author: VAUGHAN, J.

text:
    PURE OIL CO. v. CLARK et al.
    No. 10865.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 24, 1931.
    Rehearing Denied Feb. 21, 1931.
    Vinson, Elkins, Sweeton & Weems, of Houston, for appellant.
    Hurt & Mitchell, of Dallas, for appellees.
   VAUGHAN, J.

On March 27, 1930, Hon. Joel R. Bond, judge of the district court of Van Zandt county, Tex., granted a writ of certiorari to appellee Mrs. J. B. (Isabelle) Clark, an insane person, on a petition presented by her next friend and guardian ad litem, James M. Shields, in which she was named as plaintiff, and appellant and one R. Clark as defendants, to review and set aside as being void certain proceedings had in probate causes Nos. 4289 and 4308, respectively, in and by the county court of Van Zandt county.

Following are the material allegations made as grounds for the writ of certiorari: That on May 17, 1918, in cause No. 1684, styled “Estates of Reuben T. Clark et al., Minors, and Mrs. J. B. (Isabelle) Clark, non compos mentis,” the said R. Clark was legally appointed guardian of the estate of the said Isabelle Clark, and of her four sons, Reuben T., Albert, Henry, and Cone Johnson Clark, and duly qualified as such guardian as required by law, on May 20, 1918; that afterwards, on October 17,1928, in cause No. 4289, styled “In re Guardianship of the Estate of Mrs. J. B. (Isabelle) Clark,” the said R. Clark was appointed temporary guardian of the estate of said Isabelle Clark as an insane person, and on September 29, 1928, an order was entered in said cause No. 4289 making permanent the temporary appointment of said R. Clark as guardian of the estate of said Isabelle Clark; that on February 7, 1929, said R. Clark was again appointed guardian of the estate of said Isabelle Clark in cause No. 4308, styled “In re Guardianship of the Estate of Mrs. J. B. (Isabelle) Clark, a Person of Unsound Mihd”; that sáid R. Clark filed his application in said causes Nos. 4289 and 4308 to have an order entered authorizing him as guardian of the estate of said Isabelle Clark to lease for mineral purposes the one-half interest of said Isabelle Clark in three tracts of land located in Van Zandt county; that notice of said application was issued and published in each cause, Nos. 4289 and 4308, but not in cause No. 1684; that thereafter, on March 23,- 1929, an order was entered in cause No. 4308 authorizing said guardian to lease for oil, gas, and mineral purposes certain real estate owned by appellee located in Van Zandt county, under certain terms and conditions; that said lease was executed to one R. B. Blackwell; that appellant is the present holder by assignment of the mineral leases executed by said R. Clark, as guardian under said order. Within two years after the proceedings in causes Nos. 4289 and 4308, sought to be reviewed, Rie petition for writ of certiorari was filed. In said petition it was alleged that the orders of the county court of Van Zandt county, appointing R. Clark guardian of the estate of said Isabelle Clark in said causes Nos. 4289 and 4308, were void, for the following reasons:

“(1) That the order appointing R. Clark temporary guardian was void because it was based upon a lunacy proceeding which was brought under Title 92, Article 5550 of the Texas Revised Civil Statutes and not under Title 69, Chapter 112 of the Texas Revised Civil 'Statutes.
“(2) That no citation nor notice of any kind was served on this plaintiff as defendant in any manner, advising her of said guardianship proceedings.
“(3) That both of said orders were obtained as the result of a conspiracy and fraud, in that The Pure Oil Company conspired with certain individuals to have a guardian appointed for the person and estate of plaintiff, who was not then and is not now legally capable of protecting her own interests.
“Appellees further alleged that the order to lease the real estate of Isabelle Clark was void for the following reasons:
“(1) That there was never had a hearing upon the application to lease said land as required by law.
“(2) That the order does not contain a copy of the lease executed by R. Clark.
“Appellees further alleged that all the orders in cause No. 4308 were void because there was pending a guardianship proceeding No. 4289 on the docket of the County Court of Van Zandt County, Texas.
“Appellees further alleged that all proceedings had under causes numbered 4308 and 4289 were void for the following reasons:
“(1) That no date for a hearing on the lease of the lands of Isabelle Clark was set by the court.
“(2) That no such hearing was ever had.
“(3) That no order approving any bond, nor confirming any purported lease was ever made' by the court as is contemplated by law.
“(4) That long prior to the institution of either cause No. 4289 or 4308, an order appointing a guardian of the estate of the plaintiff was made and entered by the County Court of Van Zandt County, Texas, on May 18, 1918, in cause No. 1684, that said order was a valid one, and that it had not'been closed at the time of tbe institution of causes Nos. 4289 and 4308.”

It was further alleged that all judgments and decrees made in all three causes were void because no judgment or decree were recorded in the probate minutes of the county court at the terms of court in which said orders or decrees were made.

Appellant’s answer to said petition consisted of a general demurrer, special exceptions, general denial, and a special answer, alleging that it was an innocent purchaser of the mineral lease for a valuable consideration and without notice, actual or constructive, of any defects to the title of the property of appellee, Isabelle Clark, so leased under the orders of the probate court of Van Zandt county, referred to, in appel-lee’s -petition. Appellant’s exceptions were overruled, and appellee’s special exception to appellant’s plea of innocent purchaser was sustained; said plea being stricken from appellant’s answer before the cause was reached for trial on its merits. On the hearing had in said certiorari proceedings, April 18, 1930, judgment was entered setting aside and vacating all orders, judgments, and decrees made and entered in said causes Nos. 4289 and 4308, on the probate docket of the county court of Van Zandt county, being the several orders and decrees described in ap-pellee’s petition for said writ.

Said judgment of the district court is now properly before us for review and re-

vision under appropriate assignments of error and propositions based thereon. In reference to the sustaining of appellee’s special exception addressed to appellant’s plea of innocent purchaser for value without notice of the oil lease in question, we are of opinion that, in so far as the grounds urged by appellee for writ of certiorari depended upon evidence aliunde the record sought to be reviewed and corrected, the court erred in sustaining said exception. However, as to all matters appearing upon the face of the record that would render void the proceedings sought to be reviewed and corrected, said exception was properly sustained, as the defense of innocent purchaser for value could not prevail against such exposition of the record. McNally v. Haynes, 59 Tex. 583; Clopper v. Hutcheson, 16 Tex. Civ. App. 157, 40 S. W. 604; Carpenter v. Anderson, 33 Tex. Civ. App. 491, 77 S. W. 291; Lomax v. Comstock, 50 Tex. Civ. App. 340, 110 S. W. 762; Blake et al. v. Blake et al., 260 Ill. 70, 102 N. E. 1007, 1008; Crow v. Van Ness (Tex. Civ. App.) 232 S. W. 539; Baxter Realty Co. v. Martin, 185 Ky. 697, 216 S. W. 110.

What proceedings appear upon the face of the record in said probate causes Nos. 1684, 4289, and 4308, that were either required by law to be performed and were not performed in accordance therewith, or that were had without authority of the law for same, becomes now a material inquiry. From the record of the proceedings had in cause No. 1684, we find the following material matters appearing affirmatively on the face thereof: That on May 17, 1918, defendant R. Clark was appointed guardian of the estate of Isabelle Clark, non compos mentis, and duly qualified under said appointment by taking the oath as such guardian and executing bond, as provided by law, on the 21st day of May,'A. D. .1918; that from the date said appointment was made said estate had been open and pending up to the time judgment herein appealed from was rendered, no order having been entered in said estate No. 1684 closing same and discharging said R. Clark as such guardian; that the only bond executed by said R. Clark as guardian aforesaid was in the sum of $1,-OOO, of date May 17, 1918, and approved and filed May 19, 1918, and conditioned as required by article 4141, R. C. S. 1925.

In said cause No. 4289, the following proceedings affirmatively appear of record, viz.: That on October 17, 1928, said R. Clark filed his application in the county court of Van Zandt county, to be appointed guardian of the estate of appellee, Mrs. J. B. (Isabelle) Clark, in which petition it was alleged that appellee was of unsound mind, a lunatic, and had no lawful guardian of her estate. That on October 17,1928, an order was entered granting said application in part as follows: “It is therefore ordered, adjudged and decreed by the court that the said R. Clark be and he is hereby appointed temporary guardian of the estate of said person of unsound mind, a lunatic, without citation, and that due notice of said application be given as required by law, and that letters of guardianship issue to the said R. Clark on his giving bond in-the sum of $250, payable and conditioned as required by law, and taking the oath within 20 days; and it is further ordered, adjudged and decreed by the court that such appointment of guardianship, unless contested at the next regular term of this court, after service of citation, shall be in all things made permanent.” That on Octo- ‘ ber 17, 1928, said R. Clark executed his bond and oath as required by articles 4141 and 4139 R. C. S. 1925. That on November 5, 1928, judgment was entered at a regular day and term of the county court of Van Zandt county, making the temporary appointment of said Clark, as guardian, permanent; said order in part being as follows: “It is therefore ordered, adjudged and decreed by the court that said order heretofore made, appointing the said R. Clark temporary guardian of the estate of said person of unsound mind, a lunatic, Mrs. J. B. (Isabelle) Clark, be and is hereby made permanent, and that the said R. Clark, guardian as aforesaid, is here in all things made permanent guardian of said person of unsound mind, according to law, and this order is entered in the probate minutes of Van Zandt County.” That on November 16, 1928, said R. Clark, as guardian, appointed in said cause No. 4289, filed therein his application for an order authorizing him as such guardian to lease the undivided one-half interest of appellee in three tracts of land, viz. two tracts of the Phillips-Mason survey, one containing 39 acres and the other 63 acres, and one tract of 77 acres out of the John Walling survey, in Van Zandt county, for oil, gas, and other mineral purposes. That the following entries on the trial docket were made in this cause, but were not entered in the probate or ot,her minutes of the county court of Van Zandt county:

“Nov. 6, 1928 — Application to lease filed, notice ordered given, and hearing set for Canton, Texas, Nov. 17,1928.
, “Nov. 12, 1928 — It appearing that proper notice has not been given it is ordered that proper notice be given and hearing set for Nov. 24, 1928 at Canton, Texas, notices by publication returned and ordered recorded.
“Nov. 24,1928 — Hearing had on application to lease and it is ordered by court that R. Clark as such guardian is authorized to lease the lands of said ward according to the orders entered herein, after filing proper bond.
“Nov. 24, 1928 — Bond to lease filed and approved.”

In said cause No. 4308, the following proceedings affirmatively appear of record: That on February 8,1929, said R. Clark filed an application to be appointed guardian of the estate of appellee, Mrs. J. B. (Isabelle) Clark, non compos mentis, in the county court of Van Zandt county, Tex.; that on February 7. 1929, an order was entered on said application apnointing said S. Clark as such guardian, said order being of the same tenor and effect as that entered in cause No. 4289, aboye quoted: that on February 8, 1929, said R. Clark qualified under said appointment by taking the oath as guardian of the estate of appellee and executing bond as required by the order appointing him under the provisions of articles 4139 and 4141, R. C. S. 1925; that on March 5,1929, an order was entered in said cause making permanent the temporary appointment of said R. Clark as guardian of the estate of appellee, said order being of the same tenor and effect as that entered in 4289, above quoted; that on March 6,1929, said R. Clark, under his appointment as guardian in cause No. 4308, filed his application for-an order authorizing him to lease the undivided one-half interest of appellee 'in and to the above-described three tracts of land located in Van Zandt county, for oil, gas, and other mineral purposes; that on March 23, 1929, said application was heard and ordered entered thereon granting said application; that said order fixed the terms on which said lease should be made and embraced the particular form of lease that should be executed, and required said Clark to execute a bond as provided for by article 4192, subd. 4, R. C. S. 1925, as amended by Acts Fortieth Legislature, c. 164, p. 237 (Vernon’s Ann. Civ. St. art. 4192, subd. 4); that on March 23, 1929, said R. Clark executed the bond so required of him and as guardian of the estate of ap-pellee, acting under the orders made in cause No. 4308, executed the oil and mineral lease to said Blackwell; that the orders entered in said three probate causes had reference to and appointed one and the same person, to wit, R. Clark, as guardian of the estate of one and the same person, to wit, appellee Mrs. J. B. (Isabelle) Clark; that the estate of said appellee was shown in each of said probate proceedings to consist of the same identical property, viz. the three tracts of land above referred to located in Van Zandt county; that no application for an order to lease the interest of appellee in said three tracts of land, for oil and mineral purposes, was filed in said cause No. 1684, and that none of the proceedings had by said guardian, R. Clark, in either of said causes Nos. 4289 and 4308, for the purpose of leasing and under which the interest of said appellee was leased, were in any respect had in or as being a part of the proceedings connected with the.administration of the estate of said appellee in probate cause No. 1684.

The provisions of article 4124, R. C. S. 1925, viz. “Only one guardian can be appointed of the person or estate; but one person may be appointed guardian of the person, and another of the estate, whenever the court shall be satisfied that it will be for the advantage of the ward to do so. Nothing in this article shall be held to prohibit the joint appointment of husband and wife,” clearly prohibited the appointments that were made of the said R. Clark as guardian in probate causes Nos. 4289 and 4308, as the authority of the court to appoint a guardian of appellee’s estate was exhausted when the said R. Clark J was appointed and qualified as such guardian in probate cause No. 1684, and remained so exhausted so long as said guardianship remained open and pending with said R. Clark ■ as the duly appointed and acting guardian' thereof. St. Paul Sanitarium et al. v. Crim, 38 Tex. Civ. App. 1, 84 S. W. 1114; Stallings v. Hullum, 89 Tex. 431, 35 S. W. 2. Of this want of authority of the court to make the '■ appointment of a guardian, even of the said ' R. Clark, in said causes Nos. 4289 and 4308, we think appellant, the purchaser of the lease ' from the original lessee, R. E. Blackwell, was bound to take notice; that therefore no title was acquired by appellant in the estate of appellee, under the lease contract' executed to said Blackwell. St. Paul Sanitarium v. Crim, supra; Woenner on Guardianship, § 72; Frederick v. Pacquette, 19 Wis. 541.

Subdivision 4 of article 4192, supra, as amended by Acts 40th Legislature p. 237 (Vernon’s Ann. Civ. St. art. 4192, subd. 4), which deals with the making of a bond by a guardian on executing a gas or mineral lease under the orders of the probate court authorizing same, provides: “After hearing of said application and the granting of the same by the Court said guardian shall be fully authorized to make the oil and gas or mineral lease upon the real estate of the ward, in accordance with the judgment of the Court thereon, but such oil and gas or mineral lease shall not be valid until said guardian files a good and sufficient bond in double the amount of the cash bonus that may be paid for said oil and ,gas or mineral lease, or in the event no cash bonus is paid, then such sum as may be fixed by the County Judge, which bond shall be approved by the County Judge, filed with the County Clerk and recorded in the minutes of such Court. When such order has been made and such bond has been executed and approved, the guardian shall be fully authorized to execute and deliver such lease, and it shall not be necessary for the Court to make any order confirming said lease.”

This is a mandatory statute and was not complied with, as affirmatively appears from the record of proceedings had in said prohate causes Nos. 1684, 4289, and 4308, in that it is shown from the proceedings had in said causes that the only bond executed under and within the terms of said statute was the bond executed in probate cause No. 4308, and, the order made therein appointing said R. Clark guardian of appellee’s estate being void, no legal obligation was created by the execution of said bond on the part of the bondsmen securing the faithful performance by the said R. Clark of the duties required of , him under the law in the matter of the execution of said oil or mineral lease, and for the proper accounting for the proceeds arising therefrom and received by said R. Clark. The bond executed by said R. Clark under the valid appointment as guardian in cause No. 1684 could not in any respect furnish security required by said subdivision 4, supra, as the sureties on said bond executed in cause No. 1684 could not be held liable for his failure to account for the proceeds arising from the ‘execution of the oil lease on appellee’s property. American Indemnity Co. v. Noble (Tex. Com. App.) 235 S. W. 867.

The orders made in probate causes Nos. 4289 and 4308 appointing R. Clark guardian of the estate of appellee were not only unauthorized by law, but contrary to the following statutory provisions, viz. (article 4272, R. C. S. 1925): “If it be found by the jury that the defendant is of unsound mind or is an habitual drunkard, as charged, the court shall proceed, immediately and without further notice, to appoint a guardian of the person and estate of such defendant in the same manner as in the case of a minor.”

It is only in the case of the appointment of a guardian for a minor that the appointment of a temporary guardian is authorized by law.. Article 4134, R. S. 1925: Whenever it appears to the county judge that the interest of any minor and his or her estate, or either, requires immediate appointment of a guardian, he shall, either in term time or in vacation, without citation and with or without written application therefor, appoint some suitable person temporary guardian of the person of such minor and his or her estate or either.”

Hence it must follow that, as the appointment of a temporary guardian of the estate of an insane person is not only not authorized by but contrary to law, the orders entered making such appointments of R. Clark permanent must of a necessity pass under the same condemnation. Withers v. Patterson, 27 Tex. 491, 86 Am. Dec. 643.

In view of the fact that the trial court erred in sustaining appellee’s exception to appellant’s plea of purchaser in good faith, to the extent as above set out, the judgment rendered in favor of appellee can only be sustained on the ground that, even though said plea had been heard and fully established as to matters aliunde the record, nevertheless the judgment appealed from was the only one that could have been properly rendered by reason that it affirmatively appeared, as a matter of record, that the court had not the jurisdiction and authority to make the orders in causes Nos. 4289 and 4308 necessary to sustain the appointment of said R. Clark as guardian of the estate of appellee therein, and authorizing said R. Clark to lease for oil and mineral purposes the real estate of appellee. Observing this requirement, w,e have reached the conclusion that the judgment of the district court should be in all things affirmed.

Affirmed.


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    ANDERSON et al. v. WOMACK et al.
    No. 3950.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 5, 1931.
    Rehearing Denied Feb. 19, 1931.

      I. C. Underwood, of Marshall, for appellants. .
    Scott, Oasey & Hall, Beard & Abney, and Y. D. Harrison, all of Marshall, for appel-lees.
   LEVY, J.

(after stating the case as above).

The appellant presents the point, in effect, that the appellees were not entitled to recover a judgment for the notes and for foreclosure of the lien because the noites and lien were absolutely barred and the revivals and renewals were after the expiration of the period of limitation and after the homestead rights had become vested. This proposition entirely depends upon whether or not the renewals in evidence were all of them legally void and ineffectual. It may be conceded for the moment in determining the point that, as contended by appellant, the written instrument of January 1, 1914, being executed by the husband alone, could not be legally regarded as reviving or restoring the barred lien and attaching its security to the purchase-money debt so as to defeat the wife’s homestead rights, especially so since the passage of the act of 1905 absolutely barring in four years, not only the debt itself, but both the right to foreclose the lien and to recover the land by virtue of superior title remaining with the vendor. The act of' 1905 (chapter 138, § 2), though, as amended by the act of 1913 (chapter 123, § 2) and the existing law in 1918 (Rev. St. 1911, art. 5694, as amended by Acts 1913, c. 123, § 2), did not in any wise undertake to prohibit and make void any written agreement made between the purchaser of the land and the holder of the purchase-money notes reviving the original purchase-money notes and restoring the lien after the bar of the statute. The continued right of renewal and revival of the purchase-money debt and lien after the bar of the statute was intended by the act to be in the original parties because such right was allowable as' the subject-matter of contract by the original parties at the time of the act of 1905 (Howard v. Windom, 86 Tex. 560, 26 S. W. 483), and article 5522, R. S. of 1925, at a later time gives active expression of such continuing right, viz.: -

“Provided the owner of the land and the holder of the note -or notes may at any time enter into a valid agreement renewing and extending the debt and lien, so long as it does not prejudice the rights of lienholders or purchasers subsequent to the date such liens became 'barred of record under laws existing prior to the taking effect of, or under this Act.”

Therefore, the. further fact appearing in the record may be taken as essential and controlling that the wife actually joined with the husband in the written instrument of December 28, 1918, which was duly acknowledged in the manner provided by law and placed of record. By that instrument both the husband and the wife admitted that the original purchase money was unpaid, made an acknowledgment of the amount unpaid, and unconditionally promised to pay the same, and made acknowledgment and expressly restored the lien on the homestead and attached its security to the unpaid purchase-money debt. Such agreement so made by the husband and wife was, it is believed, legally valid and sufficient as a new promise and acknowledgment operating to remove the bar of the statute and revive and restore the lien and attach its security to the debt and authorizing a foreclosure of the lien upon the homestead. Oklahoma Farm Mortgage Co. v. Bellamy (Tex. Civ. App.) 265 S. W. 1070; Id. (Tex. Com. App.) 278 S. W. 180; Watson v. Bank (Tex. Com. App.) 285 S. W. 1050; Sparks v. Summers (Tex. Civ. App.) 289 S. W. 714, 717; Power v. Westhoff (Tex. Civ. App.) 4 S.W.(2d) 274. The extensions appearing to have been executed subsequent to 1918, while made by the husband alone, were, nevertheless, made before the notes and liens (which were revived by the instrument of 1918) had become barred by the statute of limitation. It is not doubted that the husband alone may renew a purchase-money note before the bar of the statute of limitation in order to prevent the bar of the statute if no fraud is intended upon the rights of the wife. Jackson v. Bradshaw, 24 Tex. Civ. App. 30, 57 S. W. 878.

The next point made by the appellant is that the court erred in entering judgment on the verdict of the jury because special issues Nos. 6 and 7 were conflicting and not authorizing any. judgment to be entered thereon. Issue No. 6 asks the jury to find ‘‘the amount due upon the vendor’s lien notes Nos. 2, 3 and 4, for $214.50 each, dated May 16, 1903, bearing 10% interest from January 1, 1904, after allowing credits for all payments made.” Issue No. 7 asks the jury to find “the amount due upon the note introduced in evidence before you dated January 1, 1914, due January 1, 1915, bearing 10% interest, in the sum of $944.00 after allowing as credits all payments made.” The findings on their face appear distinct and without any conflict between them, and in submitting questions upon the two sets of notes, the error, if any, was harmless in view of the record. The two sets of notes were offered in evidence merely as explanation of the revival and renewal of the original debt and the lien. The purpose of the two questions seems to have been in order to have the findings of the jury furnish the court the means by which the amount of the purchase-money debt could be readily determined. The petition of. the appellee set up the entire transaction and relied for recovery upon the new promise and acknowledgment to pay the original purchase-money debt. A personal judgment was not sought against the wife, and only the amount of the renewed debt was sought to be proven and established. In fixing the amount due, the court directed judgment to be entered upon the finding of the jury as 'to the amount due as reflected by the three original notes executed for the original purchase money. In so doing, the court fully protected and removed the right of complaint against any liability for the $944 note previously signed by Wash Anderson as apparently reflecting the amount of the purchase money unpaid. The agreement of Martha Anderson as to the amount of revival was limited by the amount of the original purchase-money debt remaining at the time unpaid. Recovery on the $944 note executed by Wash Anderson would not have been authorized because Martha Anderson never signed such note, but even if the findings of the jury as to such note should have been taken as being the amount of the revival acknowledged by Martha Anderson, the error was prejudicial to appellee and not to appellants.

The appellant complains of entering judgment establishing the claim for $1,022.57 which includes $92.96 as attorney’s fees. The objection urged is that the evidence in the trial showed the full payment of the notes and that the original purchase-money notes did not include attorney’s fees. The. evidence raised an issue for the jury as to the payment of the notes, and we do not feel authorized in setting aside their findings of fact. The point as to the attorney’s fees was not raised, as appears, in the trial court nor by assignment here. Considered as a suggestion of fundamental error, it appears that the three original purchase-money notes did not provide for attorney’s fees and the written instrument executed by Martha Anderson and her husband in 1918 could be regarded as having been intended as undertaking to pay the purchase money under the terms of the original notes. It seems that renewal notes may provide for attorney’s fees and be secured by the lien in homestead cases only when the original purchase-money notes provide for such fees (Duller v. McNeill [Tex. Civ. App.] 163 S. W. 636, 637), and that no lien for attorney’s fees is created in the renewal notes where the original purchase-money notes do not provide for attorney’s fees (Finley y. Wakefield [Tex. Civ. App.] 184 S. W. 755; Hayner v. Chittim [Tex. Civ. App.] 228 S. W. 279). The judgment is therefore modified so as to authorize the establishing of the claim for and to have foreclosure of the lien to pay only the principal and interest of the notes in the sum of $925.-61. As the matter of attorney’s fees was not urged before the trial court, so far as this record shows, the cost of appeal cannot he taxed against the appellee.

We have considered all the assignments of error presented by appellants and conclude that each of them should be overruled. As modified, the judgment is in all things affirmed.


author: FLY, O. J.

text:
    HOOSS v. WILLINGHAM et al.
    No. 8537.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 4, 1931.
    Rehearing Denied March 4, 1981.
    Wm. H. Russell, of San Antonio, for ap- ' pedant.
    Jno. C. Wall and Bliss & Daffan, all of San Antonio, for appellees.
   FLY, O. J.

Mrs. Elmir Willingham, joined by her husband, J. E. Willingham, brought this action to cancel a certain deed executed by them to appellant, alleging that the land which the deed purported to convey was their homestead and the instrument was not intended to convey title but was given to secure a loan of $3,700, made by appellant to appellees. Appellant claimed the land was conveyed to him and was a bona fide sale, and that the monthly payments of $35 were for rent of the premises and not payments on borrowed money. The cause was submitted to a jury on special issues, and on the answers thereto judgment was rendered in favor of appellees for cancellation of the deed and quieting title in appellees, and in favor of appellant for the amount of the taxes paid by him on the land and for the amount of money due on the loan; a lien being foreclosed on the homestead for the amount of the taxes.

The jury found that the deed was executed to secure a debt; that none of the borrowed money was used to pay off a lien on the lot held by one Medlin; that appellant had paid $388.22 for taxes dn the land; that the monthly rental on the premises was $35; and that appellees had paid appellant since March' 28, 1924, the sum of $423.59 on the debt.

It was the contention of appellees that, although in the form of a deed, the instrument conveying the homestead of appellees to appellant was intended and was executed to secure the payment of $3,000 borrowed by appellees from appellant. The wife swore that she was told by her, hiusband that she need not fear to sign the deed, as it was only a mortgage on her home and would not endanger (her homestead rights. Appellant objected to the testimony because appellant was not present and was not shown to have been informed of any such conversation occurring between the man and his wife. No effort was made to show that appellant knew of the representations made to the wife, and, when the testimony was objected to, the court recognized the force of it and informed the appellees that, in the absence of testimony bringing the representations to the knowledge of appellant and showing that appellant acted in the light of such knowledge, the testimony was not admissible. Upon the representation of counsel for ap-pellees, who recognized the potency of the objections, that proof would afterwards be introduced connecting appellant with the representations, the testimony was allowed to be presented to the jury. The promised evidence was not offered by appellees. Mrs. Willingham swore that she had no conversation or transactions with appellant at any time until at least three years after she had signed and acknowledged the deed. No one intimated that appellant was ever informed before the execution of the deed and completion of the transaction, of any conversation that took place between the husband and wife. Without that testimony, the evidence of husband and wife as to conversations with each other were not binding upon appellánt and should not have been allowed to be heard by the jury. The rule laid down has never been questioned and has been universally sustained. It is hearsay evidence of the host malignant species, because it is impossible to attack it and show its falsity. It would have an overwhelming effect on a jury. Appellees recognized the rule, but now •seem to take a position in opposition to it. It is the rule clearly stated in Davis v. Brewster, 59 Tex. 93, by Judge Stayton for the Supreme Court. This ease is -relied on and cited by appellees, but the language does not uphold the argument of the appellees. We quote from the decision:

“If it was delivered and received with an intention and understanding between the parties that it should only be a security for the debt of Davis, then that is its true character, whatever contrary intention the defendants and Davis may have had prior to the time the instrument was delivered.
• “If there was no agreement between the defendants and Davis that the conveyance, although absolute in form, was to be in effect but a mortgage, and if there was no au- • thorization by the defendants to Davis to represent to his wife that the instrument should be but a mortgage, yet, if he so represented to her, and she, relying upon such representation, executed the deed understanding and intending i't to be only a mortgage, and it was afterwards delivered to the defendants by the husband, they having knowledge -at the time of the delivery that the wife only intended and understood it to be a mortgage, then mortgage it is; and the defendants could not, in su'ch case, be heard to claim any other character for the paper.”

The holding as to the admissibility of the evidence is hinged upon the knowledge of the opposing party.

The objections to the conversations between man and wife apply with equal force to communications between the husband and his attorney. The evidence should not have been admitted.

The court in the first issue presented together the questions of execution of the deed by appellees and acceptance by - appellant, coupled with each other in such way as to confuse a jury, and so as to make a double answer necessary, unless, as seems to have been assumed by the court, the same answer should be made to both- issues. The issues as to the acts of appellees and the acts of appellant should have been separated by the court.

The evidence given by the wife as to the conversation with her husband, of which appellant had no knowledge, was of supreme importance, and would have great effect in shaping tte verdict of a jury which naturally sympathized with her in her claims to homestead rights. It was testimony which could not be met by appellant, because the conversations took place in the privacy of appellees’ home, when no one was present except the husband and wife. Under the Circumstances, it was inadmissible.

The judgment is reversed, and'the cause remanded.


author: SHARP, C. CURETON, C. J.

text:
    WALLACE et al. v. FIRST NAT. BANK OF PARIS.
    No. 5383.
    Supreme Court of Texas.
    Feb. 18, 1931.
    Beauchamp’ & Lawrence and W. O.' Hutchi-son, all of Paris, for plaintiffs in error.
    W. F. Moore and Long & Wortham, all of Paris, for defendant in error.
   SHARP, C.

The parties herein will be designated as they were in the trial court.

The First National Bank of Paris brought this suit in the district court of Lamar county against P. K. Wallace, Morris W. Wallace, Edna L. McDaniel and husband, Shelby McDaniel, and asked for judgment against P.’ K. Wallace on a promissory note in the sum of $28,400, less a credit of $4,949.78, and also asked for a foreclosure of two deeds of trust; one covering 100 acres of land and the other covering 5 tracts of land, aggregating 181.7 acres of land. P. K. Wallace executed the note and deeds of trust. There was no defense pleaded against the note or as to the foreclosure of the deed of trust upon the 100' acres of land. The controversy in this suit relates only to the 181.7 acres of land. P. K. Wallace and wife claimed that the 181.7 acres of land constituted their homestead at the date of the deeds of trust, and, by virtue thereof, the lien was a nullity. Edna McDaniel and Morris Wallace, children of P. K. Wallace, claimed a fee-simple title in remainder to the 181.7 acres of land and that their father had only'a life estate by reason of the joint will of their grandparents, W. J. Wallace and Betty L. Wallace. After hearing the evidence, the trial court determined that there-was no disputed fact for the jury to. decide, and withdrew -the ease from their consideration. The court rendered judgment for the plaintiff against P. K. Wallace in the full amount of the note and for a foreclosure of the lien against the 100 acres and against “the life estate” in the 181.7 acres, further adjudging that the plaintiff take nothing against the other defendants, but that they recover all costs. The plaintiff bank and the defendants, P. K. Wallace and his wife appealed from the judgment. The bank objected to that part of the judgment decreeing that P. K. Wallace had a life estate only in the 181.7 acres of land and denying a fore-' closure of the lien as against all the defendants. P. K. Wallace and wife objected to the finding and decree against their homestead claim in the 181.7 acres. Upon an appeal to the Court of Civil Appeals the judgment of the district court was modified to the extent of vesting a fee-simple-title instead of a life estate only in P. K.' Wallace in the lands and1 foreclosing the mortgage lien of the plaintiff on said fee-simple title instead of “the life estate” only of P. K. Wallace as against him and all the other defendants. ■ As so modified,' the judgment of the trial' court was affirmed. We refer to the opinion- of the Court of Civil Appeals for a more detailed statement of the case. 13 S.W.(2d) 176.

P. K. Wallace and wife, Mrs. Edna McDaniel and husband, and Morris Wallace, applied to the Supreme Court for writ of error to review the opinion of the Court of Civil Appeals, which was granted.

It is contended that the Court of Civil Appeals erred in holding that the rule in Shelley’s Case applied and that the will of W. J. Wallace and Betty Wallace passed to P. K. Wallace a fee-simple title to the 181.7 acres of land in controversy.

The materia.1 parts of the will executed by W. J. Wallace and wife, Betty Wallace, involved in this suit, are as follows:

“First. We direct that the expense of our last sickness, including the expense of our funeral, be first'paid and all our just debts be next paid in full.
“Second. That to our son P. K. Wallace we give and bequeath the property known as our homestead, consisting of the lot we now live on and the one known as the Tibbit lot, situated in the Town of Blossom, Texas, toi dispose of as he may deem necessary.
“Third. We give and bequeath to our son the said P. K. Wallace, his natural lifetime, all our lands, consistifig of farm, pasture and timber lands ; and he the said P. 15. Wallace is to have the use and benefits of said lands during his natural lifetime, and at his death the same is to go to his bodily heirs equally, the intention of this will being for the purpose of the prevention of the said P. K. Wallace disposing of the lands above mentioned,
“We, the said W. J. Wallace and wife Betty Wallace, desiring to have this property go to his bodily heirs after his death, and not to become the property of any other person or persons whomsoveT either before or after his death, other than his' own bodily heirs.”

The Court of Civil Appeals held that the rule in Shelley’s Case applied, and that P, K. Wallace took a fee-simple title instead of a life estate only, and rendered judgment in harmony with that holding.

In volume 3, Bouvier’s Law Dictionary, p. 3057, the rule in Shelley’s Case is defined as follows: “When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition, of another estate, of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession from generation to generation, the limitation to the heirs entitles the ancestor .to the whole estate.”

A brief history of the rule in Shelley’s Case, and its recognition and enforcement as a rule by the courts of this state, ⅛ not inappropriate. The rule was adopted as a part of the common law of this country, and in many of the states the rule still prevails. However, in many of the states it has been abolished. It has received much discussion in the various decisions rendered by the courts. While it is recognized in this state, the courts have always given it a strict construction. If the facts bring a case under the strict letter of the rule, the courts of this state will apply and enforce it. Our Supreme Court, speaking through Judge Brown, in the case of Lacey v. Floyd, 99 Tex. 112, 87 S. W. 665, recommended that it would be for the public good if the Legislature would repeal the rule in Shelley’s Case. For an exhaustive annotation of the decisions bearing upon the rule, see 29 L. R. A. (N. S.) 963.

We deduce from the decisions rendered in this state, with reference to the rule in Shelley’s Case as applied to wills and other instruments, the following rules:

(a) Every part of an instrument should be harmonized and given effect to, if it can be done. If that cannot be done and it is found that the will contains inherent conflict of intentions, the object of the grant being considered shall prevail.

(b) If a will or its parts are equally capable of two constructions, one consistent with an intention, on the part of the grantor to do that which it was lawful for him to do, and one consistent with an intention to do •that which it was unlawful for him to do, the former will be adopted.

(c) The rule that courts will confer the greatest estate on the grantee that the term's of the grant will permit is subordinate to the rule “that every part of the will should be harmonized and given effect to, if it can be done.”

(d) In a will to a person for the term of his natural life and at his death to his “bodily heirs,” the words “bodily heirs” thus employed, if from the entire text of the will it is shown that the words “bodily heirs” were used in the sense of children, are words of purchase and not of limitation. ' ;

From the text of the will it will be observed that in the second clause thereof-W. J. Wallace and wife gave to P. K. Wallace certain property in fee simple. By the third clause of the will the property in controversy is conveyed for “his natural lifetime and he, the said P. K. Wallace, is to have the use and benefits of said lands during his natural lifetime and at his death the same is to go to his bodily heirs.equally, the intention nf this will being for the purpose of the .prevention of the said P. K. Wallace disposing of the lands above, mentioned.” The will further provides that it “is to go to his bodily heirs equally,” and that it was not to become the property of any other person before or after

bis death, save and except “his- own bodily-heirs.”

The controlling question is, Did the will give P. K. Wallace a fee-simple title to the 181.7 acres, or did he take a life estate only,' with the remainder in fee to his children?

The case of Simonton v. White, 93 Tex. 50, 53 S. W. 339, 340, 77 Am. St. Rep. 824, involved the construction of a deed from W. .T. Gentry to Mrs. Ava A. Simonton. In that deed a conveyance was made by the grantor to the grantee and “her bodily heirs” of certain land described therein. The deed further provided:

“⅜ ⅜ * Now, the above-mentioned land and property hereby conveyed is not to be traded or sold, but the produce of the same are to go to the support of the said Ava Anna Simonton and her family during her natural life, and at her death to be equally and impartially divided between her bodily heirs.
“To have and to hold the above-described premises, together with all and singular the rights and appurtenances thereunto in anywise belonging, unto the said Ava Anna Si-monton, her bodily heirs, forever. And I do hereby bind my heirs, executors, and administrators to warrant and forever defend all and singular the said premises unto the said Ava Anna Simonton, her bodily heirs, against every person whomsover lawfully claiming or to claim the same or any part thereof.”

It was contended there, as here, that the rule in Shelley’s Case applied and that Mrs. Simonton acquired, by reason of the language contained in the deed, the fee-simple title to the land described therein. In answer to this contention, Judge Brown, speaking for the court, says: “Under the rule in Shelley’s Case, the words, ‘give and convey unto the said Ava Anna Simonton and her bodily heirs,’ if not qualified, would vest in Mrs. Simonton an estate in fee simple, not because the grantor intended to convey to her such estate, but because the law gives to the language that effect. Taylor v. Oleary, 29 Grat. [Va.] 451. However, that rule does not preclude a construction of the words ‘bodily heirs’ so as to ascertain the grantor’s intention, but the well-established doctrine is, if it appears from the instrument that Gentry used the words ‘bodily heirs’ to designate children of Mrs. Simonton, effect will be given to that intention, and the estate conferred upon her will be limited to her life, with remainder in fee to the children thus pointed out. Doe v. Laming, 2 Burrows, 1100; Taylor v. Cleary, 29 Grat. [Va.] 448; May v. Rit-chie, 65 Ala. 602.”

After discussing the facts contained in the foregoing deed, he further says: “The rule in Shelley’s Case, if applied to this instrument, destroys all of the benefits which were intended to be conferred upon the children, and-ren-

ders the instrument incongruous and contradictory in all of its parts, while the enforcement of the well-defined intention of the grantor harmonizes every provision of the deed. We conclude that Mrs. Simonton took an estate for life only, with remainder in' fee to her children after her death.”

In the case of Hancock v. Butler, 21 Tex. 804, the rule in Shelley’s Case is fully discussed. That case involved the construction of a deed from John Hancock to his son, Josiah Hancock, in which two negroes were conveyed “for the term of his natural life and at his death to his lawful issue forever.”

It was also contended in that case that by reason of the language used in the conveyance that the rule in Shelley’s Case prevailed, and that the grantee took a fee-simple title to the negroes. Judge Roberts in a very able and exhaustive opinion disagreed with the contention made, and held that the rule did not apply in that case. He says:

“What did the grantor intend by the terms of his deed? Was that intention lawful? These are the leading inquiries to be made. The governing rule is, that every part of the instrument should be harmonized and given effect to, if it can be done. If that cannot be done, and it is found that the deed contains inherent conflict of intentions, then the main intention, the object of the grant being considered, shall prevail. In either event, the result arrived at must be a lawful one. (Rules in Sheppard’s Touch., 83, 84 and 85.) In arriving at the intention of the grantor, what he had a right to do, and what he did not have a right to do, should be taken into consideration; for it is to be presumed that he knew his rights, unless we find something in the deed which leads to a different conclusion. He had a right to give his son the property absolutely, either with or without reference to his issue. He had a right to-give to his son, Josiah, a life estate only, and connect with it a gift of the absolute property, to take effect at the time of Josiah’s death, to persons then in being, answering the description of Josiah’s issue.
“He had no right to create a perpetuity, by which he would tie up the property from alienation longer than a life or lives in being, and twenty-one years.
“He had no right to entail the property, by giving it to Josiah and his issue, to take in a line of succession after one another, contrary to the general laws of descent and distribution.
“He had no right (terms are used applicable to real estate, so as to convey the idea) to reduce the estate, conferred on Josiah, to a life estate, if in the same deed he made the issue of Josiah derive an estate in fee or fee tail from and through Josiah, as his heirs, by descent.
“Now, if this deed, or its parts, are equally capable of two constructions — one, consistent with his having intended to do that which it was lawful for him to do — and one, which is consistent with his having intended to do that which it was unlawful for him to do— the former will be adopted.
“The part of. the deed, which expressly indicates the interest which Josiah Hancock is intended to take, is plain, and not even capable of being made dubious: T give unto Josiah Hancock (the slaves) for the term of his natural life.’ If the deed went no further, or if the full property in the slaves had been! given, after that, by the same or another deed, over to the issue of some one else, there could be no doubt that Josiah only took a life estate.”

He further says:

•“It is presumed it would be difficult to find • one case- where a man had expressly given his property, to all his descendants, to take per capita — children, grandchildren, great grandchildren, etc. The general sense of American mind, as exhibited in deeds, wills, and in Statutes of descent and distribution, is that it is proper to give property to children, grandchildren, etc., they taking per stirpes. So we may well presume, in this case, that such persons were meant. They would be the same persons usually designated by the words, ‘heirs of the body.’ ”

Again in the course of his opinion, he says:

“The rule, then, that Courts will confer the greatest estate on the grantee that the terms of the grant will permit, must necessarily be subordinate to the rule ‘that every part of the deed should be harmonized and given effect to, if it can bé done.’
“If then in this gift to Josiah Hancock, ‘for the term of his natural life, and at his dea th to his lawful issue forever,’ the word issue can be read as a designation of persons, to take at his death, every word and sentence of the deed will be given effect to, and both Josiah, and those persons after him, will takei as purchasers.
“To presume it to have been used in another sense, is to erase out of the deed one whole sentence plainly expressed, to-wit: ‘for the term of his natural lifeis to make the donor do that which is in violation of law, in makJ ing an estate tail; (which will not be readily presumed. See [Robert v. West] 15 Ga. 145-6;) and is in direct violation of the manifest intention of the donor. And all this upon a presumption that issue is used in a sense ‘which it has not naturally.’ (Moss v. Sheldon, 3 Watts & S. [Pa.] 160.)”

The rule announced in the case of Hancock v. Butler and Simonton v. White, supra, is approved in the case of Hopkins v. Hopkins, 108 Tex. 15, 122 S. W. 15, 17. That case involved the construction of a deed which con-

tained the words “heirs,” “issue,” and “children,” and it was contended that the rule in Shelley’s Case prevailed. The Supreme Court did not agree with that contention. Judge Williams, after analyzing the facts in the ease, tersely and correctly states the rule to be as follows:

“According to the principle uniformly applied by this court in this very connection, the construction which carries into effect the intention, where that is lawful, is to be adopted in preference to that which defeats it. Hancock v. Butler, 21 Tex. 804; Simon-ton v. White, 93 Tex. 50i 53 S. W. 339, 77 Am. St. Rep. 824.
“That by ‘children’ and ‘issue’ the grantors did not mean ‘heirs’ in the general sense essential to the application of the rule in Shelley’s Case is indicated by the phrase, ‘at his death,’ which designates those persons of the class intended then living who are to take the fee by purchase and not by inheritance. Hancock v. Butler, supra, 21 Tex. at page 817. These words properly are words of purchase, and in order to treat them as words of limitation such use of them must clearly appear. The word ‘heirs’ cannot be held to have that effect when the instrument shows, as we think this does, that it is the one mistakenly used.”

The rule announced by the Supreme Court in Hancock v. Butler, supra, is again cited and approved in an opinion by the Commission of Appeals, speaking through Presiding Judge McClendon in the case of Hunting v. Jones, 215 S. W. 959, which opinion was adopted and entered as the opinion of the Supreme Court.

In applying the foregoing rules to the facts of this case, it must be kept in mind always that the intention of the testator, where it is legal, must prevail. It is a question of intention depending on the terms of the instrument construed in connection with the surrounding circumstances. Returning to the language of the will, we find that it is provided that P. K. Wallace was conveyed the property for “his natural life time” and furthermore “at his death the same is to go to his bodily heirs equally,” and it is further provided that “the intention of this will being for the purpose of the prevention of the said P. K. Wallace disposing of the land.” The testator did not rest his will upon the foregoing language, but further stipulated that the testator desired “to have this property go to his bodily heirs after his death,” and that it was not to become property of any other person before or after his death save and except “his own bodily heirs.” We think it plainly appears, from a careful reading of the entire will, with such light as the surrounding circumstances may show, the testator throughout used the words “bodily heirs” in the sense of children. It is quite manifest that the clearly expressed intention in the will creates a life estate only; the use of distributive words in connection with bodily heirs, the indicated use of bodily heirs as words of purchase, and the qualifying distributive words added to bodily heirs, plainly expresses to our mind that the testator intended to create a life estate only in P. K. Wallace and the remainder in fee to go to his children. If the word “children” be substituted for the words “bodily heirs” wherever they appear, the entire will and all of its parts is harmonized, and the plain and manifest intention of the testator is carried out.

It will not be amiss to call attention to the bold and striking language used by Judge Roberts in the case of Hancock v. Butler, supra, against the right of a grantor or testator “to create a perpetuity” or the “right to entail the property” or “the right to reduce the estate to a life estate,” under the conditions stated in the opinion, and he draws a distinction between the political and judicial connections existing in England and in this country. While the language used by Judge Roberts in the foregoing opinion is strong and emphatic, it is matched with equally as strong and emphatic language in section 26, article 1, of the Constitution of Texas1, which reads as follows: “Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed; nor shall the law of primogeniture or en-tailments ever be in force in this state.”

To hold that the rule in Shelley’s Case applies here, would be contrary to the authorities above cited and in violation of the clear-' ly expressed intention of the testator to give the life estate only to P. K. Wallace and the remainder in fee to his children. Therefore the Court of Civil Appeals’ erred in so hold-, ing.

Since this case will be reversed and remanded for another trial, we desire to call attention to another question raised by this record. Both the trial court and Court of Civil Appeals held that as a matter of law P. K. Wallace did not have a homestead right in the land in controversy. To this holding we do not agree. Without setting out in detail the testimony offered upon this issue* ‘ we think it sufficient to raise the question as to whether or not P. K. Wallace had impressed the premises with a homestead character. This raises a fact question to be determined.

The courts of this state have held, and it is now undoubtedly the settled'rule, that the homestead laws are to be liberally construed to effectuate their beneficent purposes. Woods et al. v. Alvarado State Bank, 118 Tex. 586, 19 S.W.(2d) 85; Gunn et al. v. Wynne et al. (Tex. Civ. App.) 43 S. W. 290 (writ denied) ; Birdwell v. Burleson, 31 Tex. Civ. App. 31, 72 S. W. 446 (writ denied); Woodward v. Sanger Bros. (C. C. A.) 246 F. 777, 780; Emmett B. Cocke v. John R. Conquest et al. (Tex. Sup.) 35 S.W.(2d) 673.

We therefore conclude that both the judgments of the trial court and the Court of Civil Appeals should be reversed, and this cause remanded to the district court for another trial in accordance with this opinion.

CURETON, C. J.

The foregoing is adopted as the opinion, of the Supreme Court, and the judgments of the Court of Civil Appeals and the trial court will be reversed, and this cause remanded to the district court for another trial.


author: SHARP, C. CURETON,. C. J.

text:
    INTERNATIONAL TRAVELERS’ ASS’N v. BETTIS.
    No. 5175.
    Supreme Court of Texas.
    Feb. 18, 1931.

      Wilkinson & Wilkinson, of Brownwood, and Seay, Seay, Malone & Lipscomb, of Dallas, for plaintiff in error.
    Callaway & Callaway, of Brownwood, for (defendant in error.
   SHARP, C.

This suit was instituted in the district court of Brown county by B. H. Bettis, as administrator of the estate of Mary L. Bet-tis and Zack M. Bettis, deceased, against International Travelers’ Association, to recover on a policy of accident insurance issued to Zack M. Bettis on October 28, 1922. It was alleged that Mary L. Bettis died intestate on April 1, 1923, and that Zack M. Bettis died intestate on September 4, 1925.

The case was tried before a jury. Judgment was rendered for defendant in erról-as administrator of the estate of Zack M. Bettis and Mary L. Bettis against the plaintiff in error in the sum of $5,060, together with interest thereon from September 4,1925, at the rate of 6 per cent, per annum. An appeal was made to the Court of Civil Appeals, and the judgment of the trial court was affirmed. 3 S.W.(2d) 478. Writ, of error was granted by the Supreme Court.

The parties will be designated herein as they were in the trial court.

The policy, among other things, provides for indemnity in the sum of $5,000 in case of the death of Zack M. Bettis resulting from “bodily injuries effected, directly, independently and exclusively of all other causes, through accidental means.”

The policy also provides that “blood poisoning or septicaemia resulting directly from bodily injuries- shall be deemed to be included in the term ‘bodily injuries,’” and further provides that “indemnity for the loss of life of the insured is payable to the beneficiary if surviving the insured, and otherwise to the insured’s legal administrator or executor.”

The policy further provides: “The accident insurance under this policy does not cover any injury, fatal or otherwise, received directly or indirectly as a result of, or that is contributed to, by said member violating any law; being in any -degree under the influence of a narcotic or intoxicating liquor; or while insane; or by the act of any person (sane or insane) done to injure the insured, except for the sole purpose of burglary or robbery; or while enlisted or while acting as a sailor or soldier or aeronaut engaged in naval or military service; or while riding or as a result of riding in a hydroplane, aero,plane or balloon; or from mechanical, medical or surgical treatment (operation made necessary by the particular injury for which claim is made and occurring within ninety days from the date of acci-' dent excepted), (this exception does not include mechanical, medical or surgical treatment or operations made necessary by hernia caused by accidental means); or ptomaine poison; or riding or driving in any automobile race; or while riding or as a result of riding a motorcycle. Said benefits do not cover the disappearance of a member.”

It appears that Mary L. Bettis, wife of the insured, was named in the policy as beneficiary. She -died prior to the death of the insured. Later, while the policy was in force, Zack M. Bettis died from blood poisoning resulting from an. injury to the finger. The manner in which the injury to his finger occurred is shown by the following testimony of Herman Bettis, his son, who testified as a witness for the administrator: “I was with my father at the time he was injured. He was fixing a fence at the time he received the injury. I went down to the pasture with him, me and my father, to do some work, in the J. A. Bettis pasture, a part of the old Thomas place; no one else was with us; that place is south of Blanket; and there was a wire loose and we started to fix it. We had two hammers, and X started to tighten one of the wires, and I put the barb in the claw of my hammer and pulled it tight, and he started to staple it and it flew back and hurt his finger, the one he was holding the staple with, and I noticed the blood on it; I saw the wound after we left there and went to the windmill — he showed me the wound there and made the remark about it hurting him.”

Proof of other transactions or statements connected with his father was made by the witness Herman Bettis over the objections of the defendant.

Outside of the testimony of Herman Bet-tis, there is no proof as to how the injury on the finger of Zack M. Bettis was inflicted.

The plaintiff in error objected to the above testimony on the ground that the testimony involves a transaction with the deceased, Zack M. Bettis, and that the witness as an heir of the deceased has such an interest in the subject-matter of the suit as to render his testimony inadmissible under the provisions of article 3716, R. S. 1925, which reads as follows: “In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

This suit was by the administrator of the estate of both Zack M. Bettis and Mary L. Bettis, deceased. The object was to recover the amount of the policy for the benefit of the two estates. A decision upon this question is controlled by the foregoing statute and the interpretation and construction of that statute by the decisions of our Supreme Court. As to what constitutes a transaction or a statement by the deceased, and therefore incompetent and inadmissible in evidence in a suit of this bind, has been expressly defined by the courts of this state.

In the case of Edelstein v. Brown, 100 Tex. 403, 100 S. W. 129, 123 Am. St. Rep. 816, in construing the foregoing article and passing upon as to what constitutes a transaction with or statement by the deceased, Judge . Brown says: “The character of the testimony to be excluded is expressed in the language, ‘Neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward.’ The phrase ‘as to’ is defined thus: ‘So far as it concerns; as regards; as respects ; in regard to; in respect to.’ ”

In the light of the decisions of this state, it is quite plain that the testimony of the witness Herman Bettis is clearly inadmissible, and that. this view is sustained by the following decisions: McCampbell v. Henderson, 50 Tex. 601; Parks v. Caudle, 58 Tex. 221; Edelstein v. Brown, 100 Tex. 403, 100 S. W. 129, 123 Am. St. Rep. 816; Holland v. Nimitz, 111 Tex. 425, 232 S. W. 298, 239 S. W. 1S5; Leahy v. Timon, 110 Tex. 80, 215 S. W. 951; Spencer v. Schell, 107 Tex. 44, 173 S. W. 867, 868.

In the case of Parks v. Caudle, 58 Tex. 216, this question was clearly presented and passed upon.' In that case J. H. Caudle and wife brought suit in right of the wife, as sole heir of William A. Park, deceased, to' recover certain lands, and alleged that the suit was based on an alleged reconveyance by Joel D. Parks to Wm. A. Park, and sought to establish the execution of this deed by oral testimony, asserting that the instrument itself has been destroyed by fire. J. I-I. Cau-dle offered to testify about the execution of the deed, and his testimony was excluded. Chief Justice Gould, in rendering the opinion for the court, says:

“But we are of opinion that J. H. Caudle was not a competent witness to prove the execution of the alleged deed, nor to prove the declarations of Joel D. Parks, nor the transaction between Joel D. Parks and Wm. A. Park. This suit is by the heir of a decedent, and comes within the exception to the law making parties competent witnesses if that party proposes to testify as to any transaction with or statement by the decedent. The clause of the statute extending its provisions to actions by heirs, although it omits the expression ‘statement by’ the decedent, is not believed to be designed to make any distinction as to the subject matter about which the party was to he precluded from testifying, whether such party were an ‘executor, administrator or guardian,’ or were an ‘heir or legal representative’ of a decedent. Before that clause was added to the statute, the decisions of this court had held its provisions applicable to suits by or against heirs, and it is believed that the purpose of the addition was to incorporate these decisions into the statutory law. Lewis v. Aylott, 45 Tex. 202; McCampbell v. Henderson, 50 Tex. 602.

“In our opinion, a party is prohibited from testifying, not merely as to statements by the deceased to him, or transactions between him and the deceased, but also as to such statements to or transactions between deceased and third persons, and that, too, although occurring when the witness had no interest therein. The statute had in view, primarily, a transaction between parties, one of whom had since died, and whose heirs or representatives were engaged in a suit with the survivor. As to such a transaction neither party was allowed to testify. The survivor should not, because the mouth of the other party to the transaction was forever closed. But the heir or representative, if perchance he knew aught of the facts, although it was not a transaction with him, was also forbidden to testify about it; for to allow him to do so, would be to give him the advantage over one whose mouth the statute had closed. In the present case both parties to the alleged transaction were dead, but that does not make it less within either the terms or the spirit of the law.”

In the ease of Leahy v. Timon et al., 110 Tex. 73, 215 S. W. 951, in a very exhaustive opinion by Judge Greenwood, the history of article 3716, and the leading opinions of the various courts construing same, are reviewed, and "portions of the opinions in the cases cited therein which conflict with the opinions of the Supreme Court are overruled.

The contention is made that the testimony of Herman Bettis was admissible because the policy of insurance was payable to the administrator or executor of the deceased and Herman Bettis took under same by contract and not as an heir.

It is undisputed that the beneficiary described in the policy died before the death of the insured, and the policy provided in that event the insurance was payable to “insured’s legal administrator or executor.” The legal effect of the language used in the policy is to place the proceeds of the policy in the estate of the insured, and Herman Bet-tis would receive his share thereof as an heir and not as a designated beneficiary.

In our opinion, there is a clear distinction in the authorities between policies of insurance payable to a designated beneficiary and those made1 payable to the “administrator or executor” of the insured as was done in this instance. The proceeds of the policies of the latter class become part of the estate of the insured at his death. Fletcher v. Williams (Tex. Civ. App.) 66 S. W. 860 (writ refused); volume 4, Cooley’s Briefs on the Law of Insurance, p. 3743.

In the case of Spencer v. Schell, supra, Judge Phillips, in discussing article 3716 and the test of the application of the statute with ireference to witnesses testifying thereunder, says: “The test furnished by its provisions embraces not alone the capacity of the parties, but equally the effect of the judgment of which the suits admits. If the suit be one by or against an heir in which ‘judgment may be rendered for or against him as such,’ the statute applies. In determining the scope of its operation, it is evident from its language that no account is to be taken that the judgment may operate for or against the heir in some other capacity. That the'judgment may so operate is not by statute recognized as the test of its application. But what it constitutes as the test and inquiry is: May such a judgment be rendered as will operate for or against him in the capacity of an heir? If so, unless called by him, the adverse party is rendered an incompetent witness as to transactions with or statements by the decedent. The clause in the statute, ‘in which judgment may be rendered for or against them as such,’ means this, or it means nothing.”

In reaching the conclusions herein stated, we have kept in mind that it is the policy of our Supreme Court to strictly construe the language contained in article 3716, supra, and is not inclined to extend its construction beyond the plain language and meaning contained therein. Martin v. McAdams, 87 Tex. 225, 27 S. W. 265; Newton v. Newton, 77 Tex. 508, 14 S. W. 157; Mitchell v. Deane (Tex. Com. App.) 10 S.W.(2d) 717; Lassiter v. Bouche (Tex. Com. App.) 14 S.W.(2d) 808; King v. Heirs of G. H. King (Tex. Com. App.) 34 S.W.(2d) 804.

The history of article 3716 shows that the Supreme Court has many times construed its meaning; that the Legislature has amended it after it was construed by the courts, which construction became a part of the statutory law. Many ■ times since this article was enacted and construed by the courts the statutes have been codified without change, and unquestionably it has become an established rule in the public policy of this state, and, if it is changed or abrogated, it is the province of the Legislature, and not of the courts, to do so.

Therefore, under the foregoing authorities, the testimony of the witness Herman Bettis was inadmissible and should have been excluded.

It is further contended that the Court of Civil Appeals erred in holding that, after eliminating the inadmissible testimony of Herman Bettis, there was other and sufficient evidence in the record to show that the injury to Zack M. Bettis was effected by violent, external, and accidental means, independent of all other causes, and in holding that there was any legal evidence as to how the injury was inflicted and in further holding that, under the evidence, the jury could have reached no other conclusion than that the injury was caused by accidental means.

Under the decisions of this state the burden rests upon the plaintiff to plead and prove that the death of Zack M. Bettis was by accident and did not come within the exceptions named in the policy. Neither the pleadings nor the proof can be left open to conjecture and guesswork. A presumption of a fact cannot rest upon a fact presumed. Hence, when the testimony of Herman Bet-tis was eliminated, mere proof of an injury that could have been occasioned by violence, coupled with proof of blood poisoning ensuing, causing death, is insufficient as a matter of law to entitle plaintiff to recover upon an accident policy insuring against bodily injuries effected by accidental means, independent of all other causes, and excepting injuries as the result of violating any law or any of the other exceptions contained in the policy above described.

The rule seems to be established in this state that, in order to find that injury effected by accidental means; the element of accident must be found in that which produced the injury rather than in the mere fact that the injury occurred. Bryant v. Continental Casualty Co., 107 Tex. 588, 182 S. W. 673, Ann. Cas. 1918A, 517; International Travelers Ass’n v. Ross (Tex. Com. App.) 292 S. W. 193; Travelers’ Insurance Co. v. Harris (Tex. Com. App.) 212 S. W. 933, 934; International Travelers Ass’n v. Branum, 109 Tex. 543, 212 S. W. 630, 632.

In the case of Travelers’ Insurance Company v. Harris, supra, the Commission of Appeals, speaking through Judge Sadler, in an opinion adopted by the Supreme Court, after an exhaustive review of the decisions which hold for and against the contention made here, says: “In view of the decisions by our Supreme Court '* * * we are of the opinion that the burden rests upon the plaintiff to show that her cause of action ■does not fall within the excepting clause.”

In the case of International Travelers Ass’n v. Branum, supra, Judge Greenwood, in rendering that opinion, says: “After excluding the incompetent evidence to statements of the insured, there is no evidence on which -to base a finding that his death was accidental.” ■

The Court of Civil Appeals held .that, in view of the other testimony admitted, the admission of the testimony of Herman Bettis was harmless. With this holding we cannot agree. It is impossible to say upon whose testimony the jury based their findings. The testimony of Herman Bettis, under the circumstances, would have a very strong influence with the jury, and, such testimony being inadmissible, was prejudicial to the rights of the defendant. Undoubtedly the true rule is that, in order to hold that the error does not require a reversal of the judgment, it ought clearly to appear that no injury could have resulted from the admission of the evidence. M., K. & T. Ry. Co. v. Hannig, 91 Tex. 347, 43 S. W. 508; Jester v. Steiner, 86 Tex. 415, 25 S. W. 411; Griffis v. Payne, 92 Tex. 293, 47 S. W. 973.

It is further contended, and was so held by the Court of Civil Appeals in its opinion, that, in the absence of any proof to the contrary, the law aids the deceased with the presumption that he did not intentionally or voluntarily inflict such injury upon, himself, and that the rule should apply in this case. Upon this question we express no opinion. If the rule of presumption above stated did apply in this case, the judgment of the trial court could not be sustained, for the reason that the plaintiff did not comply with’ the rule, which places the burden upon him to allege and prove that the injury inflicted upon Zack M. Bettis was not received under one of the exceptions stated in the policy. To sustain this judgment, one presumption would have to rest upon another presumption. The well-settled principles of law prohibit this.

We forego a consideration of the other matters discussed in the opinion of the Court of Civil Appeals, because they will not likely arise during another trial.

We conclude that both the judgments of the Court of Civil Appeals and the trial court should be reversed, and that this cause be remanded to the district court for another trial in accordance with this opinion.

CURETON,. C. J.

The foregoing is adopted as the opinion of the Supreme Court, and the judgments of the Court of Civil Appeals and the trial court will be reversed, and this cause remanded .to the district court for another trial.


author: LEDDY, J. ' CURETON, C. J.

text:
    UNITED STATES FIDELITY & GUARANTY CO. v. NETTLES.
    No. 1229-5600.
    Commission of Appeals of Texas, Section B.
    March 4, 1931.
    Spell, Ñaman & Penland, of Waco, for plaintiff in error.
    Bryan & Maxwell, of Waco, for defendant in error.
   LEDDY, J.

In this ease defendant in error, the claimant in an action under the Workmen’s Compensation Law, was found to be totally and permanently incapacitated by reason of injuries received in the course of her employment, and the insurer was compelled to redeem its liability by the payment of a lump sum. In arriving at the amount to be paid, the trial court, without any evidence or jury finding as to the rate of discount, arrived at the present value. of the unmatured weekly payments when redeemed in a lump sum by discounting the same at the legal rate of 6 per cent, and rendered judgment accordingly.

Plaintiff in error, by proper assignment, challenges the correctness of the action of the trial court in rendering judgment against it for a lump sum arrived at in such manner for the reason that the statute does not provide a rate of discount for future maturing installments, and it is asserted that, in the absence of evidence as a basis for determining the reasonable and proper discount to be applied, the trial court .was without authority to fix the rate of discount at 6 per cent, and award the claimant a lump sum based upon such rate.

The authority which permits the court to substitute a lump sum in lieu of weekly installments to the claimant is found in section 15, article 8306, R. S. 1925, which, among other things, provides: “In special cases where in the judgment of the board manifest hardship and injustice would otherwise result, the board may compel the association in the eases provided for in this section to redeem their liability by payment of a lump sum as may be determined by the board.”

It is very persuasively argued by counsel for defendant in error that the legal rate of discount provided in section 15a of article 8306 was intended to apply to the special cases arising under the above provision of section 15 of said article. This identical contention was made in the case of Herzing v. Texas Employers’ Ins. Ass’n, 17 S.W.-(2d) 1046, but the same was decided adversely to defendant in' error’s, view by the approval of the Supreme Court of the opinion of Section A of the Commis-, sion of Appeals.

Defendant in error attempts to avoid the' conclusive effect of the decision in the Above case upon the ground that the holding of the-Commission- was not expressly approved by-the Supreme Court. This view, however, .cannot be successfully maintained for the reason it appears in that case the trial court heard evidence as to the present value of the unma-tured weekly installments from which it fixed the rate of discount to be applied at less than-the legal rate of 6 per cent. Upon appeal the Court of Civil Appeals [9 S.W.(2d) 457] adopted the view presented by defendant in error in this ease that the legal rate of 6 per cent, should he applied, and reformed the judgment of the trial court so as to award the recovery of a lump sum based upon such discount rate.

The Commission of Appeals reversed the judgment of the Court of Civil Appeals, holding that, in the special cases provided for in section 15, art. 8306, “the statute contemplated that the court fix the present value of the weekly installments prescribed,” and, further, that the provisions of section 15a providing for a discount based upon the legal rate of interest had “relation only to cases of continued ‘weekly payments’ of increased amount but of decreased number.”

It is therefore distinctly held by the Commission of Appeals in the above case that, in cases coming under the provisions of section 15, art. 8306, the present value of unmatured weekly installments must be determined from evidence offered upon the trial.

The judgment of the Court of Civil Appeals, which held that the legal rate of 6 per cent, should be applied, was held to be erroneous by the Commission of Appeals, and the judgment of the trial court, which fixed a lesser rate of discount from the evidence adduced, was approved. The Supreme Court adopted the recommendation of the Commission, without expressly approving its holding.

The adoption, however, by the Supreme Court of the opinion of the Commission of Appeals under the issue as thus presented was necessarily an approval of the construction by the Commission of section 15, art. 8306, for the reason that, if the Commission’s interpretation of the statute was erroneous, the judgment of the Court of Civil Appeals was correct and should have been affirmed. Inasmuch as the Supreme Court approved the judgment of the Commission reversing the judgment of the Court of Civil Appeals and affirming that of the trial court, it is bound to have reached the conclusion that the trial court applied the proper basis of discount, that is a rate fixed under evidence adduced, and that the Court of Civil Appeals prred in holding that the legal rate of 6 per cent, was applicable in such cases.

Plaintiff in error complains of the refusal of the trial court to sustain its motion made during the trial of this case to require defendant in error to be examined by three physicians to be designated by the court.

The explanation of the trial court to the bill of exceptions presenting this question shows that the request for examination was not made until defendant in error toad rested her case and plaintiff in error was practically througto with its testimony. It is further shown that defendant in error toad, at the request of plaintiff in error, about a year prior to the date of the .trial, freely submitted herself to the examination of physicians, surgeons, and X-ray experts, and that several of such physicians and experts testified upon the trial in behalf of the plaintiff in error and the X-ray pictures were exhibited to the jury.

Where a case arising under the Workmen’s Compensation Law is pending on appeal in the district court, the matter of permitting reasonable examinations of the claimant is largely within the discretion of the trial court, and its action will not be reviewed by the appellate court unless it be made to appear that such discretion has been abused. In view of the fact that defendant in error claimed to be suffering from the same permanent injury on the trial as that which existed at the time she was examined by physicians at the request of plaintiff in error, we are not prepared to say that the trial court abused its discretion in refusing to require a further examination. Texas Employers’ Ins. Ass’n v. Downing (Tex. Civ. App.) 218 S. W. 112; Texas Employers’ Ins. Ass’n v. Knouff (Tex. Civ. App.) 271 S. W. 683; Williams v. Employers’ Liability (Tex. Civ. App) 293 S. W. 210.

Eor the reason indicated, the judgments of the trial court and Court of Civil Appeals [21 S.W.(2d) 31] are reversed, and the cause remanded for another trial.

' CURETON, C. J.

Judgments of the district court and Court of Civil Appeals reversed, and cause remanded to the district court.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: CHRISTIAN, J.

text:
    HARRIS v. STATE.
    No. 13960.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.

      W. B. Howard, of Childress, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for one year.

Dick Moore, city marshal of Childress, testified, in substance, as follows: He gave C. D. Brown, a negro, two $1 bills after having written the numbers of the bills on a piece of paper. He also placed a mark on each bill. He told the negro to buy some whisky from appellant. Thereafter, he followed Brown to his meeting place with appellant and watched the transaction, wherein appellant took a package from his shirt bosom and delivered it to Brown, saying: “Here is the whisky.” The negro then handed appellant the two marked dollar bills, which he took. The city marshal immediately took the whisky away from the negro; and, as he did this, appellant threw the two $1 bills down on the sidewalk. They were the same bills the witness had marked, and bore the numbers he had written down. The negro was not used as a witness, it appearing that it was the understanding of the city marshal that he was in Dallas at the-time of the trial. Appellant testified, in substance, that he had arranged with the negro to get him some whisky; that the negro brought the whisky to him and was preparing to deliver it at the time the officer approached and took it away from the negro; that he had not taken any money from the negro and did not deliver any whisky to him; that .he did not throw any money down on the sidewalk. As tending to impeach appellant, the state elicited from him that he had been twice indicted on previous occasions in cases involving violations of the liquor law. Appellant explained that the cases had been disposed of without convictions.

Appellant appended to his motion for new trial the affidavit of Preston Christopher, wherein he stated, in substance, that he witnessed the transaction between appellant and C. D. Brown, the negro; that the negro had a package in his hand; that he did not see anything in appellant’s hand at any time. We deem it unnecessary to determine whether the alleged newly discovered evidence is material. It is merely averred in the motion for new trial that appellant had discovered since the trial “the testimony of Preston Christopher as set forth in the affidavit attached to the motion.” There is nothing in the record negativing the idea that the facts constituting the alleged newly discovered testimony were known to appellant or his counsel before the trial. The mere fact that the alleged newly discovered testimony may have been unknown to appellant or his counsel until after the trial did not make it newly discovered, where no diligence was used to ascertain the facts. Branch’s Annotated Penal Code, § 198; Leslie v. State (Tex. Cr. App.) 49 S. W. 73. It was incumbent upon appellant to show the trial court that the new testimony had come to his knowledge since the trial, and that it was not owing to want of due diligence that it was not discovered sooner. Branch’s Annotated Penal Code, supra; Koontz v. State, 41 Tex. 570; Dansby v. State (Tex. Cr. App.) 53 S. W. 105. This he failed to do.

It is recited in the order overruling the motion for new trial that evidence was heard by the trial court. The evidence is not brought forward. We must therefore indulge the presumption that the court’s action in overruling the motion in so far as it was based on newly discovered evidence was correct, and that the trial court acted upon evidence which was sufficient to justify his action. Scroggins v. State, 112 Tex. Cr. R. 543, 17 S.W.(2d) 829; Sykes v. State, 109 Tex. Cr. R. 39, 2 S.W.(2d) 863; Crouchette v. State, 99 Tex. Cr. R. 572, 271 S. W. 99; Hughey v. State, 98 Tex. Cr. R. 413, 265 S. W. 1047.

„ The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.


author: MORROW, P. J.

text:
    SWANZY v. STATE.
    No. 14019.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1931.
    Adams & Hamilton, of Jasper, for appellant.
    Lloyd W. Davidson,' State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is aggravated assault; penalty assessed at a fine of $250.

The indictment is regular. There- is no statement of facts. No fundamental error has been perceived.

In a bill of exception, complaint is made of the charge of assault with intent to murder. The jury having acquitted the appellant of that offense, the question passes out of the case.

The judgment is affirmed.


author: CHRISTIAN, J. PER CURIAM.

text:
    Ex parte WALKER.
    No. 14226.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

This is an attempted appeal from a habeas corpus hearing designed to secure relator’s release.

The transcript contains no caption. We are unable to determine whether the hearing was before the district judge in vacation or in term time. Where the hearing is in vacation, the transcript must be certified by the judge.

Where the proceedings take place before the count in session, the transcript must be certified by the clerk of the court. Article ‘857, G. C. P.; Ex parte Turner, 107 Tex. Cr. R. 420, 296 S. W. 295. In -the absence of a caption we are unable to determine whether the clerk was authorized to place his certificate on the transcript. Hence the appeal must be dismissed.

The transcript is manifestly incomplete. It contains only the judgment remanding the relator to custody.

The appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission k>f Appeals has been examined by the Judges of the Count of Criminal Appeals and approved by the court.


author: LANE, J.

text:
    PAYTON v. LOUSTALOTT et al.
    No. 9520.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 23, 1931.
    Rehearing Denied March 12, 1931.
    Holland & Cousins, of Beaumont, and Roy Johnson, of Galveston, for plaintiff in error.
    Stewarts and Noble Carl, all of Galveston, for defendants in error.
   LANE, J.

This suit was brought by John Payton against Gustine and Alice Loustalott in the form of trespass to try title to a small tract of land, which is described in plaintiff’s petition as being a part of the Martin Dunman survey in Galveston county, Tex. The land is sought to be described in the petition by metes and bounds, as follows:

“Beginning at the Southeast corner of a twenty (20) acre tract of land in said survey conveyed to plaintiff under deed dated August 14, 1928, to which reference is here made for better description, and which said twenty (20) acre tract begins at the southwest corner of the Martin Dunman survey and the tract of land herein described begins at the southeast corner of said twenty (20) acre tract; thence north 67 E 112½ vrs. to the northwest cor'ner of a tract of land in the name of Alice Loustalott. Thence north 23 deg. west, far enough so that a line running parallel with first S. 67 W. and S. 23 E to the place of beginning contains four (4) acres of land.
“Which said tract of land herein sued for is better described as beginning at the S. E. corner of the John Payton and Mollie Payton Thirty-four (34) acre tract of land as established by decree of court in cause No. 17857, Cade & Company, et al. v. Joseph Reviea, et al., in the District Court of Galveston County, Texas, dated June 14, 1899, recorded in Yol, 171, page 206, et seq., Galveston County deed records, to which reference is here made and which is the North East corner of the tract of land awarded Alice Loustalott in said decree and which said corner was in said partition suit located and established on the ground at a point where an iron stake was driven and which said beginning corner is approximately 140 feet south of the present fence at north east corner of the defendants. Thence from said beginning point S. 67 W. 112½ vrs. the dividing line between the Thirty-four (34) acre tract of John and Mollie Payton and the Alice Loustalott tract as located and established by said decree and approximately One Hundred Forty (140) feet south of the present fence line of the defendants. Thence North 23 West 150 feet. Thence N. 67 E. 112½ vrs. Thence S. 23 E. to beginning corner.”

It is alleged that plaintiff is the owner and in possession of the premises; that on or about September 1, 1928, defendants unlawfully entered upon said lands and ejected plaintiff therefrom and .is unlawfully withholding the same from plaintiff, to his great damage; that at the time defendants first took possession of the land they did so as tenants of plaintiff’s predecessor in title and at such time they agreed to restore possession of such land to plaintiff’s predecessor in title upon demand being made therefor that plaintiff, now the owner .of the land in fee simple, demanded possession thereof; that defendants are now refusing to restore the land to plaintiff and by threats and force are withholding the same from him, to his damage in the sum of $10,000. •

Defendants demurred generally to the allegations of plaintiff’s petition, made general denial, and pleaded not guilty.

Becoming actors, they alleged that they were the owners of the land under the provisions of the statute of limitations of ten and tw.enty-five years. They alleged (that the claim of plaintiff was a cloud upon -their title, and prayed for a removal of such cloud and for judgment against John Payton for the title to and possession of the land.

A jury was impaneled and sworn to try the cause, but after plaintiff had introduced his evidence and rested, defendants introduced no' evidence; whereupon the court instructed the jury to return their verdict for defendants, which said verdict was accordingly returned.

Upon such verdict the court rendered judgment decreeing that plaintiff take nothing by his suit, and that defendants recover from plaintiff the title and possession of the following property: (Here the property is described as in the plaintiff’s petition.)

Plaintiff has appealed.

Appellant contends: First, that .the court erred in instructing a verdict for defendants, in that the undisputed evidence shows that the land described by him in his petition is owned by him as an heir of his deceased father, John Payton, Sr., that defendants entered upon and inclosed such land as tenants of John Payton, Sr., who was in possession of the. land, and that they never repudiated such tenancy until September 1, 1928; second, that the court erred in rendering judgment vesting title to the land in defendants, in that there was no evidence showing that defendants were the owners of the land by conveyance, by limitation, or otherwise, therefore they were not entitled to a judgment for the land as against the plaintiff.

Mary Payton, the surviving wife of John Payton, Sr., the father of the plaintiff, John Payton, Jr., who died in 1917, testified that she and her husband moved upon certain land, of which the land involved in this suit is a part, prior to 1899; that their son John was living on the premises with them; that her husband lent the land involved in the suit to appellees Loustalotts in 1893 upon the promise of Loustalotts that possession thereof would be restored to him upon his demand therefor; that such demand was made by her in September, 1928, and it was refused by Loustalott.

The witness H. Sullivan testified, in part, as follows:

“Mr. Loustalott said he got the land from old man Payton and moved over there to give his horses pasture room in there and two years ago he says, T know that is Mollie Pay-ton’s land, but, by God, I am going to keep it. The God damned ignorant sons of bitches ain’t got sense enough to claim their land and go to law and get it’; that is what he told me about two years ago. Up to that time he had never laid any claim to the land; I never could get close enough to talk with him but once since. Before that he had never laid any claim to the land. I never talked to him since that about any land or anything. Before that he never did tell me that he owned that property or intended to claim it.”

No conveyance showing title to any land in any party to the suit was introduced in evidence, if such existed, nor was the judgment, referred to in plaintiff’s description of the land and in the court’s judgment in this case, introduced in evidence. In other words, no title to the land was shown to be in any party to the suit, either by conveyance, judgment, or limitation. All.the evidence introduced relative to the limitation title asserted by Lousta-lotts shows that they were not holding adversely to the Paytons prior to September 1, 1928.

It is shown that the Paytons never had the' land involved under fence. There is no evidence that they ever used it in any manner, unless they did so through the Loustalotts as their tenants.

There being no evidence showing that either John Payton, Sr., Mollie Payton, or John Payton, Jr., plaintiff herein, owned the land sued for, it is apparent that John Pay-ton, Jr., is not entitled to a judgment for such land. It is also apparent from the facts stated that defendants Loustalotts are not entitled to a judgment for the land.

Having reached the conclusions stated, the judgment is here reformed by reversing so much of the same as awards to appellees a recovery of the land involved in the suit, the' ¡remainder thereof standing undisturbed. The judgment as thus reformed is affirmed.

Reformed and affirmed.