author: NYE, Justice.

text:
    Salome WOFFORD et vir, Appellants, v. Agnes F. MILLER, Appellee.
    No. 23.
    Court of Civil Appeals of Texas. Corpus Christi.
    July 29, 1964.
    Rehearing Denied Sept. 10, 1964.

      Robert Seerden, Victoria, for appellants.
    Denver E. Perkins, Gonzales, for ap-pellee.
   NYE, Justice.

This is a boundary suit. Agnes F. Miller, a feme sole, brought this suit in the district court of Lavaca County, Texas, to establish the boundary between certain lands owned by her and certain lands owned by Salome Wofford, as well as to partition various other lands. In the partition suit Agnes F. Miller was joined by E. T. Newhaus as plaintiffs seeking partition of the lands owned by Salome Wofford and her husband, W. D. Wofford, and also Henry Kallina and L. Y. Feinstein who were named defendants in the suit. By cross-action Salome Wof-ford and her husband, W. D. Wofford, sued in trespass to try title claiming ownership of approximately 11.33 acres of land, being a narrow strip of land severing the property of the Wofford and the Miller tract.

The trial on the boundary dispute was to a jury for a determination of the boundary between the J. W. Harvey survey owned by the Woffords and the J. W. Rogers survey owned by Miller.

On the verdict of the jury favorable to the plaintiff Miller on all issues submitted, judgment was rendered by the court in her favor and against the defendant Wofford. Salome Wofford is hereinafter referred to as appellant and Agnes F. Miller as appel-lee.

To properly understand the issues complained of, it is deemed advisable to incorporate in this Opinion a rough draft taken substantially from “Plaintiff’s Exhibit No. 23” which was referred to in the special issues and the court’s Exhibit A” attached to its judgment. No particular effort has

been made on our part to adhere strictly to scale, but it gives a fairly accurate picture of the layout of the land. The narrow shaded strip just east of the J. W. Harvey Survey, separating the Harvey Survey from the W. F. Rogers Survey, is the tract of land in controversy.

The first and senior survey upon which all the properties are based is the M. Townsend one-third League, the South line of which is shown at the top of the sketch. The disputed properties are bounded on the south by the W. K. Estill survey which is the second senior survey to all of the properties under consideration. The North line of the Estill Survey is shown at the bottom of the sketch. The third senior survey was the F. W. Miller Survey shown at the northwest corner of the sketch. The next survey in point of time was the J. W. Harvey Survey which is the survey owned by the appellant Salome Wofford. The major point of dispute in the law suit is the East line of the J. W. Harvey Survey and the West line of the W. F. Rogers Survey where it connects with the J. W. Harvey. The appel-lee Agnes F. Miller is the present owner of the Rogers Survey.

It is the appellant’s contention that the J. W. Harvey Survey extends in an easterly direction to a line designated on the attached plat as “GH”, whereas, the appellee Agnes F. Miller contends and the jury-found that the East boundary of the J. W. Harvey Survey is the line “AB”. The appellant filed motions for instructed verdict at the close of appellee’s case, motion for directed verdict at the close of the evidence, and filed motions for new trial after the judgment was entered, setting forth in such motions: That all of the credible evidence and the preponderance of the evidence showed that the true boundary was as contended by the appellant at the line “GH”; that the verdict of the jury was contrary thereto; and that there was no evidence or in the alternative insufficient evidence to establish the true boundary at the line “AB”. The points of appeal listed above relate to appellant’s assignments one through four and will be discussed together inasmuch as they relate to sufficiency of evidence.

Upon an assignment of insufficient evidence and that the verdict is so against the great weight and preponderance of the evidence we are compelled to weigh and consider all of the evidence in the case. Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126 (1959); 30 T.L.R. 803.

Substantially, all of the surveys shown on the sketch were made by the County Surveyor of Lavaca County by the name of H. H. Russell in the late 1800’s and the early 1900’s. In 1886 Russell surveyed the property known as the “J. W. Harvey” and placed the East line of the Harvey at the place shown on the sketch as being line “GH”. However, Russell made a mistake and located the point “H” too far South, into and in conflict with the W. K. Estill tract which was a senior survey to the Harvey. The surveyor called this original survey of the Harvey as containing 160 acres.

Appellant relies heavily on the testimony of Duward Gail Ford, a registered public surveyor who made two surveys of the property in question — one a “patent survey” and the other a “boundary survey”. Ford testified in effect that the original Harvey survey commenced at the Southwest corner of the F. W. Miller tract, proceeded East 1000 varas to the Southeast corner of said Miller tract, and continued on at 1465 varas, a stake for a corner, “from which a P.O. 20' (sic) in dia. m’ked x, brs. N 14 W. 7 varas.” Next, Ford testified concerning the J. H. Parker original survey. This is the Varnell tract and the North part of the Rogers tract and which was surveyed by Russell in 1895. This survey began as follows: Beginning at the Northwest corner of the Wadham Survey, proceed westerly to the Northeast corner of the F. W. Miller Survey, thence South to the Southeast corner of the said Miller Survey, “thence 465 varas to the Northeast corner of the survey for John Harvey”, and so on back to place of beginning. (Emphasis supplied). This survey recognizes and corresponds with the original Harvey Survey at the point “G” extending 465 varas from the Southeast corner of the F. W. Miller Survey. However, in 1902, the original Parker Survey was cancelled and re-surveyed for Varnell and a patent was issued to Varnell which calls for a survey beginning at the Northeast corner of the F. W. Miller Survey, proceeding south to the Southeast corner of said survey, then East 480(4> varas to a stake, for the Southeast corner of this survey, thence North to the M. Townsend Survey for the Northeast corner of this survey, then West along the Townsend Survey to the place of beginning. This corrected survey makes no mention of passing the Harvey Northeast corner.

Ford continued his testimony concerning the W. F. Rogers original survey made by Russell in 1904. It began at the Northwest corner of the Wadham Survey, proceeded along the West line of the Wadham and the Steele surveys to the Northeast corner of the W. K. Estill Survey; thence 133 varas “to the Southeast corner of the Harvey Survey”, thence North to the “Northeast corner of the Harvey Survey”, thence 15 varas to the Southeast corner of the Varnell Survey, then along the East line of the Varnell Survey and around to its place of beginning. (Emphasis supplied). The 133 varas from the Northeast corner of the Estill places the Southwest comer of the Rogers at the point “H” on the plat and the IS varas West of the Southeast corner of the Varnell would place the Northeast corner of the Harvey at point “G”. However, both “calls” call for adjoinder with the Southeast and the Northeast corner of the Harvey. The Rogers Survey, now owned by the appellee, must depend upon a determination of the Southeast and the Northeast corner of the Harvey as establishing the Rogers west line as it calls for ad-joinder with the Harvey. Braumiller v. Burke, 112 Tex. 387, 247 S.W. 501 (1923). A critical point of this boundary dispute, as we see it, then rests upon a re-survey by surveyor Russell of the J. W. Harvey which was made in 1899 and upon which a patent was issued by the Governor of Texas in 1901. This corrected survey began at the same point as the original survey at the Southwest corner of the F. W. Miller survey, proceeded East at 1000 varas to the Southeast corner of the Miller, and then at 1380 varas (instead of 1465 varas as called for in the original survey) a stake “from which a P. O. 20. in dia mked x brs. N. 14° W 7 vrs.”; thence South 761 varas to a stake in the North line of the W. K. Estill, and then West 380 varas to the Southeast corner of the Thomas Survey, and so on around to the place of beginning. This East line of the Thomas Survey is due South of the East line of the F. W. Miller Survey. In the corrected survey by Russell he calls for 380 varas East from the Southeast corner of the Miller to the Northeast corner of the Harvey and then calls for 380 varas West from the Southeast corner of the Harvey to the Southeast corner of the Thomas. This would establish the East line of the Harvey at the line “AB”. There are no calls for an adjoining survey on the East line of the Harvey because the original and corrected survey of the Harvey were both senior to the W. F. Rogers. The corrected survey calls for 131 acres which is substantially the correct amount of acreage for the tract as called for in this corrected survey.

Appellant claims that the corrected Harvey survey, calling for 1380 varas, is a mistake, and should have been 1465 varas to the line “GH” as was called for in the original Harvey. Appellant says that The distance calls in the W. F. Rogers of 133 varas and 15 varas would place the East line of the Harvey at the line “GH” as contended by them. As further evidence to substantiate appellant’s contention, appellant insists that the distance call of 1465 in the original survey and 1380 varas in the corrected survey to a stake, describes the same witness-tree in both descriptives. However, no one was able to locate this witness-tree, or any natural, or artificial objects, nor could they find any stakes or marks on trees at either the lines “AB” or “GH” on the plat.

A patent was issued by Joseph J. Sayers, Governor of the State of Texas, to J. W. Harvey (1901) for 131 acres of land describing Harvey’s East line as being at the line “AB”. Harvey conveyed this property with this corrected survey description calling for 131 acres to Moore (1902) ; thereafter, Moore conveyed the same property with the same description to Alice Miller (1917) and thereafter Alice Miller conveyed the property to Salome Wofford, the appellant (1932), using the field notes of the corrected survey and the same description as contained in the original patent. Appellant never complained of such description or the recital as to acreage until the filing of this law suit. The Rogers Survey which was junior to the Harvey Survey and to all other surveys surrounding it, called for adjoinder with each and every survey surrounding it, as well as defined courses and distances.

Ruben Koether, an engineer and registered public surveyor called as a witness for the appellee, testified in attempting to follow the footsteps of the original surveyor, that the East line of the Harvey is at the line “AB” because such Rogers Survey being junior in character to all surveys which surround it, calls for ad joinder with the Harvey and the corrected Harvey Survey places the East line of the survey at the Line “AB”. All of the conveyances of appellee’s land, beginning with the original Rogers Survey through the various successors in the chain of title, use the same original Rogers Survey, which calls for adjoinder to the Harvey’s Southeast and Northeast corners.

Appellant’s contention is that point “G” is based upon the original survey of the Harvey; however, this was later cancelled and corrected and a patent issued on the corrected notes for a call to point “A”. Appellant’s contention is that the original Parker Survey also called for the Northeast comer of the Harvey to be at Point “G”; however, this was also cancelled and a corrected survey and patent was issued to Varnell without mention of the Harvey Survey in any respect. Appellant’s contention is that the Northeast comer of the Harvey is at Point “G” based upon the corrected survey which calls for a course and distance to Point “A”, but describes the same bearing tree as the one in the original survey; however, this was only circumstantial evidence of a possible mistake by surveyor Russell. The mistake could have been the bearing tree as well as the distance. The surveyor, Russell, corrected the survey for a call of 380 varas to point “A” on the North and made the same correction on the South of 380 varas to the Thomas, and then corrected the acreage from 160 to 131 acres. This is much stronger evidence that the mistake, if any, was made in the call to the bearing tree, rather than two different calls for distance and the call for a reduction in acreage. In the absence of any fixed natural or artificial markers, the call for course and distance must control. Harvey accepted a patent from the State of Texas under the corrected field notes, thereby losing all right to any additional area embraced in the prior field notes. Miller v. Yates, 122 Tex. 435, 61 S.W.2d 767 (1933); Stanolind Oil & Gas Co. v. State, 114 S.W.2d 699 (Tex.Civ.App.1938); Stanolind Oil & Gas Co. v. State, 136 Tex. 5, 22, 133 S.W.2d 767, 145 S.W.2d 569 (1939, Reversed on other grounds). The assignee of the original patentee is bound to the limitation of the acreage described in the patent. Thomas v. Cline, 135 S.W.2d 1018 (Tex.Civ.App.1940).

The two calls in the Rogers Survey of 133 varas on the South and 15 varas to the Southeast comer of the Varnell fall short of the line “AB”. However, both calls call for the Southeast and Northeast corner of the Harvey. The call for a corner of the adjoining survey is superior to the call for course and distance where the boundary line has been established. This is true even though the extension of the line of the Rogers to close with the Harvey would convey more land than the quantity called for in the Rogers Survey. Moore v. Stewart, 7 S.W. 771 (Tex.Sup.Ct.1887); Fagan v. Stoner, 67 Tex. 286, 3 S.W. 44 (1887); Freeman v. Mahoney, 57 Tex. 621 (1882); Montague County v. Clay County Land & Cattle Co., 80 Tex. 392, 15 S.W. 902 (1891); Wyatt v. Foster, 79 Tex. 413, 15 S.W. 679 (1891); McAnninch v. Freeman, 69 Tex. 445, 4 S.W. 369 (1887); Woods v. Robinson, 58 Tex. 655 (1883); Morrill v. Bartlett, 58 Tex. 644 (1883), and other cases cited at 7 Tex.Jur. pp. 181-182, Boundaries, § 46, notes 12 and 13.

There was testimony pro and con of an old existing fence between the Harvey and the Rogers. The testimony was to the effect that the fence was rolled up and disposed of in 1935, as it was of no value to either party and might damage the livestock using both tracts of land. After this law suit was filed the appellants erected a new fence along the line “GH”, contending that the old fence was on this same line. The appellants sought to establish by the jury’s determination that the old fence line separating the Harvey and the Rogers was along the line “GH” and had been recognized by the parties as being the true East boundary of the Harvey. The jury chose to believe appellants’ witnesses that an old fence did exist, but they found that the old fence was not located along the line “GH” where the present existing fence now runs.

We have carefully reviewed all of the evidence in the record. We find that there is sufficient evidence to support the findings of the jury that the East line of the Harvey is at line “AB” as contended by the appellee Agnes F. Miller and that such answer is not against the great weight and overwhelming preponderance of the evidence. Appellants’ Points 1 through 4 are overruled.

Appellants’ fifth point complains of the action of the trial judge in excluding from the jury a deed of acquittance from the State to J. W. Harvey, his heirs and assigns, dated March 10, 1960. We overrule this point.

The occasion for the deed of acquittance is unusual. The original survey of the J. W. Harvey made by Russell in 1886 called for its North line to begin at the Southwest comer of the Miller and run North 70° East 1465 varas to a stake, calling for a witness-tree, a 20" post oak and giving bearing and distance to it. In the re-survey Surveyor Russell shortened the distance on the North line but gave the same identical call for the same or apparently the same witness-tree. Appellants’ surveyor Ford re-surveyed the Harvey in 1959 after the law suit had been filed. This re-survey was filed of record in the Surveyors’ Records of Lavaca County and subsequently accompanied appellants’ application for a deed of acquittance to the General Land Office. The deed of acquittance undertakes to re-establish the North line of the Harvey at Point “G” as set forth in the original survey, but it does not mention the witness-tree as a reference to the Northeast corner of the Harvey as mentioned in the original survey of 1886 and the corrected survey of 1889.

The trial court submitted an issue to the jury, to which there was no objection, inquiring if the stake for the Northeast corner of the Harvey in the Russell field notes was 1465 varas East of the Harvey Northwest comer, the place of beginning. (This would be Point “G” on the plat). To this question the jury answered “No”. There was ample evidence to sustain the jury’s findings. If the objects, natural or artificial, cannot be found on the ground, or their previous location accounted for, then course and distance will be followed. This would seem to be the rule of unavoidable necessity, for if you cannot find the objects called for in the field notes, nor ascertain where they were previously located, there would be no other guide to follow than course and distance. It is evident, therefore, that the area of the tract of land patented to Harvey in 1901 did not exceed the quantity called for in his original survey. By accepting this patent, which called for only 131 acres, Harvey surrendered claim to any land included in the original survey that lies without the boundary of the original patent based on the corrected survey. Miller v. Yates, supra.

Under these facts, Art. 5421c-1 Revised Civil Statutes, could afford appellants no relief. That statute does not authorize the Commissioner of the General Land Office to convey by deed of acquittance vacant or unpatented land but only authorizes him to collect for the State the price for excess acreage included within the boundaries stated in the patent and thereby remove the cloud on patentee’s title. A deed of acquittance is not intended to be a muniment of title. Foster v. Duval County Ranch Co., 260 S.W.2d 103 (Tex.Civ.App.1953). Had the jury determined that the East line of the Harvey was at “GH” and that excess acreage existed, a deed of acquittance acquired subsequent to this law suit would have been proper.

Whether the north line of the Harvey was 1465 varas and the survey of 1886 conveyed 160 acres, or was only 1380 varas as called for in the 1901 patent and contained 131 acres, the State was paid for all acreage within the area described in the patent. There was no excess. The deed of acquittance could not add 17.83 acres as excess and therefore it had no way to establish the common boundary line between the Miller and the Harvey surveys.

Art. 5421c-1, R.C.S. vests in the Commissioner the duty of determining if it “appear that such excess actually exists and that the applicant is entitled to the benefits of the law”, the Commissioner shall execute the deed of acquittance. The effect of such deed and its admissibility has not been directly adjudicated. Here the quantity of land in the Harvey was in dispute. The survey by Ford and the application for the deed of acquittance were made after the dispute arose and the lawsuit filed. The determination by the Land Commissioner was a determination of an ultimate issue of this law suit and was made ex parte. Duward Gail Ford, a licensed surveyor, who testified for appellant, offered in evidence his field notes and testified how he arrived at the distances for the description in the deed of acquittance. The jury had the benefit of and received the same evidence that was received by the Commissioner to make its own determination of the East boundary of the Harvey. Therefore, the effect of the deed of acquittance would be repetitious of the testimony already in evidence. Town of Jacksonville v. Pinkard, 40 S.W.2d 841, (Tex.Civ.App.1931 err. dism.) If error there was, it is harmless.

Appellant’s sixth point of error complains of the trial court’s refusal to reopen the evidence and introduce the deed of acquittance after the appellee’s attorney had argued to the jury that the original patent from the State of Texas showed that the East boundary of the Harvey was exactly the same as contended by the ap-pellee. After the appellee had completed his opening argument, appellant requested permission to reopen the case for the purpose of introducing the deed of acquittance so that the jury would have facts and information to the effect that the patent from the State of Texas was not the only instrument from the State of Texas that had been issued concerning this property, and not the only instrument that located the disputed boundary. Appellee claims that his comment concerning the patent was a reasonable, fair and accurate statement It is largely a matter of discretion with the trial court whether additional testimony shall be allowed after the evidence has been closed. 56 Tex.Jur.2d § 120 p. 467; Rule 270 T.R.C.P.; Lubbering v. Ellison, 342 S.W.2d 796 (Tex.Civ.App.1961).

We hold that the trial court did not abuse its discretion in refusing to allow the appellant to reopen their case. The trial judge had already correctly ruled that such deed of acquittance was not proper evidence, and the statements of counsel for appellee to the jury were not outside the record, or such a provocation that would cause the trial judge to reconsider his previous ruling.

Appellant conplains of the exclusion of the proof that Garland Miller, (deceased), “recognized” the old fence line between the Harvey and Rogers Survey as their common boundary. Wofford testified that he knew of no dispute as to the boundary between these surveys.

Counsel asked if witness Wofford and Garland Miller (deceased) ever had any kind of agreement about the location of the boundary. The trial court refused to let the witness answer, sustaining an objection that it would be hearsay and would call for a “verbal agreement regarding a piece of land”. On a Bill of Exception witness Wofford testified that he and Garland Miller recognized the old fence line:

“Q. All right, and had Garland rec-orgnized that?
“A. Why, certainly.
“Q. And in conversation had you all referred to that as boundary line between you?
“A. That’s right, he asked me if I would be willing for him to tear it, (the fence) down.”

A boundary agreement may be made by oral agreement. Gulf Oil Corporation v. Marathon Oil Co., 137 Tex. 59, 152 S.W.2d 711 (1941), and the cases cited therein. However, the location of the boundary line must be in dispute, doubt, or its existence uncertain. Foster v. Duval County Ranch Co. supra. In Voigt v. Hunt, 167 S.W. 745 (Tex.Civ.App.1914), Judge Jenkins wrote:

“Hence it is essential to the validity of an oral agreement to fix a boundary line that such line be in dispute, and that its true location be unknown to the parties making the agreement. Otherwise the fixing of such boundary by oral agreement would be passing title to real estate contrary to the statute of frauds. (Citing cases).”

Moreover, the Wofford testimony is not sufficiently definite to establish an agreed line. Wright v. Lassiter, 71 Tex. 640, 10 S.W. 295. (Sup.Ct.1888). Appellant’s seventh point of error is overruled.

Appellant’s eight point complains of the manner of submission of the first special issue.

“Do you find from a preponderance of the evidence that the East line of the J. W. Harvey Survey as located by H. H. Russell on July 3, 1899, was the line AB as shown on plaintiff’s exhibit No. 23. Answer ‘Yes’ or ‘No’.”
“We the jury answer ‘Yes’.”
“In this connection, you are instructed that such A B line is defined as the line which begins at a point N. 70 degrees E. 380 varas from the Southeast corner of the Barnes lands in the F. W. Miller Survey and runs S. 20 degrees E. to the north line of the Estill Survey.”

The objections were that it constituted a general charge and was a charge upon the weight of evidence. The instructions given were similar to those passed on by Judge Speer in Humble Oil & Refining Co. v. Owings, 128 S.W.2d 67 (Tex.Civ.App.1939) which he there approved. The objection that the submission was a general charge is overruled.

Judge Speer points out in the Owings case that a submission that requires answers which will be referrable to a map is “fraught with dangers”, but he comments that the other modes of submission to clarify the verdict are likewise unsatisfactory, if there is a lack of natural or artificial objects as reference points. Such a submission comes near being a comment on the weight of the evidence. White v. Haynes, 60 S.W.2d 275 (Tex.Civ.App.1933 writ dis.) Certainly, a submission in the form approved in the Mid-Kansas Oil & Gas. Co. v. Burton case, 87 S.W.2d 338 (Tex.Civ.App.1935, Dism.Agr.), i. e., an inquiry as to which of two lines on the designated plat constitutes the true boundary, is less subject to criticism than a question which mentions only one line. But here, as in the Owings case, supra, the exhibits showed the two lines contended for by the opposing parties. Attorneys, in argument, referred to both lines so that the jury had the benefit of the contentions of defendants as well as those of plaintiffs and understood that it had a choice. This form of submission having been approved in the Owings case, we see no error in the submission here. Appellant’s point is overruled.

Point 9 of Appellant’s assignment complains that the trial court erred in refusing to grant a new trial because the verdict of the jury does not make sufficient findings upon which to establish the boundary between the two surveys. The issue complained-of by the appellant inquires as to where H. H. Russell (the original surveyor) located the East line on July 3, 1899. Appellant states that this survey was made for a Mr. Moore, whereas, the original survey of 1886 was made by virtue of a preemption certificate for 160 acres held by Harvey. We fail to find any evidence that the survey of July 3, 1899, which cancelled the original survey and corrected such survey, was made on behalf of Mr. Moore. Following this corrected survey of 1899 by Russell, a patent was issued to Harvey in 1901, and subsequently, Harvey transferred the property to Moore in 1902.

Article 5305, R.C.S.1925, makes it the duty of the surveyor to correct errors in his field notes for the General Land Office. In Miller v. Yates, supra, it is held that Revised Statutes of 1879, impose a duty on the Land Commissioner to cause the surveyor or party at interest to furnish corrected field notes when incorrect field notes were presented to the Commissioner. The Land Commissioner’s acceptance of the corrected field notes fixes its boundaries and a subsequent purchaser is bound thereby. Appellants’ contention in the law suit was that the corrected survey was in error and that because surveyor Russell called for the same witness-tree in his survey of 1899, he actually intended that the East line of the Harvey was not to be located at the line “AB” on the plat. This corrected survey would of course control, unless the appellant could prove that such survey was in error. This he failed to do. With the aid of the trial court’s instructions, the jury made sufficient findings to locate the East line of the Harvey. Appellants’ point 9 is overruled.

Appellant complains of the refusal of the trial court to grant a new trial based on newly discovered evidence. At the hearing on the motion for new trial the appellant presented the testimony of Roger Tuttle, a step-son of W. F. Rogers, the original owner of the Rogers Survey. Tuttle testified that after the trial of the main case, appellant approached him and asked him if he knew the location of the old fence line that separated the Harvey and the Rogers Surveys. Tuttle testified that he knew where it was, and that he could find the old fence line. Tuttle accompanied Wofford to the property and walked to a point approximately half way between the north' and south line of the Harvey Survey near the East boundary of the Harvey Tract and found a sand hill. He testified that over the hill they would find a gap and the fence that separated the two properties. Tuttle testified further that upon reaching this location they found two trees with wires and wire box on them some twenty feet East of the existing fence. (This existing fence was a new fence placed on the property by appellant after the law suit had been filed and is located on the plat at the location marked “GH”). Other tree marks were discovered and pictures of these marks were taken and offered as exhibits to the court at the hearing on the motion for new trial. Appellant testified that he had known Tuttle for some time, but not too well. Tuttle stated that he did not talk to the appellant or to the appellant’s witnesses concerning this case until after the case was tried. Tuttle lives in Halletsville, the county seat of Lavaca County where this case was tried.

During the trial of the law suit, a dispute arose concerning the existence of a fence supposedly separating the Harvey and Rogers tracts. The appellee’s witnesses did not recall any fence existing between the two tracts. Appellants’ witnesses testified positively that a fence had existed between the two tracts and that the old fence was located approximately on the same line or a few feet east of the new fence. The jury found that prior to 1935 there was a common fence dividing the Harvey and the Rogers Survey but that the fence line constructed by the appellants as the east line of their property was not constructed on the old fence line, and that the parties and their predecessors in title did not consider, recognize or acquiesce in the fence line as the common boundary line between the Harvey and Rogers Survey.

It is settled law in Texas that the refusal to grant a new trial on the ground of newly discovered evidence rests within the sound discretion of the trial court and that unless such discretion has been abused, the court’s ruling will not be disturbed upon appeal. Morriss v. Centex Paving Company, 348 S.W.2d 790 (Tex.Civ.App.1961, wr. ref. n. r. e) The courts have followed certain rules concerning the justification to the granting of a new trial for newly discovered evidence. 41 Tex.Jur.2d § 105, p. 253-54.

“To justify the grant of a new trial it generally must be shown that the evidence was unknown to the movant before the trial, that his failure to discover it was not due to his want of diligence, that its materiality was such as would probably bring about a different result on another trial, and, generally, that it was competent, and not merely cumulative, corroborative, collateral, or impeaching.” (See cases cited thereunder).

We believe that such evidence was cumulative of the evidence adduced at the trial, that the evidence was not such that would probably bring about a different result on another trial, and lastly, we do not believe that appellants have shown proper diligence to obtain the evidence before the trial. The trial court did not abuse its discretion in refusing to grant a new trial to the appellants. New Amsterdam Casualty Co. v. Jordan, 359 S.W.2d 864 (Sup.Ct.1962). Appellants’ point is overruled.

Appellants assign as error of the trial court its method of partitioning the J. W. Varnell Survey because the appellant was not awarded her proportionate share of the survey; that the description of the tract of land allotted to Salome Wofford is patently erroneous; and that a portion of the land contained in the part set aside to Salome Wofford is not within the Varnell Survey.

The partition action was tried before the court without the intervention of a jury. The parties to the suit agreed with reference to the land sought to be partitioned; that the land was susceptible to partitioning in kind; they agreed to waive the appointment of commissioners of partition; and agreed that Lavaca County Surveyor R. H. Koether would furnish a survey of the lands to the court.

The court recites in his judgment that the defendant Salome Wofford owns an undivided one-sixth interest in the lands to be partitioned; that the shares and interests awarded, set aside and allotted to the yarious parties, accord to each party the proper value of his share of interest in the lands; and that all of the parties are hereby accorded equal and fair treatment as to said partition.

The appellee admits that the appellant was awarded 18.653 acres which is the same awarded to the other owners of a one-sixth interest. Appellant contends that the erroneous calls deprive her of two acres of land. We find that the description set forth in the judgment does not correspond with plaintiff’s Exhibit #23 and #12, maps of the partitioned property; or with plaintiff’s Exhibit #14, field notes for the Salome' Wofford 18.653 acre partitioned tract; or with the court’s Exhibit “A” attached to the judgment, which is likewise a map of the partitioned property. All of these maps and exhibits were prepared by Koether, the court’s surveyor in partition. All of this evidence calls for the east and west line of Salome Wofford tract to be different from that called for in the trial court’s judgment. We find no evidence relating to the calls describing the appellant’s 18.653 acre tract as set forth in the judgment and we have not been referred to any by the ap-pellee. The judgment also erroneously calls the “Southwest” corner of the Wofford tract the “Northeast” corner of such tract. A further examination of the description in the partitioned tracts discloses erroneous calls for course and distance in the Henry Kallina 55.96 acre tract at the North end of the partitioned lands.

The partition aspect of this suit was tried before the court without the intervention of a jury. The appellant made no request for findings of fact or conclusions of law concerning the partition of the lands. We find no basis on which to reverse the trial court’s judgment nor do we see any treason to do so. It is our duty to affirm such judgment if the statement of facts Support it. It is also the duty of the Court of Civil Appeals, however, to enter the judgment that should have been entered by the trial court where it appears that upon the face of the record that modifications in the judgment should be made where the justice of the case requires it. C. R. Cummings & Co. v. Masterson, 42 Tex.Civ.App. 549, 93 S.W. 500 (1906 wr. ref.) 4 Tex.Jur.2d 880, p. 469-70. It appears to us that unless such judgment is modified to correspond with the description as contained in the exhibits and evidence in the record, a subsequent suit would be necessary to correct the clerical or other errors that appear in the judgment. Each partitioned tract is dependent upon each other partitioned tract, and a mistake in the description of one- could affect all the others, and if the judgment is in error, the accumulation of errors could deprive the appellants of their rightful interest in the partitioned lands.

In view of these discrepancies contained in .the judgment, which do not coincide with the undisputed evidence in the record before us, the judgment of the trial court is here modified to change the legal description of the lands set aside to Salome Wof-ford in partition. Beginning in such judgment with paragraph two of the decree and ending just prior to paragraph which follows such description and described as “SECOND”, the following modified description to correspond with the evidence for calls of course and distance is here substituted for the description contained in such judgment.

“2. There is hereby set aside, awarded and allotted to said SALOME WOF-FORD, and she shall from henceforth have, hold, possess and enjoy, in sev-eralty to herself, as her separate property, in fee, subject to the royalty interest of L. Y. Feinstein, the following:
“FIRST: All that certain tract or parcel of land, situated in Lavaca County, Texas being a part of the G. W. Var-nell Survey, and being a part of the 80.389 acre tract of land conveyed by W. F. Rogers to Friench Simpson by deed dated February 21, 1905, recorded in Volume 34, pages 213-214, Lavaca County Deed Records (being described in such deed as an 80 acre tract of land, more or less, but which was found to contain 80.389 acres, more or less, upon resurvey), and a part of the same land described in a deed from Mrs. Alice Miller et al, to Garlan S. Miller et al., dated November 14, 1932, recorded in Volume 116, pages 316-317, Lavaca County Deed Records described by metes and bounds as follows, to-wit:
“BEGINNING at a point in the west line of the G. S. Miller land in the W. F. Rogers Survey and which point of beginning is in the East line of the G. W. Varnell Survey and which point of beginning is South 20° East 2009.24 feet (723.3264 varas) from a 1)4 in-galvanized iron pipe at the N.E. corner of said Henry Kallina 24.43 acres tract and the N.E. corner of the G. W. Var-nell Survey and the N.W. corner of the W. F. Rogers Survey;
“THENCE S. 20° E. 601.87 feet (216.-6732 varas) with the Garlan S. Miller Line to a 1)4 in. galvanized iron pipe set for the S.E. corner of the Varnell Survey and an interior corner of the W. F. Rogers Survey for the S E. corner of this tract;
“THENCE S. 70° W. 1338.42 feet (481.8312 varas) to the S.W. corner of the G. W. Varnell and the S.E. corner of the F. W. Miller original surveys for the S.W. corner of this tract;
“THENCE N. 20° W. 612.37 feet (220.4532 varas) to a point in the West line of the G. W. Varnell and the existing East fence line of the C. L. Barnes lands in the F. W. Miller Survey for the N.W. corner of this tract;
“THENCE N. 70° E. 1338.42 feet 481.8312 varas) to the place of beginning in the East line of the G. W. Varnell for the N.E. corner of this tract, containing 18.653 acres of land, more or less, as surveyed by R. H. Koether, registered land surveyor of Yoakum, Texas, in January, 1957, and which is shown and designated as the Salome Wofford 18.653 acres shown on said map attached and marked ‘Exhibit A’;
“And subject to the interest in oil royalty, gas royalty and casinghead gas and gasoline royalty, and royalty from other minerals or products that was •conveyed by Garlan S. Miller and wife, Agnes Miller, to L. Y. Feinstein by royalty conveyance dated December 17, 1948, recorded in Volume 159, page 255, Lavaca County Deed Records; and subject to all of the terms and conditions of such royalty conveyance.
■“Reference to said deeds, map and royalty conveyance and each instrument herein mentioned and to the records thereof is here made for all pertinent purposes.”

There are several obvious errors and erroneous calls contained in the judgment partitioning the Henry Kallina 55.96 acre tract at the north end of the partitioned lands. The description in the judgment at the fourth call of the South line of the Henry Kallina tract in the W. F. Miller Survey erroneously states:

“Thence S. 20° W. 28.56 feet (102.86 •varas) with the existing fence line to a corner post in the west line of the F. W. Miller survey for the upper southwest comer of this tract; being the northwest corner of the C. L. Barnes land”;

Plaintiff’s exhibits #23 and #12 (maps) and plaintiff’s exhibit #16 (field notes) and the court’s exhibit “A” require that judgment should be modified so that this erroneous call would be changed and the following call is hereby substituted:

“Thence S. 70° W. 2856.7 feet (1028.-412 varas) with the existing fence line to a corner post in the west line of the F. W. Miller Survey for the upper Southwest corner of this tract; being the Northwest corner of the C. L. Barnes lands;”

In the same description of the same lands on the sixth call a clerical error appears wherein the call-states in the judgment:

“Thence North 70 degrees East 3195.12 feet (1150.2432 varas) along the aforesaid M. Townsend Ys League line to the place of beginning, containing within said bounds 55.96 acres of land, more or less, as surveyed by R. H. Koether, registered land surveyor of Yoakum, Texas, in January, 1957, and which is designated as the Henry Kallina 31.53 acres and the Henry Kallina 24.43 acres on the map attached hereto and marked ‘Exhibit A’;”

And it should read, and is hereby modified to read:

“THENCE North 70 degrees East 4195.12 feet (1510.2432 varas) along the aforesaid M. Townsend 1/3 League line to the place of beginning, containing within said bounds 55.96 acres of land, more or less, as surveyed by R. H. Koether, registered land surveyor of Yoakum, Texas, in January, 1957, and which is designated as the Henry Kal-lina 31.53 acres and the Henry Kal-lina 24.43 acres on the map attached, hereto and marked-‘exhibit A’;” (Emphasis supplied to show errors and corrections)

The judgment of the trial court, as modified, is affirmed.


source: Caselaw Access Project

author: BELL, Chief Justice.

license: Public Domain

text:
    The NATIONAL BANK OF COMMERCE OF HOUSTON, Co-Trustee, et al., Appellants, v. Mrs. Lindsey H. DUNN, Appellee.
    No. 14306.
    Court of Civil Appeals of Texas. Houston.
    June 4, 1964.
    On Rehearing July 9, 1964.
    Rehearing Denied Sept. 10, 1964.

      Liddell, Austin, Dawson & Sapp, W. Robert Brown, Houston, for appellants.
    Dyess, Dyess, Prewett & Cantey, Williams, Lee & Lee, James W. Lee, Houston, for appellee.
   BELL, Chief Justice.

This is an appeal from a summary judgment rendered in favor of appellee declaring that appellee is entitled to "one-half of the net profits having accrued and to accrue from the following described land, * * Then follows a statement that it applies to an undivided 192.057 acre interest out of a specifically described 1729 acres in Chambers County. Following the description is the provision that this “one-half of the net profits” shall be “from and after the defendants * * * have received $1,500.00 income from said property in accordance with the provisions of an unrecorded net profit agreement dated the 12th day of October, 1937 between The Federal Royalty Company and L. H. Dunn, * * *«

Suit in the nature of trespass to try title was originally filed by appellee in Chambers County on May 22, 1961. Finally ap-pellee filed her third amended original petition and this was the petition considered on motion for summary judgment. Appel-lee alleged she filed this petition pursuant to “Article 2524, R.C.S., the Uniform Declaratory Judgment Act.” Then following allegations as to the parties to the suit and their capacities the following allegations appear:

.II.
“That on October 12, 1937, Lee Ma-Gee, President of The Federal Royalty Company, in consideration for services described therein, gave to Mr. Lindsey H. Dunn a letter agreement which is appended hereto as Exhibit A and made a part hereof, wherein was granted to the said Lindsey H. Dunn a one-half (14) interest in the hereinafter described land, to-wit:
“An undivided 192.057 acre interest out of 1729 acres of land, more or less, out of the Thomas Jefferson Chambers Grant in Chambers County, Texas, being the same lands awarded to pláin'tiffs and plaintiff-in-terveners by decision of the Supreme. Court of Texas dated March 2, 1955 in Cause Number A-4666 before said Court, styled Bascom Giles et al v. J. N. Basore et al, said judgment being recorded in Volume 167, at page 119 of the Deed Records of Chambers County, Texas, the lands so awarded to Plaintiffs and plaintiff-interveners being described as Tracts Nos. 1, 2, 3, 4 and 10 in judgment of the District Court of Travis County, Texas, in said cause, which judgment is dated February 6, 1953 and duly recorded in Volume 167 at pages 112 to 118 inclusive, in the Deed Records of Chambers County, Texas.
III.
“Thereafter, on July 8, 1957 The Federal Royalty Company conveyed unto The National Bank of Commerce of Houston, Trustee, various properties including the above described undivided interest making it 'subject to an unrecorded net profit agreement dated October 12, 1937 between The Federal Royalty Company and L. H. Dunn.’ Said conveyance is appended to this pleading as Exhibit B and made and incorporated as a part hereof.
IV.
“The said Exhibit A is the unrecorded net profit agreement referred to in said conveyance, Exhibit B, and is according to the express terms of said conveyance a qualification upon the grant of the undivided acreage conveyed and described therein.
V.
“Royalties and profits have accrued from the described acreage since the date of the conveyance, Exhibit B, to the Defendants herein who are withholding all of such from this Plaintiff who is the sole devisee of the said Lindsey H. Dunn as shown by Exhibit C, attached hereto and made a part hereof, being the Will, Order admitting the Will to probate and Oath of Plaintiff as Independent Executrix of the Estate of Lindsey H. Dunn, Deceased.
“Wherefore, this Plaintiff prays that she have her judgment against the Defendants herein, jointly and severally, declaring her right, title and interest to one-half of the accrued net profits due hereunder and in accordance with said letter agreement attached hereto, and such right, title and interest in and to future accruals from said property to which she is entitled, and for such other and further relief that she may be entitled to, general or special, either at law or in equity, and for all costs herein.”

Attached to the petition was a copy of a deed to the appellants, The National Bank of Commerce of Houston and H. Fort Flowers, Co-Trustees, from The Federal Royalty Company, conveying various properties including that material to this suit. The deed conveys the property here involved by use of the following language:

“An undivided 192.057 acre interest out of 1729 acres of land: 1729 acres of land, more or less, out of the Thomas Jefferson Chambers Grant, in Chambers County, Texas, being the same lands awarded to plaintiffs and plaintiff-interveners by decision of the Supreme Court of Texas dated March 2, 1955, in cause No. A-4666 before said court, styled Bascom Giles et al. v. J. N. Basore et al., said judgment being recorded in Volume 167, p. 119, of the Deed Records of Chambers County, Texas, the lands so awarded to plaintiffs and plaintiff-interveners being described as Tracts Nos. 1, 2, 3, 4 and 10 in judgment of the District Court of Travis County, Texas, in said case, which judgment is dated February 16, 1953, and duly recorded in Volume 167, Pages 112 to 118, inclusive, in the Deed Records of Chambers County, Texas.
“The above described interest is subject to an unrecorded net profit agreement dated October 12, 1937, between The Federal Royalty Company and L. H. Dunn.”

While the petition states that the so-called unrecorded profit agreement is attached, we do not find it or a copy attached, but we do find a copy in the deposition of Mr. I. S. Handy. It reads as follows:

“Lee Hager THE FEDERAL ROYALTY COMPANY President Suite 1521 Esperson Building Houston, Texas Lillian Powell Secy. & Treas.
October 12, 1937
Ike S. Handy
General Counsel
Mr. L. H. Dunn
518 West Building
Houston, Texas
Dear Lindsey:
This will evidence our agreement to purchase the interest of Albert A. Schweinle in all of the islands lying at the mouth of the Trinity River, being out of the Thos. J. Chambers Survey, Abstract No. 9, in Chambers County, Texas, advancing to you this day the sum of $975, which is on a basis of $10 per acre for that part of the land, the title to which we have approved. It is agreed that if the title to the remaining interest, to-wit, approximately 195 acres, should be cleared and approved by us, we will make you additional advances so that the total amount advanced would be $1500.
It is further agreed that out of the money which may be received for a lease, or other disposition of this land, we are to be repaid the amount advanced to you, and any excess is to be divided equally between us, and thereafter you are to be carried for and own a one-half (Y2) interest in the land.
It is agreed that in the event a settlement of the title to all of the islands is agreed upon by the other owners, we will ratify a settlement by which the adverse claimants, to-wit, those claiming under the Saladee heirs, receive a one-fourth (54) interest in the said islands.
Notwithstanding the agreement as above set forth, it is further understood and agreed that in purchasing the interest from Schweinle, as above stated, we shall be free to deal with same as if it were an outright purchase.
APPROVED Very truly yours
(signed) L. H. Dunn THE FEDERAL ROYALTY COMPANY
ISH :MP By (signed) L. W. Hager, Pres.”

Also attached to the petition are copies of certified copies of the will of L. H. Dunn, and the order admitting it to probate.

After this petition was filed in the District Court of Chambers County, appellants filed their pleas of privilege to be sued in Harris County, and by the consent of all parties the case was transferred to Harris County.

Appellants filed their answer which contained a plea in abatement, setting up that The Federal Royalty Company was a necessary party to the suit. Further, the answer asserted the following :

1. The alleged net profit agreement was uncertain, ambiguous and unclear as to whether the alleged agreement was intended to be for the benefit of and bind the heirs, successors and assigns of The Federal Royalty Company and L. H. Dunn, and extrinsic evidence should be received as to the acts and conduct of the parties to determine their intent.

2. The cause of action was barred by the 1, 2, 3 and 4 year statutes of limitation and laches.

3. The alleged agreement could not be construed as a covenant running with the land.

4. As an offset they pled in 1941 Dunn owed The Federal Royalty Company some $35,000.00.

5. That by mutual agreement between Dunn and The Royalty Company all obligations between the parties had been released.

To this answer appellee filed a reply which, among other things, not here necessary to notice, denied a release.

Appellee filed her unsworn motion for summary judgment, asserting that on a basis of the pleadings, deposition and exhibits on file there was no genuine issue of any material fact because the “unrecorded net profit agreement dated October 12, 1937” expressly provides:

“It is further agreed that out of the money which may be received for a lease, or other disposition of this land, we are to be repaid the amount advanced to you, and any excess is to be divided equally between us (Lindsey H. Dunn and The Federal Royalty Company), and thereafter you are to be carried for and own a one-half (1/2) interest in the land.”

Then follows the part of the deed to appellants that specifies: “The above described interest is subject to an unrecorded net profit agreement dated October 12, 1937, between The Federal Royalty Company and L. H. Dunn.”

Appellants replied to this motion for summary judgment and asserted there were issues of fact in the following respects:

1. Whether L. H. Dunn and The Federal Royalty Company intended the alleged net profit agreement to be a covenant running with the land.

2. Whether the claim is barred by limitations or laches.

3. A factual accounting or setoff and counterclaim between Dunn and The Federal Royalty Company.

4. Whether there had been a release.

Further, the answer asserted there was a failure by appellee to establish the following :

1. That the land described in the deed was the same or any part of the land described in the agreement of October 12, 1937.

2. That appellee was entitled to prosecute this suit because the alleged copies of the will and order admitting it to probate were not certified ones or supported by affidavits.

3. The alleged deed into appellants was an uncertified copy and the execution of the original was not proven.

4. That appellants ever assumed the obligation to Dunn.

Appellants by reference made their answer a part of the reply to the motion for summary judgment.

The motion is sworn to by W. L. Woel-lert, a Trust Officer of appellant Bank. He swears that “the foregoing Answer to Plaintiff’s Motion for Summary Judgment and Defendants’ Answer to Plaintiff’s Third Amended Original Petition and every allegation, statement and denial thereof are true and correct.”

It is to be noted that the affidavit does not affirmatively reflect either by a statement to that effect or by any facts appearing anywhere in the record, that Mr. Woellert is personally acquainted with any of the alleged facts asserted in any of the pleadings in the case or the pleadings relating to the motion for summary judgment. The only thing that can be reasonably inferred from the record is that Lee Hager, President of The Federal Royalty Company, I. S. Handy, Vice President and General Counsel of The Federal Royalty Company, and L. H. Dunn are the only persons personally acquainted with any material portion of the transaction involved. Mr. Hager and Mr. Dunn are both dead. Obviously Mr. Woellert bases his information on hearsay. This does not satisfy the requirements of Rule 166-A, Texas Rules of Civil Procedure

Other than the pleadings of the parties and the attached exhibits, the record consists of the depositions of Mr. Handy and Mr. Daniel Fort Flowers. The deposition of Mr. Flowers merely establishes that through 1956 there had been income from the property of less than $100.00. This represented income from oil and gas produced under a lease executed by The Federal Royalty Company to the Union Producing Company. Too, he testified that in each succeeding year there had been income of about $1500.00. His deposition was taken in July, 1962. The deposition of Mr. Handy reflects that in 1957 The Federal Royalty Company was liquidating its properties and the deed to appellants was given in furtherance of liquidation. He also testified the Company had liquidated and was no longer in existence. He established the execution of the so-called “net profits” agreement. He stated he dictated it He further stated that pursuant to the proposals made by the Royalty Company Lindsey Dunn acquired the Schweinle fee interest as contemplated by the letter. The $975.00 mentioned in’the first paragraph of the letter was advanced to Mr. Dunn. Later title to the approximately 195 acres was cleared and approved and the total amount advanced to Mr. Lindsey Dunn was in the sum of $1500.00 for him to use in acquiring the Schweinle fee interest in those islands at the mouth of the Trinity River. These amounts were carried on the books as costs of acquiring lands, minerals and royalties. Prior to the conveyance to the appellants, The Federal Royalty Company executed a lease to the Union Producing Company. On cross-examination he testified he prepared the deed which was shown him and marked Defendants’ Exhibit 1, which was referred to by appellants’ counsel as the deed to the National Bank of Commerce which included the statement, “The above described interest is subject to an unrecorded net profit agreement dated October 12, 1937, between The Federal Royalty Company and L. H. Dunn.” Attached to the deposition is an alleged copy of the deed certified by the Chambers County Abstract Company. Further in response to appellants’ counsel’s question, he stated that under the agreement he understood Mr. Dunn had an interest in the property after the cost of it had been repaid. There had not to his knowledge been any net profits by disposition of the property. There had been only the conveyance to appellants and a lease to the Union Producing Company. He intended that Mr. Dunn should become vested with a half interest in the fee title after repayment of the cost. Nothing had been paid by Mr. Dunn at the time of liquidation and no deed had been executed conveying his interest. If the property had been sold instead of being leased the proceeds would have been applied to the cost of acquisition and the balance, if any, would be divided equally between Mr. Dunn and The Federal Royalty Company. This was his intention. It was also his intention that if the property were sold Mr. Dunn’s interest would necessarily terminate. Mr. Dunn would have an interest in the money derived from the sale. It was his intention that Mr. Dunn would have a one-half interest in the property or any income from the property, howsoever derived, after The Federal Royalty Company had been returned its cost. In other similar deals, if property were sold Mr. Dunn got his interest in profit and if leased he got his interest in the royalty, bonus or howsoever “we derived from it.” The last paragraph of the letter contemplated that they had the right to sell it. or lease it or make any disposition they saw fit. It was not his intention that Mr. Dunn’s interest would be only in the profits realized from disposition of the land. There was no bonus paid for the lease to Union- Producing Company. Mr. Dunn did not join in the lease; he was dead at the time of its execution. ■ There were no other transactions they had with Mr. Dunn precisely like this. About 1940 The Federal Royalty Company got a judgment against Mr. Dunn for about $40,000.00 and this was charged off for income tax purposes. The Federal Royalty Company never gave any kind of a release to Mr. Dunn concerning this debt. Mr. Dunn did not join in the deed because- his joinder was not' required, but Mr. Dunn’s contingent interest was in the same nature as a lien and it was- deemed necessary to call attention to his contingent interest so that the purchaser would not be misled by thinking he was getting a clear fee simple title. The agreement with Mr. Dunn vested in The Federal Royalty Company the exclusive right to léase or sell without his joinder. At the same time it created' in him a contingent interest in the property and if the deed was executed without reference to this interest the purchaser might be in a position to claim he had been defrauded. In the witness’ opinion the lessee obtained an unclouded title to the entire leasehold interest. Mr. Dunn had no vested interest in the property but his interest was conditional and contingent on The Federal Royalty Company having been returned its cost. If royalties from the lease had returned the cost, The Federal Royalty Company would have transferred Mr. Dunn his one-half interest in any succeeding royalties and paid him one-half of any amount received over and above-cost. Federal Royalty, in his opinion, had authority to sell for less than $1500.0.0 without Mr. Dunn’s consent. After the $40,000.00 debt was charged off, Federal Royalty forgot about it and paid him money in connection with other transactions. At the time of the conveyance to appellants the Schweinle property was considered worthless, having perhaps a nominal value. Appellants paid $11,111.00 for all the properties conveyed and there was no allocation of this to any particular properties. Federal Royalty and appellee never had any accounting. The witness had talked to Mr. Dan Flowers and Mr. Fort Flowers and told them he understood the property had now paid the $1500.00 and Mrs. Dunn would now be entitled to her contingent interest. Mr. Flowers brought up Mr. Dunn’s old debt. The witness told Mr. Flowers this had been charged off and further that this would be an account receivable which was expressly withheld by Federal Royalty Company. Federal Royalty, at the time of the deed to appellants, did not give a deed to Mrs. Dunn because the $1500.00 had not been paid off. He never had any conversation with a representative of the National Bank of Commerce specifically relating to this property. In the witness’ opinion .the interest of L. H. Dunn continued so long as The Federal Royalty Company or any of its assigns had an interest in the property. -. The interest of The Federal Royalty Company terminated with the deed to appellants subject to the interest of L. H. Dunn. If the deed had not provided for Dunn’s contingent interest, the grantee might have been in a position to claim it was an innocent purchaser for value. “It was my intent,” the witness testified, “that if the Federal Royalty Company or its successors ever received $1500. from that property and had a continuing interest in it Mr. Dunn was to receive one-half of that interest.” The witness testified it was not his intention to wipe out Mr. Dunn’s interest by any kind of subterfuge. The last paragraph of the agreement gave Federal Royalty the right to sell the property “as if it were owned exclusively by us, but subject to our obligation to Mr. Dunn to give him a one-half interest after we received the return of $1500.” The witness •testified that at the time he drew the agreement he intended that Mr. Dunn would .have an interest that ran with the land.

Appellants’ position seems to be that the agreement merely created obligations between Federal Royalty Company and Dunn that were personal as between them; that Federal Royalty merely covenanted to pay Dunn one-half of the profits from the land. They say it was intended this right was a personal one in Dunn and was not intended to benefit his heirs or successors since the terms “heirs” or “successors” were not used. They say it was not a covenant running with the land. Further they say the deed to them from Federal Royalty Company merely provided they took “subject to” the agreement and they did not thereby assume the obligation to pay one-half of the net profits from the land. They equate this situation with the instance where a purchaser of land covered by a mortgage lien takes the land under a deed reciting the conveyance is “subject to” the mortgage. In such case the purchaser does not assume the obligation to pay the indebtedness secured by the mortgage. They do not deny the validity of the agreement as between Federal Royalty and Dunn. However, they seek to go behind the deed into them which recited they took the 192 plus acres “subject to the agreement” and show there had been a release by Dunn of his interest before thy took subject to.

Appellee says she does not think the agreement created covenants running with the land but this does not matter because by taking the land “subject to” the agreement this was a qualification on the interest received by appellants. She also contends that appellants because of the deed into them cannot go behind the deed. Even though only personal obligations may have originally been created the deed accepted by appellants was an assumption by them of the obligations of the agreement. Her position is that the acceptance of the deed with this provision recognizes that the agreement is at that time a valid and existent obligation.

The trial court’s judgment decrees that Mrs. Dunn is entitled to one-half of the profits having accrued and to accrue from and after appellants have recovered $1500.-00 income from the property in accordance with the “net profits” agreement. The court does not state the basis of such conclusion, that is, whether Mrs. Dunn is entitled to one-half of the net profits because appellants assumed a personal obligation to pay that portion of the profits or whether the agreement itself gave Mr. Dunn a one-half interest in the land, burdened with the $1500.00 advanced to Mr. Dunn by Federal Royalty to pay for his interest in the land. If Mr. Dunn had a one-half interest in the land, it would follow that he would be entitled to one-half of the income from the oil and gas production that was from the land. In this connection we note that Mrs. Dunn in her third amended original petition alleges that the agreement of October 12, 1937, granted Mr. Dunn a one-half interest in the land. However, the briefs do not discuss this.

Here we have an appeal from a summary judgment. In determining whether such a judgment should be granted the court must determine whether there is any issuable fact. In determining this every reasonable inference is to be drawn favorably to the party resisting the motion. Every doubt as to the existence of a fact issue is to be resolved against the movant. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Stewart v. Malek, 338 S.W.2d 501 (CCA), ref.

While appellants say they do not seek to attack the validity of the agreement, they apparently mean they admit that there was at one time a valid agreement between Mr. Dunn and The Federal Royalty Company. However, they attack its existence at the time of the conveyance to them by asserting there had theretofore been a release and also that it was barred by laches and limitation. The rule is that where a person takes a conveyance of land and in the deed into him, which is accepted by him, it is recited that he takes it subject to some contract he thereby admits its existence and its validity as of that time. He cannot attack its validity because he has acknowledged its valid existence as of that time and as a part of the consideration has contracted to honor it. J. P. Wooten Motor Co. v. First Bank of Swenson, 281 S.W. 196 (Comm.App.); Rice-Stix Dry Goods Co. v. First National Bank of McGregor, 231 S.W. 386 (Comm.App.); McMullan v. San Antonio Joint Stock Land Bank, 78 S.W.2d 669 (C.C.A.), writ ref.; Lowe v. Ragland, 156 Tex. 504, 297 S.W.2d 668; Loeffler v. King, 149 Tex. 626, 236 S.W.2d 772.

In Lowe v. Ragland, in interpreting the effect of the cases where a grantee takes subject to a mortgage, the Supreme Court said:

“Although the mortgage, being void, entails no risk of a deficiency judgment on the part of the grantor-mortgagor, and the practical result of the rule is simply to keep the grantee from getting a better bargain than perhaps he thought he was getting or to cause the grantor-mortgagor to have a less favorable bargain than conceivably he might have made with the grantee, the latter is yet held to have contracted an obligation to respect the mortgage and which he will not be heard to repudiate" (emphasis supplied)

The Lowe v. Ragland case involved a deed conveying land that said the conveyance was made “subject to” three other specified deeds. The court, citing Loeffler v. King, supra, held the same rule applied as in mortgage cases.

There was, therefore, no issuable fact as to whether there had been a release by Mr. Dunn of his rights or whether he was barred from asserting them by a lapse of time prior to the conveyance to appellants. The suit was filed within four‘years after the conveyance into appellants.

Neither was there an issue of fact.as to whether appellants were entitled to assert an offset or counterclaim because of alleged debts Mr. Dunn owed the Federal Royalty. The undisputed testimony of Mr. Handy, a disinterested witness who handled the transfer to appellants, who could in no conceivable way be said to have any possible liability, established the debts of Mr. Dunn were accounts receivable and were retained by Federal Royalty. Certainly appellants were, at least through their representatives, parties to the transaction, and in a position to file controverting affidavits if Mr. Handy’s testimony was untrue.

It is urged that summary judgment should not have been rendered because appellee failed to establish the land described in the deed was the same land described in the agreement of October 12, 1937. We think this is established by the deed itself. The land described in appellee’s petition is the same as that described in the deed into appellants and the deed expressly states that the described land is subject to the agreement.

The deed into appellants was sufficiently proven by the deposition of Mr. Handy. A copy does there appear but the deposition shows appellants’ counsel introduced the original and that a copy was to be substituted.

It is urged appellee failed to prove she was entitled to prosecute the suit because the alleged copies of Mr. Dunn’s will and the order admitting it to probate attached were not the originals or certified ones. Rule 166-A expressly provides that sworn or certified copies of all papers shall be attached to the motion. There was no sworn motion for summary judgment here and no affidavit supporting these alleged copies. This was raised in the trial court by appellants’ reply to the motion for summary judgment. There was, therefore, not sufficient proof to show Mrs. Dunn’s ownership and the judgment must be reversed. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274; Butler v. Davy Crockett Fed. Sav. & Loan Ass’n, 363 S.W.2d 390 (C.C.A.), error dism.

We now reach the question as to what the agreement amounted to. We have noted appellee pled the agreement in consideration for services rendered conveyed a one-half interest in the land. Then there is reference to the agreement as being a net profits agreement. Of course, if Mr. Dunn received a one-half interest in the land he would be entitled to one-half of the profits. In the state of the record we are unable to say as a matter of law just into what legal category the relation created would fit. However, in the light of the record we feel the inference could be drawn that there was a resulting trust with legal title in The Federal Royalty Company with the beneficial title in Dunn. The legal title would also be held to secure the $1500.00 if this amount was loaned to Dunn. Bogert on Trusts, Second Edition, Sec. 455. We are unable from the record to determine whether this was loaned to him to purchase a one-half interest or whether the purchase price was paid by Federal Royalty and Dunn’s interest was to result from his services in bringing the land to Federal Royalty and he was to have a one-half interest after the Company had been reimbursed for its purchase price. If Federal Royalty advanced the money on its own behalf to purchase the land, then we think the agreement was one that upon reimbursement the Company would hold title jointly for itself and Dunn. It might be referred to as an agreement, based upon a sufficient consideration, to hold title in trust upon the happening of a contingency, that is, upon its being reimbursed its cost. It might be called an agreement to create a trust upon the happening of this contingency. Even if title were not automatically vested upon the happening of the contingency, nevertheless equity would enforce the agreement by declaring the Company held in trust for Dunn. Bogert on Trusts, Second Edition, Sec. 112, pp. 508-509. Looking at the agreement, assuming the Company was paying the full purchase price, we think it was an agreement to hold title in trust for Dunn when it was reimbursed because it provides “thereafter (that is, after reimbursement), you are to be carried for and own one-half [}/£) interest in the land.”

Appellants seem concerned that they might be called upon to perform some act under the agreement when they did not assume to do so. Under the above view they are not required to do anything. They, assuming the realization from the land of $1500.00, merely held title to one-half as trustee. They by taking subject to this agreement have recognized that they will hold as trustee when they have realized $1500.00. Whether it be a resulting trust or an agreement to hold property in trust, the result is the same, that is, Dunn’s successors would be entitled to one-half interest in the profits.

The last paragraph in the agreement gives us no difficulty. It merely created authority in Federal Royalty to sell or lease without Dunn’s joinder.

The judgment is reversed and the cause remanded.

On Motion for Rehearing

On original disposition of this case we reversed and remanded the case because it did not appear that certified or sworn copies of Mr. Dunn’s will and the order admitting it to probate were in evidence. We have now been furnished with the original of appellee’s Third Amended Original Petition and attached to it as a part thereof are requisite certified copies. This being the only ground of reversal, the question arises as to the judgment now to be rendered.

We held that the trial court’s judgment finding that appellee was entitled to one-half of the net profits after appellants had recouped $1500.00 was supported under the uncontroverted evidentiary facts either on the basis of a resulting trust or an agreement to create a trust based on an adequate consideration. The court did not'state on which theory he based his judgment. The depositions, affidavits and pleadings will support either theory, depending on inferences drawn by the trier of the facts. No reasonable inference may be drawn, however, that would support any position taken by appellants. The result is that the court was correct in its judgment in favor of appellee.

Appellee’s motion for rehearing is granted. Our judgment reversing the cause is set aside and the judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Clarence CHARLES, Appellee.
    No. 7576.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 11, 1964.
    Rehearing Denied Sept. 8, 1964.

      Fuller & Fuller, Port Arthur, for appellant.
    Fred J. Rafes, Waldman & Smallwood, Beaumont, for appellee.
   CHADICK, Chief Justice.

This is a workman’s compensation case. The injured workman was awarded a total of $6875.36 in compensation for temporary total disability and permanent partial disability produced by an accidental injury received in the course of employment as a stevedore. The judgment of the trial court Is affirmed.

FIRST GROUP
“POINT OF ERROR NO. ONE. That the trial court erred in submitting special issues number thirty-one and thirty-two inquiring as to whether or not there was not one or more employees of the same class as the plaintiff working at least two hundred ten days in the year immediately preceding the date of Plaintiff’s injury, (Special Issue No. 31) ; and, in the event that the jury found that there was not such another employee, then inquiring as to a fair and just average weekly wage of the plaintiff (Special Issue No. 32) for the reason that there was no evidence to support a finding to Special Issue 31 to the effect that there was not such another employee, or, in any event, the evidence was entirely insufficient to support such a finding and without such a finding in answer to Special Issue No. 31, plaintiff was not entitled to a submission of Special Issue No. 32.
“POINT OF ERROR NO. TWO. That the trial court erred in overruling Defendant’s objections to the said Special Issues No. 31 and 32.”

The only evidence offered was that produced by the workman-plaintiff. The workman had been employed slightly more than two months by his employer at the time of injury on December 16, 1958, although he had worked for the same employer as a stevedore for some time in 1942 or 1943. Immediately preceding the employment engaged in at the time of injury he had been some four months in the service of a different employer. The greater part of his life had been spent as a resident of the area, Port Arthur, where he was working when injured.

While under the interrogation of his counsel he was asked if he had checked with friends and acquaintances to ascertain whether or not a stevedore in that area, performing work similar to that he was doing when injured, had worked as much as 210 days in the year preceding the date of injury. He answered, “I checked, but I didn’t find anybody”. He also said the persons he talked to did not work 210 days during the period inquired about, and that he did not know or hear of anyone employed in that time period for that number of days. The chief accountant for his employer testified that none of the employees, doing work similar to that of this workman, were on the job as much as 210 days during the year preceding injury.

Only slight evidence is required to sustain the jury’s verdict upon the two issues submitted. Texas Employers’ Insurance Association v. English, 368 S.W.2d 120, Ct.Civ.App.1963, writ ref., n. r. e.; St. Paul Mercury Insurance Company v. Jackman, 331 S.W.2d 253, Tex.Civ.App.1960, writ ref., n. r. e.; I. C. T. Insurance Company v. Wineman, 308 S.W.2d 549, Tex.Civ.App.1957, writ ref., n. r. e.; Transport Insurance Co. v. Co ssaboon, 291 S.W.2d 746, Tex.Civ.App.1956, writ ref., n. r. e. The workman’s connection with the industry, his long residence in the area, and probable familiarity with workmen following the longshoremen’s vocation, in the absence of a motive for failure would warrant the jury in giving weight and credence to his testimony that there was no other workman of the same class in the area who had worked in similar employment 210 days in the year preceding the date of injury. This evidence is superficial, still there is no other evidence tending to refute or discount it. Under the circumstances, it is sufficient to support the jury’s findings. A very recent case having a similar factual basis is Travelers’ Insurance Company v. Marmolego, 374 S.W.2d 280, Ct.Civ.App.1963; see also Southern Underwriters v. Boswell, 141 S.W.2d 442, Ct.Civ.App.1950; American General Ins. Co. v. Hightower, 279 S.W.2d 397, Ct.Civ.App.1955, writ ref., n. r. e.

SECOND GROUP
“POINT OF ERROR NUMBER THREE. The trial court erred in including in the submission of Special Issue No. 6, which issue inquired as to the duration of any total loss of the use of plaintiff’s left leg, the instruction to ‘answer by giving the number of weeks, not exceeding two hundred weeks’, for the reason that by so doing, the court informed the jury of the effect of their verdict of the judgment to be rendered by the court.
“POINT OF ERROR NUMBER FOUR. That the trial court erred in overruling Defendant’s objections to the submission of the said Special Issue No. 6.
“POINT OF ERROR NUMBER FIVE. That the trial court erred in the submission of special issue No. 10, which inquired as to the duration of any partial loss of the use of plaintiff’s left leg, the instruction to ‘Answer by giving the number of weeks, not exceeding two hundred weeks’, for the reason that by so doing the court informed the jury of the effect of their verdict on the judgment to be rendered by the court.
“POINT OF ERROR NUMBER SIX. That the trial court erred in overruling defendant’s objections to the submission of Special Issue No. 10.”

The appellant’s argument is skilfully summarized in this extract from its brief, to-wit:

“It is the position of the Appellant that the instruction complained of had the effect of explaining or advising the jury that the effect of a finding on their part that the plaintiff’s disability was limited to the leg would result in a judgment of a recovery of not more than two hundred (200) weeks compensation. Whereas, since no such limitation was placed upon the answer to the question relating to general disability, the jury would know that by answering affirmatively that the plaintiff had sustained general disability that he would receive more than two hundred (200) weeks compensation benefits. This is particularly true inasmuch as the plaintiff had read his pleadings to the jury wherein it was alleged that he was seeking to recover four hundred one (401) weeks compensation benefits for total permanent disability.”

Unquestionably the jury should not be purposely informed of the legal consequences of their answers to special issues submitted to them. McFaddin v. Hebert, 118 Tex. 314, 15 S.W.2d 213; Ex parte Fisher, 146 Tex. 328, 206 S.W.2d 1000; Robinson v. Lovell, Tex.Civ.App., 238 S.W.2d 294; Sisk v. Glens-Falls Indemnity Company, Tex.Civ.App.1958, 310 S.W.2d 118. This record contains no evidence that the jurors individually or collectively reasoned out the effect of their answers from the information contained in the court’s charge. It is obvious that had the jurors given thought to the effect of their answers, they could have concluded that if they found the injury to the workman’s left leg extended to and affected other parts of his body, thereby causing incapacity of a general nature, the workman would probably be entitled under the law to receive more than the 200 weeks of compensation he was limited to if they found his disability affected his left leg alone.

The question necessary to decision is whether or not the instructions given are harmful when the entire record is considered. Rule 434, Vernon’s Ann.Tex.Rules. To reach the salient question, it will be assumed that the court’s charge was erroneous, although that specific question is not decided.

Except by instructions not to do so, no method is perceived by which the trial judge might submit all issues raised by the pleadings and evidence in this case without leaving an opportunity for jurors, if they chose, to speculate upon the effect of their answers. In this instance had the Judge omitted the challenged instructions and placed no limitation on the jury’s answers, as he did with respect to the general disability issues, the jury’s findings, if they exceeded the maximum allowed by law, could have been controlled by judgment. But a juror, of ordinary mental capacity, had he reflected upon the question, could have, and probably would have, concluded that the compensation law would surely allow more weeks of compensation for an injury incapacitating the body generally than for an injury confined to and incapacitating one leg. Common sense, if not common knowledge, would suggest that since the body is greater than one of its parts, the compensation allowed by law would increase in proportion to the incapacity caused by the extension of the injury over the body. A juror’s speculation, if he indulged in it, would bring him to the same conclusion whether the Judge gave the instructions objected to or left them out. Harm is not shown. See Texas Employers’ Ins. Ass’n v. Logsdon, 278 S.W.2d 893, Tex.Civ.App.1954, writ ref., n. r. e.; Tripp v. Bloodworth, 374 S.W.2d 713, Tex.Civ.App.1964, and St. Paul Fire and Marine Ins. Co. v. Foster, 375 S.W.2d 355.

THIRD GROUP
“POINT OF ERROR NUMBER SEVEN. The trial court erred in refusing to submit the special issues requested by the defendant seeking a finding by the jury as to whether or not a subsequent automobile-bus accident in which the plaintiff was involved on or about February 16, 1959, contributed to the disability of the plaintiff.
“POINT OF ERROR NUMBER EIGHT. That the trial court erred in refusing to submit the following substantially correct definition of the term ‘producing cause’ :
“ ‘By the term “producing cause” as used in this charge, is meant that cause, which in a natural and continuous sequence, unbroken by any new and independent cause, produces the disability, if any, inquired about, and without which, such disability,' if any, would not have occurred.’ ”

Proof was made that the workman received an injury on December 16, 1958, that was found by the jury to be a producing cause of his disability, and of course, compensable under the Workmen’s Compensation Law. On February 16, 1959, in an auto-bus collision the workman received a non-compensable injury. Special Issue No. 25 reading as follows,

“Do you find from a preponderance, of the evidence that the disability, if any, of the plaintiff, is not solely caused by the injury, if any, sustained by plaintiff in the bus-automobile collision of February 16, 1959, arising wholly independent of and not aggravated by an injury, if any, sustained by him on December 16, 1958?”

was answered by the jury: “It is not solely caused”.

The fifth point of error is grounded upon the failure of the trial judge to submit issues to determine whether or not the collision injury of February 16, 1959, was a producing cause of the workman’s disability. Unless the collision injury was the sole producing cause of the workman’s disability that was found by the jury to have been incurred as a result of the December 16, 1959, injury, it was immaterial whether or not the collision injury also was a producing cause. Texas Employers’ Ins. Ass’n v. Frankum, 148 Tex. 95, 220 S.W.2d 449, 1949; Texas Indemnity Ins. Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026; Op. Adpt., Texas Indemnity and Insurance Company v. Dean, 77 S.W.2d 748, Tex.Civ.App.1934. Special Issue No. 25 fairly submitted the ultimate issue made by the pleading and proof.

The instruction defining “producing cause” as “that cause, which, in a natural and continuous sequence, produces the disability, if any, inquired about and without which the disability, if any would not have occurred. Hiere may be more than one producing cause of a disability”, is in a; form that is adequate for this case. See Workmen’s Compensation, 45 Tex.Jur. 475, Sec. 82.

Finding no error requiring a reversal of the trial court, the appellant’s points of error are overruled and the judgment is affirmed.


text:
    Robert L. TORRANS and E. A. Stewart Lumber Co. Inc., Appellants, v. TRI-STATE IRON AND METAL COMPANY, Appellee.
    No. 7592.
    Court of Civil Appeals of Texas. Texarkana.
    July 28, 1964.
    Rehearing Denied Aug. 25, 1964.

      Arnold & Arnold, Texarkana, Ark., Raf-faelli & Keeney, Texarkana, Tex., for appellants.
    Harkness & Friedman, Texarkana, Tex., for appellee.
   CHADICK, Chief Justice.

This action was instituted as a suit authorized by Art. 2524-1, Vernon’s Ann.Tex. Civ.St., the Uniform Declaratory Judgments Act. The judgment of the trial court declaring the parties’ rights and awarding damages is affirmed as modified.

The pleadings do not figure in the determination of any question so only the general factual foundation of the action will be summarized. E. A. Stewart Lumber Company, Inc., as plaintiff in the trial court, instituted the suit, naming Robert L. Torrans and Tri-State Iron and Metal Company, a corporation, as defendants. In April, 1962, the lumber company contracted to sell a parcel of the land and certain improvements thereon to Torrans, but reserved the right to remove from the premises a steam boiler installation. In the contract the lumber company agreed to repair any damage done through negligence or fault of it or its assigns in dismantling the installation, In May, 1962, the lumber company sold the boiler installation to Tri-State Metal Company. In the contract evidencing this sale, Tri-State agreed “ * * * to live up to and perform the obligation of E. A. Stewart Lumber Company, Inc., and Robert L. Torrans insofar as the same are applicable to-the removal of the items purchased by the purchaser and to hold the seller hereunder harmless from the same”. The following October during the dismantling operation a boiler plunged through a wall of the building housing it and the building collapsed.

At the culmination of a non-jury trial, judgment was entered, which, in declaring the rights of the parties, adjudged that Tor-rans recover from the lumber company $1750.00 as damages for the destruction of the building, granting, however, to the lumber company judgment over for a like sum against Tri-State. No interest by way of damages, or otherwise, on the money award was allowed for the period of time prior to judgment. Mr. Torrans 'has perfected an appeal, as has the lumber company, but the latter’s purpose is only to preserve its position and right to judgment against Tri-State for an equal amount should Torrans be successful in securing in this appeal an increased judgment.

Appellant Torrans has grouped and briefs together his seven points of error. The brief states that the sole question in controversy is the amount of damages due him, though some of his points allude to the presence of other issues; it is patent, however, that Torrans’ prime objective is to establish that the trial court erred by failing to fix damages to his building in the sum of $5,-250.00, or alternately $5,000.00.

At the trial Torrans offered as a witness an appraiser who testified the building and the tract upon which it was located had a market value of $150,000.00 immediately before damage to it, and a market value of $144,750.00 immediately afterwards. Mr. Torrans as a witness in his own behalf placed a market value of $140,000.00 upon the property immediately before damage and $135,000.00 immediately afterwards. In addition Torrans proffered the testimony of his appraisal witness to show the building’s value just prior to destruction reached by a different appraisal technique. The method the witness used involved the multiplication of the square footage of the building’s floor space by a square foot rental value modified to allow for vacancy to find the gross annual rent the building would produce. From this gross rental he deducted the cost of taxes, insurance, management, deferred maintenance and repairs, and six per cent per annum of the value of the land accommodating the building. Such calculations produced the building’s net annual rental income. The net income for the useful life of the building capitalized at 6%, according to this witness, showed the building to have a value of $5,250.00 at the time of destruction.

On the basis of the value evidence sketched above, Torrans’ brief insists that as a matter of law Torrans should have had judgment in the trial court for $5,250.00, or in any event for $5,000.00, because the proof referred to was the only evidence of value admitted before the trial court. The absence of other evidence of value, it is argued, excepts the value testimony here from the application of the general rule that testimony of interested parties and expert witnesses is not conclusive on the trier of facts. Support of this argument is read by Torrans into the following extract from the opinion in Joffre v. Mynatt (Tex.Civ.App.) 240 S.W. 319, N.R.E., to-wit:

“But appellee’s case does not rest entirely on opinion testimony based upon comparison, but, in a material measure, on facts which, taken in connection with the opinion of the witnesses, together with other circumstances revealed by the case, were sufficient evidence to warrant a reasonable belief of the existence of the fact which the appellee sought to prove, to wit, that appellant executed the note sued on. * * *»

The argument advanced is that the value reached by the capitalization of net income method qualifies as “facts” and “other circumstances revealed by the case” which would deprive the judge in this instance of determining the credibility and weight of the testimony.

The appellants’ point is not sustained. The capitalization theory is but another opinion as to value reached from a different approach. Such an opinion is not a circumstance of an independent factual nature contemplated by Joffre v. Mynatt. It should be noted, however, that there was considerable evidence before the trial judge showing the original cost, type of construction and materials used in the building, that it had been subjected through eighteen years to harsh and extraordinary use by reason of the high temperatures developed in operating the boiler installation, and in recent years had been poorly maintained and was in a rundown condition at the time of the damage. The evidence was ample to guide the judge in reaching his decision and his judgment reached in the exercise of the discretion lodged in him as trier of the facts is supported by sufficient evidence.

It is undisputed that the damage occurred on October 8, 1962, and the amount thereof is determinable by fixed rules of evidence and known standards of value. Interest from the date of injury at the legal rate of six per cent per annum should have been assessed as damages. Watkins v. Junker, 90 Tex. 584, 40 S.W. 11; Texas & N. O. R. Co. v. Dingfelder and Balish, Inc., 134 Tex. 156, 133 S.W.2d 967; Texas Company v. State of Texas, 154 Tex. 494, 281 S.W.2d 83; Dale Truck Line, Inc. v. R. & M. Well Servicing and Drilling Company (Tex.Civ.App., 1956), 286 S.W.2d 446, writ ref., n. r. e. The judgment of the trial court will be modified by allowing a recovery in the principal judgment and the judgment over of interest from the date of injury until the date of judgment.

The judgment of the trial court as modified is affirmed.