author: McClendon, C. J.

text:
    PETER CO. v. GREEN.
    No. 7700.
    Court of Civil Appeals of Texas. Austin.
    Sept. 30, 1931.
    Rehearing Denied Oct. 28, 1931.
   McClendon, C. J.

The writ of error in this cause, seeking review of a judgment of the county court of Milam county, was sued out on June 29,1931. Appeal, upon a supersedeas bond, from the same judgment was taken February 24, 1931, the record filed in this court May 16, 1931, and the trial court’s judgment this day affirmed. 42 S.W.(2d) 1054.

■ Appellee now moves for a dismissal of the writ of error.

“The Court of Civil Appeals has no jurisdiction of a writ of error from a judgment sued out pending an appeal, where, before the hearing of the writ of error, the case has been finally disposed of on the appeal on its merits.” Broocks v. Lee, 47 Tex. Civ. App. 424, 105 S. W. 1016 (error refused). For other authorities, see 3 Texas Jurisprudence, 53, § 15,

The motion is granted, and the writ of error is dismissed.

Motion granted.


source: Caselaw Access Project

author: ALEXANDER, J.

license: Public Domain

text:
    WHORTON v. NEVITT et ux.
    No. 1139.
    Court of Civil Appeals of Texas. Waco.
    Oct. 22, 1931.
    Smithdeal, Shook, Spence & Bowyer, of Dallas, for plaintiff in error.
    Bird. & Bird and W. S. Bramlett, all of Dallas, for defendants in error.
   ALEXANDER, J.

This was an action brought by Charles M. Nevitt and wife against John R. Whorton to recover double the amount of certain usurious interest alleged to have been paid by plaintiff to the defendant. The plaintiffs prayed in the alternative for the excess interest paid to Whorton over and above that allowed by law. During the pendency of the suit, Whorton died and Mrs. Lucy Clark Whorton, his widow, as administratrix of his estate, was substituted as defendant. The case was submitted to a jury on special issues, and, upon the verdict of the jury, judgment was entered for the plaintiffs for the sum of $2,271.32, being double the amount of interest so paid. The defendant sued out this writ of errpr.

After Mrs. Whorton, as administra-trix of said estate, was substituted as a party defendant, she filed an answer therein, But apparently neither she nor her attorney were present in court at the time the case was tried. On the day the case was tried, the court permitted the plaintiffs, by oral motion and without notice to the defendant, to file a substitute for their first amended original petition which had been lost. The plaintiff in error contends that she is entitled to have the case reversed because said pleadings were substituted without a sworn motion and without notice to her.

Revised Statutes, art. 2289, provides that where a pleading is lost, and the parties do not agree in writing as to the contents of the lost instrument, the party desiring to substitute such lost instrument may, after giving the adverse party or his attorney three days’ notice, make a sworn motion to have same substituted, and if upon a hearing thereof it is found that the paper offered as a substitute is a true copy of the original, the same may be substituted in lieu of such original. Under this statute, and in the absence of an agreement, it is essential before a pleading can be substituted that, a sworn motion be filed and that notice thereof be given to the adverse party. Such adverse party is entitled, if he desires to do so, to contest the allegation that the instrument offered as a substitute is a true copy of the lost instrument. Notice to him that such a motion has been filed seems to be essential to give the court jurisdiction to act théreon. Since no sworn motion was filed and no notice was given, a judgment based on the substitute pleading was illegal. Revised Statutes, art. 2289; Watson v. Miller Bros., 69 Tex. 175, 5 S. W. 680; Newman v. Dodson, 61 Tex. 91; Crosby v. Di Palma (Tex. Civ. App.) 141 S. W. 321; Strohmeyer v. Wing (Tex. Civ. App.) 77 S. W. 977; Watson Co., Builders, v. Bleeker (Tex. Civ. App.) 285 S. W. 637; John Hamilton & Co. v. Western Union Telegraph Co., 35 Tex. Civ. App. 602, 81 S. W. 58.

The plaintiff in error raises the further proposition that the defendants in error’s action, or at least a part thereof for which they were allowed a recovery, was a suit for a penalty, and that the cause of action therefor did not survive the death of John R. Whorton, the original defendant. As before stated, the suit was originally against John R. Whorton and was to recover double the usurious interest alleged to have been paid to him, and in the alternative for the excess interest over and above that allowed by law. Whorton died during the p&dency of the suit, and his widow, as administratrix of his estate, was substituted as defendant. The court allowed a recovery of double the amount of interest paid.

At common law, the death of the defendant in an action to recover a penalty abated the action. The common-law rule applies in this state, and, in the absence of an express statutory provision to the contrary, actions and causes of action for the recovery of statutory penalties do not survive, and, in the case of a pending action, the death of a defendant is an incurable abatement. Johnson v. Rolls, 97 Tex. 453, 79 S. W. 513; Watson v. Loop, 12 Tex. 11; Ellis v. Brooks, 101 Tex. 591, 102 S. W. 94, 103 S. W. 1196; State v. Sehuenemann, 18 Tex. Civ. App. 485, 46 S. W. 260 (writ denied); Mason v. Adoue, 30 Tex. Civ. App. 276, 70 S. W. 347 (writ denied).

Revised Statutes, art. 5073, provides that, where usurious interest is paid, “The person paying the same or his legal represent tative may by an action of debt recover double the amount of such interest from the person, firm or corporation receiving the same.”

It will be noticed that the statute allows a recovery in favor of the legal representative of the person paying the usurious interest, but does not allow a recovery against the legal representative ■ of the person receiving the same. The statute does not, therefore, by its own terms, provide that the cause of action shall survive in the event of the death of the party receiving the usurious interest. We do not find any other statute providing that such a cause of action shall survive. The above statute does provide, however, that the amount allowed by the statute may be recovered in an action for debt, and this leads the defendants in error to contend that the right of action is for debt, which survives, and not an action for penalty, which does not survive. The question, therefore, to be determined is: Whether the action is for a debt or for a penalty? We do not think that the fact" that the statute provides that the amount allowed thereby may be recovered -in an action of debt, furnishes any criterion for determining whether it is in fact a debt or a penalty. This question is to be determined not by the nature of the action by which the amount is to be recovered, but by looking to the provisions of the act and the. purposes to be accomplished, as disclosed by the language of the Legislature. Johnson v. Rolls, 97 Tex. 453, 79 S. W. 513; Schloss v. A., T. & S. F. Ry. Co., 85 Tex. 601, 22 S. W. 1014; Mason v. Adoue, 30 Tex. Civ. App. 276, 70 S. W. 347 (writ denied).

A penalty is a sum of money of which the law exacts payment by way of punishment for doing some act that is prohibited, or omitting to do some act that is required to be done. The term involves the idea of punishment. 25 C. J. 1178. The injured party’s action to recover double the usurious interest paid is purely statutory. In the absence of such a provision, the injured party would have a right to recover the excess interest paid over and above that allowed by law, as money had and received, but .he would not have a right to recover double the usurious interest so paid. The statutory recovery is allowed, 'not by way of compensation to the injured party for a loss sustained by him, but by way of punishment to the offender. It therefore contains all the essential elements of a penalty.

In 1891, our Constitution was amended so as to allow a recovery in such a case, and provides as follows: “All contracts for a greater rate of interest than ten per centum per annum shall be deemed usurious, and the first legislature after this amendment is adopted shall provide appropriate pains and penalties to prevent the same. * * * ” (Constitution, art. 16, § 11).

Revised Statutes, article 5073, in its present form, was enacted in 1907 (Acts 1907, c. 143). The title to the Act read: “Usury — Prescribing pains and penalties for collection.” The caption of the act recited that it was an act “prescribing the pains and. penalties for the collection of usurious interest,” and the emergency clause referred to it in like terms. These terms as used both in the Constitution ánd in the enacting clause of the act indicate clearly that the amount allowed to be recovered thereunder was intended as a penalty to punish the offender, and not merely to reconf-pense the injured party for the loss sustained by him. In the case of Baum v. Daniels, 55 Tex. Civ. App. 273, 118 S. W. 754, at page 757, the court, in considering this statute, said: “The statute giving the remedy upon which this suit was based is to an extent penal in its nature, and by its terms fixes the sum that may be recovered at double the usurious interest collected.”

We therefore hold that the defendants in error’s action in part was to recover a penalty, and abated upon the death of John R. Whorton. Interstate Savings & Trust Oo. v. Wyatt, 27 Colo. App. 217, 147 P. 444; Patterson v. Wyman, 142 Minn. 70, 170 N. W. 928; Allen v. Petty, 58 S. C. 240, 36 S. E. 586; Schreiber v. Sharpless, 110 U. S. 76, 3 S. Ct. 423, 28 L. Ed. 65.

Upon another trial and upon a proper showing, the defendants in error should he allowed to recover the excess interest paid hy them over and above that- allowed by law, but should not be allowed to recover double the amount of interest paid by them as a penalty. The other assignments of error complain of alleged errors that will not likely arise in the same manner upon another trial, and therefore we do not discuss them.

The judgment of the trial court is reversed,' and the cause remanded for a new trial.


author: WILLSON, O. J.

text:
    ELLIOTT et al. v. WALLACE et al.
    No. 4052.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 30, 1931.
    Rehearing Denied Oct. 22, 1931.
    P. A. Sanders, of Nacogdoches, and E. A. Taylor, of Henderson, for appellants.
    John M. Tipps and Lee G. Carter, both of Dallas, for appellees.
   WILLSON, O. J.

(after stating the case as above).

It appeared that the land in controversy did not belong to the separate estate of either William Cooper or his wife, Martha Elliott Cooper, and that title to same was acquired by them while they were husband and wife. Hence it must be said it appeared the land belonged to the community estate between said William Cooper and Martha Elliott Cooper. Article 4619, R. S. 1925. But it appeared, further, that the deed from Cornelius Cooper was to William Cooper alone. Hence it must be said it appeared that the legal title to the land was in William Cooper, and that the title of Martha Elliott Cooper and her heirs to an undivided interest therein was an equitable one. Mitchell v. Schofield, 106 Tex. 512, 171 S. W. 1121. The legal title being in William Cooper, and the title in Martha Elliott Cooper to an interest in the land being an equitable one only, the burden' was on appellants to show that the purchasers of the legal title in William Cooper were not innocent purchasers within the meaning of the law, and as such entitled to protection as against the equitable title asserted by them (appellants). Ferguson v. Dodd (Tex. Civ. App.) 183 S. W. 391. It follows that, if appellants did not discharge such burden, the trial court had a right to say they had failed to make the case they relied on for relief and to instruct the jury as he did and on their verdict render the judgment he did render, without respect to whether the defenses interposed by appellees to the recovery sought against them were established or not. We have not been referred to, and have not found in the record sent to this court, evidence showing that either R. J. Blackwell, to whom heirs of William Cooper conveyed the land, R. F.’ Crowley, to whom Blackwell conveyed it, E. B. Alford, to whom Crowley conveyed it, C. H. Gilstrap, to whom Alford conveyed it, W. G. Thrasher, to whom Gilstrap conveyed it, or appellees, to whom Thrasher conveyed it, did not occupy the position of an innocent purchaser for value without notice of the equitable title in Martha Elliott Cooper to an interest in the land: The law being that the failure of appellants to prove that the purchasers named or any one of them did not. occupy such a position operated to deny appellants a right to recover as they sought to (Huling v. Moore [Tex. Civ. App.] 194 S. W. 188), we think it cannot be said the trial court erred when he instructed the jury as he did, and rendered the judgment of which appellants complain.

The judgment is affirmed.


author: HICKMAN, C. J.

text:
    TEXAS INDEMNITY INS. CO. v. DILL et al.
    No. 899.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 9, 1931.
    Rehearing Denied Nov. 6, 1931.
    Conner & McRae, of Eastland, for appellant.
    Grisham Brothers, of- Eastland, for appel-lees.
   HICKMAN, C. J.

This suit was instituted by appellee Mrs. Johnnie G.. Dill, for herself and as next friend for her minor children, to set aside an award of the Industrial Accident Board on a claim for compensation on account of the death of Homer Ike Dill, her husband and the father of her minor children. It was alleged that Magnolia Petroleum Company was the employer and appellant the compensation-insurer. Judgment was for compensation' for 360 weeks at $13.33 per week, with inter-, est and costs.

We have concluded that there is one controlling issue presented necessitating that judgment be rendered for appellant, and shall discuss that question only. It arises upon the answers of the jury to special issues Nos. 8 and 9, as follows:

“Special Issue No. 8: Did Homer I. Dill sustain his injuries while in a state of intoxication?
“Special Issue No. 9: If you have answered the foregoing issue ‘No,’ then you need not answer the following special issue, but if you have answered it ‘Yes,’ then answer the following issue:
“Did the intoxication of Homer I. Dill contribute to the injuries resulting in the death of Homer I. Dill?”

Issue No. 8 was answered “Yes,” and issue No. 9 was answered “No.” The sufficiency of the evidence to support these answers is not challenged by either party. Appellant’s contention is that, upon the answer to special issue No. 8, judgment should have been rendered in its favor without regard to the answer to special issue No. 9.

The Workmen’s Compensation Law, article 8309, § 1, second subsec. 3, R. S. 1925, provides: “The term ‘injury sustained in the course of employment,’ as used in this law, shall not include: * * * (3) An injury received while in a state of intoxication.”

This is wholly a statutory proceeding. It is being prosecuted under the Workmen’s Compensation Law. That law provides, in article 8307, § 5, R. S. 1925 (as amended by Acts 1927, c. 223, § 1 [Vernon’s Ann. Civ. St. art. 8307, § 5]), that, whenever, a suit is brought thereunder, “the rights' and liability of the parties thereto shall be determined by tlie provisions of this law.” This would necessarily be true, even though the act itself had not so declared, for the proceeding is a stranger to the common law, and can derive no aid therefrom. Since whatever rights ap-pellees have were created by this law, they must also be measured thereby. By article 8306, § 3b, it is provided that: “If an employee * * * sustains an injury in the course of his employment, he shall be paid compensation. * * * ” This provision brings within the application of the law employees who sustain injuries in the course of their employment, and excludes therefrom employees whose injuries were not so sustained. The jury has found upon evidence, the sufficiency of which is not challenged, that the deceased sustained the injuries from which he died while he was in a state of intoxication. The plain unambiguous provision of the statute first above quoted is that an injury received by an employee while in a state of intoxication is not included in the term “injuries sustained iri the course of employment.” The conclusion is inescapable that the deceased'did not sustain his injuries in the course of’ his employment, and that, since compensation is provided for those employees only who do so sustain injuries, had his injuries not proved fatal, he would not have been entitled to compensation. For the same reason his beneficiaries are excluded, for it is provided by article 8309, § 1, second subsec. 4, that: “Any reference to an employee herein who has been injured shall, when the employee is dead, also include the legal beneficiaries. * * ⅜ ”

The rule of liberal construction to carry out the beneficent purposes of this legislation does not operate to change the conclusion above announced. That rule is properly applied when there exists an ambiguity or uncertainty. But the statutes above quoted are not ambiguous or uncertain. There -is nothing to construe. Were there any other provisions of the entire act which in any manner conflict with the provisions above quoted, then an ambiguity would arise, and we would be authorized to construe the act as a whole, in the light of the rule above referred to. But we are unable to find any provision of the entire Workmen’s Compensation Law which even tends to create an ambiguity with reference to whether an employee is in the course of his employment while in a state of intoxication. The subject of intoxication is mentioned in article 8306, § 1, subsec. 3. That article has. to do with actions to recover damages for personal injuries. We are not called on to construe that subsection in this case, but we have considered it carefully, and can find nothing therein contained in conflict with the provision ’sere under consideration or that would tend to create an ambiguity with reference thereto.

The court should not have submitted special issue No. 9. Proximate cause, as applicable to negligence eases under the common law, has no place in the Workmen’s Compensation Law. Since that issue was immaterial, the' jury’s answer thereto was likewise immaterial, and should have been disregarded.

We have not overlooked the cases of Hartford Accident & Indemnity Co. v. Durham (Tex. Civ. App.) 222 S. W. 275, and Employers’ Casualty Co. v. Watson (Tex. Civ. App.) 32 S.W.(2d) 927. These cases have been carefully considered, but we find ourselves unable to agree with them in so far as they deal with the question involved in this case. To our minds, the effect of those opinions is to add a provision to the Workmen’s Compensation Law which the Legislature did not see fit to place therein.

There would be no justification for remanding this cause for another trial. As above noted, the jury’s finding in answer to special issue No. 8 is unchallenged. It therefore becomes our duty to render here the judgment which, in our opinion, the trial court should have rendered.

We accordingly order that the judgment of ¡the trial court be reversed and judgment here rendered for appellant.


author: LEVY, J.

text:
    RADFORD v. RADFORD.
    No. 4065.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 24, 1931.

      See, also (Tex. Civ. App.) 42 S.W.(2d) 1064.

      Robert E. O’Keefe, of Longview, for plaintiff in error.
    E. M. Bramlette, of Longview, and Wal-ace Hawkins, of Dallas, amicus curiae.
    Houtehens & Houtchens, of Eort Worth, for defendant in error.
   LEVY, J.

(after stating the case as above).

The plaintiff in error by his assignments of error presents, in effect, the points in view, as grounds requiring the decree of divorce to be set aside and vacated, namely:

(1) That his petition was subject to a general demurrer because lacking in averment of sufficient legal grounds for divorce;

(2) That the judgment was tafeen by default without service of citation and without an appearance, acceptance, or waiver of process by the defendant;

(3) That the judgment was by default at a term of court before the return term of court and appearance day at which the law authorized the defendant to plead or make answer.

It is elementary and fundamental that the petition of the plaintiff must state facts sufficient to constitute a legal cause of action in his favor against the defendant; otherwise the petition would be so defective as to fail in setting out a legal cause for divorce and the jurisdiction of the court would not be invoked, and the judgment in favor of the plaintiff would be void. If there is a sufficiency of matters of substance alleged to constitute a legal cause for divorce, then the petition would be good as against a general demurrer, and the jurisdiction of the court would be invoked. In the present case the petition, as ground for divorce, averred generally that for two or three years the wife by a practiced course of cruel and harsh treatment, abuse and constant nagging toward him, and by the abuse of his children by a former marriage, has made “their living together as husband and wife unbearable and insupportable.” There was also an allegation of false charge of adultery. It can be said that this latter averment, standing by itself and alone, would not entitle the husband to a divorce as for cruelty. McAlister v. McAlister, 71 Tex. 695, 10 S. W. 294. Such circumstance or factual element, however, is not entirely irrelevant and may be considered along with the other special circumstances in determining whether or not there is such ill treatment and misconduct of the offending spouse as to cause an unbearable marital relation and unpleasant home for the husband. And considering the allegations altogether, It is thought that it cannot be held that there is not sufficient statement of facts authorizing the court to hear evidence upon and award a decree of divorce. McCullough v. McCullough (Tex. Com. App.) 36 S.W.(2d) 459. If the allegations should be more definite and certain, a special exception and not a general demurrer is the proper means to do so. It is not required that every act going to make up ill treatment be specifically described in the language of the statute (Rev. St. 1925, art. 4629). Denning v. Denning (Tex. Civ. App.) 99 S. W. 1029; Gamblin v. Gamblin, 52 Tex. Civ. App. 479, 114 S. W. 408. The first point, therefore, must be overruled, since, as we conclude, the petition is not so defective as to fail in setting out a legal cause for divorce, and the jurisdiction of the court to' try the cause was invoked.

The second point attacks the authority of the decree of divorce for lack of jurisdiction over the defendant Lizzie Rad-ford. The decree of divorce as formally entered by the court recites on its face that Lizzie Radford, the defendant in the action, “waived service of citation, as required by law.” In virtue of this recital, under the general unquestioned rule, the presumption must be indulged that the court duly acquired jurisdiction of the person of the defendant by h£r waiver of citation. 3 Tex. Jur. 289; R. C. L. p. 888; 23 Cyc. 766. And looking to the record there affirmatively appears a formal instrument duly filed in the cause by the district clerk, attested by two witnesses, and purporting to be executed and signed by the defendant, Lizzie Radford. This instrument of writing shows on its face, as recited in the decree of divorce, an express waiver by Lizzie Radford of “the issuance and service of citation, and certified copy of plaintiff’s original petition in said cause*.” The instrument read in its entirety shows, by words and intention, an undertaking on the part of Lizzie Radford, not only to waive service of citation, but to duly enter her appearance for all purposes of the case. As stated in the instrument by Lizzie Radford, she “makes this her appearance and answer herein * * ⅞ and agrees that same (the suit for divorce) may proceed to trial and judgment as if she had been duly cited according to law, denying the allegations in said petition, and demanding strict proof thereof.” The language clearly evidences the entering of a general appearance. Mueller v. Heidemeyer, 49 Tex. Civ. App. 259, 109 S. W. 447; St. Louis & S. F. R. Co. v. Hale, 109 Tex. 251, 206 S. W. 75. And it would seem to constitute an appearance within the purview of article 2047, R. S. Such instrument being required by law to be filed by the clerk of the court, may be looked to as a part of the record, as it would be authorized to be included in the transcript under the rules. Head v. Bank (Tex. Civ. App.) 16 S.W.(2d) 298. There is no pretense on the record that the defendant Lizzie Rad-ford in any wise made withdrawal of her waiver and appearance before the decree of divorce was made by the court. There is a motion to strike this waiver from the transcript, but the motion cannot be sustained, upon the ground urged. The court had the right to order the clerk to place the “file mark” upon it, there being no question made of its actual signing by defendant and delivery to the clerk on the date the “file mark” reflects. 3 Tex. Jur. 548. There appearing proof, not only by presumption, but of fact of waiver of service and appearance by the defendant, the second point must be overruled.

As respects the third point, the record shows that the action for divorce was filed for more than a year before the decree was entered. The petition for divorce was filed on September 19, 1929, and the decree of divorce was not made until November 1,1930, the last day of the regular October term. Hence article 4632 of the statute was not violated, forbidding the trial of a divorce case until thirty days after the same is filed. That article, though, refers to the filing of the petition and does not have application to the filing of the acceptance of service. Davis v. Davis (Tex. Civ. App.) 271 S. W. 643. And the decree of divorce may not be held void upon the ground merely that it was made on November 1, 1930, the very day the waiver of service by the defendant was dated. The waiver of the defendant was general and in no wise placed any condition or limitation upon the time of the trial of the divorce case, or stipulated that the trial of the case should be delayed for any number of days. Since the waiver and appearance of Lizzie Radford was for general purposes, such character of appearance would legally operate to give jurisdiction to the' court as to the .whole case. Landa v. Banting Co. 10 Tex. Civ. App. 582, 31 S. W. 65. And the court was authorized to try the case at the same term of court at which the waiver was filed. Article 2036, R. S., allowing a defendant until the return term of court next after service in which to plead, applies only to personal service. Hill v. Baylor, 23 Tex. 261. Hence it may not be said that the decree was void because entered at any erroneous term of court, or prematurely, and the third point should be overruled. The judgment appearing in the record of date April 6, 1930, which when looked to as evidence, makes manifest that the court had jurisdiction of the defendant and the original divorce decree was in all things legally valid.

In addition to the reasons already given above, which we deem conclusive of the appeal, there is a further ground which, it is thought, compels a denial of any relief to the plaintiff in error. He himself brought this suit, and invoked the jurisdiction of the court and obtained a decree of divorce from his wife, and now. by appeal by way of writ of error seeks to set the divorce aside, claiming the nullity of the decree and the want of jurisdiction over the wife. The principle seems clearly recognized that the plaintiff cannot be heard on appeal to claim the nullity of a decree in his favor, he having invoked the jurisdiction of the court and asked its rendition. Lacey v. Lacey, 38 Misc. Rep. 196, 77 N. Y. S. 235 ; 3 Story Eg. Jur. (14th Ed.) § 2020.

In passing it will be observed that the appellate court may not be held to be without jurisdiction to entertain this writ of error upon the ground that John Radford had chosen another method for the review and of vacating the original decree of divorce. John Radford had the right to appeal from one of the two distinct decrees, and the election and choice can be treated in the circumstances as having occurred when he exercised and perfected his right of writ of error. The writ of error being sued out and perfected within the statutory time, the right to the writ of error would not be foreclosed, 'and the appellate court would have jurisdiction to revise and review the decree of divorce.

The decree of divorce is in all 'things affirmed.


text:
    RADFORD ert al. v. RADFORD.
    Motion No. 5219.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 24, 1931.

      Robert E. O’Keefe, of Longview, for appellants. ,
    E. M. Bramlette, of Longview, and Walace Hawkiris, of Dallas, amicus curise.
    Houtchens & Houtchens, of Fort Worth, for appellee.
   LEVY, J.

(after making the statement above).

In virtue of article 1841, R. S., the motion filed will be granted, asking affirmance of the judgment as entered in cause “No. 7526,” which was a judgment refusing to vacate and set aside the divorce decree theretofore rendered in cause “No. 7185.”

In this matter it will be noted that on this day the decree of divorce in the writ of error proceeding in cause “No. 7185” was by this court affirmed. 42 S.W.(2d) 1060. By express terms of statute there is allowable to a party to the suit, as a legal right, the remedy of writ of error, as one of two modes for the review and revision by the appellate court of a judgment rendered in the district and county courts. Such remedy is made a continuing one for six months from the date of the judgment. Article 2255, R. S. The appellate court, when the writ of error is sued out and perfected, thereby acquires active and exclusive jurisdiction over the case. The writ of error being sued out and perfected within the statutory time in this case, the appellate court would have jurisdiction to review and revise the original divorce decree although the plaintiff John Radford had filed an independent suit and prosecuted it to judgment' to review and vacate the divorce decree before the six months time allowed to sue out a writ of error had expired. John Radford’s right to such writ of error would not necessarily, as a matter of law, have been foreclosed and barred by reason of the independent suit. The question is not before us now for ruling of whether or not John Radford was barred of his right to have the judgment in the independent suit also reviewed, although such judgment is shown to have been rendered at a time before the six months had expired in which to sue out a writ of error in the original divorce decree. The jurisdiction of the trial court to render the judgment cannot be considered on the motion to affirm on certificate. Dandridge v. Masterson, 105 Tex. 511, 152 S. W. 166; Brown v. Hooks, 117 Tex. 155, 299 S. W. 228. The present affirmance of the two respective judgments has the final result to make consistent, and not inconsistent or conflicting, decrees in the very same subject-matter. By the terms of both decrees the divorce stands valid and legally existing.

The affirmance on certificate is granted.


text:
    CITY AND COUNTY OF DALLAS LEVEE IMPROVEMENT DIST. v. RUSSELL.
    No. 1098.
    Court of Civil Appeals of Texas. Waco.
    Oct. 15, 1931.
    Rehearing Denied Nov. 12, 1931.

      W. P. Dumas, of Dallas, for appellant.
    Goggans & Allison and Whitehurst & Whitehurst, all of Dallas, for appellee.
   ALEXANDER, J.

This was an action by J. E. Russell against the City and County of Dallas Levee Improvement District to recover the sum of $15,000 commissions and fees alleged to be due him as county treasurer of Dallas county and as ex officio treasurer of said levee improvement district. A trial without a jury resulted in a judgment for plaintiff for the sum of $4,747.26. The defendant appealed.

The appellee, Russell, was the county treasurer of Dallas county for two terms, ending January 1, 1929. The levee improvement district was created in 1926 and in 1928 voted bonds to the amount of $6,000,000. A part of these bonds were sold during the sa'me year and the proceeds thereof were placed by the district supervisors in-a bank depository selected by them. These funds were later expended by the supervisors on warrants drawn directly on the depository and without the supervision of the county treasurer. It was Russell’s contention that he, as county treasurer of Dallas county, was ex officio treasurer of the levee improvement district; that under the law he was entitled to receive and disburse all funds belonging to said district and was entitled as compensation therefor a commission of one-fourth of one per cent, of ail funds so received by him as such treasurer ; that the district actually received $6,000,000 during his term of office as the proceeds of the sale of its bonds; and that by reason thereof he was entitled to said sum of $15,000. He contends that although he did not actually receive and handle said funds, that since he was entitled to receive the same and was at all times ready, able, and willing to receive said funds and to discharge his duties as treasurer of said district, he was entitled to the same commission as though he had fully discharged said duties.

The appellant, levee improvement district, contends that the appellee was entitled to a commission only on the funds actually received by him; that the law contemplated that the treasurer should handle only the funds received from taxes collected, and not the funds received from the sale of its bonds; that under the law the proceeds of the sale of its bonds were required to be paid directly into the bank depository selected by the supervisors ; and that since this procedure was followed, the treasurer was not entitled to rfr ceive, and had not received, said funds and therefore was not entitled to a commission thereon.

Revised Statutes, art. 8019, provides that the county treasurer of the county in which the, levee improvement district is situated, shall be ex officio the treasurer of the Levee Improvement District. It requires such treasurer to execute a bond, payable to the district, “in a sum equal to one and one-fourth. of the taxes contemplated to be paid over in any one year, or such other or further amount as the board of supervisors of: the district may require.” It further provides: “The treasurer, as compensation for-his services, shall be allowed not exceeding: one-fourth of one per cent upon sums received by him by and on behalf of such levee-improvement district.” Under this article,, the appellee was made the treasurer of the district and was entitled to a commission on ■ all funds received by him as such treasurer. He did not actually receive any funds, but the material question is: Was he legally entitled to receive the funds for which the bonds were sold?

Revised Statutes, art. 8021, provides that: “The board of supervisors [of the district] shall select a depository or depositories for funds of the district and the county treasurer shall deposit such funds of the districts in such depository or depositories as the supervisors may direct.”

Revised Statutes, art. 8011, provides that the representative of the- district, who sells its bonds, “shall promptly pay over to the proper treasurer or depository the proceeds of such bonds, to be placed to the credit of such levee improvement district.”

It is appellant’s contention that the provisions of article 8011 requiring the party selling the bonds to pay the proceeds thereof to the “proper treasurer or depository,” means the “proper treasury and depository,” which, according to its contention, is the depository bank selected by the supervisors under the-provisions of article 8021, and that by reason-, thereof it was never contemplated that such, funds should come into the hands of the county treasurer or treasurer of the district. It: is further contended that this idea is. strengthened by the provisions of article 8019-fixing the amount -of the treasurer’s bond at. d sum equal to one and one-fourth of the taxes contemplated to be paid in any one year. It argues that since the amount of the bond to be given is determined by the amount of taxes to be collected, this indicates the legislative intent that the treasurer should handle only the funds received from taxes and not the funds received from the sale of the bonds.

The provisions of article 8011 requiring that the proceeds of the sale of such bonds shall be paid to the “proper treasurer or depository” is not clear. We must look to the entire act for the purpose of determining the legislative intent. While article 8011 makes the amount of money received by the treasurer, as such, the basis for fixing the maximum amount of his fees, it does not necessarily follow that the receiving of the money is the only service to be performed by him and for which the compensation is to be paid. He is required to perform many other services in connection with his duties as such treasurer, and in return for all of such service,, he is allowed a per cent, of, or commission on, the funds received by him as such treasurer. Article 8020 requires him as treasurer to open an account with each levee improvement district in the county, showing the money received and paid out by him for and on behalf of the district. It further provides that he shall pay out no money except upon a voucher signed by two of the district supervisors and countersigned by the county judge. He must preserve all orders for the payment of money and shall render an accounting to the commissioners’ court and the district supervisors as often as requested. It is provided by article 8023 that when the supervisors enter into a contract for the construction of the district, or any part thereof, the supervisors shall immediately notify the treasurer, and he shall open an account in (;he name of that particular contract and set aside to said account an amount of money equal to the contract price therein provided, and shall only pay out said funds for work dpne under said contract. By article 8025 it is provided that the final payment on each e'ohtract shall be paid by warrants drawn “on the treasurer of the district.” These provisions indicate very clearly that the treasurer is to have charge of, and is to be responsible for,- and shall pay out, all funds belonging tó;'the -district. The compensation allowed him by the statute is to cover all of these services. It would be unreasonable to assume that the supervisors of the district had the' option of paying the money for which the bonds were sold to such treasurer or to the bank depository as it elected, but that in the éveñt such money was paid directly to the bank depository,-the treasurer should nevertheless bo required to discharge all of the other duties imposed on him by the statute, ékeept that of receiving the money, and that he should not receive any compensation therefor.

The fact that the amount of the treasurer’s bond is governed to a certain extent by the probable amount of taxes to be collected in any one year does not imply that he is to handle -only the funds derived from taxes. The supervisors in fixing the amount of the bond are required to fix it at an amount equal to one and one-fourth of the probable taxes to be collected in any one year, “or such other or further amount as the board of supervisors of the district may require.” This gives the supervisors latitude so that the bond may be fixed high enough to cover the proceeds of the sale of the bonds, as well as the probable amount of the taxes to be collected. It was doubtless contemplated that the first treasurer of the district, who was in office at the time the bonds were sold and the district was being constructed, would probably handle the bond money and his bond would have to be fixed much higher. In later years after the district had been constructed and the bond money expended, the treasurer would handle nothing but taxes collected to redeem the bonds, and his bond would be much less. We presume that the supervisors were given this latitude in fixing the amount of this bond so that the bond, if necessary, could be made large enough to cover the proceeds received from the sale of the bonds.

Moreover, we think that the provisions of article 8025 exclude the idea that the treasurer of the district is to handle money received from the collection of taxes only, and that it shows conclusively the intent of the Legislature that such treasurer should receive and disburse the funds received from the sale of the bonds. This article provides that the final payment on each contract for the construction of the district shall be paid by warrants drawn “on the treasurer of the district.” This statute has provided the exact method (and we presume the exclusive method) by which warrants for the construction of the district could be paid. The district is to be constructed with the proceeds received from the sale of the bonds, while the funds received from the collection of taxes are for the redemption of the bonds. A warrant drawn for the construction of the district in compliance with the provisions of this article would necessarily be drawn on the bond fund and not on the tax fund. How could the treasurer of the district pay these warrants for the construction of the district if he has not been intrusted with the funds received from the sale of the bonds? Why should the warrants be drawn on the treasurer for a part of the bond money when no part of this fund has been intrusted to him? We think this statute shows conclusively that the proceeds of the sale of the bonds were to be paid to the treasurer of the district. The provisions of article 8011 requiring the proceeds of the sale of the bonds to be paid to the “proper treasurer or depository” means the county treasurer of the county -having jurisdiction of the levee improvement district as provided in article 7974. If this construction be given the provisions of article 8011, all other provisions of the act will harmonize. We therefore hold that the ap-pellee as ex officio treasurer of the district was entitled to receive the funds for' which the bonds were sold.

The appellant next contends that, even though it should be held that the appellee was legally entitled to receive the funds and to discharge the duties as treasurer of said district, since he did not actually perform such duties, he is not entitled to any compensation therefor. The appellee alleged and proved that he was at all times ready, able, and willing to perform such duties, and he contends that since it was the fault of the supervisors that he did not perform such dúties, he is entitled to his compensation. Since appellee was entitled to receive the funds for which the bonds were sold, and, if he had received same, he would have been entitled to a commission thereon, he is entitled to a commission on said funds although they were actually, but without authority, received and disbursed by another agency and not actually received and disbursed by him. The emoluments and perquisites of the office were property rights belonging to the appellee, and the supervisors of the district could not deprive him of his right thereto by handling the funds in a manner not authorized by law. Bastrop County v. Hearn, 70 Tex. 563, 8 S. W. 302; Beard v. City of Decatur, 64 Tex. 7, 53 Am. Bep. 735; Llano County v. Moore, 77 Tex. 515, 14 S. W. 152; Wall v. McConnell, 65 Tex. 397; Waller County v. Banldn (Tex. Civ. App.) 35 S. W. 876.

The appellee never executed the bond required of him by article S019, and the appellant contends that by reason thereof he was not ready, able, and willing to act as treasurer.of the district. Under the above statute, it is made the duty of the district supervisors to fix the amount of the treasurer’s bond. The treasurer could not and was not required to •execute a bond until the amount thereof had been determined by the supervisors. His failure, therefore, to execute the bond did not defeat his right to the compensation.

Under the provisions of article 8019, the district supervisors were entitled to fix appellee’s compensation at such amount as they saw fit, not to exceed one-fourth of one per cent, of the funds received during appel-lee’s term of office. The supervisors failed to fix the amount of such commission, and under the law the appellee was entitled to the full amount of one-fourth of one per cent, of the funds so received, that being the maximum amount allowed by statute, and the trial court correctly so held. Bastrop County v. Hearn, 70 Tex. 563, at page 567, 8 S. W. 302; Baxter v. Busk County (Tex. Civ. App.) 11 S.W.(2d) 648, par. 1; Montgomery County v. Talley (Tex. Civ. App.) 169 S. W. 1141, par. 2.

It seems that during appellee’s term of office, the district contracted to sell the entire amount of its bonds amounting to Six Million Dollars. The bonds, however, were not all delivered at one time, but were delivered and paid for from time to time as the district needed the money. During appellee’s term of office the district delivered a part of the bonds and received the sum of $1,709,225.69 therefor. The trial court allowed the appellee a commission of one-fourth of one per cent, on the above sum. By proper assignment of error, appellee contends that since all of the bonds were actually contracted to be sold during his term of office, he was entitled to a commission on the entire $6,000,000. We do not agree with this contention. The money was not received until the bonds were actually delivered and paid for. While the total amount of bonds were contracted to be sold during appellee’s term of office, only a part of them were actually delivered and paid for. The concern that originally contracted for the bonds failed financially before accepting and paying for all of them, and it became necessary to resell the remaining bonds to another concern. The resale occurred after the expiration of appellee’s term of office. The appel-lee was only entitled to a commission on the funds actually received by the district during his term of office. Wall v. McConnell, 65 Tex. 397.

The appellee further contends that it was made his duty to, register the bonds as they were issued; that he was at all times ready and able to do so, but that the supervisors failed to provide the necessary book in which to register the bonds as is provided in article 8008, and failed to call upon him to perform this service; that under the law he was entitled to 5 cents for registering each of the six thousand bonds, making a total of $300. The trial court refused to allow any part of this item. Article 8008 makes it the duty of the county treasurer to register the bonds as they are isnied, and the treasurer is allowed therefor the same fee that is allowed county clerks for recording deeds. It is agreed that the fee for such service, if allowable in this case, would be 5 cents per bftnd. We think the word “issued,” as used m article 8008, means “sold and delivered or put into circulation.” Hidalgo County Drainage District v. Davidson, 102 Tex. 539,120 S. W. 849; Steinbruck v. Milford, 100 Kan. 93,163 P. 647. We think that the bonds wére to be registered when and as sold and delivered. The record shows that during appellee’s term of office, seventeen hundred and fifty of the bonds were delivered and put into circulation. The appel-lee was entitled to the sum of $87.50 for registering these bonds, in addition to the judgment awarded him by the trial court.

The judgment of the trial court will be reformed so as to allow the appellee the additional sum of $87.50, with 6 per cent, interest thereon from January 1, 1929.

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


author: WALKER, J.

text:
    TEMPLE LUMBER CO. v. KIRBY LUMBER CO.
    No. 1908.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 14,1931.
    Rehearing Denied Nov. 4,1931.

      R. E. Minton, of Lufkin, Minton & Minton, of Hemphill, and W. T. Davis, of San Augustine, for appellant.
    Andrews, Streetman, Logue & Mobley and Williams, Lee, Hill, Sears & Ivennerly, all of Houston, and T. B. Hamilton, of Hemphill, for appellee.
   WALKER, J.

The history of the title to the James S. Ogden survey of 640 acres, patent No. 637, in Sabine county, Tex., subsequent to the common source, is as follows: Thompson Allen was the common source of title. Holding under the common source,.on October 10, 1870, John Allen conveyed an undivided one-sixth interest in the Ogden survey to John A. Morris, and on the 20th day of September, 1870, W. W. Allen also conveyed an undivided one-sixth interest to Morris. On the 7th day of July, 1891, Morris conveyed his undivided one-third interest to J. O. Toole, who, on the 10th of July, 1800, conveyed the same interest to A. D. Hamilton, who, on the 5th of December, 1001, joined by John H. Kirby, conveyed the same interest to Houston Oil Company. On the 4th of August, 1016, Houston Oil Company conveyed this same interest to Southwestern Settlement & Development Company. Afterwards, joined by Houston Oil Company, Southwestern Settlement & Development Company conveyed the timber on this one-third undivided interest to Kirby Lumber Company. Every conveyance in Kirby Lumber Company’s chain of title described the one-third interest held by it as an undivided interest.

Temple Lumber Company’s title, under the common source, originated on the 22d day of July, 1S70, under a deed whereby Cornelia L. Oliver conveyed to Lévi T. Allen her undivided one-sixth interest in the Ogden survey. On the 10th of December, 1881, Levi T. Allen conveyed to W. W. Weatherred an undivided two-sixths interest in this survey. On the 15th of October, 1881, Jerusha C. Speights, joined by her husband, conveyed her undivided one-sixth interest in this survey to W. W. Weatherred. On the 10th of December, 1881, Weatherred conveyed to Benjamin F. Van Meter a specific 427 acres on this survey, describing it as follows: “Four hundred and twenty seven acres off of the James S. Ogden survey of six hundred and forty acres, it being the tract of land described in Patent No. 367, Vol. 2 issued by the State of Texas to James S. Ogden on the 3rd day of Nov. A. D. 1840, situated in Sabine County, Texas, about five miles east of the town of Milam. The land hereby conveyed is all of said Ogden survey except two hundred and thirteen acres off of the east end of said tract owned by John A. Morris, for more particular description of said survey reference may be had to the county records of Sabine County.”

By deed dated the 20th day of January, 1S83, Van Meter conveyed his 427 acres to C. P. Huntington, describing it as follows: “Four hundred and twenty-seven (427) acres of the J. S. Ogden survey, deeded to me by ' W. W. Weatherred by deed dated Deer. 10th 1881, and recorded in records of Sabine County, Book D pages 426 & 427.”

On the 28th day of September, 1898, Mr. Huntington conveyed the same land by specific description to George E. Downs. In the field notes of the 427 acres, the following references were made: “Also the northeast corner of the Morris 213 acre tract out of this survey”; “for the southwestern corner of the Morris 213 acre tract out of this survey”; “the northwest corner of said 213 acres.” This description concluded as follows: “Being the same property conveyed to me by B. F. Van Meter as shown in his deed recorded Vol. E. pg. 105 Sabine Co.”

By regular chain of title under the common source, including the deeds just described, Temple Lumber Company acquired title to an undivided two-thirds interest in the Ogden survey not later than 1910. It thus appears that in some of the deeds through which Temple Lumber Company must claim its interest was described by specific metes and bounds as being 427 acres, while in other deeds it was described merely as an undivided interest.

About the year 1880, the exact date not shown, John A. Morris, under whom Kirby Lumber Company holds, at a time when he owned his interest in the Ogden survey, surveyed as his part 213 acres out of the southeast corner of the 640 acres. This was done upon agreement with one of his cotenants. As long as he held title to his interest in this survey, he claimed only this 213 acres, but he claimed it affirmatively, to the exclusion of his cotenants. While he claimed it, he cut and removed a large part of the timber therefrom ; built a house thereon, in which he kept tenants for several years; and also built a sawmill within a few feet of one of the lines to the 213 acres, upon which he manufactured into lumber the timber cut therefrom. When he sold his interest to Toole on the 7th day of July, 1891, he sold the specific 213 acres, and pointed out to him his lines to this tract of land, though, in describing the land in his deed to Toole, he described it as an undivided interest. Toole cut some of the timber from the 213 acres, and did not claim any other part of the survey, but, when he sold his interest to A. D. Hamilton, he conveyed it as an undivided interest. Hamilton bought, believing he was acquiring an undivided interest in the entire tract, and, when he sold to Houston Oil Company, he thought he was conveying, and attempted to convey, an undivided one-third interest. Under like conditions, Houston Oil Company conveyed to Southwestern Settlement & Development Company, and it conveyed to ICirby Lumber Company. Neither of these grantors had actual knowledge of the partition made by John A. Morris, and were good-faith purchasers, unless given constructive notice of the partition by the recitals in the chain of title of Temple Lumber Company and by the physical facts upon the 213 acres when they purchased their interest. In this connection it was shown that the lines around the 213 acres had been renewed at different times from 1S80 to 1924, and that at all times from the date of the Morris occupancy there was evidence on the ground of the cutting of the timber and of the sawmill and of the other improvements made by Morris. The partition was also shown by general reputation. There was no sign of timber cutting on any other part of the 640 acres.

Temple Lumber Company acquired and held its interest in the belief that Kirby Lumber Company and Southwestern Settlement & Development Company owned the specific 213 acres, and that it was the owner of the remaining 427 acres. In this belief Temple Lumber Company began cutting the timber on the 427 acres, when Kirby Lumber Company sent it the following telegrams:

“Houston, Texas, October 18,’ 1924. “Temple Lumber Company, Pineland, Texas.
“Surprised to hear you are' cutting timber from Ogden survey in Sabine County. We own one third undivided interest in this. Please stop cutting immediately until we can make a satisfactory partition. Answer quick.
“Kirby Lumber Company,
“By H. M. Seaman.”
“Houston, Texas, October 20, 1924. “Temple Lumber Company, Pineland, Texas. “Your wire received. Our interest in this survey is an undivided one third being the interests of John W. Allen and W. W. Allen no partition has been made please let us have your assurance cutting of timber on this survey will be immediately discontinued until we can make satisfactory partition. Answer quick.
“Kirby Lumber Company,
“By H. M. Seaman.”
“Houston, Texas, October 20, 1924.
“Temple Lumber Company, Pineland, Texas.
“Since our wire date Mr. Kenley has phoned you contend oral partition of Ogden survey was made by some of our predecessors in title. Neither Kirby Lumber Company nor Houston Oil Company under which we hold has had any notice or knowledge of any partition and if you continue cutting in disregard of our one third undivided ownership of timber on this entire survey we will expect to look to you for manufactured value for so much of our timber as you may cut.
“Kirby Lumber Company,
“By I-I. M. Seaman.”

Notwithstanding these telegrams, which were duly received, Temple Lumber Company proceeded to cut all the timber from the 427 acres, but cut no timber from the 213 acres.

This suit was brought by Kirby -Lumber Company against Temple Lumber Company to recover the manufactured value of one-third of the timber cut by it from the Ogden survey, and, if not entitled to the manufactured value, then for the stumpage value. The answer of Temple Lumber Company was sufficient to raise the legal propositions hereinafter discussed. The case was tried to a jury. The manufactured value was shown to be $29.25 per thousand feet and the stump-age value $5 per thousand feet. The jury found on the entire survey a total of 12,783,-325 feet, and standing on the 213 acres 2,783,-325 feet, and that Temple Lumber Company had cut and removed from the entire survey 10,000,000 feet. The jury further found that the cutting of the timber by Temple Lumber Company was “negligent and in reckless disregard” of the rights of Kirby Lumber Company. Upon these findings, the court entered judgment to the effect that Kirby Lumber Company owned an undivided interest of 4,-261,108 feet in the timber on the entire survey, from which the court deducted 2,783,325 feet left standing on the 213 acres, leaving a balance of 1,447,703 feet belonging to Kirby Lumber Company which Temple Lumber Company had appropriated, for which judgment was entered in favor of Kirby Lumber Company at the rate of $29.25 per thousand feet, manufactured value, amounting to $43,-372.93, with the additional sum of $10,409.48 interest, less a credit of $681.43 for timber cut from the 213 acres on issues not involved in this appeal. The total judgment was $53,100.-98. Against the judgment, Temple Lumber Company has duly perfected its appeal to this court.

Opinion.

On the undisputed facts, at the time John A. Morris surveyed off his 213 acres, the entire tract of 640 acres was of uniform value, and, in appropriating the specific 213 acres, he claimed no more land than he would have been entitled to under a judicial partition, but claimed all that he would have been entitled to. Thus, in claiming the specific 213 acres, he effected an equitable partition with his cotenants, which, as between him and them, and those holding under him with knowledge of the partition, the courts would enforce. Though this act of partition was valid and legally enforceable against those with knowledge thereof, there was nothing in its nature to affect Morris’ remote grantees, buying without notice. So, if appellee, in fact, acquired its title as an innocent purchaser, without notice of the partition, it was not bound thereby, but would be entitled to hold the one-' third interest granted to it by its deed, “subject to such equities as may arise between tenants in common,” Allday v. Whitaker, 66 Tex. 669, 1 S. W. 794, 796.

Though appellee Southwestern Settlement & Development Company, Houston Oil Company, and A. D. Hamilton had no actual notice of the partition, appellant insists that the recitations in the deeds in its chain of title and the evidence of Morris’ occupancy and the general reputation of the partition in the community where the land was situated was sufficient, as a matter of law, to visit them with notice. This proposition is not sound. The evidence by general reputation of the partition was without probative force, unless it was shown that appellee and its grantors knew this general reputation. The most that could be said in appellant’s favor is that this was a controverted issue. The evidence that Morris occupied the land and cut timber therefrom did not constitute notice, because it was entirely consistent with his record title of ownership of an undivided one-third interest in the land. Allday v. Whitaker, supra. It was a mere circumstance to be considered and weighed by the court or jury in connection with the other evidence in the case. The most serious question on the issue of notice, as a matter of law, is the legal effect of the many recitations in appellant’s chain of title, to the effect that Morris had made a partition of the land by appropriating the specific 213 acres. If the law visited appellee and its grantors with notice of these recitations, then, in law, they were not innocent purchasers, and their claim would be limited to the specific 213 acres. Because these recitations were in appellant’s chain of title and not in appellee’s chain of title, appellee insists that the registration of appellant’s deeds was immaterial on the issue of notice, citing in support of this proposition White v. McGregor, 92 Tex. 556, 50 S. W. 564, 565, 71 Am. St. Rep. 875, where Judge Gaines, speaking for our Supireme Court, said: “The registry of a deed is notice only to those who claim through or under the grantor by whom the deed was executed.”

That case does not control this proposition, for in Allday v. Whitaker, supra, discussing the deeds of a cotenant as constituting notice of a parol partition, Judge Stay ton said: “Facts may have existed which would justify a court or jury trying the case to find that the appellant had notice of the parol partition at the time he purchased, but, if so, they are not shown by the record before us. If, after the parol partition, Frank had assumed the right to sell the entire property in the lots on the west side of the railroad, and had done so by many deeds, put upon record before the appellant purchased, and a like right was assumed and often exercised by Cobb as to the lots on the east side, these and like facts might be looked to upon the question of notice to the appellant.”

We construe this language not only as denying the proposition that the recitations in appellant’s chain of .title constituted notice, as a matter of law, but also appellee’s proposition that they were not evidentiary on the issue of notice. Under Allday v. Whitaker, supra, these deeds were evidence on this issue, and it was for the jury to say whether or not, in view of all the circumstances in the case, the recitations in appellant’s chain of title, the lines around the 213 acres, the evidence on the ground of Morris’ occupancy and cutting the timber, and the general reputation of the partition, a man in the exercise of ordinary care would have discovered the partition. That issue was not submitted-to the jury, but was found by the court against appellant’s contention. Under the facts, we would not be authorized tq set the finding aside. It follows that the act of John A. Morris in surveying off the 213 acres and claiming it as his own, in so far as it constituted an equitable partition, passes out of the case.

We will next consider the equities between appellant, holding title to an undivided two-thirds interest in this survey, whose grantors had not appropriated anything from the land, and appellee, holding an undivided one-third interest in the timber, whose remote grantors, John A. Morris and J. O. Toole, had created waste upon the land by cutting and removing therefrom timber of great value. The question is whether or not, in a partition proceeding, equity would compel appellee to account for the value of the timber thus appropriated by its remote grantors. If ap-pellee had owned an undivided one-third interest in the land and timber, and the land had valúe only as agricultural land, and the removal of the timber enhanced its value as such, could it be questioned that equity, in a partition proceeding, would set aside to ap-pellee the 213 acres thus improved by its grantors? In a partition proceeding, if a eotenant is entitled to the improvements made by his grantor, he must also be bound by his waste. This identical proposition was before tlie New Jersey courts in Polhemus v. Emson, 30 N. J. Eq.. 405. On the issue of the equities between appellant and appellee, we consider the facts of that case on all fours with the facts of this case, and, as the court’s discussion presents our view of the law on this issue, we give the opinion in full as follows:

“The facts in this case are fully stated in a former opinion (Polhemus v. Empson, 12 O. E. Green, [27 N. J. Eq.] 190). This suit is brought for relief against a partition which, when the bill was filed, was about to be made at law of a tract of woodland in Ocean county. . The land was held by the complainant and Emanuel Hodson, as tenants in common, from May 1st, 1852, up to August 21st, 1865, when a voluntary partition thereof, by deed, was made between them. In 1801, the defendant recovered a judgment, in the court of common pleas of Ocean county, against Hodson, and, in 1871, under an execution thereon, caused Hodson’s interest in the property to be sold, and purchased it at the sheriff’s sale. After obtaining a deed from the sheriff, he instituted proceedings at law for partition between him and the complainant, and this suit was brought for relief against that partition. In 1809, three years before the sheriff’s sale, Hodson sold the timber off the part of the land which had been assigned to him in the voluntary partition between him and the complainant. On the part assigned to Polhemus, the timber still remained. There were no improvements on the land, and it is of little or no value without the timber. When this cause was brought to final hearing, in 1876, it was decreed that the voluntary partition was binding on Emson, the judgment creditor. This view was not concurred in by the court of errors and appeals (Emson v. Polhemus, 1 Stew. [28 N. J. Eq.] 439), and the decree was, therefore, reversed, and the record remitted to this court, with direction that the cause be proceeded in here according to the law and the practice of this court. A motion was thereupon made in this court to dismiss the bill. It was denied on the ground that the appellate tribunal had not passed upon the question of the right of the complainant to have the partition made on equitable terms. Polhemus v. Emson, 1 Stew. [28 N. J. Eq.] 576. From the order made on that decision, an appeal was taken which resulted in an affirmance. Polhemus v. Emson, 2 Stew. [29 N. J. Eq.] 583. The complainant having amended the prayer of his bill so as more distinctly to ask for partition on equitable terms, the cause again came on for final hearing.

“It is very clear that, unless the wasted part of the land in question is assigned in partition to Emson, a great wrong will be done to Polhemus. There is no doubt that equity can prevent the injustice. If, instead of divesting the part of the land assigned to him' of its timber, and so depriving it of its value, Hodson had put valuable improvements upon it, the purchaser under the judgment would, in equity, have been entitled to the benefit of those improvements. Polhemus would have had no claim, in equity, to them. If Polhemus had wasted his part of the property, he would have been compelled, in equity, to take it in the partition between him and the purchaser under the judgment. Equity requires that a purchaser of a judgment debtor’s interest, as tenant in common of land, should, on the one hand, have the benefit of the equities in favor of the judgment debtor, as between him and his co-tenant; and that, on the other hand, he should take it subject to the equities against the. judgment debtor in respect of waste committed by him.

“The partition will be made under the direction of this court, and the commissioners will be ordered, in making it, to assign to Emson, for or on account of his share, the part assigned to Hodson in the voluntary partition, at the value thereof when that partition was made.”

Though the evidence on the ground did not, as a matter of law, visit appellee and its grantors with notice of the partition made by Morris, because consistent with his record title, it was sufficient to visit all persons holding under Morris, and Morris’ cotenants, with notice that some one or more of the cotenants had committed waste upon the land. Being thus visited with this notice, it must be said, as a matter of law, that, had appellee or its grantors followed up this notice with any sort of diligence, they would have discovered that their remote grantor committed the waste, and that they acquired his title subject to the equitable right in their cotenants to charge them with the waste committed by their remote grantor Morris. Appellee would answer this conclusion by the following argument: “Appellant makes an effort to claim that it should have offset the timber cut by Mr. Morris in the early eighties, basing such contention on the language in Allday v. Whitaker ‘subject to such equities as may arise between tenants in commoh.’ In that case there was then on the land permanent improvements of value and the trial court had denied the right to the value thereof. The case was reversed to have the value of such valuable improvements then on the land adjusted. So that was an entirely different situation from the one now before the court, where timber was cut nearly fifty years ago and where the appellee is a bona fide purchaser in regard thereto. The plain answer to this, however, is that such right of adjustment was at most only an equity that laches long since has quieted. But even if an equity be asserted by Temple the fundamental maxim that, he who seeks equity must do equity, applies. Instead of doing equity, Temple negligently and in reckless disregard of Kirby’s right, as found by the jury, in disregard of the telegrams, in disregard of every conceivable right that Kir: by might have had in the premises, went on this land and destroyed the very property of the cotenancy. As held by the above authorities this amounts to a conversion and Kirby Lumber Company is entitled to recover therefor. If Temple was entitled to any adjustment for timber cut fifty years ago, which we most emphatically deny, the burden was on Temple to show the quantity and value of the timber, and in this respect Temple wholly failed to make plea or proof.”

We do not believe that this argument, is sound. In this case, as in Allday v. Whitaker, there was evidence on the ground of the occupancy of the cotenant who made the equitable partition; the difference between the two cases being that in the Allday Case the evidence of the occupancy was improvements of value, while in this case the evidence of the occupancy constituted waste. This difference does not distinguish the two cases in law.' Appellee correctly asserts that appellant’s right to charge it with the timber cut by Morris “was at most only an equity,” but it erroneously asserts that this right was barred by laches. Appellant’s right to charge ap-pellee with the timber cut by Morris was not subject to the defense of laches. Affecting title to land, laches is not a defense, except where the facts bring the case within the provisions of our statutes of limitations',- and no issue of limitation was raised herein. To have the benefit of this proposition, appellee correctly asserts that it was necessary for appellant to show the quantity and value of the timber cut .by Morris and Toole. This issue was established by showing that the land was of uniform value.

Erom what we have said the judgment of the lower court in favor of appellee must be reversed and judgment here rendered in appellant’s favor.

Appellant has additional propositions constituting reversible error which we do not discuss because of our order reversing and rendering the judgment of the lower court.

Reversed and rendered.

On Rehearing.

While not filing a motion for rehearing, appellant has asked us to reverse our judgment, affirming the conclusion of the trial court that appellee bought its one-third undivided interest in the Ogden survey without notice of the parol partition made by Morris. The material facts on this issue are reflected by the original opinion. We agree with appellant that uncontroverted testimony, with nothing in the record to detract from its weight, must be taken as true, and that the trial judge and jury cannot disregard it in making their findings of fact. McKeever v. Dittman (Tex. Civ. App.) 262 S. W. 1054; Thomas & Co. v. Hawthorne (Tex. Civ. App.) 245 S. W. 966; Funk v. Walker (Tex. Civ. App.) 241 S. W. 720; Gulf, C. & S. F. Railway Co. v. Gaddis (Tex. Com. App.) 208 S. W. 895. But this proposition is controlling where only one inference can be drawn from the admitted or undisputed facts; otherwise the ultimate conclusion of the trial court or jury is binding on the appellate court, unless set aside as being so against the great weight and preponderance of the testimony as to be clearly wrong. This principle is well illustrated by the holding of our courts on the issue of contributory negligence, as in Trochta v. Railway (Tex. Com. App.) 218 S. W. 1038. In that case the issue was as to the proper conclusion to be drawn from the facts. The jury finding that the deceased was not guilty of contributory negligence was affirmed by the Supreme Court. So in this case the issue, as in contributory negligence cases, was the duty imposed upon a man of ordinary care. We think on this issue it was for the trial court or the jury to determine the inference arising from the undisputed facts.

Supplementing the proposition just discussed, appellant says that the recitals in the deeds, “if entitled to be considered at all,” were sufficient, in connection with the other facts, to put appellee upon inquiry, citing Jones v. Berg, 105 Wash. 69, 177 P. 712; 20 R. C. L. 353. This proposition made a strong appeal to the court on original submission, but we thought it was met and answered by the quotation made by us from Allday v. Whitaker, where facts much stronger were summarized by the court and held only to raise the issue for the jury. On this issue appellant has not commented on the holding in Allday v. Whitaker.

Also, appellant advances the following additional proposition, which we cannot sustain: “It being undisputed that on December 10, 1881, appellant’s predecessor in title selected out and conveyed to appellant’s remote grantor a particular tract of the Ogden Survey, leaving a sufficient amount of land to satisfy the claim of the owner of the remaining 2/6ths interest, which is now held by appellee, such conveyance was valid, and at the most was voidable only at the instance of the other co-tenant, and then only on showing that his right was thereby prejudiced; and in order to avoid the conveyance of this specific tract of 427 acres to Weatherred, and in order for it to recover, it was incumbent on appellee to show that the partition thereby effected of the land was at that time inequitable and unfair ; and this it did not do and under the undisputed proof could not have done.”

This proposition ignores the fact that ap-pellee was an innocent purchaser against the parol partition made by Morris and the fact that appellee had no notice that appellant’s predecessor in title selected out and conveyed to it a specific 427 acres. If the record were sufficient to visit appellee with notice that appellant’s predecessor in title conveyed a specific 427 acres, the record would also' he sufficient to give it notice of the Morris partition, and this notice would end the case. This proposition could have controlling effect only if the record showed that appellee and those under whom it holds acquired their undivided one-third interest in this land with knowledge that, when appellant’s predecessor in title conveyed to it the specific 427 acres, the entire survey was of equal value, acre for acre. McKey v. Welch, 22 Tex. 390.

Also on rehearing appellant insists that a purchaser from a tenant in common takes his' interest burdened with all existing equities, “and this, regardless of the question of notice,” citing Clark Bros. v. Watson, 180 Iowa, 721, 163 N. W. 463; Nickels v. Miller, 126 Va. 59, 101 g. E. 68; Peets v. Wright, 117 S. C. 409, 109 S. E. 649. Allday v. Whitaker expressly denies this proposition in so far as it relates to an equitable partition. However, the Supreme Court was careful in that case to limit its holding to the issue of partition by saying that, though one may be an innocent holder against an equitable partition between his grantor and his grantor’s coten-ants, yet the purchaser acquires his interest “subject to such equities as may arise between tenants in common.”' In view of the fact that we are convinced beyond a shadow of doubt that appellee was visited, as a matter of law, with notice of the waste committed by his remote grantors, we do not deem it necessary to determine the merits of this proposition, as a principle of the jurisprudence of this state.

This brings us to a discussion of appellee’s proposition that the language quoted above from Allday v. Whitaker that one purchasing from a tenant in common acquires his title subject to* existing equities means equities' that “may arise between them in personam, and not in rem.” We understand that appel-lee advances this proposition only on the theory that it was an innocent purchaser against the existing equities; so, as we have held against it on that theory, this proposition passes out of the case.

However, appellee vigorously asserts that we are in error in our conclusion that it was visited by ldw with notice that its remote vendors committed waste upon the 213 acres set apart to it by appellant. Thus it says a trespasser may have cut the timber, meaning that the physical facts -on the ground were not sufficient to show that the timber was cut by its remote grantors when in fact it may have been cut by a trespasser. This contention is without merit. While ordinarily the question of notice is a jury question, as we hold above, yet, when certain facts are called to a purchaser’s attention, sufficient, if followed up with diligence, to visit him with notice of existing equities, the law visits him with such notice as fully as if the equities had been directly called to his attention. This is the doctrine of Bounds v. Little, 75 Tex. 320. 12 S. W. 1109.

Also appellee says we are in conflict with Allday v. Whitaker, which holds that the interest of a tenant in common may pass to a bona fide purchaser, and “this court now holds conflicting therewith in holding that appellee is chargeable with equities unknown to it.” We expressly recognize the force of Allday v. Whitaker, and predicate our holding thereon that appellee was not visited with notice of the parol partition made by Morris. But, as said above, the Supreme Court expressly limited that case to the issue of partition. In our original opinion we found that appellee was visited with notice of the waste because it was' compelled, as a matter of law, to know that timber had been cut and removed from the 213 acres, and was also compelled by law to follow up this information, which, had it been duly prosecuted, would have led to the fact that the timber on the 213 acres was cut by Morris.

Appellee apparently concedes that between Morris and his cotenants he was bound to account for his waste. Thus it cites Davis v. Palmer, 78 N. J. Eq. 78, 81 A. 573, 574, and Woolston v. Pullen, 88 N. J. Eq. 35,102 A. 461, 462, both cases citing Polhemus v. Emson, cited by us in our original opinion. In the Davis Case the court said: “The rule of equity is well settled that where one tenant in common * * . * has wasted a portion [of the land] * * * the partition often must be made so as to recognize all equities.”

In the Woolston Case it is said: “Where one of the tenants has wasted part of the land, the part so wasted will be set off to him.”

However, appellee would distinguish these cases on the ground that: “Neither case involved a bona fide purchaser. Both suits were for partition. This case does involve a bona fide purchaser. This case is not for partition,”

While not a suit for partition, yet, as we say in our original opinion, appellee has only such rights as could be asserted in a partition suit, that is, the right for an accounting. If we are correct in visiting ap-pellee with notice of the cutting by Morris and Toole, of course, this case does not involve a bona fide purchaser. We think the Polhemus Case, as well as the two new cases cited by appellee, directly support our conclusion. See, also, Campbell v. Campbell (Tex. Civ. App.) 145 S. W. 638 and Stuart v. Teagarden (Tex. Civ. App.) 193 S. W. 416.

In our original opinion we said: “There was no sign of timber cutting on any other part of the 640 acres.” We took this statement, as we liad a right to 'do under the rules, from appellant’s brief, and assumed it was correct because it was not challenged by appellee. However, as appellee now shows that one McGown cut some timber from the 427 acres, we correct our opinion to reflect the true facts. But the issue is immaterial. Appellant left for appellee’s use all the timber on the 213 acres claimed by Morris, which was, at the time Morris owned it, of equal, value, acre per acre, with the balance of the timber. So it becomes immaterial' that some one may have cut timber from the 427 acres. Whether the cutting was much or little, appellant has not charged it against appellee. Ap-pellee and its grantors were entitled to one-third of the timber on the' entire survey. By giving appellee the timber on the 213 acres and charging it with the timber cut by Morris and Toole, appellant has done it no wrong. This is all we meant in our original opinion where we said: “It was necessary for appellant to show the quantity and value of the timber cut by Morris and Toole. This issue was established by showing that the land was of uniform value.”

Appellee is therefore in error in saying that we have charged it with all of the cutting. Our judgment charges it only with the cutting from the 213 acres.

By visiting it with knowledge of equities not subject to registration, appellee insists we are in conflict with the registration statutes. This proposition would be before us only if we had held with appellant’s contention that appellee was chargeable, as a matter of law, with the waste committed by Morris and Toole, “and this regardless of the question of notice.” But, since we are holding that the physical facts upon the ground visited appellee with notice, the registration statutes are not in issue.

Appellee also insists that we are in error in refusing to hold that the equities now asserted by appellant were barred by laches. In Jackson v. Beach (N. J. Err. & App.) 3 A. 375, the court said that an accounting for waste, by cutting and carrying away timbex-, against a tenant in common, “is not barred by the statute of limitations.” If not subject to the statutes of limitation, this equity could not be within the equitable rule of laches.

Finally, appellee says our judgment cannot stand, “because there was no pleading upon which any such judgment could be based”; and, further, that we erred in holding “that an action for damages for trespass is a partition proceeding.” On this issue we say in our original option the question is whether or not, in a partition proceeding, equity would compel appellee to account for the value of the timber thus appropriated by its remote grantors. It was not our thought that appellee’s suit was one for partition. In fact, it was not. Appellee now, as on original submission, insists that its suit was “for damages for trespass.” But, even if appellee is correct in this contention, our judgment would not be error. Appellee could only prove a trespass against appellant as its cotenant by pleading and proving an ouster; that is, that appellant had entered and wrongfully denied it the right of entry. A complete defense to a charge of ouster was available to appellant under its general denial, and was sustained by the proof actually made in this case.that it had not wrongfully denied appellee entry on the 427 acres because equity would compel it to confine its entry to the 213 acres; not on the ground that the 213 acres had been set apart to its remote grantors by a parol partition, but because it bought its undivided interest with knowledge that they had committed waste upon the specific 213 acres at a time when the timber thereon was of equal value, acre per acre, with the timber on the remaining 427 acres. As sustaining its argument that appellant could not have the relief we have granted it without affirmatively pleading its equities, appellee cites McKey v. Welch, supra ; Peak v. Brinson, 71 Tex. 315, 11 S. W. 269; and Allen v. Allen, 101 Tex. 367, 107 S. W. 528. In the cases cited the court merely held that the defendant could not have affirmative relief on the particular issues discussed without praying for such relief. The issue of affirmative relief is not involved in-this case. If appellee pleaded a trespass, it was required to prove a trespass, and to meet that issue appellant was entitled under its general denial to offer all testimony rebutting that theory of the case. Therefore, under its pleading, it was available for appellant to prove, as it did prove, that it had left for the use of appellee its full one-third interest in the timber; and this, not as the basis for affirmative relief, but only to rebut appellee’s theory of the case. This proof was not in the nature of a confession and avoidance, nor in the nature of settlement or offset, but was merely proof negativing appellee’s theory that it had committed the offense charged against it. Under this proof, on the theory of trespass, appellant was not seeking credit against appellee nor seeking to offset any demand appellee had against it, but merely to show that it was not guilty of ousting ap-pellee from any rightful possession it had in and to the Ogden 640 acres. The legal effect of our judgment in favor of appellant is merely to find it not guilty of the trespass which appellee would charge against it. So, as the judgment grants no affirmative relief, it has full support in appellant’s general denial. Horton & Horton v. House (Tex. Com. App.) 29 S.W.(2d) 984.

But we think appellee is' in error in this construction of its petition. The material allegations of the petition may he thus summarized. Both appellee and appellant were alleged to be corporations; appellee owned an undivided one-third interest in certain timber on 'the Ogden survey, the timber being fully described; “that after-wards, to-wit: on or about the said 15th day of October, 1924, and on various and sundry dates subsequent thereto, the defendant Temple Lumber Company entered upon said tract of land and cut and removed therefrom, and damaged and destroyed eleven million: feet, log scale, of pine trees and timber eight inches and upwards in diameter at the stump twelve inches from the ground, and twenty-five thousand feet of hardwood trees and timber six inches and upwards in diameter at the stump, twelve inches from the ground, and appropriated and converted the same to its, said defendant’s use and benefit”; before the timber was cut appellee notified appellant of its title and claim and protested appellant’s right to cut the timber; the timber was cut and removed in reckless disregard of appellee’s rights, as appellant had no title to appellee’s one-third undivided interest; the value of the stumpage was alleged to be $15 per thousand and of the manufactured lumber $30 per thousand; the damages were fixed at $110,250, with interest from the date of the cutting; the prayer was for the damages pleaded and for general and special relief. It is the law of this state that a cotenant may maintain an action 'against his cotenant for trespass, but, to constitute a trespass, he must allege an ouster; that is, he must allege that his cotenant entered the common property, denying him the right of entry. Kishi v. Humble Oil & Refining Co. (Tex. Civ. App.) 261 S. W. 288; Van Deventer v. Gulf Production Co. (Tex. Civ. App.) 41 S.W.(2d) 1029. This is necessarily the rule, for all cotenants have equally the right of entry, and, unless an exclusive entry is alleged there is no trespass. In this case appellee alleged title to an undivided one-third interest. There is no allegation that appellant entered denying it the right of entry, nor is there an allegation that appellant cut all the timber from the entire survey, claiming ownership therein and denying ownership in appellee. So, as appellant had the right to enter under appellee’s allegations, the petition should be construed merely as an action for accounting on the theory that appellant cut more than its part of the timber. By indulging its general intendments, the petition was only subject to this construction. The general denial controverted all issues raised by the petition as thus construed. 1 C. J. 630; Coburn v. Coke, 193 Ala. 364, 69 So. 574.

The motion for réhearing is in all things overruled.