. The interest of Mary Hamlin and husband will not be considered further herein since they did not join in this appeal.

By appellants’’ fourth, seventh, ninth and thirteenth points of error it is contended that the findings of the jury that it was the intent of Neff and wife in executing the deed to convey the land in question as payment to M. H. Ulmer and Della Ulmer for the care and support of Ann Ulmer and Mary Hamlin; and that it was the intent of the grantors that the $5,000 note was to be paid out of the rent and revenue of the land in question; and that it was paid out of such rent and revenue; and that Mr. and Mrs. Neff did not intend the deed as a gift to Della Ulmer, were so against the great weight and preponderance of the evidence as to be clearly wrong. In considering those assignments of error we must consider and weigh all of the evidence in the case. In re King’s Estate, 150 Tex. 662,244 S.W.2d 660.

We think it is clear under this record that the first time Della Ulmer or M. H. Ulmer could have claimed any right or title to the property here involved was after the deed was filed for record because in order to operate as a transfer of title to the land the deed must have been delivered to them or to some third party for their use and benefit. Cardwell v. Shifflet, Tex.Com.App., 294 S.W. 519; Anglin v. Cisco Mortgage Loan Co., 135 Tex. 188,141 S.W.2d 935 and cases there cited.

As to the contention of appellee that it was the intent of Mr. and Mrs. Neff in executing the deed to convey the land in question as payment to Mr. and Mrs. Ulmer for care and support of Ann Ulmer and Mary Hamlin, we believe such contention is in direct conflict with the true record in this case. The conversation had by appellee with I. H. Neff concerning the promise of Mr. Neff to pay appellee for keeping Ann and her mother was prior to the execution of the deed in question. There is no other evidence than that given by appellee as to the intent of Mr. and Mrs. Neff to deed this property to Ulmer in payment for the keep of Mrs. Hamlin and daughter, Ann. There is no evidence in writing of an agreement on the part of I. H. Neff to pay the Ulmers for keeping Ann and her mother. The evidence introduced here as to I. H. Neff agreeing to pay the Ulmers for keeping Ann and her mother was long after Mrs. Hamlin had married and left the home of appellee. The oral agreement to pay the debts of another would not be enforceable under Article 3995, Vernon’s Ann.Tex.Civ.St. There was no obligation on the part of I. H. Neff to support Mrs. Hamlin or her daughter. Texas Employers’ Ins. Ass’n v. Birdwell, Tex.Civ.App., 39 S.W.2d 159 (writ ref.); Pope v. State, 123 Tex.Cr.R. 576, 59 S.W.2d 390.

One of the general rules for the construction of written instruments, deed included, is that the intention of the grantor gathered from the language of the instrument as a whole must control unless repugnant to some rule of law or contrary to some express provision contained therein. It is stated in Brown v. Payne, 142 Tex. 102, 176 S.W.2d 306, as follows:

“The rule is well stated in Turner et al. v. Montgomery et al., Tex.Com.App., 293 S.W. 815, as to the construction of instruments, as follows: ‘Through all the rules governing construction of instruments, there runs the central thought of ascertaining the real intention of the parties. In the nature of such inquiry, there can be no fixed rule, for every case, in large measure, depends upon its own facts, context of instrument, and circumstances. Of course it is elementary, if there is no ambiguity, the construction of the written instrument is for the court, and moreover, even in those cases of ambiguous instruments, if the parol evidence is undisputed as to the circumstances, the construction is yet a question of law for the court.’
“See also North v. North, Tex.Civ.App., 2 S.W.2d 481, by Chief Justice Gallagher of the Waco Court for a careful statement of the rule as applied to written instruments generally, including deeds.”

As shown above, Mr. and Mrs. Neff executed at the same time eight deeds deeding certain property to each of their eight children. In each deed the consideration recited was the execution of a $5,000 note. In each of the deeds to the daughters the notes were to be paid out of the daughters’ own separate property and estate. The granting clause in each deed to their daughters provided as follows: “Have Granted, Sold and Conveyed, and by these presents to Grant, Sell and Convey unto said (naming the daughter receiving the particular piece of land described in that deed) as her own separate property and estate.” Then the habendum clause stated as her own property and estate. There is no evidence that any of the children ever paid to their father and mother any part of the $5,000 notes mentioned. Ap-pellee did not sign the $5,000 note set out in the deed to his wife, Della Ulmer, but he was told it was not necessary for him to sign the note. It is to be noticed that Mrs. Hamlin was deeded the same amount of property that was deeded to Mrs. Ulmer. As to the contention of appellee and also the findings of the jury that it was the intent of Mr. and Mrs. Neff and Della Ulmer that the $5,000 note was to be paid out of the rents and revenue of the land in question, the undisputed record is to the contrary. It is true the deed provided the note to be paid by Mrs. Della Ulmer out of her own separate property and estate. The deed was never delivered until February 18, 1959, when it became effective and the note was released at the same time and up to that time Mr. Neff had owned the property and received all the income from all of his property.

It is stated in Kelly v. Womack, 153 Tex. 371, 268 S.W.2d 903, as follows:

“It is a cardinal principle that the intention of the grantor shall govern. ‘ “The judicially ascertained intent of a conveyor is normally determined by the language employed in the conveyance, read as an entirety and in the light of the circumstances of its formulation.” ’ ”

The circumstances here clearly show that Mr. and Mrs. Neff were seeking to provide each of their children a home by making the deeds all at the same time and all under the same conditions.

It is stated in Pacific Mutual Life Insur. Co. v. Westglen Park, Inc., 160 Tex. 1, 325 S.W.2d 113, as follows:

“The cardinal rule of construction of unambiguous contracts is to ascertain the intention of the parties as expressed in the language used in the instrument itself. Citizens National Bank in Abilene v. Texas & Pacific R. Co., 136 Tex. 333, 150 S.W.2d 1003; Jackson v. Richards, Tex.Civ.App., 157 S.W.2d 982, writ ref. This intention is determined from the language of the instrument itself. Reconstruction Finance Corporation v. Gossett, 130 Tex. 535, 111 S.W.2d 1066. The language of the contract is the determinant of the nature and extent of the obligation. Citizens National Bank in Abilene v. Texas & Pacific R. Co., supra.”

See also Dallas Joint Stock Land Bank v. Harrison, 138 Tex. 84, 156 S.W.2d 963.

In the case of Janes v. Gulf Production Co., Tex.Civ.App., 15 S.W.2d 1102 (writ ref.) it was held that where a deed by certain of its terms manifests an intent to make the property the separate estate of the wife the presumption of community title disappears absolutely and all the other language of the deed must he made to effectuate that intent when it is reasonably susceptible by that construction.

We think the case of Smith v. Buss, 135 Tex. 566, 144 S.W.2d 529, is directly in point here where it is stated:

“We agree with the holding of the Court of Civil Appeals that the recitals in the deeds from J. S. Moore and wife to Mrs. Mary Rives, above quoted, prima facie constituted the land thereby conveyed the separate property of Mrs. Rives. Each of such deeds recited that the consideration paid, and to be paid, by Mrs. Rives was ‘out of her own separate property, funds and estate, * * It is then recited in each deed that $737.50 was paid in cash and $1475.00 was to be ‘represented by Five (5) * * * notes * * *, executed by the Grantee herein * * *.’ The grantee was Mrs. Mary Rives. It thus appears that each of the deeds recited that $737.50 was paid in cash by Mrs. Rives out of her separate property and estate, and that the five notes executed alone by Mrs. Rives were also to be paid out of her separate estate. Such deeds prima facie show that at the very time Mrs. Rives acquired the land thereby conveyed, she took the entire title in her separate right, and not in community. Lusk v. Parmer, supra, [Tex.Civ.App., 87 S.W.2d 790,] and authorities there cited; Speer’s Law of Marital Rights in Texas, 3d Ed., p. 515, sec. 429, and authorities there cited.”

In considering the deed alone there is no other interpretation that could be rightfully given than the property here in question was the separate property of Della Ulmer. We have carefully considered all of the evidence herein and sustain appellants’ points of error four, seven, nine and thirteen and hold that the findings of the jury are so against the great weight and preponderance. of the evidence as to be clearly wrong. Since we are of the opinion the case should be reversed and remanded, we will not pass upon other assignments presented by appellants. As to the ownership and possession of the property here involved, judgment of the trial court is reversed and remanded.

Judgment of the trial court is in all things reversed and remanded.


author: HUGHES, Justice.

text:
    Leonard LAWTON et al., Appellants, v. The CITY OF AUSTIN et al., Appellees.
    No. 11406.
    Court of Civil Appeals of Texas. Austin.
    June 15, 1966.
    Rehearing Denied July 6, 1966.

      Sneed & Vine, Houghton Brownlee, Jr., Forrest N. Troutman, Austin, for appellants.
    Johnson, Jones & Sheppard, Paul D. Jones, Pearce Johnson, Austin, Clark, West, Keller, Clark and Ginsberg, William L. Keller, Allen Butler, Dallas, Doren R. Es-kew, City Atty., H. Glenn Cortez, Asst. City Atty., Brown, Sparks & Erwin, Will G. Barber, Austin, for appellees.
   HUGHES, Justice.

Earl L. Dolifka, J. E. Berryman and Leonard Lawton, appellants, by an amended pleading sued the City of Austin, Safeway Stores, Inc., Nash Phillips, Clyde Copus and R. B. Lewis for a declaratory judgment invalidating three ordinances passed by the City of Austin making changes in its zoning ordinances.

Trial was non-jury. Judgment was rendered declaring the ordinances attacked to be valid and denying appellants any relief, the Court reciting “that plaintiffs have failed to prove by a preponderance of the evidence that the enactment of” the ordinances by the City “has had or will have any effect upon plaintiffs’ property.”

The three ordinances in suit amended existing zoning ordinances so as to change the areas described from a classification of residential “A” to commercial “G.R.” zoning.

Each of appellants owned residential property which, it was alleged, would suffer a diminution in value as a result of the enactment of one or more of such ordinances. On this issue the evidence was disputed and the trial judge made the finding, above noted, that no loss of value was proved. Appellants have no point questioning the validity of this finding. Their first point, however, is that the “Trial Court erred in holding (if it did so hold) that plaintiffs were under the burden of proving irreparable injury to their property as a resulting fact from the passage of the subject ordinances.”

We believe that a discussion of this point would be academic because it does not present a point of error which could be determinative of this appeal.

The enactment of zoning laws is an exercise of the police powers of the State by the legislative branch of the government. The State of Texas has delegated some of this legislative authority to municipalities. Arts. 1011a — 1011j, Vernon’s Ann.Tex.Civ.St. The Legislature, of course, may put such restrictions on and provide the manner in which municipalities may exercise the delegation of this authority as it sees fit. See Smart v. Lloyd, Tex.Civ.App., 370 S.W.2d 245, Texarkana, n. w. h.

Our problem here is, as we see it, twofold, (1) to determine if the City has substantially tracked the statutes under which it derived authority to enact the ordinances in suit and (2) whether the notice provisions of Art. lOllf are constitutional.

The statute of primary concern here and the only one the partial validity of which is assailed is Art. lOllf which we quote, in part:

“Art. lOllf. Zoning commission
In order to avail itself of the powers conferred by this Act, such legislative body shall appoint a commission, to be known as the Zoning Commission, to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. Such Commission shall make a preliminary report and hold public hearings thereon before submitting its final report, and such legislative body shall not hold its public hearings or take action until it has received the final report of such Commission ; provided, however, that any city or town, by ordinance, may provide for the holding of any public hearing of the legislative body, after published notice required by Section 4 of this Act, jointly with any public hearing required to be held by the Zoning Commission, but such legislative body shall not take action until it has received the final report of such Zoning Commission. Where a City Plan Commission already exists, it may be appointed as the Zoning Commission. Written notice of all public hearings before the Zoning Commission on proposed changes in classification shall be sent to owners of real property lying within two hundred (200) feet of the property on which the change in classification is proposed, such notice to be given, not less than ten (10) days before the date set for hearing, to all such owners who have rendered their said property for city taxes as the ownership appears on the last approved city tax roll. Such notice may be served by depositing the same, properly addressed and postage paid, in the city post office.”

Sec. 4 referred to in the above statute, is Art. lOlld, which reads:

“Art. lOlld. Method of procedure
The legislative body of such municipality shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established, and enforced, and from time to time amended, supplemented, or changed. However, no such regulation, restriction, or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least 15 days’ notice of the time and place of such hearing shall be published in an official paper, or a paper of general circulation, in such municipality.”

Art. lOlle, provides, in part, that, “The provisions of the previous section relative to public hearing and official notice shall apply equally to all changes or amendments.”

On the issue of constitutionality of the notice provisions of the above statutes, appellants cite authorities for the rule that notice to satisfy the requirements of due process must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”

We hold that the notice provisions of the statutes referred to above are valid for two reasons. The first reason is that the enactment and amendment of zoning laws is legislative in character and due process of law does not require notice of such proceedings. The second reason is that the notice provisions of these statutes are constitutionally adequate even if notice is required.

Our first reason is sustained by these authorities. 66 C.J.S. Notice § 14, p. 652, Burke v. Board of Representatives of Stamford, 148 Conn. 33, 166 A.2d 849, 16A C.J.S. Constitutional Law § 569(5), p. 580, n. 20. Among the cases cited in this note is Willapoint Oysters v. Ewing, 174 F.2d 676, U.S. Court of Appeals, Ninth Circuit, cert. denied 338 U.S. 860, 70 S.Ct. 101, 94 L.Ed. 527, rehearing denied, where the Court stated, “However in legislation, or rule-making, there is no constitutional right to any hearing whatsoever.” Cited to support this holding was the following language from an opinion by Justice Holmes, “Where a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over, those who make the rule.”

In Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, the Court sustained the constitutionality of our zoning laws which at that time provided only for notice by publication as prescribed in Arts. 101 Id and 101 le, supra.

This type of notice in zoning matters has been upheld in many cases. See Annotation in 96 A.L.R.2d, p. 459.

It is true that the publication notice required by the statutes does not necessarily apply to hearings before the Zoning Commission and that the written notice provisions apply only to such hearing. We concede that the right to appear before the Zoning Commission is of great importance, and that we should preserve and protect it insofar as the Legislature has authorized or directed its preservation and protection. We consider this right to be a mere legislative right as distinguished from a constitutional right. The Legislature may have directed that notices of the public hearing before the Zoning Commission be sent to persons owning property in the area as disclosed by the deed records of the County or whose identity could be ascertained in any other reasonable manner. The point is that it has not done so, and it, the Legislature, was not required to provide for any notice of such hearing. We have no hesitancy in saying, however, that the Legislature has wisely, fairly and reasonably provided for a method of notice which places on property owners some measure of responsibility which he assumes when acquiring the status of an owner of real property in the City, that of rendering his property for taxation.

It is also true that the written notice provisions are not perfect in that when there is a change of ownership so that the last approved tax roll may not reflect the owner at the time written notice of the hearing are sent. Perfection is difficult of attainment. If this imperfection is to be remedied, it must be accomplished by the Legislature. It is enough for us to determine that this inadequacy does not afford grounds for granting appellants the relief they seek. It would not benefit appellants if we held this notice provision invalid. It would, theoretically at least, harm him and those similarly situated for the reason that if some property owners within this limited area receive written notices of a hearing before the Zoning Commission which affects their property the more likelihood that all, including those who have not received such notice, will hear of it. Nor do we believe that appellants can complain that the Legislature has provided for an imperfect notice when it was not required to provide for any notice.

We overrule appellants’ point that Art. 101 If is unconstitutional insofar as its provisions for notice are concerned.

We must now determine whether the notice provisions of Art. 101 If have been complied with in this case as to each appellant and as to each ordinance involved, for if not the ordinance enacted under such circumstances is void. The law in this respect has been recently stated by the Supreme Court in Bolton v. Sparks, 362 S.W.2d 946, as follows:

“The courts of this State have held ordinances and amendments to ordinances invalid where the express, mandatory provisions of our zoning statute have not been complied with. The steps directed to be taken for notice and hearing, when provided for in the law, are intended for the protection of the prop-city owner, and are his safeguards against the exercise of arbitrary power. Each act required is essential to the exercise of jurisdiction by the City Council, and each must be rigidly performed.”

All the facts relating to notice were stipulated. Publication notices required by the statutes were duly given and no point is made regarding them.

None of appellants owned any property within 200' of the property made the subject of Ordinance No. 650610-A. They, therefore, did not fall within the written notice provisions of Art. 101 If, as to this ordinance.

Only appellants Lawton and Berryman owned property within 200' of the property made the subject of Ordinance 650304 — C. Berryman purchased his property in September 1964; Lawton purchased his property in May 1964. Neither of these two appellants rendered his property for taxation, although they have paid their taxes.

The public hearing before the Zoning Commission held prior to the enactment of this zoning ordinance was held February 2, 1965. Neither Berryman nor Lawton received written notice of this hearing for the reason that not having rendered their properties for taxation their names were not on the last approved tax rolls. They had no actual notice of such hearing. It does appear that the predecessors in title of Lawton and Berryman, Triple C Inc., did receive notice of such hearing, such predecessor being shown- as the owner on the last approved City tax roll, being the tax roll reflecting ownership of property as of January 1, 1964. All property owners as shown by this roll owning property within 200' of the property affected by this ordinance were duly mailed notices as required by Art. lOllf.

Appellant Dolifka purchased property in October 1962 which lay within 200' of the property the subject of Ordinance 631017-D. This property was not on the City approved tax roll until September 1964. Mr. Dolifka first rendered this property for taxes in 1965.

Written notices as required by Art. 101 If were duly mailed giving notice of the public hearing before the Zoning Commission of the proposed changes, later reflected in such Ordinance, such hearing to be held September 17, 1963.

Appellant Dolifka did not receive written notice of such hearing and had no actual notice of it.

It is obvious that, on the face of things, the City has literally complied with all statutory provisions for notice of public hearings before the Zoning Commission and the City Council.

Appellants say, however, that, sub rosa, other matters were considered by the Zoning Commission when it recommended passage of Ordinance 631017-D. We copy appellants’ statement under the points presenting this question:

“As originally submitted to the City, the property which was the subject matter of Ordinance No. 631017-D, consisted of two tracts of land shown as a shaded area on the map in the files of the Planning Commission. Plaintiff Dolifka lived across the street from one of these tracts. The minutes contained in the Planning Commission file reflect that the subject property was a portion of Royal Oak Estates, Section 8, and that ‘the staff is concerned with the intersection question being resolved prior to any development of this site and feel that this zoning proposal should be considered in terms of an approved subdivision layout.’ The files also reflect that ‘the Commission felt this was proper zoning for the property, but they agree that it must be tied to a comprehensive street pattern as finally established by the subdivision proposing commercial sites at this location.’
In other words, the recommendation of the Planning Commission was conditioned on a comprehensive commercial zoning of Royal Oak Estates, Section 8, which property including the areas which were the subject of the two subsequent zoning ordinances passed in 1965.
The Planning Commission, by enlarging the scope of the initial ordinance, failed to follow the requirements of Article 101 If of Vernon’s Civil Statutes in that notice was not sent to all persons within 200 feet, as shown by the City’s tax rolls, for the entire commercial subdivision. It has been stipulated that notices were sent to all persons within 200 feet of the property shown in the application for the initial zoning ordinance. Apparently, the City felt it unnecessary to send notices to persons living within 200 feet of the entire commercial section (Royal Oak Estates, Section 8), and in failing to do so, the City failed to establish its jurisdiction over the subject matter of the initial ordinance.
One of the subdividers made plain the fact that the 1963 Planning Commission’s meeting did not restrict the subj ect matter of the ordinance to the property described in the application. Witness this statement by Mr. Nash Phillips on cross-examination.
‘Q At the time the ordinance affecting these three tracts here are considered by the Planning Commission, was your proposed subdivision of Royal Oaks Section 8 considered by the Planning Commission?
A I would have to say it was. They certainly considered the overall workability of the streets.
Q Was this whole subdivision supposed to be a commercial development — Section 8?
A Was the whole subdivision considered ?
Q Yes, sir; as it is today.
A Was it proposed to be a commercial development?
Q Yes.
A Yes, sir.’ ”

Other testimony from this witness on this matter is:

"Q Would you explain to the court what is known by this: ‘voted to recommend that the request of Nash Phillips, et al, for a change of zoning on a residential first height and area to GR General Retail Sixth Height and Area, be not located at 2111-2139 and 2126-2208 Wheless Lane, be granted to provide the comprehensive subdivision street plan for commercial use is approved.’ Now, what are they talking about when they say this ‘comprehensive subdivision’s street plan for commercial use is approved?’
A They are talking about the street intersections.
Q They are not talking about Royal Oaks Estate, Section 8?
A No, sir.
Q Mr. Phillips, the questions that I have asked you referring to the ordinance affecting the first three tracts of land, this is the first ordinance that was passed in 1963 is that correct? I believe that it was October, 1963 that the City Council passed the first ordinance.
Was that the date it was passed ? >
Yes. ©
Now what was your question ? >
That was the ordinance that you were talking about when you testified at the hearing of the Planning Commission — you were not talking about the second or third ordinances. ¡O
A I would say it generally applied to the first ordinance — the working out of the street.”

The area which appellants assert the Planning Commission considered and de-. termined to recommend for commercial zoning in its public hearing in 1963 prior to adoption of Ordinance 631017-D is the same area which was included in the two subsequent Ordinances, 650304-C and 6S0610-A.

Art. 1011c, V.T.C.S., requires that zoning regulations be made “in accordance with a comprehensive plan and designed to lessen congestion in the streets * * * and to facilitate the adequate provision of transportation * * * ” and to foster other public services and the general welfare.

Fairly interpreted, we believe the discussion before the Planning Commission was proper and in keeping with its duties under Art. 1011c.

If the matter is not free from doubt, and this is the most that appellants could, in our opinion, make of the matter, this doubt has been resolved against them by the trier of the facts, the trial judge.

We overrule appellants’ points presenting this alleged impropriety of the Planning Commission.

Finding no error, the judgment of the trial court is affirmed.

Affirmed.

PHILLIPS, J., recused himself and did not sit.

      . See Ottinger v. Arenal Realty Co., 257 N.Y. 371, 178 N.E. 665, where the Court, Justice Cardozo writing, in a zoning case stated,
      “Neighboring property owners, not being parties, derive no right to notice from the provisions of the (City) charter. Whatever right to notice belongs io persons other than the parties * ⅜ ⅜ comes to them either from the rules of the board itself or from the general zoning resolution.” and:
      “Public, in any event, the hearing is, even if better forms of publicity could be invented by one bent upon reform. The law does not guarantee the efficacy of its processes to carry notice home to every interested mind. This is so even where constitutional rights would be infringed if publication were omitted. It is so, a fortiori, where publication is an act of grace. Land may be condemned and property interests divested, though the expropriate owner, residing in another state, has never seen the summons that warns him to defend his rights. Still more flexible are the forms available where nothing would be divested nor any right infringed if the proceeding were conducted without notice from opening to close. * * * The zoning resolution might be repealed overnight without violating the Constitution. Whatever right to preliminary notice belongs to the public or to any members of the public has its origin in the (zoning) resolution and is measured by its terms.”


author: MURRAY, Chief Justice.

text:
    Guy ALDRIDGE, Appellant, v. NORTHEAST INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 14386.
    Court of Civil Appeals of Texas. San Antonio.
    June 1, 1966.
    Rehearing Denied June 27, 1966.
    Frank Y. Hill, Jr., San Antonio, for appellant.
    Foster, Lewis, Langley, Gardner & Hawn, Ralph G. Langley, Willis T. Taylor, San Antonio, for appellee.
   MURRAY, Chief Justice.

This cause was before this Court on June 2, 1965, at which time we ordered the appeal dismissed upon the theory that the judgment appealed from was only an interlocutory order. Aldridge v. Northeast Independent School Dist., Tex.Civ. App., 392 S.W.2d 607.

The Supreme Court of this State granted a writ of error, reversed the judgment and remanded the case to this Court for consideration of the appeal on its merits. Northeast Independent School Dist. v. Aldridge, 400 S.W.2d 893.

We now proceed with the hearing on the merits of the appeal.

This suit was instituted by Northeast Independent School District against Guy Aldridge, alleging that defendant executed a written contract with plaintiff whereby plaintiff agreed to purchase from defendant, and defendant agreed to sell to plaintiff, approximately 20.963 acres of land situated in Bexar County, Texas, fully described in the pleadings, and defendant further agreed in said written contract to construct an adequate sewer line approved by the City of San Antonia, Texas, to a point on the southern boundary of the premises, and to construct public streets along and abutting the northern and western boundaries of the premises, such construction to take place on or before August 1, 1962.

Defendant failed to construct the sewer line or the public streets, or any portion thereof, within the time required, directly resulting in damages to plaintiff in the sum of $30,000.

The defendant's answer included a plea in abatement, a general denial, a plea that the contract was in reality made by plaintiff with King-O-Hills Development Co., a corporation, for which he acted only as agent in executing the contract, and defendant filed a cross-action against King-O-Hills Development Co., to recover any sum which he might be adjudged liable to pay to the School District.

Plaintiff filed a motion for summary judgment based upon breach of the written contract, which motion was granted upon the issue of liability as to Guy Aldridge, and the issue of amount of damages was set for a hearing at a later date. The attorneys for plaintiff and defendant later stipulated the amount of damages to be $30,000, and the court proceeded to render judgment in that sum in favor of plaintiff against defendant, Guy Aldridge, who has prosecuted this appeal.

The written contract sued upon by ap-pellee on its face presents a clear, concise, complete and unambiguous written expression of the agreement between appellant and appellee.

Appellant did not deny the execution of the contract under oath, as is required by Rule 93, Texas Rules of Civil Procedure. Neither did he allege fraud, accident or mistake in the execution of the contract. Under such circumstances the construction of this unambiguous written contract was for the court not a question of fact to be submitted to a jury. Republic Nat. Life Ins. Co. v. Spillars, 368 S.W.2d 92, 5 A.L.R.3d 957 (Tex.1963); City of San Antonio v. Lewis, 9 Tex. 69; Pan Am. Petroleum Corp. v. Texas Pac. Coal & Oil Co., Tex.Civ.App., 340 S.W.2d 548; Gray v. Blau, Tex.Civ.App., 223 S.W.2d 548.

The trial court could not consider parol evidence which would vary or contradict the terms of this written- contract, and in the absence of such parol evidence the written contract presented no fact issues. The court could do nothing other than enforce the contract according to its terms and, if such terms had been violated, to allow damages for such breach.When the parties stipulated the amount of the damages they removed the only fact issue in the case. Heffron v. Pollard, 73 Tex. 96, 11 S.W. 165; Davis v. Andrews, Tex.Civ.App., 361 S.W.2d 419; George v. El Paso County Water Control & Imp. Dist. No. 1, Tex.Civ.App., 332 S.W.2d 144; Ross & Sensibaugh v. McLelland, Tex.Civ.App., 262 S.W.2d 205.

Appellant contends that the written contract was only part of a large contract consisting of other contemporaneous oral contracts. It would be possible to show other contemporaneous oral contracts, so long as they do not dispute or contradict the provisions of the written contract, but here the oral contracts which appellant contends for are in direct conflict with the clear provisions of the written contract. The written contract plainly states that Guy Aldridge is the seller of the 20.963 acres of land, and that Guy Aldridge agrees to build the sewer line and the roads and the contrary cannot be shown by parol evidence. Appellant can show by parol evidence that he was acting for an undisclosed principal in order to establish the liability of such undisclosed principal, but this cannot be done to free the agent from his liability.

This record does not raise any question of failure of consideration. The land was transferred to the School District and the consideration agreed upon was fully paid. The only breach of this contract was that Aldridge failed to build the sewer line and the roads which he agreed to build, and it is stipulated that the resulting damage was the sum of $30,000.

Appellant has undertaken to raise the issue of estoppel against appellee, but there is nothing in this record to raise such an issue.

The judgment is affirmed.