author: WILLIAMS, Justice.

text:
    REDDING FOODS, INC., Appellant, v. Kenneth BERRY, Appellee.
    No. 16150.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 12, 1962.

      Ramey, Ramey & Neal, Jack G. Neal, Sulphur Springs, for appellant.
    Enoch G. Fletcher, Grand Saline, and Wynne & Wynne, and Gordon R. Wynne, Wills Point, for appellee.
   WILLIAMS, Justice.

This appeal follows the District Court’s denial of a temporary injunction sought by appellant corporation against appellee from violating the terms of an alleged restrictive covenant contained in a contract of sale. The essential antecedent facts may be briefly summarized.

Kenneth Berry and Raymond Sloan were owners and operators of a grocery business in Grand Saline, Texas. On October 4th, 1961 George W. Redding, being desirous of purchasing the business operated by Berry and Sloan, entered into a written contract to purchase, said agreement containing the following clause which is the basis of this controversy:

“The parties of the first part further agree to obligate and bind themselves that as a part of the consideration of sale of said food business is that they will not engage in the food business for a period of five years from the date of the closing of the contract.”

Redding Foods, Inc., became, the assignee of George W. Redding. Thereafter, on October 31st, 1961 the agreement was consummated and Redding Foods, Inc. took over the operation of the grocery store retaining Kenneth Berry as an employee store clerk. Berry continued in such employment for appellant corporation until a short time prior to trial. Appellant instituted this suit, contending that appellee in March 1962, in violation of the restrictive covenant quoted above, accepted employment as a clerk with another retail grocery store in Grand Saline, Texas. Appellee makes no contention that he did not intend to go to work as a grocery clerk for another grocery company, contending, among other things, that the restrictive covenant, being unlimited as to geographical area is void, and furthermore ambiguous in that it was not intended to restrict appellee in the performance of duties as grocery clerk.

In three points of error appellant seeks reversal of the court’s denial of its temporary injunction, same being substantially that (1) the court erred in denying the injunction because the undisputed evidence showed that appellee had accepted employment in derogation and violation of the restrictive covenant; (2) that the court erred in holding that the contract was void because not limited to area; and (3) that the court erred in its conclusion of law that the term “engaging in the food business” was unreasonable and ambiguous.

In the very recent case of Janus Films, Inc. v. City of Fort Worth et al., Tex., 358 S.W.2d 589, our Supreme Court reannounced the fundamental rules of appellate review from orders denying temporary injunctions. As therein stated the scope of appellate review in such cases is limited to the narrow question of whether the action of the trial judge in granting or denying the temporary injunction constitutes a clear abuse of discretion. Texas Foundaries, Inc. v. International Moulders & Foundry Workers Union, 151 Tex. 239, 248 S.W.2d 460. The trial judge is endowed with broad discretion to grant or deny the injunction. Railroad Comm. of Texas v. Shell Oil Co., Inc., 146 Tex. 286, 206 S.W.2d 235. The purpose of the temporary injunction, said the Supreme Court, is to preserve the status quo of the subject matter of the suit pending a final trial of the case on its merits. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549.

After a careful review of the entire record in this case we are impelled to the conclusion that the trial judge in this case did not abuse his discretion in denying the application for temporary injunction. We find ample evidence to justify the action on the part of the trial judge in holding the matter in abeyance pending a complete and final hearing for permanent injunction and damages.

One of the primary questions presented to the trial court, as here, is the validity of the restrictive covenant contained in the contract of sale. Appellee maintains that the contract provisions containing such a restraint is entirely void. Restrictive covenants are said to be in restraint of trade and are held to be valid only if shown clearly to be within the exceptions to the general rule. Wissman v. Boucher, 150 Tex. 326, 240 S.W.2d 278. It has been held that restrictive covenants ancillary to the sale of businesses are sustainable only when the restraint involved is reasonably limited to both time and locality, or as to locality only, without any restriction as to time. On the other hand, restraints that are unlimited both as to time and place are held to be void. 13 Tex.Jur.2d § 187, pp. 396-397.

The rule was announced by this Court in Caraway v. Flagg, Tex.Civ.App., 277 S.W.2d 803, as follows:

“The general rule is that a contract unlimited, (1) as to time and space is void; (2) as to time, but not as to space, is ordinarily void; and (3) as to space, but not as to time, is valid only if reasonable. 17 C.J.S. Contracts §§ 242 to 244 inclusive, page 624.”

The Fort Worth Court of Civil Appeals in the case of Star Refining Co. v. Butcher, 84 S.W.2d 303, said:

“It is a well-recognized rule that if such a restriction against engaging in a competitive business is unlimited as to place, the contract is illegal, as held in Comer v. Burton-Lingo Co., 24 Tex.Civ.App. 251, 58 S.W. 969, 970; Martin v. Hawley (Tex.Civ.App.) 50 S.W.2d 1105.”

Appellant relies upon such cases as Burroughs Adding Mach. Co. v. Chollar, Tex.Civ.App., 79 S.W.2d 344; Spinks v. Riebold, Tex.Civ.App., 310 S.W.2d 668; Lewis v. Krueger, Hutchinson and Overton Clinic, 153 Tex. 363, 269 S.W.2d 798 and Weatherford Oil Tool Co. v. Campbell, 161 Tex. 310, 340 S.W.2d 950. However, a careful examination of each of these cases demonstrates that the contracts were materially different than that in the instant case in that the geographical area of each of those cases was definable. Here, the contract is unlimited as to geographical areas, and we think therefore, illegal, as held in the foregoing authorities. However, if it may be said, arguendo, that such contract is not entirely void, but subject to judicial reformation, then the trial court did not abuse his discretion in holding the matter in status quo until final hearing. Appellant seeks to have the court rewrite the contract and provide therein for a limitation of geographical area within the limits of reasonableness. To do what appellant demands could not be fairly done without a full and complete hearing on the merits of the case to determine the question of reasonableness.

The trial court found that the contract in question was ambiguous in that the term “engaging in the food business” is a term which conceivably covers many classes of employment. Appellee contended that it was his construction of this phrase that he could not engage in the grocery business as a proprietor. He further contends that such construction called for by appellant would prevent him from earning a livelihood as a clerk in a grocery store or cafe or other institutions handling food. Thus, there is ample testimony in this record supporting the court’s finding concerning ambiguity. Whether or not a contract is ambiguous is a question of law. Being ambiguous the contract is susceptible of being explained by parol testimony which must be done upon final hearing of this case upon the merits.

Another reason supporting the discretionary action on the part of the trial court is the construction placed upon the disputed part of the contract by the parties themselves. Appellant says that the appel-lee may not seek employment as a clerk in any other grocery store in Grand Saline. At the same time appellant admittedly employed appellee as a grocery clerk in its store for many months following the sale to appellant. It has now been held that the construction of the parties to a contract is to be given great weight by the court. This being based on the proposition that the parties themselves were in the best position to know what was intended by the language utilized by them. Our Supreme Court in the case of Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080 held that the reasonable construction given contracts by parties themselves before the controversy arose will generally be given controlling effect by the Court. For like effect see Mercantile Nat. Bank at Dallas v. McCullough Tool Co., Tex.Civ.App., 250 S.W.2d 870; Austin Stone Industries, Inc. v. Capitol Powder Co., Tex.Civ.App., 290 S.W.2d 689; Climatic Air Sales v. Climatic Air Distributors of South Texas, Tex.Civ.App., 336 S.W.2d 461; Manzer v. Barnes, Tex.Civ.App., 213 S.W.2d 464.

Finding nothing in this record to indicate abuse of discretion by the trial court in refusing to grant the temporary relief requested by appellant, we overrule appellant’s points and affirm the judgment of the trial court.

Affirmed.


source: Caselaw Access Project

author: COLLINGS, Justice.

license: Public Domain

text:
    Iris Lynn WAGNER, a Widow, et al., Appellants, v. Robert N. PULLIAM et ux., Appellees.
    No. 3730.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 21, 1962.

      Sorrell, Stone & Waller, Atlee McCamp-bell, Corpus Christi, for appellants.
    Liddell, Austin, Dawson & Sapp, Houston, for appellees.
   COLLINGS, Justice.

This is a plea of privilege case. Four of the children of Mrs. Maude E. Mc-Kamey, deceased, Iris Lynn Wagner, a widow, Maida Mauryne Wiese, joined by her husband, Riva May Corbin, joined by her husband, and Glenn E. McKamey brought suit in the District Court of Victoria County against Robert N. Pulliam and his wife, Lurline M. Pulliam, also a daughter of Mrs. McKamey. Plaintiffs sought to set aside a deed from Mrs. Mc-Kamey to the defendants conveying an undivided interest in land located in Victoria County. The defendants filed a plea of privilege to be sued in the District Court of Brewster County, the place of their residence. Plaintiffs filed a controverting affidavit alleging that they were entitled to maintain venue in Victoria County under exception 14 to Article 1995, Vernon’s Ann. Texas Civ.St. They alleged that their suit was for the purpose of setting aside and holding for naught the deed from Maude E. McKamey to the defendants obtained about two weeks before Mrs. McKamey’s death, and to vest in plaintiffs title to the land described in said deed. It was stipulated that the land described in plaintiffs’ petition is located in Victoria County. Plaintiffs’ petition was admitted in evidence for the limited purpose of showing the nature of the suit. The court sustained defendants’ plea of privilege and ordered the case transferred to Brewster County. Iris Lynn Wagner and other plaintiffs have appealed.

The question on this appeal is whether the nature of the suit brought by plaintiffs comes within the provisions of Subdivision 14 of the Venue Statute. In such cases venue is ordinarily determined by the principal right asserted in the plaintiffs’ petition and the relief sought for the breach thereof, 43-B Tex.Jur. 113, Brown v. Gulf Television Company, 157 Tex. 607, 306 S.W.2d 706.

It is alleged in plaintiffs’ petition that they, their mother and Mrs. Pulliam were owners of specified undivided interests in approximately 1358 acres of land situated in Victoria County. Plaintiffs alleged the respective proportions which they and defendant, Mrs. Pulliam, owned in such land prior to the execution of the deed in question and sought to enforce specific performance of a buy-sell agreement between the parties, a copy of which was set out as an Exhibit to plaintiffs’ petition. They alleged that under such agreement any disposition of a party’s interest was required to be made to the remaining owners in the same proportion as their then ownership. In connection with this theory of recovery plaintiffs did not allege present ownership of any part of the 15/110th interest which Mrs. McKamey conveyed to the Pulliams. It is such 15/110th interest only that is the subject matter of this suit. After alleging the respective ownerships of themselves, Mrs. McKamey and Mrs. Pulliam, appellants then alleged that the ownership of each of such owners was subject to all the terms of the above mentioned contract; that under its terms any disposition of a party’s interest in said land was required to be made to the remaining owners in proportion to their respective ownership, that although the deed of March 13, 1961 from Mrs. McKamey to the Pulliams had been executed, delivered and filed for record in Victoria County, the Pulliams were not entitled to such 15/110th interest because under the terms of the contract defendant Lurline Pulliam was entitled to purchase only an undivided 3/95ths of her mother’s interest; that the deed should therefore be set aside because it was contrary to the terms of the contract, of which the Pulliams had full knowledge. Plaintiffs alleged that they were ready, willing and able to purchase their prorata part of the interest conveyed by Mrs. McKamey to the Pulliams. Plaintiffs alleged that the deed was obtained at a time when Mrs. McKamey did not have the mental capacity to execute a deed, and was obtained by means of fraud and undue influence; that the consideration provided and paid for the interest of Mrs. McKamey was wholly insufficient and thereby evidenced such fraud and undue influence.

Appellants concede that if this suit is purely one for a specific performance then Subdivision 14 of Article 1995 does not apply. They contend, however, that the petition and the exhibit attached show that the dominant and principal relief sought by them is to set aside and cancel the deed from Mrs. McKamey to the Pulliams and therefore involves the title to land. They urge that even if the buy-sell provision of the contract between the parties were ignored and Mrs. McKamey had died without executing the deed or if the deed should be declared void for any of the reasons alleged in plaintiffs’ petition then her 15/110th interest would have passed in accordance with the provisions of the contract providing for the proportional succession to the interest in the event of the death of a party. We cannot agree with this contention. The proportional succession provision of the contract in case of death of a partner simply involved a specific application of the buy-sell agreement.

Appellants’ cause of action against the Pulliams under these allegations and theory of recovery as shown by their petition is primarily for specific performance of the Buy-Sell provision of the contract. In this connection appellants did seek to have the deed from Mrs. McKamey to the Pulliams set aside and disregarded, but the pleadings indicate that this relief was sought by appellants on the theory that the ■deed was an impediment to their right to specific performance and enforcement of the contract. The nature of appellants’ suit as so shown by these allegations does not come within the provisions of Subdivision 14 of the Venue Statute. The principal relief sought was specific performance or enforcement of the contract and this is insufficient to sustain venue in a county other than that of the residence of the defendant. Smith v. Hall, 147 Tex. 634, 219 S.W.2d 441; Batex Oil Company v. La Brisa Land & Cattle Company, Tex.Civ.App., 352 S.W.2d 769 (Writ Dis.); O’Quinn v. Dunagan, Tex.Civ.App., 227 S.W.2d 366.

Appellants’ petition also urged an alternative basis or theory of recovery. Based upon their allegations of fraud they sought to set aside the deed to the Pulliams alleging that even in the absence of the deed in question, upon the death of Mrs. McKamey, each of the appellants and the appellee Mrs. Pulliam, under the terms of the joint and mutual will of Mrs. McKamey and her deceased husband and under the terms of the will of Mrs. McKamey, became vested with an undivided i/£th interest in and to the interest of the said Mrs. Mc-Kamey in said land which is the land here in controversy. Appellants’ alternative plea sought judgment of the court setting aside the deed in question and vesting title to the interest of Mrs. McKamey J/£th in each of appellants and the appellee, Mrs. Pulliam, subject only to the administration upon the estate of Mrs. McKamey.

Appellants had the right to allege alternative pleas as a basis of recovery. If any of such pleas allege a cause of action coming under the provisions of Subdivision 14, then venue would be properly laid in Victoria County. Stephenville Production Credit Ass’n v. Rockwell, Tex.Civ.App., 250 S.W.2d 476; Joy v. Joy, Tex.Civ.App., 254 S.W.2d 810; Cox v. Chapa, Tex.Civ.App., 188 S.W.2d 217. Allegations of fact showing that they were present legal or equitable owners of the land would have entitled them to maintain a suit for cancellation of the deed. O’Quinn v. Dunagan, Tex.Civ.App., 227 S.W.2d 366. Appellants did not, however, allege facts showing that they were entitled to assert such a claim. They did not allege that either of the wills mentioned in their petition had been duly probated. They alleged no facts showing that they were devisees and that as such they were entitled to assert a claim for cancellation of the deed. In 41-A Tex.Jur. page 575, it is stated that:

“Where the petition alleges facts which are sufficient to support an action for specific performance, but fails to state a case of trespass to try title, the question of venue is to be determined as though the sole object of the proceeding were specific performance.”

Rule 783, Vernon’s Texas Rules of Civil Procedure, sets out the requisites of a petition in trespass to try title. A formal petition which substantially follows the provisions of the rule is sufficient even though the allegations may be fictitious. Where a plaintiff complies with the requirements of the rule he is not required to allege facts which show his right to recover. Concerning ownership of the land in question a plaintiff in a formal petition is only required to allege the interest which he claims in the premises, whether it be a fee simple or other estate.

A plaintiff in trespass to try title may elect to specially plead his title but if he does so his petition “must be tested as to its sufficiency by the title specifically pleaded.” 41-A Tex.Jur. page 608; Paul v. Houston Oil Company, Tex.Civ.App., 211 S.W.2d 345 (Ref. N.R.E.).

In the instant case appellants’ pleadings do not reflect a formal petition in trespass to try title and a general allegation of ownership. In their alternative plea for cancellation of the deed appellants specially plead their title. They alleged that they were each owners of a ½⅛ interest in the land in dispute as devisees of Mrs. Mc-Kamey and as devisees sought to have the deed set aside. As heretofore pointed out, however, appellants did not allege facts showing that they held title to the land as devisees and were therefore entitled to assert a claim for cancellation of the deed. Pure Oil Company v. Tunnell, 126 Tex. 57, 86 S.W.2d 207; Youngs v. Youngs (Tex.Com.App.), 26 S.W.2d 191; Dutchover v. Dutchover, Tex.Civ.App., 334 S.W.2d 569.

For the reasons stated the plea of privilege was properly sustained. The judgment is affirmed.


author: WALTER, Justice.

text:
    Josephine Lee HERRING, Appellant, v. DUNIGAN TOOL & SUPPLY CO. et al., Appellees.
    No. 3746.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 21, 1962.
    C. J. Eden, Breckenridge, for appellant.
    Whitten, Harrell & Wilcox, Abilene, Robert E. Bowers, Breckenridge, for ap-pellees.
   WALTER, Justice.

Mrs. Josephine Lee Herring filed suit against Dunigan Tool & Supply Company for SO shares of the company’s stock which was listed on the books of the company in the name of her deceased husband, James A. Herring. She claimed the stock under her husband’s will.

Dunigan impleaded Frank Herring, a son of deceased by his first wife. The son pleaded that his father had acquired 75 shares of the company’s stock during his first marriage. He alleged his mother died intestate and he acquired 37½ shares by inheritance. He also pleaded that by agreement he permitted his father to retain all of the stock and collect the dividends during his lifetime. The father sold 25 shares of said stock after the death of his first wife.

Mrs. Herring admitted that the 75 shares of stock was the community property of the first marriage. However, she pleaded as a defense to the son’s claim a division of the community estate of the first marriage between the father and the son. She also pleaded the two year statute of limitation and laches.

In a non jury trial, the court awarded the son the 37½ shares of the company stock which he inherited from his mother.

Mrs. Herring has appealed, contending the court erred in rendering such judgment because the evidence conclusively established that the father made a settlement with the son of the community property of the first marriage. She further contends the record established, conclusively that the father claimed such stock adversely to his son. She also asserts such findings are against the overwhelming weight and preponderance of the evidence, and contends her plea of limitation and laches should have been sustained.

In determining whether there is any evidence to support the judgment, it is proper to consider only that evidence most favorable to the judgment and to disregard entirely that which is opposed to it or contradictory in its nature. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Austin v. Cochran, Tex.Com.App., 2 S.W.2d 831, 832; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696.

Frank Herring’s mother died intestate May 30, 1937. The father, James A. Herring, married the plaintiff in 1940. James A. Herring died June 29, 1958. On July 11, 1958, Frank Herring notified Dunigan of his claim to the 37i/£ shares of stock.

After a careful consideration of the record, we have concluded that there was some evidence to support the finding that there was no settlement between the father and the son. The son testified that there was no settlement, and that the only properties he received from such community estate were keepsakes, such as the family Bible, a tablecloth crocheted by his mother, a little glassware and one antique sewing machine. When Frank Herring was asked if he had any agreement with his father after his mother’s death concerning the stock he testified:

“A. Well, I wanted him to have all of the income from the stock. I told him that I had inherited half of it, under Texas law, but as far as I was concerned I was perfectly willing that he should get all of the income from it as long as he had it and as long as he lived. That was about the gist of it and I never heard anything more about it until this came up.” He further testified that he permitted the stock to remain in his father’s name so that the dividends could be paid to him without interruption, and that as a result of his conversations and agreements the stock remained in his father’s name and he continued to collect the dividends until his death.

From the above and other testimony in the record, we have concluded that the appellant did not conclusively establish that the father held the stock adversely to his son. We have also reached the conclusion that the appellant failed to establish her claim of limitation and laches.

We have considered all the evidence and have concluded that the judgment is not against the overwhelming weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. We have considered all of the appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: POPE, Justice.

text:
    Robert I. TAYLOR, Jr., Appellant, v. CAMERON COUNTY FRESH WATER SUPPLY DISTRICT NUMBER ONE, Appellee.
    No. 13990.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 17, 1962.
    Strickland, Wilkins, Hall & Mills, Mission, for appellant.
    Cunningham, Yznaga & Duncan, Brownsville, for appellee.
   POPE, Justice.

Plaintiff, Cameron County Fresh Water Supply District Number One, obtained a temporary injunction against Robert I. Taylor, Jr., enjoining him from interfering with Water District’s efforts to construct, repair and restore an open canal to usefulness. It plans to furnish fresh water to-Port Isabel and other communities, but it has never previously used the canal in question. Taylor appeals and urges that the decree disrupts the status quo.

Taylor owns six hundred acres of farm' land in Cameron County which lie north and south on the ground in a rectangular shape. An old open canal, known as the Roloff Open Canal, runs across the tract from west to east, but it does not extend to the west side of the Taylor tract. The west end of the open canal is 340 feet from; the west boundary. At one time a pipe extended from the southwest to the west end of the canal. Prior to this dispute, the Taylor tract was enclosed by fences and gates. One of the issues between the parties is-whether there is a public road which runs from west to east through the Taylor tract and borders the north side of the canal. The road was not in use by the public. Taylor denies that there is such a road. Water District claims there is. The trial court, by its order, permits the Water District to enter upon the claimed roadway. The District plans to construct an underground pipe line in the roadway for the necessary 340 feet to connect with the open canal. No pipe line has previously been located at that place. The injunction also forbids Taylor from interfering with the repair of the open canal, which extends 3,844 feet to the east.

Both Water District and Taylor claim ownership of the open canal. Water District claims that Taylor’s predecessor in title gave an easement to R. F. Roloff, Trustee, in 1941, and that in July, 1959, he assigned that easement to the Water District. The instruments are in the record. Taylor claims that the easement has terminated. He proved that the canal has fallen into disrepair and has been in a nonusable condition for many years. He claims that Roloff, Trustee, abandoned the easement prior to the assignment to Water District and that he breached the express conditions of the easement by failing to obtain and retain a contract with a water supplier. In 1958, the water supplier cancelled Roloff, Trustee’s, contract for water. Taylor claims that he then notified Roloff that the easement was terminated. For many years Taylor had been in undisturbed possession without any controversy, until, in January, 1962, Water District undertook to make repairs upon the canal.

The trial court decided that Water District is the present owner of the easement and denied the claims made by Taylor. The decree enjoins Taylor from interfering with Water District when it enters upon the disputed roadway, or “from interfering with plaintiff’s use of the property described in said easement.” It is our opinion that these legal and factual disputes would better await the trial upon the merits and that the status quo should be maintained. Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417; West Texas Gulf Pipe Line Co. v. Hardin County, 159 Tex. 374, 321 S.W.2d 576. Prior to the dispute which brought on this action, Water District was out of possession and Taylor was in possession. That was changed. Before the dispute, the status of the canal was one of non-user and this had been the situation for more than four years. That was changed. Formerly the easement had extended merely to irrigation and domestic waters. That was changed so that the canal would transport municipal fresh waters. There has never been a pipe line along the claimed roadway, but apparently the decree tolerates the construction of a line which, from the record, would require a thirty inch pipe extending for 340 feet. These are changes in the status quo, which defeat the purposes of a temporary injunction.

The temporary injunction is dissolved.


author: COLEMAN, Justice.

text:
    The CITY OF HOUSTON, Texas, et al., Appellants, v. Leota Mae ROSE et al., Appellees.
    No. 13999.
    Court of Civil Appeals of Texas. Houston.
    Oct. 18, 1962.

      R. H. Burks, City Atty., and Homer T. Bouldin, Senior Asst. City Atty., Houston, for appellants.
    C. C. Divine, Houston, for appellees.
   COLEMAN, Justice.

This is a suit in which appellees sought to enjoin the enforcement of an ordinance of the City of Houston regulating and licensing massage parlors. The trial court granted a temporary injunction after a hearing and this appeal followed.

The judgment granting the temporary injunction did not set forth the reasons for its issuance as required by Rule 683, Vernon’s Ann.Tex. Rules. A violation of the Rules in this respect has been held reversible error in many cases. Gonzalez v. Rodriguez, Tex.Civ.App., 250 S.W.2d 253; Northcutt v. Waren, 326 S.W.2d 10, Tex.Civ.App., writ ref., n. r. e.; Miller v. State, Tex.Civ.App., 305 S.W.2d 663. The rule requires that an order granting the injunction set forth reasons why the court believes the applicant’s probable right will be endangered if the injunction does not issue. Transport Co. of Tex. v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549.

In several cases the courts have said that the failure to set forth the reasons for granting the temporary injunction will not require a reversal where the record affirmatively shows that no harm resulted. Gonzalez v. Rodiguez, supra; Rothermel v. Goodrich, Tex.Civ.App., 292 S.W.2d 882; O’Daniel v. Libal, Tex.Civ.App., 196 S.W.2d 211. Appellees contend that since the trial court’s order merely preserves the status quo, no harm could have resulted to the City. Without undertaking to determine whether or not the status quo was being preserved by the order in this case, we overrule appellees’ contention. We agree with the reasoning of Rothermel v. Goodrich, supra, that the failure of the trial court to comply with the mandatory requirements of the Rules in entering his order granting a temporary injunction “constitutes an abuse of discretion and hence an erroneous exercise of judicial power.”

The court, in the Rothermel case further said :

“It is true that a trial court’s judgment should not be reversed on appeal because of harmless errors which probably did not cause the rendition of an improper judgment under Rules 434 and 503, T.R.C.P. Those rules, however, apply to errors of law which occur in the course of a trial and we do not believe they should have the effect of nullifying plain and mandatory requirements of Rule 683, which deals specifically with the matters necessary to be incorporated in the court’s judgment or order granting a writ of injunction.”

Since the order entered in this case contains no recitation of any reasons why applicant’s “probable right” will be endangered if the writ is not issued, the trial court failed to comply with a mandatory requirement of Rule 683, Texas Rules of Civil Procedure.

The temporary injunction is dissolved, and the judgment is reversed and remanded to the trial court for a new trial.


author: McNEILL, Justice.

text:
    M. D. WARREN, Appellant, v. Inez SWANZY et vir et al., Appellees.
    No. 6506.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 6, 1962.
    Rehearing Denied Oct. 10, 1962.
    Second Motion for Rehearing Denied Oct. 31, 1962.

      McDaniel, Hunt & Fairchild, Bill Griffin, Jr., Center, for appellant.
    Dudley Davis, Center, Charles F. Well-born, Gladewater, for appellees.
   McNEILL, Justice.

This is a trespass to try title action. It was instituted by appellee, Mrs. Inez Swan-zy and children, against appellant, M. D. Warren and heirs of one J. L. Defee and wife. Herein however appellees will be designated as plaintiffs and appellant Warren as defendant.

The action involves title to a tract of 70 acres, more or less, in the J. L. Defee Survey of Shelby County, Texas. In order to understand the questions involved, a sketch of the area is inserted here.

The land described in plaintiffs’ petition is the area bounded by the letters “A”, “B”, “C”, “D”, and “F” and constitutes the northern part of the Defee Survey. In addition to the formal allegations in trespass to try title, plaintiffs pleaded the benefit of the 5, 10, and 25 years statutes of limitation as well. They also alleged that they and their predecessor in interest, T. Wood Smith, went into possession of said land and openly, notoriously and peaceably held adverse possession of said land continuously cultivating, using and enjoying the same and paying all taxes thereon until they were dispossessed by the defendants; and that defendant Warren took possession and unlawfully sold gravel from said land to plaintiffs’ damage in the sum of $297.80. Personal service of citation was had upon the defendant Warren and one of the Defee descendants, but all other defendants were cited by publication. Defendant Warren answered the suit and asserted pleas of not guilty and the statutes of limitation of 3, 5, 10, and 25 years; and asserted a cross action for damages for removal of gravel from the land against plaintiffs. The other defendant personally served defaulted. The court appointed an attorney to represent the defendants cited by publication and a plea of not guilty was filed by them.

The cause was tried to a' jury who answered issues to the effect that the boundary line between the land claimed by plaintiffs and that claimed by defendant is the line designated as “A” — “B” on the above sketch. The jury also found that plaintiffs had established adverse possession to the premises under the 5, 10. and 25 years statutes of limitation. Judgment upon this verdict was rendered for plaintiffs for the land and defendant Warren appeals. ,

Defendant’s brief contains 54 points of error. We think, however, the controlling questions may be summarized in a much more condensed manner. Upon the trial in the district court and in, his brief here defendant disclaimed any interest in that portion of the land described in plaintiffs’ petition lying to the north of line “A”— “C”. Therefore, the actual controversy is the ownership of the triangle of about 30 acres lying within the lines marked by “A”, “B”, and “C”. The parties made demands upon each other for abstracts of title. Included in plaintiffs’ abstract of title were the following instruments: Patent from the State to J. L. Defee for the Defee Survey containing 158 acres; deed from J. L. Defee and wife and two children, C. D. Defee and W. R. Defee, dated September 24, 1900 to George E. Donalson. The abstract also described a deed dated about October 9, 1902 from George E. Donalson to John Flowers, which contained two vendor’s lien notes to secure the payment of purchase price of said land, and stated that Donalson transferred said vendor’s lien notes to T. Wood Smith but that said deed and transfer were never recorded and were lost, misplaced or destroyed. This abstract also included a judgment of the district court of Shelby County dated September 2, 1913, in Cause No. 2772, styled T. Wood Smith vs. John Flowers, recorded in Vol. 3, p. 51, of the Minutes of said court; order of sale on said judgment, notice of sale and sheriff’s return on said order of sale; a sheriff’s deed dated November 5, 1913 executed by the sheriff of said county to T. Wood Smith under said order of sale, which deed is recorded in Vol. 78, p. 347, Deed Records of said county.

Based upon both his motion for instructed verdict and motion notwithstanding the verdict, defendant vigorously urges that plaintiffs have • failed to show record title to any part of the “A”, “B”, “C” triangle area. When the above listed deed from J. L. Defee, et al., to Donalson was offered by plaintiffs, objection was made ■that it was void because it failed to describe any of the land involved. The description of this deed is:

“ * * * situated in Shelby County Texas and'being a part of the Head-right of J. L. Defee Preemption
“BEGINNING at the S.E. corner of C. M. Belsha and J. S. Griffins line—
“THENCE N W 1200 vrs to Pine N 40 E 6 vrs DO N 65 W 7 Vrs X—
“THENCE West 125 yds Cor Black Jack marked X—
“THENCE with Mosses W boundary 660 yds to black gum on branch Mkd X—
“THENCE up said branch 75 yds—
“THENCE S E 525 Yds to J. S. Grif-fiths N W boundary line to cor B-ach and Pine 4 In dia X the beginning containing 70 acres more or less * *

Defendant says that the calls for course in the first and second calls would describe land not within the Defee Survey, and the calls are so inaccurate they cannot be identified on the ground. However, the evidence indicates that by starting at the southeast corner of the C. M. Belcher Survey on J. S. Griffin’s line and going joMi/twesterly along the northerly line of the Defee Survey at 1200 varas one would reach corner “D” of the Defee; and that going from thence southeasterly along the westerly line of the Defee Survey for the next call a distance of 135 varas or 125 yards the corner marked by a black oak and two pines would be reached; thence proceeding north 79 degrees east a distance of 660 yards a black gum on a branch, as called for in the third call; thence going up said branch 75 yards two willows at a corner was found; and proceeding from that point south 89 degrees east 525 yards is the corner on the J. S. Griffin Survey line marked by a beech and pine. Though the description in the deed is most inept, it undoubtedly was the intention of the grantors to convey property in the Defee Survey, and when applied to the known corners, part of which were marked by bearing trees, the deed should be upheld. Stafford v. King, 30 Tex. 257; Adams v. Grogan-Cochran Lumber Co., Tex.Civ.App., 181 S.W.2d 582; Rhoden v. Bergman, Tex.Civ.App., 75 S.W.2d 993.

Plaintiffs also offered in evidence said sheriff’s deed to T. Wood Smith based upon the judgment of foreclosure on the 2 vendor’s lien notes and order of sale issued out of the district court of Shelby County. Defendant objected to the admission of this deed on the ground that it did not describe or include any part of the land really in contest — the triangle “A”, “B”, “C”. It was shown that the pleadings in the case of T. Wood Smith vs. John Flowers were missing and could not be found but the judgment and order of sale are in evidence. The description in the judgment is as follows:

* * * “a part of the J.L. Defee H.N. pre-emption survey,
“BEGINNING at the S.E. cor. of C. M. Belchers Sur. an J.S. Griffins W bdy. line at a stake;
“THENCE S 70 W. with the E. bdy line of said J.L. Defee sur. 1200 yds to a stake in the road leading from Neuville to Duff from which a pine brs. N 40 E 6 vrs. another brs N 65 W 7 vrs. both mks. X this being the N.W. cor. of the said Defee Sur.
“THENCE S 20 E. with the W. bdy, line of said Sur. 125 yds. to a stake on the W. of the Neuville and Duff road, a large black oak and two pines mked X
“THENCE about N. 79 E. at 320 yds. cross a spruy branch at 660 yds. a stake on a branch, witness tree — a black gum mkd X
“THENCE up said branch S 11 E 75 yds. to a stake two large willows both mkd X
“THENCE N about 35 E. 525 yds, to the place of beginning, containing 70 acres of land.”

The description in the order of sale is identical. The description in the sheriff’s deed is the same except in the last call. There this call reads: “Thence about 35 E. 525 yds, to the place of beginning, containing 70 acres of land.” It is apparent that the inaccuracy in this call of the sheriff’s deed should be controlled by the description in the judgment and order of sale. Testimony of Meeks, a surveyor, was to the effect that the course “N. 35 east” would he within 2 degrees of corner “C”, the point of beginning. But the distance of 525 yards was considerably short and plaintiffs attempted to show that on account of this inaccuracy, the amount of acreage called for, and because of the reputation of the ownership in the community of the triangular tract of land as being that of T. Wood Smith, parol testimony was admissible to show that the sheriff’s deed should include the triangular tract. This would require adding two calls, one from “A” to “B” and one from “B” to “C” to this deed. The evidence does not justify this. The last call in the deed, as modified by the judgment and order of sale, “thence N about 35 east to the place of beginning” is clear and unambiguous. The place of beginning is well known as an established corner, recognized as such by all parties and witnesses. The fact that the distance, 525 yards, falls considerably short of this comer is not significant. The call in a deed for distance is the weakest of all calls. Stafford v. King, 30 Tex. 257; Matador Land & Cattle Co. v. Cassidy-South Western Comm. Co., Tex.Civ.App., 207 S.W. 430. Distance and quantity called for must yield to well established corners. Wright v. Dabbs, Tex.Civ.App., 220 S.W.2d 681; Ostrom v. Jackson, Tex.Civ.App., 127 S.W.2d 987. Plaintiffs argue, in effect, that since the Defee deed conveys the disputed triangle area to Donalson, it should be presumed that Donalson sold the same tract to John Flowers. They state that there is no evidence to indicate otherwise. But the burden to show he sold all of the same land (at least the triangle area) was upon plaintiffs. There is no presumption that a grantee in a deed will, when he sells, convey all of'the land he received as grantee. We, therefore, hold that the sheriff’s deed did not include the triangle involved. Magnolia Petroleum Co. v. Jones, 138 Tex. 67, 158 S.W.2d 548; McKee v. Stewart, 139 Tex. 360, 162 S.W.2d 948; Luckett v. Scruggs, 73 Tex. 519, 11 S.W. 529; Spearman v. Mims, Tex.Civ.App., 207 S.W. 573.

Plaintiffs assert that regardless of their record title, they have shown limitation title under the 10-year statute. We have read the record carefully and cannot sustain plaintiffs’ position. Although it does not materially affect our action herein, we think attention should be called to the following matter in the record. Much of the testimony is wholly unintelligible to us. Maps were used from which witnesses testified. In identifying fences, roads, cultivated plots, old house locations, etc., on these maps they would point to the locality but the locality was no way marked so that this testimony can be followed by us. Their testimony is well exemplified in the following quotation:

“A. There’s a fence that comes off down Griffith line here, C.M. Belcher 160 acres. It starts about here and whole 160 acres — goes back in there, comes across here down this J. S. Griffith line, down to right along here and then it turns this way. How — -it turs that way. Now it went on this — over here to this road. Now fence comes on down here. This was fenced or was fenced. All fences about down. Now that fence from right here to right here and then on around this tract.” (Emphasis added)

This testimony has no meaning for us. Ainsworth v. Texas & N. O. R.R. Co., Tex.Civ.App., 288 S.W. 481. However, we conclude that the evidence clearly shows that there was no such continuous visible or actual possession or use of the premises as is required. From the time of the sale of the premises by the Defees in 1900 there has been no one living on the land. The most that can be said is that evei-y five or ten years some timber was sold off of it. Whether it was sold off the entire tract described in plaintiffs’ petition or the triangle involved, the record is not clear. Testimony also shows that there was temporary use of the premises in the disputed area in 1953 when much gravel was sold off the land by Mrs. Swanzy, and in 1958 timber in the disputed area was cut by L. A. Runnels who bought it from Mrs. Swanzy. There were some oil leases made and pipeline easements granted by Mrs. Swanzy but the instruments followed the description in the sheriff’s deed above described, and no testimony shows whether the pipelines ran across the triangle involved.

cutting of timber is not suffi-suffipossession of land to mature limita-limitaDavis v. George, Tex.Civ.App., 136 S.W. 505; Meredith v. Mitchell, Tex.Civ. Tex.Civ.167 S.W. 189; W. T. Carter & Broth-Brothv. Ruth, Tex.Civ.App., 275 S.W.2d 126. Although there is testimony in the record that for practical purposes the land was only useful in growing timber or removing gravel therefrom; as said by this court in the last cited case (p. 131):

“We are aware that the use which one in possession is required to make of land in order to perfect title by limita-limitais only such use as the land is adapted to have made of it. Nona Mills Co. v. Wright, 101 Tex. 14, 102 S.W. 1118; Moran v. Moseley, [Tex.] Civ.App., 164 S.W. 1093, 1094. How-Howthere must he continuous and un-unadverse possession for the full statutory period. Hardy v. Bump-BumpTex.Com.App., 41 S.W.2d 226, [76 A.L.R. 1488] 1488]Dunn v. Taylor, 102 Tex. 80, 113 S.W. 265; Pendleton v. Snyder, 5 Tex.Civ.App. 427, 24 S.W. 363, 364. And in order to be adverse, the possession must be exclusive. Richards v. Smith, 67 Tex. 610, 4 S.W. 571. The evidence in this case is in-inas a matter of law to meet these standards and requirements of the law.”

Because we hold the sheriff’s deed did not include the disputed area, and plaintiffs did not have that actual possession continuously of the land required under the 10-year statute, plaintiffs may not recover on their record title nor upon the various statutes of limitation pleaded.

[9] reasons since plaintiffs claimed under the record title established by the foreclosure proceedings, and since we have held that the sheriff’s deed there-theredoes not include the triangle, that plaintiffs are foreclosed from asserting any other right of title to the triangular tract. This upon the theory that judgment in the foreclosure suit was res adjudicata as to plaintiffs and if not res adjudicata the judg-judgcreates an estoppel against plaintiffs. Regardless of other answers that perhaps may he made to this, it is sufficient to say that since defendant does not claim through or under this foreclosure proceeding, was not a party thereto but is a stranger to plain-plaintitle and claim, these pleas are without merit. Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490.

[10] assert that the judgment should be upheld on the basis of their prior possession. There was evidence that for a continuous period of 47 years, from 1913 to 1958, plaintiffs and their predecessor in interest T. Wood Smith, had claimed the entire tract including the triangle. No tes-tescontradicts this, nor was there any contrary claims asserted thereto during this period. Plaintiffs and their predecessor Smith paid all taxes currently each year for this period on 70 acres in the Defee Sur-SurThey sold growing timber therefrom on several occasions and a considerable amount of gravel in 1953. In addition to that, as has been indicated above, various instruments, including oil leases, and pipe-piperight of ways, were granted over the years. However, these instruments used the sheriff’s deed as a basis for their de-deand the evidence fails to show whether any pipelines were actually laid across the disputed area. On the whole, though, we think that for the period of 47 years plaintiffs and their predecessor exer-exerdominion over the land in question. The evidence without contradiction shows that Mrs. Swanzy sold timber on the entire tract, including the triangle, in the year 19S8 to one L. A. Runnels. Mr. Runnels testified that he cut timber off the triangular area in the fall of 1958, as well as from other parts of plaintiffs’ tract, and that he discussed the boundary line during this time with defendant, who stated that if timber was not cut south of a line practically coincident with line “A” — “B” he would have no objection. Notwithstanding this, during the latter time of the timber cutting defendant instructed Runnels’ driver not to remove some of the trees that had been cut down in the southern portion of the disputed area. This appears to have precipitated the present controversy.

Defendant owns the land south of line “A” — “B”. His claim to the disputed area is under a deed from Curtis Jasper and wife, dated May 22, 1942. We have attempted to follow the description in this deed but have been unable to do so. The burden is on the person claiming under a deed to identify the land described. Duren v. Strong, 53 Tex. 379. This was not done. A call in the deed reads:

“THENCE in a northerly direction with said branch to Charlie Defee fence on the East side of the Charlie Defee place, continuing Northward with the outside of said fence to the N.B. line of the J.L. Defee Survey corner

and on this defendant insists that the land included runs to point “C” on the map, being the N'. E. corner of the Defee Survey. However, the next call in the deed reads: “Thence west with said N.B. line to where it crosses the next branch corner two willows marked ‘X’.” This call is the line “A” — “B” on the above map. It is apparent a discrepancy exists. In any event, defendant did not attempt to locate other calls and it is impossible from the record to follow them upon the ground. Defendant obtained the Curtis Jasper deed and recorded it on May 22, 1942. A person is presumed to know the extent of the boundaries of his land. McCabe v. Moore, Tex.Civ.App., 38 S.W.2d 641. Nevertheless defendant did not assert any claim to the disputed area for 16 years after obtaining the deed from Curtis Jasper. During the 40’s and 50’s he wrote Mrs. Swanzy several letters assuring her that her 70 acres were being looked after by him. It was not until about December 1, 1958 he first asserted claim thereto. This was after much of the timber sold to Runnels in the disputed tract had been cut, and much after Mrs. Swanzy had sold considerable gravel off of the triangle, about 1953. And it was apparently not until after the surveyor Meeks in the fall of 1958, had run the boundary lines of the land for Mrs. Swanzy and discovered the discrepancy in the description of the sheriff’s deed.

In view of the above facts, we think prior possession was established as a matter of law in favor of plaintiffs. Plaintiffs having placed Runnels in possession of the premises in the fall of 1958 for the purpose of cutting timber and removing same from the premises, his possession is sufficient possession in behalf of plaintiffs to bar intrusion upon the premises by defendant. Undoubtedly the purchaser, as is Runnels, had the right of possession of the premises for the purpose of cutting and removing the trees. 54 C.J.S. Logs and Logging § 20, p. 712. Such an operation usually extends over several weeks or months. The right of possession for the purpose stated is derived from the seller of the timber. The seller no doubt must recognize and respect the purchaser’s rights in the contract but reciprocally is entitled to claim the benefit of purchaser’s entry and occupancy. Houston Oil Co. of Texas v. Moss, 155 Tex. 157, 284 S.W.2d 131 (133, 134). See, also, Teagarden v. Patten, 48 Tex.Civ.App. 571, 107 S.W. 909. Possession and use of the premises by Runnels was a peaceable one inuring to the benefit of the plaintiffs and, when considered, in connection with plaintiffs’ other acts of ownership and dominion over the property in controversy, is sufficient to sustain this suit against an intruder as we hold defendant to be. Lorino v. Crawford Packing Co., 142 Tex. 51, 175 S.W.2d 410; Hunt v. Hunt, Tex.Civ.App., 95 S.W.2d 724; Stuart v. Harper, Tex.Civ.App., 143 S.W. 712; Teagarden v. Patten, supra; Dinwitty v. McElmore, Tex.Civ.App., 291 S.W.2d 448 (451). Appropriate to the present controversy is the following language of Chief Justice Dixon in the case last cited: “Ap-pellees’ claim of title, weak though it may he, is definitely stronger than the claim of appellant.”

It was said in House v. Reavis, 89 Tex. 626, 35 S.W. 1063 at page 1065:

“The presumption of title in the possessor is indulged in favor of quieting the land titles of the country, and to support the possession and right of those who, under a claim of right, hold such possession, but whose chain of title is not complete in all of its parts. If the position taken in this case be established as the law, then the object and purpose of such a presumption which has so long prevailed in common-law courts would be defeated, and the title of every possessor of real estate whose chain of title was not perfect would be placed at the mercy of those who, either by force, fraud or strategy, could secure the possession, and thus place the actual and rightful possessor upon proof of a regular chain of title from the government, and, in case of failure to do so, could defeat his right by simply showing that the title had passed out of the state without showing any claim of title in himself.”

We are convinced from the record before us that it was only after defendant’s discovery of the weakness in plaintiffs’ record title that the present controversy started. Even so, on the trial below he stated that he recognized Mrs. Swanzy had a “limited” ownership to the triangle.

The judgment below is affirmed.

ON MOTION FOR REHEARING

Defendant’s earnest motion has been carefully studied. In it he urges we erred in affirming the judgment for several reasons. These will be briefly mentioned. The first is because the affirmance was not upon the basis of the jury’s findings. The transcript reflects that plaintiffs filed motion for judgment upon the basis of the verdict. The court granted this motion and rendered judgment for plaintiffs. In reaching the conclusion to affirm this judgment, we believed the findings of the jury were immaterial. In addition to detailed allegations of adverse possession in paragraphs 3 through 7 of the First Amended Original Petition, it was alleged in the latter part of Par. 8 following, facts which would support prior possession and since prior possession was established as a matter of law by plaintiffs, the judgment below was upheld. Defendant says because the court submitted the issue of prior possession conditionally upon findings that no ground of adverse possession existed in favor of plaintiffs, plaintiffs waived the issue of prior possession. This, we think, is the rule as to an issue of disputed fact. But this does not apply to one conclusively established. Rule 279, Texas Rules of Civil Procedure; Goodwin v. Southtex Land Sales, Tex.Civ.App., 243 S.W.2d 721.

Defendant asserts that because plaintiffs attempted to prove their record title back to the sovereignty of the soil, and having failed, they cannot rely upon prior possession. - If the record title was their only foundation for recovery we would sustain defendant. But, besides the formal allegations of Trespass to try title, and pleas of adverse possession, separate allegations supporting the theory of prior possession were asserted. Where plaintiff relies on more than one ground of recovery, failure to connect his title with the title out of the state is not fatal. Buvens v. Brown (Tex.Com.App.), 290 S.W. 1086 (1089); Dean v. Grogan-Cochran Lumber Co., Tex.Civ.App., 58 S.W.2d 552.

Defendant asserts that in attempting to prove their record title, plaintiffs showed this title to the land was in George Donalson. It is reasoned from this that plaintiffs recognized title as being in Don-alson and so doing cannot recover, citing this court’s holding in Cuniff v. Bernard Corp., Tex.Civ.App., 94 S.W.2d 577. Plaintiffs did show record title to this land was in Donalson. But it cannot he said from that that plaintiffs recognized Donalson’s ownership. Since 1913, as pointed out in the original opinion, plaintiffs and their predecessor, T. W. Smith, who died in 1936, have exercised dominion over the land and have claimed it as their own. No contrary claim was asserted until defendant’s claim was made. It was said in Magee v. Paul, 110 Tex. 470, 221 S.W. 254, at p. 256:

“Since it is not consistent with human experience for one really owning property of value to assert no claim thereto, but to acquiesce for a long period of time in an unfounded, hostile claim, the rule is sound which permits the inference that an apparent owner has parted with his title from evidence, first, of a long-asserted and open claim, adverse to that of the apparent owner; second, of nonclaim by the apparent owner; and third, of acquiescence by the apparent owner in the adverse claim.”

It is presumed that plaintiffs having prior possession have acquired outstanding title of third party. Humble Oil & Refining Co. v. Wilcoxon, Tex.Civ.App., 70 S.W.2d 218 (W.R.).

The motion for rehearing is overruled.


author: WILLIAMS, Judge.

text:
    ILLINOIS CENTRAL RAILROAD CO. et al., Appellants, v. Howell ARMS, Adm’r of the Estate of Carolyn Ann Arms, Deceased, Appellee. ILLINOIS CENTRAL RAILROAD CO. et al., Appellants, v. Warner WHOBREY, Sr., Adm’r of the Estate of Michael Ray Whobrey, Deceased, Appellee. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant, v. Henry BRAMER, Jr., Next Friend of LaVerne Bramer, an Infant, Appellee.
    Court of Appeals of Kentucky.
    May 4, 1962.
    Rehearing Denied Nov. 23, 1962.

      S. Lloyd Cardwell, James W. Stites, Stites, Wood, Helm & Peabody, Louisville, Joseph H. Wright, John W. Freels, Chicago, Ill., for appellants.
    Harold R. Marquette, Louisville, for ap-pellees Arms and Whobrey.
    J. D. Raine, Louisville, for appellee Bramer.
   WILLIAMS, Judge.

A collision between an automobile driven by James D. Neal, Jr., and a train of the Illinois Central Railroad Company at a grade crossing resulted in the death of three young people and the serious injury of another. The administrators of the estates of Carolyn Ann Arms, Michael Ray Who-brey and James D. Neal, Jr., and LaVerne Bramer, by her next friend, respectively, sued the railroad company, Joseph Ryan, its engineer, and Warner Lee Whobrey, owner of the automobile, for damages. The administrator of James D. Neal, Jr., also was made a defendant in the actions other than for his death. An action for damages was filed by Warner Lee Whobrey, and cross-actions by the railroad company against him and Neal’s estate were prosecuted. There were many other cross-actions and pleadings, but the complicated issues raised thereby and submitted to the jury are not involved on the appeals.

The cases were tried together and submitted to the jury under instructions about which no complaint is made as to form. Verdicts were returned against the railroad company and its engineer in favor of the estates of Arms and Whobrey for $10,000 each, for LaVerne Bramer for $5,000 and for Warner Lee Whobrey for $465. A verdict for the defendants was returned in the action by Neal’s administrator. Instructions on contributory negligence of the other occupants, to whom the driver’s negligence was not imputable, were given. Before the trial had been concluded, Warner Lee Whobrey, owner of the automobile, and James D. Neal’s administrator agreed to pay in settlement of their liability $10,-000 to the other party claimants, so that the judgments in the Arms and Michael Who-brey cases were reduced to $6,667.66 each and the Bramer judgment to $1,666.67.

Reversal of the several judgments is sought on the ground that verdicts should have been directed for the appellants, the railroad company and the engineer.

The accident occurred about 10:30 Sunday night, December 23, 1956, at Gagel Avenue in Shively, a suburban city of Louisville. The train, drawn by a large steam locomotive, was southbound. The automobile was westbound. The young people, whose ages ranged from fifteen to eighteen years, had been riding around since 3:30 that afternoon, stopping at homes of friends, hamburger drive-in restaurants and other places. It appears that they changed drivers and seats in the car from time to time. All of them lived in the general vicinity of Shively, and at least Neal, who was driving the car at the time of the fatal accident, was well acquainted with the crossing. The survivor of the accident, Miss Bramer, suffered head injuries and concussion of the brain and remembered nothing of the occurrence.

The plaintiffs introduced all the evidence bearing on the cause of the fatal accident, including that of the trainmen. The defendants developed their case on that issue by cross-examination.

The train was running 55 to 60 miles per hour; the headlight was burning, and both the engineer and fireman testified that they were keeping a lookout ahead. The engineer could not have seen this car approaching as it came from the east, or left, which was the fireman’s side of the engine. The fireman testified he did not see any vehicle or lights of an approaching car. The first he knew of its presence was when he heard the impact on the side of the locomotive, felt a "gush of air” and saw some object come before his cab window, which seemed to be going in the same direction as the train. He immediately called to the engineer to stop. The train “went into emergency.” The engineer had his hand on the brake valve and immediately applied it but noticed at once that the “air went out.” There were scratches and other marks on the side of the rear drivewheel and below the cab of the locomotive. The steps of the coal tender and engine were broken off. A water hose and air brake line between the engine and tender were broken. The car was dragged or knocked down the railroad track about 85 feet and landed in a ditch. The three bodies were thrown out, but the injured girl was in the car.

An automobile mechanic testified that the frame of the fatal car was bent to the left toward the front as if it had been "shoved around.” A University of Louisville professor of physical science and a civil engineer, from an examination of the locomotive involved in this accident and upon hypothetical questions, testified, in substance and effect, that the front of the engine had struck the automobile.

The trainmen testified that the locomotive whistle had been blown for this crossing and the automatic bell was ringing as the train approached it. Indeed, it was ringing after the train had stopped. The negative testimony was of such character that the court ruled as a matter of law that these statutory signals (KRS 277.190) had been sounded, and the instruction did not predicate liability on a failure to give them or either of them.

The first instruction predicated liability upon the defendants’ failure (a) to exercise ordinary care in running and operating the train, (b) to maintain a lookout for vehicles on or about to pass over the crossing or so near thereto as to be in danger of collision, (c) to have the train under reasonable control, and (d) to operate it at a reasonable and prudent speed under the circumstances. The instruction further stated that if the jury believed the railroad crossing was over a much traveled thoroughfare and because of its location and surroundings was unusually dangerous to travelers and that the ringing of the bell or sounding of the whistle was not sufficient to give reasonable notice of the approach of the train to the crossing, and the defendants knew, or in the exercise of ordinary care should have known this, then their duty was. to use such other means to prevent injury to travelers, including the several deceased and the injured occupants of this automobile, as in the exercise of ordinary judgment might be considered necessary by ordinarily prudent persons. Accompanying this recitation of duties and breach thereof was the concomitant that the accident was proximately caused thereby.

The second instruction set out the duties-of Neal, the driver of the automobile as follows: (a) to exercise ordinary care to learn of the approach of the train and to-keep out of its way; (b) if the crossing was unusually dangerous and Neal could have known it to exercise increased care commensurate with the danger; (c) to keep-a lookout ahead; and (d) to operate the automobile at a reasonable and prudent rate of speed.

We think it is immaterial whether the automobile struck the locomotive or the-locomotive struck the automobile. It is apparent that they both arrived at the crossing at about the same moment. The difference in time as to which reached the crossing first is immeasurable. The decision cannot rest on that tenuous point. This distinguishes the case from cases-where motor vehicles ran into standing trains or passing cars. Even in those cases, frequently the question of the motorist’s-negligence is one of fact for the jury. See Louisville & N. R. Co. v. Mahoney, 220 Ky. 30, 294 S.W. 777; Coil’s Adm’x v. Chicago, St. L. & N. O. R. Co., 232 Ky. 33, 22 S.W.2d 428.

In general, the rights and duties of a railroad company and the traveling public in the use of grade crossings are mutual and reciprocal and each must exercise the degree of care commensurate with the danger, but trains have the right of way and all persons on the street or highway shall yield precedence to the trains. Harvey v. Illinois Cent. R. Co., 159 Ky. 492, 167 S.W. 875. The duties of the railroad company are defined in part by statute, in part by common law, and sometimes by city ordinances. There were no applicable ordinances in the present case. The common law embraces the duty of giving adequate warning of the approach of a train, of keeping a lookout ahead, and of operating the train at a speed commensurate with the care required under the circumstances. Piersall’s Adm’r v. Chesapeake & O. R. Co., 180 Ky. 659, 203 S.W. 551.

The railroad company had erected and maintained signs on both sides of the track notifying the public of the presence of the crossing. These signs are prominent and noticeable in the daytime, although there is some evidence that they are not as clearly visible at night. (The latter circumstance is counterbalanced to some extent at least by the fact that the beam of a train’s headlight provides a signal visible in the dark.) There is substantial evidence that a train coming from the north could have been seen by motorists.

Gagel Avenue connects the thoroughfare of U. S. Highway No. 31W and Manslick Road. The crossing is within the city limits of Shively, but the area around it is rather sparsely settled. There are several residences in the general vicinity. Photographs taken from the surface and the air reveal that visibility of the train was not particularly obscured. They reveal a slight curve in the street, but nothing that would prevent a motorist from observing the approach of a train if he were keeping a proper lookout.

Broadly speaking, the primary considerations in determining the character of a crossing are “(1) the ease with which travelers on the highway can detect the approach of a train, and conversely, the ease with which the operatives of the train can detect the approach of a traveler on the highway; and (2) the amount and character of the traffic over the crossing, either on the tracks or on the intersecting road or street.” Illinois Cent. R. Co. v. House, Ky., 352 S.W.2d 819. It is our opinion that the facts do not substantiate a conclusion that this is an extra-hazardous crossing, and the verdict of the jury bears this out. There was no evidence introduced revealing the conduct of the driver of the automobile immediately before the accident. There is not one iota of proof concerning his speed, lookout or care, yet the jury found him negligent. The only ground on which that finding could have been based was that he failed to observe and heed the signs and signals provided by the railroad company. If he was negligent in not having seen and heeded the signals, it necessarily follows that the railroad could not have been guilty of any failure to provide sufficient signs and signals. Simply stated, the driver of the car could not have been found negligent unless the jury believed he had adequate warning, sufficient notice, of the approach of the train. (Cf. concurring opinion in Illinois Cent. R. Co. v. House, Ky., 352 S.W.2d 819.) Thus, although an instruction on extra-hazardous crossing should not have been given, nevertheless, since the jury found the driver negligent in failing to heed the signs and signals, it was tantamount to a finding that the railroad company did in fact provide sufficient notice, hence it was not injured by the instruction.

There having been no failure to provide sufficient or additional signs and signals at the crossing, any liability on the part of the railroad must stem from the manner in which the train was operated. As heretofore noted, the circuit court ruled as a matter of law that warning of the approach of the train, the bell and the whistle, had been given. The question then is, whether a lookout was maintained by the operators of the train and whether the speed at which the train was traveling was reasonable, and, if the answer is in the negative, whether that failure was a proximate cause of the accident.

The train had left downtown Louisville 21 minutes before the accident occurred. It departed one hour behind the regularly scheduled time. As it proceeded south through the city of Louisville and through Shively its speed was increased to 55 to 60 miles per hour. The engineer was not instructed to and did not reduce the speed of the train at this particular crossing. The engine employed was a steam type where the engineer sits on the right side and keeps a lookout ahead and to that side and the fireman sits on the other side and keeps a lookout ahead and to the left. At the time of the collision there was rain and fog and visibility was poor. The automobile approached the crossing from the left or fireman’s side of the engine. The fireman maintained he was keeping a lookout but saw nothing. The first indication he had of the crash was when he heard a noise, felt a gush of air and then saw a large object appear up in the air near his side window. The engineer knew the crossing was there. He blew the whistle as a warning of the train’s approach. It was the duty of the trainmen to keep a lookout. In view of the fact that the engineer was not in a position to keep a lookout to the left side of the train it became the fireman’s duty to keep such a lookout. Louisville & N. R. Co. v. Gilmore’s Adm’r, 131 Ky. 132, 109 S.W. 321, 21 L.R.A.,N.S., 723, 33 Ky.Law Rep. 74, and Chesapeake & O. R. Co. v. Bradford, 202 Ky. 26, 258 S.W. 939.

The engineer testified that his primary interest in operating the train was to maintain his schedule. He had been given instructions to reduce the speed at various locations such as in cities or where track conditions required a slower speed, but had no instructions concerning this crossing. The speed of 55 to 60 miles per hour had been maintained for some time since leaving Louisville and while passing through Shively. As heretofore noted, the accident occurred within the city limits of Shively, albeit within a sparsely settled area. In view of the fact that it was a dark, foggy night, the train should have been operated with a greater degree of care than would have been necessary during ordinary weather. Louisville & N. R. Co. v. Ueltschi’s Ex’rs, 97 S.W. 14, 29 Ky.Law Rep. 1136. As was said in Chesapeake & O. Ry. Co. v. Coates, 271 Ky. 736, 113 S.W.2d 28, at page 32, “There is no fixed or settled-rule as to what rate of speed the movement of the train may be declared, as a matter of law, reasonable. That question depends upon the circumstances and the facts developed in each particular case. It was therefore proper to submit to the jury the question of keeping a proper lookout, and whether or not the train was running at a reasonable rate of speed at the time of the accident.”

The jury could have concluded either that the operators of the train failed in their duty to maintain a proper lookout or that the train was traveling at an unreasonable rate of speed under the circumstances, or both. The driver of the automobile failed to heed the warnings of the location of the crossing and approach of the train and was continuing his progress across the tracks. The operators of the train either failed to keep a proper lookout or were traveling at an unreasonable rate of speed, or both. The negligent act of the automobile driver and the negligent act of the train operators combined to cause the accident.

The negligence of the automobile driver cannot, of course, be imputed to the passengers; and, although it may be argued that they had the same notice or warning that the driver had, that circumstance does not imply negligence as a matter of law on their part, since there was no evidence to prove (and it was the railroad company’s burden to prove) any failure to do what they could in order to prevent the accident.

Judgment affirmed.

STEWART, C. J., and MONTGOMERY and BIRD, JJ., dissenting.


author: STEWART, Chief Justice.

text:
    H. A. MOSS, Jr., Individually, and/or Administrator of the Estate of H. A. Moss, Sr., Appellant, v. William M. SMITH and Paul Liebreich, Appellees.
    Court of Appeals of Kentucky.
    Oct. 26, 1962.
    John P. Sandidge, Woodward, Hobson & Fulton, Louisville, for appellant.
    Marvin H. Morse, Louisville, for Paul Liebreich, appellee and cross-appellant.

      C. L. Bell, Louisville, for William M. Smith, appellee.
   STEWART, Chief Justice.

H. A. Moss, Jr., as administrator of the estate of H. A. Moss, Sr., intervened in a suit against William M. Smith; recovered judgment against him; and levied execution on his real estate, a rooming house in Louisville. At a judicial sale Moss, Jr. individually purchased the property subject to certain mortgages of record thereagainst, said property having been appraised at $12,000. The report of sale was confirmed, a deed was ordered delivered and a writ of possession thereafter issued on motion of Moss, Jr.

On June 29, 1955, Smith filed a notice of appeal from the judgment and order of sale and executed a supersedeas bond in favor of Moss, Jr., with Paul Liebreich, an ap-pellee and cross-appellant herein, as surety thereon. On May 10, 1957, the Court of Appeals affirmed the judgment against Smith, Ky., 301 S.W.2d 2.

On July 11, 1957, Moss, Jr., pursuant to CR 73.07, moved for judgment against Liebreich, the surety on the supersedeas bond, seeking to recover $34,000 for loss of rent and $4000 damage to the property due to neglect. A commissioner, under an order of reference, heard the evidence and advised that Moss, Jr. receive $8175.39 as the reasonable net rental for the property for the twenty-three months he had been kept out of possession of it.

The chancellor, however, refused to follow the recommendation of the commissioner, stating; “ * * * I find no reliable basis for assessing damages in the testimony. In the circumstances, I believe KRS 21.130 (providing 10% damages on a superseded money judgment) a good analogy, and that judgment should go against the surety for $2,300 (2%⅜ X 20% X $12,000) plus costs incurred in the action since June, 1955.” (Emphasis supplied.)

Moss, Jr., as an individual and as administrator aforesaid, hereinafter referred to as Moss, Jr., appeals from the judgment contending the chancellor’s method of assessing damages was incorrect and that the surety is liable on the basis of the language of the bond itself rather than within the limits of CR 73.04, or, in the alternative, that the terms and conditions of the bond do not violate the spirit and intent of the rule. Another point is raised later that will be discussed. Liebreich, who will be so referred to hereinafter, has moved for a cross-appeal, asking that Smith be dismissed as a party to this appeal and that the chancellor’s judgment be reversed, thus denying Moss, Jr. any damages whatsoever.

The pertinent portion of the supersedeas bond, which is based upon the phraseology set forth in Section 748 of the Civil Code of Practice, reads:

“Now we, William M. Smith and surety, Paul Liebreich, do covenant to and with appellee, H. A. Moss, Jr. that the appellant will pay to the appellee all costs and damages that shall be adjudged against the appellant on appeal * * *, and also pay all rents, hire and damages which during the penden-cy of the appeal, may accrue on any part of the property of which the appellee is kept out of possession by reason of the appeal.” (Emphasis added.)

The primary question is whether and to what extent the surety is liable on the bond in the light of CR 73.04, effective July 1, 1953, which, insofar as applicable here, reads:

“ * * * When the judgment determines the disposition of the property in controversy as in real actions or replevin, or when such property is in the custody of the sheriff, or when the proceeds of such property or a bond for its value is in the custody or control of the court, the amount of the supersedeas bond shall be fixed at such sum only as will secure the amount recovered for the use and detention of the property, the costs of the action, costs on appeal, interest, * * * ” (Emphasis added.)

The position taken by appellee and cross-appellant, Liebreich, the surety, is that a supersedeas bond taken in an action for the possession of real property does not cover any items of liability except those explicitly stated in the rule. It is pointed out that CR 73.04 was adopted almost verbatim from F.R.Civ.P. rule 73(d), 28 U.S. C.A. and that the phrase “damages for delay” appears after the word “interest” in the federal rule but that this phrase is absent from the Kentucky rule; therefore, it is reasoned that this deletion apparently was intentional and, in consequence, precludes the recovery of any rent and waste under CR 73.04. The surety relies upon certain federal decisions which he insists hold that the recovery of such rents and waste is solely predicated upon the undertaking in the supersedeas bond to pay “damages for delay.” See John Hancock Mutual Life Insurance Co. v. Hurley, 1 Cir., 151 F.2d 751; Spurks v. U. S. Fidelity & Guaranty Co., 3 Cir., 138 F.2d 812; Woodworth v. Northwestern Mutual Life Insurance Company, 185 U.S. 354, 22 S.Ct. 676, 46 L.Ed. 945.

Appellant maintains the expression “amount recovered for the use and detention of the property” in CR 73.04 means the same as “rents, hire and damages” set forth in the old Civil Code. Liebreich has a contrary view, arguing that federal courts in construing F.R.Civ.P. rule 73(d) have held otherwise. See Kountze v. Omaha Hotel Co., 107 U.S. 378, 2 S.Ct. 911, 27 L.Ed. 609, which seems to bear out his contention in interpreting similar phraseology.

It appears the language, “damages for delay,” was inadvertently omitted from CR 73.04 as originally written, because this rule was thereafter amended, effective June 1, 1960, for the sole purpose of adding these words. However that may be, no doubt exists in the mind of this Court but that, when CR 73.04 was first adopted, the intent was to re-embody in this rule all the essential elements of liability recited in Section 748 of the old Civil Code.

The bond itself promises recovery for “all rents, hire and damages which * * * may accrue * * * (on) the property,” and we conclude such language is not contrary to the tenor of CR 73.04 but that the bond merely states its purport more specifically as it applies to the particular situation. Furthermore, this Court does not accept as binding upon it the construction placed upon the phrase, “amount recovered for the use and detention of the property,” by Kountze v. Omaha Hotel Co., supra. That opinion did not specifically consider F.R.Civ.P. rule 73(d) in its present form, as that federal rule had not then been formulated.

Therefore, since, as we believe, the phrasing of CR 73.04 is consistent with the spirit and import, if not the exact wording of the “rent, hire and damage” provision, of Section 748 of the old Civil Code the surety cannot disclaim liability on the basis of the contravention of that rule.

The measure of damages on a supersede-as bond, executed pursuant to Section 748 of the old Civil Code, where a writ of possession is stayed, is the fair and reasonable rent on the property during the time a party is kept out of possession of it, plus any damages he may have sustained from waste or injury to the property during that interval. See Turner v. Johnson, 106 Ky. 460, 50 S.W. 675; Maret v. Sanders, 141 Ky. 366, 132 S.W. 552; Dowling’s Adm’x v. Walker, 120 Ky. 528, 87 S.W. 281. We are of the opinion this standard governs in fixing the amount Moss, Jr. should recover under the bond in this case. Thus the chancellor used an incorrect method of assessing damages. Moreover, the damages provided by KRS 21.130 are a flat 10%, not 10% per an-num.

■ The testimony in this case showed this house was negro rental property, containing forty-nine rooms, for which a reasonable rent of from $5.00 to $9.00 per week could be expected; that $1.00 per day or $7.00 per week would be a reasonable and probable rental; that occupancy could run from 15% or 20% up to 90% (the commissioner found 50% occupancy could reasonably be anticipated) ; that the gross rental collected, according to the attorney of appellee Smith, was $9332.10, but that the property was kept in very bad condition and many rooms were kept locked because they were unfit for human occupancy; and that Moss, Jr., during the few days he had control of the property before the su-persedeas bond was given, had put a new roof on the building. It is our view, however, that the claimed expenses charged against the $9332.10 sum should be closely scrutinized.

This was adequate evidence upon which the chancellor could and should have made a proper finding, based upon the correct measure of damages heretofore set forth. Since there is no question in our judgment that his finding is patently incorrect, it is reversed. See CR 52.01, McWhorter et al. v. Carter et al., Ky., 267 S.W.2d 736.

A point is raised concerning Lie-breich’s right to move for a cross-appeal. This grows out of the fact that the surety paid the recovery rendered against him, including the interest and costs, into circuit court. Thereafter, pursuant to KRS 412.080, he secured judgment against Smith, the principal on the bond, for the amount he had paid out, plus the interest that should accrue henceforth.

Appellant claims the cross-appeal should be dismissed under the authority of Complete Auto Transit, Inc. v. L. & N. R. Co., Ky., 273 S.W.2d 385. In short, that case held a party cannot accept the benefits of a judgment and then appeal claiming the judgment should be reversed. The correct principle of law applicable to the situation here is thus stated in Madden v. Madden, 169 Ky. 367, 183 S.W. 931, L.R.A.1916E, 892:

“The law prevailing in this state (is) that a party against whom a judgment • has been rendered for money may pay it and still prosecute an appeal. In such case, he has not altered the attitude of anyone by the act of payment • except himself, and the payment of the judgment has been construed to be in lieu of his right to supersede the judgment * * *; as his act in paying the judgment is not one seeking any benefits therefrom nor one possessing ■ any of the elements of an estoppel, * * * he, therefore, under such circumstances, is permitted to appeal from the judgment which he has paid.”

Thus it is clear where a litigant pays an adverse judgment he does not thereby impair his right to appeal. Nor may a surety be required to elect between an appeal and the enforcement of any derivative right he may have against the principal.

In view of what we have stated, we conclude that the motion for the cross-appeal should be and it is dismissed; and that the chancellor should make proper findings of fact of the damages due to loss of rent and the commission of waste, if any, in respect to the property involved in this action.

A question has been raised as to whether William M. Smith is a proper party to this appeal. It is our view that he is a nominal party but probably not a necessary one. Nevertheless, his dismissal from the appeal would not affect in anywise the opinion rendered in this case.

Wherefore, the judgment is reversed on the appeal and the case is remanded for proceedings in conformity with this opinion. The cross-appeal is dismissed.


author: PALMORE, Judge.

text:
    Richard G. POTTER and Josephine G. Potter, Appellants, v. CONNECTICUT MUTUAL LIFE INSURANCE COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 26, 1962.
    Wilson W. Wyatt, Robert L. Maddox, Jr., H. Wendell Cherry, Wyatt, Grafton & Sloss, Louisville, for appellants.
    Thomas W. Bullitt, Edwin T. Schaeffer, Jr., Bullitt, Dawson & Tarrant, Louisville, Edward J. Gurney, Winter Park, Fla., for appellees.
   PALMORE, Judge.

This case involves the running of limitations, despite the alleged saving effect of KRS 413.340, when a trustee purports to hold under a trust arrangement inconsistent with the right of immediate and exclusive possession theretofore vested in some of the beneficiaries of the purported trust.

By a will probated in 1928 Charles Potter left a substantial estate to his widow, Ruth Potter, “for and during her natural life, she to use the income therefrom, and so much of the principal as seems necessary for her comfort,” with remainder upon her death to their two children Josephine and Richard (the appellants). In 1934 Ruth Potter, using funds of this estate, as she had a right to do pursuant to a provision of the will giving her an absolute power of sale and disposition during her life, purchased certain 10-year endowment policies from the appellee Connecticut Mutual Life Insurance Company. The proceeds of these .were payable to Ruth Potter at their maturity or, if she should die before that time, to the children, Josephine and Richard, subject to alternative provisions not now relevant.

In 1938 Ruth Potter and Connecticut Mutual entered into an agreement, terminable by her upon written application, amending the payment provisions of thp policies. The essential purport of this amendment with respect to Josephine and Richard was to change their estates from legal remainders in fee to beneficial or equitable remainders for life. It'provided for the income to be paid at a stipulated rate to Ruth Potter for life and thereafter to Josephine and Richard for life (with power to encroach upon the principal to the extent of $15,000 each), and for final distribution after their deaths to the children of Josephine and Richard, or, if none, to collateral beneficiaries. At the time this agreement was made neither Connecticut Mutual nor Josephine and'Richard knew of the inconsistency between it and the will of Charles Potter.

Ruth Potter died in 1941 without having modified or terminated the agreement with Connecticut Mutual, which thereupon executed a declaration of trust certifying that it held the proceeds of the policies upon terms identical with those provided by the 1938 amendment. It is stipulated that at various times during 1942, 1943 and 1944 Josephine and Richard, through their counsel at the time, demanded that the face amount of the policies be paid over to them, but Connecticut Mutual declined to do so “without a judgment of court.” Thereafter Josephine and Richard contented themselves with accepting the income payments made to them by Connecticut Mutual and took no action until 1958, when they brought this suit against Connecticut Mutual and the ultimate remaindermen in fee as designated in the 1938 agreement and subsequent declaration of trust.

The appeal here is from a dismissal of the complaint by a summary judgment resting on limitations, in that the cause of action accrued no later than 1941, upon the death of Ruth Potter. The applicable period is 5 years, KRS 413.120(5) and (6), extensible to a possible maximum of 10 years under KRS 413.120(12) and KRS 413.130 (3) in the event of fraud (including, of course, constructive fraud) or mistake.

The contention of Josephine and Richard is that their mother, Ruth Potter, was a trustee under the terms of the will of Charles Potter and that her actions in varying or attempting to vary the terms of the trust did not repudiate it, but merely extended it by a variation that was voidable; hence until they elected to avoid it the original trust “subsisted,” or continued to stand, and the statute of limitations was tolled by KRS 413.340, which reads as follows:

“The provisions of this chapter shall not apply to a continuing and subsisting trust, nor to an action by a vendee of real property in possession to obtain a conveyance.”

Subject to the power of appointing to herself such portion of the corpus as she deemed necessary for her comfort, Ruth Potter held the estate of Charles Potter as life tenant with remainder in fee to Josephine and Richard. Though she may not have been a “trustee” in the strict sense of trusts, nevertheless her relation to Josephine and Richard was fiduciary in character, Wheeler v. Kazee, Ky.1952, 253 S.W.2d 378, and since under our view of the case it becomes immaterial whether she was a trustee or purely a life tenant we shall accept the proposition, but without deciding, that she was trustee under the will of Charles Potter.

Insofar as it applies to trusts, KRS 413.340 has little if any significance. It says and means merely that limitations will not run until there is a cause of action. A “subsisting trust” against which limitations do not run is neither more nor less than a trust in which the trustee is acting within his powers and the cestui que trust has no cause of action against him. See Bogert, Trusts and Trustees (2d ed.), § 951. “The trusts intended to be embraced by the statute, and to be excepted out of the limitation, are those of an exclusively equitable character, where the trustee has a right to hold the estate, and the cestui que trust has no right to sue for it. Where, however, the latter has a right of action, and forbears to exercise it, the letter of our statute, as well as the policy of our law, gives the opposing party the right to rely upon the lapse of time.” Robinson’s Committee v. Elam’s Ex’x, 1890, 90 Ky. 300, 14 S.W. 84. Since KRS 413.120 defines the period of limitation by reference to the accrual of the cause of action, KRS 413.340 merely gilds the lily.

“If the period ends during which the trust was by its terms to continue, and there is no conduct on the part of the remainder-men which amounts to a consent that the trustee hold for them under a new trust, or as bailee, or in some other representative capacity, the possession of the old trustee automatically becomes adverse to that of those persons who are entitled to possession at the end of the trust, and the Statute of Limitations regarding an action to recover real or personal property begins to run.” Bogert, Trusts and Trustees (2d ed.), § 951, p. 475.

If a trustee continues to act after the trust ends, but makes no claim of right either in himself or for the benefit of someone other than the party entitled to immediate possession, and the entitled party makes no demand or effort to enforce his posses-sory right, there may be some basis — perhaps if only in the mutual consent that might reasonably be implied — for the theory of a continuing trust. Even this, however, would have to be called a new trust, because in theory it could arise and exist only through the implied volition or direction of the new owner of the property, and not by act of the creator of the original trust. (Resting upon intent implied in fact, as distinguished from a trust implied in law regardless of actual intent, this, of course, would not be either a constructive or resulting trust. Cf. Bogert, Trusts and Trustees, § 45, p. 293, § 471, p. 7; 54 Am.Jur. 152, Trusts, § 193.) If the same theory of implied agreement were applied to a case in which the trustee claims to be holding for beneficiaries other than (or in addition to) the parties entitled to immediate and exclusive possession, the logical result would be a new trust impliedly declared by the entitled parties, as owners of the property, under which rights would be vested in new parties. And if this were so, then unless the instrument or arrangement pursuant to which the trustee claimed to be holding included a power of revocation there would be no basis for the further implication of voidability, by which the newly vested rights might be divested at the election of the settlors. So, even if the conduct of Josephine and Richard following the death of Ruth Potter had amounted “to a consent that the trustee hold for them under a new trust” (as suggested in the above stated quotation from Bogert), the theory of void-ability ends in a blind alley. Actually, however, their demands on the trustee in 1942, 1943 and 1944 negate the possibility of any implied consent, and in the absence of their consent the trustee’s possession necessarily was wrongful. Obviously both could not have had the exclusive right of possession at the same time.

In the ultimate sense, any wrongful possession of property under a claim adverse to the owner amounts to voidable title, since possession is the substantial equivalent of ownership as against all but the holder of legal title. Cf. Holmes, The Common Law, pp. 241-246. This voidability, however, is the very thing the statute is designed to limit. Therefore, if the legal titleholder does not by timely action void the claim of a possessor who holds avowedly under color of title incompatible with his own, his right to do so will be extinguished by limitations. Cf. Superior Oil Corp. v. Alcorn, 1931, 242 Ky. 814, 47 S.W.2d 973, 981.

Granted, then, for the sake of argument that the will of Charles Potter created a trust, the trouble with the position of the appellants here is that the trust that was subsisting, and which operated to obstruct their right of immediate possession upon Ruth Potter’s death, was not the same trust created by the will. That trust had come to an end with the death of Ruth Potter. All agree that if Mutual had withheld the corpus under a claim of right in itself, the statute would have run. We see no difference in that the claim was made in behalf of beneficiaries whose color of title did not derive from the will. Their claim, asserted by the trustee, was just as inimical to and inconsistent with the fee simple title and immediate possessory rights of Josephine and Richard as a claim by the trustee in its own right would have been.

We hold, therefore, that the cause of action of the remaindermen to recover possession of the estates vested in them by the will of Charles Potter accrued upon the death of Ruth Potter, the life tenant, and is barred by the statute of limitations.

It is suggested that in order for limitations to run it was necessary that the trustee’s claim be to the complete exclusion of Josephine and Richard, whereas instead they have enjoyed all the income since 1941. This type of distinction is appropriate only when the question is whether a trustee’s actions during the life of the trust were sufficiently clear and unequivocal to signify a repudiation of the trust and commence the running of limitations. It is inapplicable here because after the death of Ruth Potter the trust created by the will of Charles Potter no longer existed, and there was nothing to be repudiated except the trustee’s duty to effect a final settlement. And in the latter respect there was never any doubt as to the trustee’s purpose in paying only the income. Josephine and Richard knew the reason they had been refused the corpus and were receiving the income was that the trustee’s claim with respect' to the corpus was adverse to and therefore in repudiation of their own.

Much the same reasoning applies to distinguish the cited case of Lewis v. Hershey. 1910, 45 Ind.App. 104, 90 N.E. 332, which involved the question of whether a trustee’s actions during the life of the trust were a sufficiently unequivocal repudiation to begin the running of limitations.

Aside from the technicalities, it is argued that the result reached in this case is inequitable and will frustrate the intention of Charles Potter that his children have the full enjoyment of his estate. The fact is that by their equivocation the children have destroyed the plan themselves. Upon the death of Ruth Potter the money was theirs to do with as they wished, including the right either to accept or reject the apocryphal trust into which she had diverted it. The statute of limitations represents a wholesome policy of law against leaving rights and liabilities hanging in mid-air. There is no valid reason why it should not apply in this case.

Judgment affirmed.