author: COLEMAN, Justice.

text:
    Owen B. WOOD et al., Appellants, v. Mrs. Ollie STONE et al., Appellees.
    No. 13910.
    Court of Civil Appeals of Texas. Houston.
    May 24, 1962.
    Rehearing Denied June 14, 1962.
    Second Motion For Rehearing Denied July 12, 1962.

      L. D. Gilmer, Williams, Lee & Lee, Jesse J. Lee, Houston, for appellants, Owen B. Wood and John P. Klep.
    Will Wilson, Atty. Gen., Milton Richardson, Asst. Atty. Gen., Austin, for appellant, State.
    Wm. N. Bonner and H. Fletcher Brown, Houston, for appellees.
   COLEMAN, Justice.

This is a suit in trespass to try title. The question to be determined is whether or not the W. S. Hunt Survey in Harris County is public school land occupying a vacancy between the Engelbert Ruhl and the Joseph Dunman Surveys. The land involved is a tract 77 by 630 varas containing 8½ acres. The jury found the west line of the E. Ruhl Survey to be the same as the east line of the Joseph Dun-man Survey. The court rendered judgment that the State of Texas and their mineral lessees Owen B. Wood and John P. Klep, d/b/a Wood, Klep and Company, take nothing; that the title claimed by them be vested in appellees; and that the cross-action of certain appellees be dismissed.

Appellants contend that as a matter of law they are entitled to judgment for title to the land in controversy. The E. Ruhl Survey was surveyed in 1860 and patented in 1862. It adjoined no survey to the west The Joseph Dunman was surveyed in 1871. Originally this suit was brought by: Mrs. Ollie Stone, a widow; Mrs. Iva A. Daniel, a widow; Mrs. Avy Lee McGarr, joined pro forma by her husband, J. Paul McGarr; Mrs. Letitia Lee Shaver, a widow; Mrs. Leander Walker, a widow; W. O. Davis, a widower and sole heir of Ima N. Lee Davis; Ura Lee Clarke, a widow, Elma Eissler, a feme sole; and Jean Bruening, joined pro forma by her husband, Dr. Paul H. Bruen-ing; and Mrs. Mae Ussery, a widow, being children of Susan Lee Fields, deceased; Ida Lee Fields, joined pro forma by her husband, C. R. L. Fields; J. B. Lee, and Mrs. Ada Louise Lee Meyer, joined pro forma by her husband, C. F. Meyer, only surviving children of J. B. Lee, deceased; and Traders Oil Company, of Houston, a Delaware corporation, with a permit to do business in Texas; and McAlester Fuel Company, a Delaware corporation, with a permit to transact business in Texas. After Wood and Klep answered and filed their cross-action, the original plaintiffs dismissed their petition and filed an answer and cross-action. The State of Texas filed a plea in intervention. Additional parties were impleaded by the State of Texas and Wood, Klep and Company.

The jury in answer to Special Issue No. 1 found that the most westerly west line of the E. Ruhl for its length of 630 varas and the east line of the Joseph Dunman for this distance is a common line.

The State of Texas, and its mineral lessees, appellants, were plaintiffs in the trial court. The burden of proof on the whole case rested on them. A prima facie case was established when the State introduced its pleadings. The burden then rested on appellees to show that the specific land involved in this suit has been segregated from the public domain by grant or purchase, that is, a grant from the State, and that the land in question lies within the boundaries defined in such grant. Producer’s Oil Co. v. State, 213 S.W. 349, Tex.Civ.App.

Copies of the original field notes of the J. Dunman, the E. Ruhl, and the W. S. Flunt Surveys were introduced into evidence. The E. Ruhl is the senior survey. The J. Dunman does not call for an ad-joinder with the E. Ruhl, nor does it call for any natural or artificial object referred to in the field notes of the E. Ruhl. The W. S. Hunt Survey, the validity of which is the question to be determined by this suit, calls for adjoinder with both the E. Ruhl and the J. Dunman. Since we cannot determine from a study of the field notes that the land in dispute is included in either the E. Ruhl or the J. Dunman, the burden remained on appellees to show that one or the other of the grants as marked on the land by the original surveyor included the land in question. Producer’s Oil Co. v. State, supra. The land in question adjoins, but is not included within, the bounds of the J. Dunman Survey as it is presently marked on the ground and occupied.

The field notes of the E. Ruhl Survey begin at its northeast corner in the south line of the Robert Dunman Survey. Its lines run west with the Dunman south line to the east line of the James Strange Survey and then south to the Strange southeast corner. There is no substantial controversy about the ground location of these three corners. From the Strange southeast corner the line runs west with the south line of the Strange 400 varas to corner in prairie, “from which a pine 18 ins. diam. mkd. R brs. N. 42° E 90 vs. dist.” The line then goes South 630 varas to corner in the prairie, thence East 844 varas to corner on the East boundary line of A. May’s Labor, and then North 855 varas along the May’s line to the place of beginning. The witness tree at the Strange southeast corner cannot be located. No object is called for at the southwest corner of the Ruhl.

A copy of a map which appellants have attached to their brief to illustrate their contentions is inserted in order that the opinion may be more easily followed.

Appellees contend that they have established the west line of the Ruhl as being adjacent to the J. Dunman by certain maps, which show a common boundary line, and by the field notes of the H. E. & W. T. R. R. Survey, Sect. 6, which places the southwest corner of the Ruhl in the east line of the J. Dunman.

These well established rules of law must be considered in the disposition o-f this case. Johnson v. Archibald, 78 Tex. 96, 14 S.W. 266, held:

“If the calls in a grant when applied to the land correspond with each other, parol evidence is not admissible to vary them, by showing that in point of fact they are not the calls of the survey as actually made. But if when so applied they disclose a latent ambiguity, — that is to say, if they conflict with each other, — then extrinsic evidence may be resorted to in order to determine the conflict and to show the land actually intended to be embraced by the calls of the survey.”

Essentially the same rule was applied in the case of Thompson v. Langdon, 87 Tex. 254, 28 S.W. 931, where the court said:

“The lines of a grant must be established by the calls in its field notes. If those calls are inconsistent, then certain rules of construction and mere parol evidence may be resorted to in order to resolve the doubt and to establish the line which was actually run by the surveyor. It is but a case of a latent ambiguity in a written instrument. A writing unambiguous upon its face may become doubtful when applied to the subject-matter of the description. On the other hand, if there be no conflict in the calls found in the field notes of a survey, there is no room for construction, and the calls must speak for themselves. To permit the introduction of parol evidence to vary the calls would be to violate the familiar rule that extraneous evidence is not permissible to vary a written instrument.”

In Gill v. Peterson, 126 Tex. 216, 86 S.W.2d 629, opinion adopted, the court quoted from Davis v. George, 104 Tex. 106, 134 S.W. 326, and said:

“It is to be observed, however, as held in the authority last cited, and in many others, that parol evidence is admissible to show where, on the ground a survey was actually made, when the calls in the field notes or deed are conflicting or ambiguous, or when the effort to apply the description to the ground gives rise to ambiguity. Hughes v. Sandal, 25 Tex. 162, 164; Thompson v. Langdon, 87 Tex. 254, 258, 28 S.W. 931, 935; Johnson v. Archibald, 78 Tex. 96, 102, 14 S.W. 266, 22 Am.St.Rep. 27; Wilson v. Giraud, 111 Tex. 253, 263, 231 S.W. 1074, 1078. The purpose of admitting the parol evidence under such circumstances ‘is not to override that which is written, but to properly interpret it.’ Wilson v. Giraud, supra.”

In that case the court held that conflicts and ambiguities were developed when the field notes contained in the deed were applied to the ground:

“Uncertainty arises as to the location of the east line of the tract described in the field notes when the distance from the southwest corner to the line of the railroad right of way, as to the location of which there is no dispute, is found to be a little more than 700 feet instead of 952.38 feet as described in the field notes.”

Another illustration of the application of the rule is found in Blake v. Pure Oil Co., 128 Tex. 536, 100 S.W.2d 1009, opinion adopted, where the court said:

“When the description in field notes or in a deed is both on its face and in its application to the ground clear and unambiguous, extrinsic or parol evidence may not be resorted to for the purpose of showing that the surveyor actually ran a line of the survey at a different place from that described in the field notes or deed. Davis v. George, 104 Tex. 106, 134 S.W. 326. But parol evidence is admissible to show where on the ground a survey or a line of a survey was actually made, when the calls in the field notes or deed are conflicting or ambiguous, or when the effort to apply the description to the ground gives rise to ambiguity. Hughes v. Sandal, 25 Tex. 162, 164; f Thompson v. Langdon, 87 Tex. 254, 258, 28 S.W. 931; Johnson v. Archibald, 78 Tex. 96, 102, 14 S.W. 266, 22 Am.St.Rep. 27; Wilson v. Giraud, 111 Tex. 253, 263, 231 S.W. 1074; Gill v. Peterson, 126 Tex. 216, 86 S.W. (2d) 629. The description in the deed conveying block 7 is not on its face ambiguous but, as has been shown, serious conflicts and irreconcilable ambiguities arise when effort is made to apply the description to the ground.
* * * * * *
“And the intention of the parties as to the land conveyed by a deed is to be deduced from the whole of the description contained in the deed, aided in this case (because ambiguities and conflicts arise upon the application of the description to the ground) by evidence of the footsteps of the surveyor. Blackwell v. Coleman County, [94 Tex. 216, 59 S.W. 530], supra; Davis v. George, 104 Tex. 106, 110, 134 S.W. 326; Gill v. Peterson, 226 Tex. 216, 222, 86 S.W. (2d) 629. * * *
“When the description in the deed is applied to the ground, it is found that the grantor has expressed in the deed conflicting intentions. One intention must be rejected and controlling effect given to another. The fact of mistake, if proven, and evidence as to the footsteps of the surveyor may serve, as we think they do here, to solve the problem.”

In Texas Co. v. Foshee, Tex.Civ.App., 142 S.W.2d 603, writ ref., the court reversed and rendered the judgment of the trial court and as a basis for this action sustained appellant’s proposition reading:

“ ‘Since the description in the Katherine Ryan lease places the south line of the land therein described in the center of the Longview-Tyler road and accurately and precisely describes the present road by calling for a straight line which fits the course of the present road, but entirely fails to describe the former road which was crooked and which did not follow even approximately the course called for, it can not be said that the description is ambiguous and subject to be explained by parol testimony, and the verdict and judgment locating the line in the center of the former road, based as they are on parol testimony varying and contradicting the field note description, are without support in the competent evidence and contrary to the undisputed* competent evidence.’ ”

When the field notes of the E. Ruhl Survey were run out on the ground from the interior or re-entrant corner no material conflicts developed between the calls for course and distance and the calls for ad-joinder with existing surveys. The area enclosed corresponded to the field note recitation. Since the bearing tree at the most westerly northwest corner has disappeared and cannot be located on the ground, the call for distance on that line is not ambiguous. Since no object was called for at the southwest corner, no ambiguity or conflict can arise as to its location on the ground. There is no dispute that if a survey of the E. Ruhl is run by course and distance beginning at the southeast corner of the James Strange Survey, which is the re-entrant corner of the E. Ruhl Survey, the west line of the E. Ruhl will not coincide at any point with the east line of the J. Dunman. The evidence shows that the re-entrant corner was located on the ground by a subsequent survey from the bearing tree called for in the field notes on which the patent of the E. Ruhl Survey was granted. The rules announced in Johnson v. Archibald, supra, and Thompson v. Lang-don, supra, are applicable under the facts of this case and parol evidence was not admissible to vary the terms of the grant or to create inconsistency in the calls of the survey which are complete within themselves.

Appellees alleged in the cross-action on which they went to trial that the land in dispute was part of the E. Ruhl Survey. Appellees may not dispute this judicial admission by contending that the land is in fact part of the J. Dunman Survey even though their cross-action was dismissed by the judgment of the trial court. Ed S. Hughes Co. v. Clark Bros. Co., 63 S.W.2d 230, Tex.Civ.App.; McCormick and Ray, Texas Law of Evidence, Vol. 2, § 1144, n. 65.

However we cannot rest our decision solely on this judicial admission for the reason that the impleaded defendants did not join in the cross-action filed by the original plaintiffs and cross-defendants. None of the original corners of the J. Dunman Survey were located on the ground by competent evidence or are admitted. The beginning corner was designated as being a stake in the south line of the James Strange 94 varas east of its southwest corner. The location of this corner has been the subject of dispute resulting in litigation. The plat of the W. S. Hunt Survey prepared by J. S. Boyles and introduced into evidence by appellants shows the beginning corner of the J. Dunman to be 71 varas from the southwest corner of the J. Strange. The field notes of the Dunman indicate that an actual survey on the ground was made by J. J. Gillespie, who set stakes for the corners which he established. Parol evidence was admissible to show where these corners were marked on the ground. Gill v. Peterson, supra.

Appellees attempted to meet this burden by showing long established recognition of a common boundary line between the Dun-man and the Ruhl. Appellees introduced the field notes of the H. E. & W. T. Survey No. 6 over the objection of appellants that the call for the southwest corner of the E. Ruhl in the east line of the J. Dunman was hearsay, opinion and conjecture. It was shown that the surveyor, J. J. Gillespie, was one of Gregg’s chain carriers when he surveyed the E. Ruhl in 1862 and that he surveyed the J. Dunman in 1871 and the H. E. & W. T. No. 6 in 1878. Appellees contend that the declaration is admissible as a statement of fact since Gillespie was in a position to know the truth of the statement, citing Russell v. Hunnicutt, 70 Tex. 657, 8 S.W. 500; Keystone Mills Co. v. Peach River Lumber Co., 96 S.W. 64, Tex.Civ.App., writ dism., Freeman v. Mahoney, 57 Tex. 621, and Moore v. Stewart, 7 S.W. 771, Tex.

The field notes of the E. Ruhl do not call for either a natural or an artificial marker at the southwest corner. Earlier when he surveyed the J. Dunman, Gillespie made no mention of finding either the northwest or the southwest corners of the E. Ruhl and did not call for an adjoinder. It is evident that he found no indication of a marker at the southwest corner of the E. Ruhl when he called for it as a corner of the H. E. & W. T. No. 6, since he set his own stake at that corner as is demonstrated by the field notes. Under the circumstances it cannot be presumed that the call for the corner of the E. Ruhl in the east line of the J. Dunman was based on his knowledge of the location of that corner as fixed on the ground by the original surveyor. Rather it would seem that the call was a mistake based on the fact that the original field note calls for the south line of the J. Strange equals the sum of the calls in the original field notes for the north line of the E. Ruhl from its re-entrant corner to its northwest corner and the field notes call for the north line of the J. Dunman. Taylor v. Higgins Oil & Fuel Co., 2 S.W.2d 288, Tex.Civ.App., writ dism.

Appellees rely on certain maps and plats showing a common boundary line for the E. Ruhl and the J. Dunman Surveys. The plats contained on the transcribed field notes of these two surveys were admitted over the objection of appellants that they constituted hearsay since it was not shown when they were prepared or by whom; and further that they were prepared a number of years after the surveying was done and were not on the original field notes filed in the county surveyor’s office. The plat of the E. Ruhl shows the J. Dunman and H. E. & W. T. No. 6 Surveys, and that of the J. Dunman shows the H. E. & W. T. No. 6, which demonstrates the truth of the contention of appellants that they were prepared many years after the original survey was filed. The plats contained no recitations of evidence found on the ground which would show the footsteps of the surveyor. Since the original field notes were in evidence, we think the admission into evidence of the transcribed field notes (containing the plats) was erroneous.

Appellees’ exhibits D-l and D-2 were certified copies of maps from the General Land Office. Each of these maps show a common boundary between the E. Ruhl and the J. Dunman. Neither of them reflected the position of any locative object called for in the field notes. Objection was made to their admission on the grounds that the maps were not shown to be correct; that they constituted hearsay; that they violated the best evidence rule; that they stated no facts, and merely constituted the opinions and conclusions of the maker. Appellees contend that they were properly admissible as ancient instrument from the Land Office files and that they had probative force as evidence of the recognition of a common line. It is argued that this recognition or reputation of a common line has probative force in that it is the best evidence available of the footsteps of the original surveyor.

Exhibit SI-10 introduced by appellants also shows such a common line, as does a plat attached to the field notes of the H. E. & W. T. Survey. It seems likely that all of these plats were based either on Gillespie’s H. E. & W. T. field notes and plat or on the length of the south line call in the J. Strange field notes. We think under the evidence in this case that both the call in the field notes, and the plat, of the H. E. & W. T. Survey and the call for distance of the Strange south line were erroneous.

“The subsequently made maps and field notes in question and the calls therein show no factual information tying them to the original surveys in such a way as to render them admissible for the purpose of showing where the original surveys really placed the land. Such maps and field notes do not constitute evidence of probative force tending to locate the surveys, but are merely opinions and conclusions of the surveyor or draftsman. Whitmore v. McNally, Tex.Civ.App., 39 S.W.2d 633; Weatherly v. Jackson, 123 Tex. 213, 71 S.W.2d 259.” Sanders v. Worthington, 349 S.W.2d 115, Tex.Civ.App.

See also State v. Ohio Oil Co., 173 S.W.2d 470, Tex.Civ.App.; Blackwell v. Coleman County, 94 Tex. 216, 59 S.W. 530.

In addition, we think all of the evidence in the record is consistent with the undisputed location of the presently recognized east line of the J. Dunman Survey on the ground, and that such line as located on the ground by the testimony in this case does not adjoin the west line of the E. Ruhl Survey as located from its re-entrant corner by course and distance. We, therefore, hold that the verdict of the jury is without support in the evidence.

The case of Kirby Lumber Co. v. Adams, 127 Tex. 376, 93 S.W.2d 382, opinion adopted, cites Taylor v. Higgins Oil & Fuel Co., supra, as setting out the proper rules to follow in the location of boundary lines. We think that case applicable here. There the court held:

“If the facts are not in dispute and the only question involved is the correct application to the facts of well-known principles of law, tl e location of the boundary is a question of law for the court, and a verdict should be instructed; that is, the court cannot weigh the evidence of one party against the other and find that one theory of the evidence is true and the other false, but, conceding the truth of the testimony, must determine its legal effect by the well-known principles of law governing boundary suits. Cameron & Co. v. Taylor (Tex.Civ.App.) 288 S.W. 268.”

When the proper principles of law are applied to the facts of this case, we think appellees failed to show that the land in controversy lies within the J. Dunman Survey by tracing the footsteps of the survey- or. The west line of the E. Ruhl Survey must be located by course and distance from the re-entrant corner. Therefore the W. S. Hunt Survey is located as contended by appellants and does not conflict with any senior survey.

Testimony which has no probative force cannot form the basis of a finding of fact by the appellate court even though admitted without objection. Henry v. Phillips, 105 Tex. 459, 151 S.W. 533.

Appellees have assigned as error the refusal of the court to admit testimony of Herbert Williams concerning the recognition by residents of a common boundary line between the Ruhl and the Dunman. His testimony is that the Ruhl west line extends to the Dunman east line along the ditch as it is now occupied on the ground and that his father, now deceased, told him that there was a common line at the road (which through erosion became the present ditch). He also testified that other people living in the vicinity always recognized that line as a common line. Since this testimony would not tend to extend the boundary of the Dunman to include the land in question, it would not be admissible in this case as against the State. of Texas. State v. Talkington, 274 S.W. 314, Tex.Civ.App., writ dism.; Proctor v. Markham, 271 S.W.2d 685, Tex.Civ.App., ref., n.r.e.; Weatherly v. Jackson, 123 Tex. 213, 71 S.W.2d 259; Humble Oil & Refining Co. v. State, 162 S.W.2d 119, Tex.Civ.App., writ ref.

While appellees have presented a thorough brief and able arguments, we think this opinion should not be extended to the length which would be necessary to discuss and point out facts distinguishing the many cases relied on by them. The principal distinguishing factors have been pointed out in the course of the opinion.

The judgment of the trial court is reversed and rendered.

On Motion for Rehearing

Appellees have pointed out that in our original opinion we made no mention of the case of State v. Gulf Oil Corporation, Tex.Civ.App., 264 S.W.2d 743, writ ref., n.r.e., in which the court points out that parol evidence is always admissible to locate the monuments called for in the field notes and that where, after a long lapse of time, corner markers, natural or artificial, have disappeared, necessity requires that we resort to any evidence tending to establish the place of the original footsteps of the surveyor which meets the requirement that it is the best evidence of which the case is susceptible. This case was carefully considered by this Court, and our decision is not considered to be in conflict with it. There was no evidence offered, eye witness, opinion or recognition, which would be direct evidence of the location of the witness tree at the most westerly northwest corner of the E. Ruhl. No marker for the southwest corner was called for by the field notes. The maps introduced into evidence showing a common line between the E. Ruhl and the J. Dunman constitute no evidence of the location of the witness tree at the northwest corner of the E. Ruhl. In our original opinion we discussed the call in the field notes of the H. E. & W. T. #6 for the unmarked southwest corner of the E. Ruhl in the east line of the J. Dunman. This recitation is purely a conclusion of the surveyor since a presumption that he knew where the corner was located must he based on a presumption that evidence of the corner existed on the ground which was not recited in the field notes. The only other evidence which would tend to locate the Ruhl west line on the ground was the excluded testimony of Herbert Williams of long recognition of a common boundary line by people living in the area. We think this testimony inadmissible to create a conflict on authority of the cases cited in our original opinion. To create a conflict in the field notes there must be evidence that calls for course and distance are not consistent with monuments called for, or result in conflicts with senior surveys called for, in the field notes. The best evidence of the footsteps of the surveyor produced in this case is the corners established by surveyors who followed the courses and distances called for by the original surveyor in his field notes.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    A. C. BARRON, Appellant, v. Kenneth R. MARUSAK, Appellee.
    No. 10971.
    Court of Civil Appeals of Texas. Austin.
    May 30, 1962.
    Rehearing Denied June 20, 1962.

      J. W. Thomas, Belton, J. W. Thomas, Jr., Temple, for appellant.
    Cox, Brown & Daniel, Temple, for ap-pellee.
   HUGHES, Justice.

This is a suit for damages brought by appellant, A. C. Barron, for the death of his twelve year old son, Tony Barron, allegedly caused by the negligence of appel-lee, Kenneth R. Marusak.

Trial commenced to a jury but upon appellant resting his case, the Court instructed the jury to return a verdict for appel-lee. In accordance with such verdict, judgment was rendered that appellant take nothing by his suit.

In passing upon the propriety of the Court’s action in instructing a verdict, we will view the evidence in a light most favorable to appellant, indulging against the instruction every inference that may be properly drawn from the evidence, and if the record reflects any testimony of probative force in favor of appellant, we must reverse and remand this cause for trial. White v. White, 141 Tex. 328, 172 S.W.2d 295.

Tony Barron was killed when struck by a car driven by appellee. The tragedy occurred just outside the City limits of Bel-ton, in Bell County, on U. S. Highway 190 at about 6:30 P.M., after dark, on December 17, 1960.

The Highway right of way is one hundred feet wide, the paved portion being forty one feet. It runs in an easterly and westerly direction. There is a center white line dividing the highway. The shoulder of the road is partly graveled. Beyond the shoulder is a slightly depressed area called a “bar” ditch in which weeds grow. The road was fairly straight and had but very little grade. It was smooth, regular, and vision of drivers was unobstructed.

There was a fireworks stand, called “Shack”, about ten feet from the paved portion of the highway and on the south side. Also on the south side of the highway in the vicinity of the shack were a cafe, a filling station and the Ford Motor Company.

Tony, his sixteen year old brother Richard, and a friend thirteen years old, Louis Luna, shortly before the accident, crossed the highway from the north side to the south side for the purpose of buying fireworks from a young girl who had her stand in the shack. After the purchase, the two older boys crossed the highway at a point where no pedestrian crossing was marked. Tony lagged behind, and returned to the shack. We quote now from the testimony of Richard Barron:

“A He went back to the fireworks stand.
“Q Where were you at the time when he went back?
“A Well, we were halfway across the road.
“Q You were over on the north side, that is across the road?
“A Yes.
“Q Waiting for him?
“A Yes.
“Q All right, and then what happened, * * * ?
“Á Well, he started back to where we were at and he stopped at the end of the road to see in both directions to see if a car was coming.
* * * * * *
“A And then he started back.
“Q All rig-ht. He started back across the highway.
“A Yes, sir.
“Q All right, and then what happened ?
“A Well, he stopped and looked in both directions and then after I seen that he had looked in both directions I turned my face to talk to the other boys, and he started across the road after he had seen both directions.
“Q He started across the road, back where you were standing?
‘‘A Yes.
* * * * * *
“Q Tell this jury how he started back, whether he was running or walking, or how he started back across the road.
“A Walking.
♦ ⅜ * ⅜ ⅜ ♦
“Q You did not see the car strike him?
“A I only seen the car dragging him, that is all I seen.
“Q You saw the car dragging Tony?
“A Yes, sir.
“Q All right. Do you know when a car is running fast or when it is running slow?
“A Yes, sir.
“Q Was that car running fast or slow?
“A He was running pretty fast.
“Q It was running pretty fast while it was dragging your brother?
“A Yes, sir.
“Q How far did it drag him?
“A Well, he dragged him from the fireworks stand close to that cafe.
* * ⅝ *-
“Q Now, Mr. Seaman, the survey- or, said it was ten feet from the edge of the highway to the fireworks stand, so if Tony was five feet from the highway then he was in fact about half way between the fireworks stand and the road, isn’t that right?
“A Yes, sir.
“Q And that is where he was the last time you saw him, is that right?
“A I kept looking up there where he was at and he was counting the fireworks and sticking them in his pocket, and he stopped there about five feet away from the highway. Then he walked close to the highway and he stuck everything in his pocket and that was when he started back, you know.
“Q That was when he turned and went back to the fireworks stand?
“A No, that was when he looked in both directions. He had already looked once and then he looked again and then he started across, and that was when I turned my face to talk to the boys.
■f- * * * * *
“Q Now, Richard, I believe you said that Tony was right at the edge of the highway the last time you saw him ?
“A Yes, sir.”

The testimony of Louis Luna was substantially the same as that of Richard Barron. They were the only on-the-scene witnesses who testified. Neither heard or saw the approaching car which hit Tony. Neither saw the car hit him.

Appellee testified as an adverse witness. He was a single man stationed at Fort Hood. He was driving a 1957 Ford. He was enroute from Fort Hood to Temple for relaxation. About half a mile before he reached the shack he stopped his car to examine its tires. We quote his testimony:

“A Well, as I approached Belton I saw two figures going across the highway and I automatically alerted myself more, and I was ready to slow down if they should change their direction and go back the way they were coming from, so that I would have time to stop for them.
“Q You say you saw some children in the roadway?
“A I seen two figures, sir.
“Q How far back were you?
“A About 400 feet, sir.
“Q About 400 feet?
“A Yes, sir.
* * * * * *
“Q Small, they were small figures?
“A Yes, sir.
“Q How were they crossing the highway? Which way were they going?
“A They were going from the south to the north, sir.
“Q South and north?
“A South to north, sir.
* * ⅜ * * *
“Q This is a good representation of that road, isn’t it.
“A Yes, sir.
“Q It shows to be level?
“A Yes, sir.
“Q And almost straight?
“A Yes, sir.
“Q The atmosphere was clear?
“A Yes, sir.
“Q There was no car ahead of you, between you and the two figures in the road as you express it? There wasn’t any car between you and those figures, was there?
“A No, sir.
“Q And the road was clear?
“A Yes, sir.
“Q Nothing to obstruct your view?
“A No, sir.
“Q At all?
“A No, sir.
“Q And you saw those figures?
“A Yes, sir.
“Q As you express it, in the road ahead of you?
“A Yes, sir.
“Q Going across the highway?
“A Yes, sir.
“Q Did you see a fireworks stand at that time?
“A No, sir.
“Q How fast were you driving?
“A Between thirty five and forty miles an hour, sir.
“Q Mr. Marusak, couldn’t it have been fifty five or sixty miles? You were not watching your speedometer, were you?
“A No, sir.
“Q Well, I don’t know, but I want you to tell this jury how you concluded that you were driving thirty five to forty miles an hour. You were not watching your speedometer?
“A Well, sir, when I started up after stopping I knew I was coming to a town or a business district and I did not try to get up to fifty five miles an hour. I knew that I would have to go through the town fairly slow and it was not the same as on an open highway.
“Q You did know that it was your duty to slow down and to drive at a reasonable rate of speed, didn’t you?
“A Yes, sir.
“Q You knew that?
“A Yes, sir.
⅜ ⅜ ⅜ * ⅜ *
“Q Well, what brought it to your attention that it was a crowded section?
“A I knew it was from coming up there before, but I knew there were not houses on both sides of the road, or buildings.
“Q Well, they were on the right side. Do you remember that they were on the right side of the road?
“A Yes, sir.
* * * * * *
“Q All right. What did you do after you saw those figures with reference to keeping your eye on the road?
“A I continued to keep my eye on the road and I lifted up on the gas a little and prepared for anything that would happen in case they reversed their direction.
“Q That put you on notice?
“A Yes, sir.
“Q That there were, and I am pleased to call them children and you call them figures, but it put you on notice that there were small objects in the roadway ahead of you?
“A Yes, sir.
“Q Now, Mr. Marusak, when did you next see a figure in the road?
“A Whenever I struck Tony, sir.
“Q Sir?
“A Whenever I struck Tony.
“Q When you struck him?
“A Yes, sir.
“Q You hit your brakes, didn’t you, before you did strike him?
“A No, sir.
“Q You didn’t?
“A No, sir.
⅝ ⅝ ⅜ ⅜ ⅜ *
“Q Why didn’t you see the boy? You can’t tell this jury why it is that you did not see him, can you?
“A I seen him when I hit him, sir.
“Q You saw him when you hit him ?
“A Yes, sir.
“Q Then what did you do?
“A I continued on until I knew I was past the boy before I put my brakes on.
“Q You knew that you had hit him?
“A Yes, sir.
“Q How far did you go before you stopped your car ?
“A About fifty or sixty yards, sir.
“Q About sixty yards?
"A Yes, sir.
“Q And that is about one hundred eighty feet?
“A Yes, sir.
“Q Can you tell this jury why you did not stop earlier?
“A Well, for the first part I was dragging the boy and I did not want to stop the car on him, or to take a chance as I passed over him that the wheels should do so, and would drag him further. I felt my right wheel pass over the boy and then I applied my brakes when I knew he was out from underneath my car.”

Appellee testified that his vision was good. The headlights of his car were burning. No defects in the car were claimed.

At a pre-trial hearing the Court sustained special exceptions made by appellee to allegations in the pleadings of appellant, the nature of the pleading and exception being reflected by the exception which we quote:

“1. Defendant specially excepts to the allegations contained in numbered paragraphs 2 and 9 of plaintiff’s first amended original petition which seek to establish negligence or a negligence per se on the part of defendant with reference to an allegation to the effect that the legal and authorized speed limit at the time and place of such accident was thirty (30) miles per hour because it is alleged that the area at which such collision occurred was a ‘business district’ within the definition of Article 827a, Section 8, subsection [1] (b) Penal Code. In this connection defendant alleges and avers that at the time and place of such accident the authorized and posted speed limit applicable for the automobile driven and operated by defendant, on said road and in the direction in which defendant was traveling was sixty (60) miles per hour during the day time and fifty-five (55) miles per hour during the night time and that such posting of such prima facie speed limit was as authorized and posted by the authority of the State Highway Commission under the provisions of Article 827a, Section 8, Penal Code.
“In this connection further defendant alleges and avers that such defendant and all other drivers of automobiles on the State Highways within the State of Texas are, were and of necessity must be governed by the applicable speed limits as authorized and posted by the said State Highway Commission and that it would be an unconstitutional, impractical, arbitrary and foolish requirement or rule of law which would require the driver of a motor vehicle to for himself determine whether a particular area constitutes a ‘business district’ or a ‘residential district’ as such motorist proceeds along the highway, as those terms are defined in said Article 827a, Section 8, Penal Code.”

In sustaining such exception the Court, in its order, recited as a predicate for such action that he had “taken judicial knowledge and notice of the posted speed limits at the place of the accident.”

Appellant complains of the Court’s action sustaining such exception and in taking judicial notice as indicated.

Appellee’s motion for an instructed verdict was, as recited in the judgment, based on the “ground that plaintiff has not made out a prima facie case and that there was no evidence introduced by plaintiff to show any specific act of negligence on the part of defendant” and that there was insufficient evidence to show a specific act of negligence on the part of defendant.

The record does not disclose the rate of speed the Court judicially noticed as being posted. We assume that it was more than the thirty five or forty miles an hour, the speed at which appellee testified he was driving.

It is our opinion that the Court improperly took judicial notice or knowledge of the posted speed at the site of the accident, and that he improperly sustained the exception, noted above, to appellant’s pleading.

Sec. 8, Art. 827a, Vernon’s Annotated Penal Code, provides, in part:

“Sec. 8, Subsection 1. Speed restrictions. (a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing, having regard to the actual and potential hazards when approaching and crossing an intersection or a railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions ; and in every event, speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.
“(b) Where no special hazard exists that requires lower speed for compliance with subsection 1(a) of this Section, the speed of any vehicle not in excess of the limits specified in this subsection or established as hereinafter authorized shall be lawful, but any speed in excess of the limits specified in this subsection or established as hereinafter authorized shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful :
“(1) Thirty (30) miles per hour in any business or residence district for all vehicles;
“(2) Sixty (60) miles per hour during the day time and fifty-five (55) miles per hour during the night time in locations other than business or residence districts for all vehicles except commercial vehicles, truck-tractors, trailers, or semi-trailers as defined in this Act and all motor vehicles engaged in this State in the business of transporting passengers for compensation or hire; * * *
“ 'Business District’ means the territory contiguous to and including a roadway when within any six hundred (600) feet along such roadway there are buildings in use for business or industrial purposes which occupy three hundred (300) feet of frontage on one side or three hundred (300) feet collectively on both sides of the roadway. * * *
“The prima facie speed limits set forth in this subsection may be altered as authorized in subsections 2 and 3.
“Subsection 2. Authority of State Highway Commission to alter prima-facie speed limits, (a) Whenever the State Highway Commission shall determine upon the basis of an engineering and traffic investigation that any prima-facie speed hereinbefore set forth is greater or less than is reasonable or safe under the conditions found to exist at any intersection or other place or upon any part of a highway, taking into consideration the width and condition of the pavement and other circumstances on such portion of said highway, as well as the usual traffic thereon, said State Highway Commission may determine and declare a reasonable and safe prima-facie speed limit thereat or thereon by proper order of the Commission entered on its Minutes, which shall be effective at all times or during hours of daylight or darkness, or at such other times as may be determined when appropriate signs giving notice thereof are erected at such intersection or other place or part of the highway, except that said State Highway Commission shall not have the authority to modify or alter the basic rule set forth in subsection 1(a) nor to authorize by a Commission Minute speeds for any class of vehicle in excess of the maximum values here-inbefore set forth for said class of vehicle in subsection 1(b), paragraphs (2), (3), and (4).”

It has been held that courts do not take judicial notice of the acts of the Railroad Commission, orders of the State Livestock Sanitary Commission, or orders of the Commissioners Courts. See also Daniels v. Ramirez, 209 S.W.2d 972, El Paso Civil Appeals.

We can think of no sound reason for distinguishing between these orders and acts and the orders and acts of the State Highway Commission. Under Subsection 2, supra, we would, if judicial notice is proper, be required not only to notice the order of the Commission but also that pursuant to such order the sign had been erected.

We recognize that the doctrine of judicial notice is being liberalized and extended, Harper v. Killion, 348 S.W.2d 521, Tex.Sup. We approve this tendency. It is, however, we believe, stretching the doctrine beyond the breaking point to require a judge to judicially know the location and content of every Highway sign in his district.

In appellee’s brief it is stated that the Trial Judge had personal knowledge of the posted signs along the highway. This is not the test. We quote from McCormick and Ray, Texas Law of Evidence, 2d Ed., Vol. 1, pp. 172, 173:

“However, it is well settled that the scope of the exercise of the function of judicial notice is not coextensive with the personal knowledge of the individual judge. Personal knowledge is not judicial knowledge. The judge may personally know a fact of which he cannot take judicial notice. Contrariwise, he may be required to notice facts as to which he has no private knowledge. * * * If the judge has personal knowledge of a fact not judicially known the proper way to make use of it is for him to take the stand as a witness and testify to what he knows.”

In the absence of conclusive evidence that the Highway Commission has altered the prima facie speed limits as authorized by statute, supra, appellant should be permitted to plead and offer proof that the highway at the locale of this accident is a business district as defined by the statute, supra.

Appellee suggests that the portion of the statute calling for reduced maximum speed in business and residential districts is unconstitutional. We disagree on the authority of Eavés v. State, 353 S.W.2d 231, Tex.Ct.Crim.App. Besides, a statute may be too unreasonable, uncertain and vague to be a valid criminal statute yet valid as prescribing a rule of civil conduct. Oriental Oil Company v. Brown, 130 Tex. 240, 106 S.W.2d 136. We believe that buildings beside a highway are just as observable as highway signs. Certainly they are as visible as invisible boundaries of unincorporated towns considered and held, in Oriental, not to make uncertain and invalid for civil purposes a statute regulating speed of motor vehicles in such towns.

In our opinion, allegations of negligence, both statutory and at common law, and proximate cause based on speed of appellee’s automobile were, under this record, issuable facts for the jury.

We also believe the Court erred in instructing a verdict for the reason that there was sufficient evidence of probative value to sustain a finding that appellee was, as pled, negligent in failing to keep a proper lookout immediately before the fatal accident and that such negligence was a proximate cause of Tony’s death.

We will not review in detail all of the evidence we have recited herein which sustains this conclusion. The salient factors are these: Visibility was good. The road was practically level and straight. Ap-pellee’s car was mechanically sound. Ap-pellee knew he was driving in a commercial neighborhood. He saw two small figures cross the highway 400 feet ahead. He watched to see that they did not recross the highway, but he completely failed to observe a small 12 year old boy standing at the edge of the highway and within a few feet from the path of appellee’s car.

Sec. 79 of Art. 6701d (Traffic Regulations) provides:

“Notwithstanding the foregoing provisions of this Article every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.”

Appellee saw children upon the highway at a distance of four hundred feet. He failed to see a child within, at most, ten feet from him. Appellee gave no warning by sounding the horn. We believe that a jury might reasonably find from these facts that appellee failed to “exercise due care to avoid colliding with” Tony Barron, a child pedestrian who was then upon the roadway appellee was traveling.

Sec. 79, supra, by its terms, prevails over preceding Sec. 78(a) providing, in part, that pedestrians crossing a roadway at any point other than a marked crosswalk shall yield the right of way to all vehicles upon the highway.

The judgment of the Trial Court is reversed and this cause is remanded for trial.

Reversed and remanded.

ON APPELLEE’S MOTION FOR REHEARING

We quote from appellee’s motion for rehearing :

“This Honorable Court seems to hold that appellee ‘failed to observe a small 12 year old boy standing at the edge of the highway and within a few feet from the path of appellee’s car’, but appellee says that the record does not justify this holding. There is nothing in the record to correlate the time that Tony’s brother saw him standing at or near the south side of the highway, in relation to the time that appellee’s car approached the scene of the accident. Appellee says that insofar as the record is concerned that Tony might have, and probably did, return again to the fireworks stand after his brother last saw him, and then ran out in front of appellee’s car.”

Richard, Tony’s brother, on cross examination by counsel for appellee testified:

“Q How long was it, Richard, from the time you last saw Tony until you heard the car hit him, and you did hear the car hit him, didn’t you?
“A I did hear it.
“Q How long was it? Was it just about like that (snaps finger) ?
“A It was real quick when I turned around to see him but he was already being dragged.
“Q Was it just a moment or two?
“A Yes, sir.
“Q Is that fair to say?
“A Yes, sir.
* * * * * *
“Q And you say that Tony looked to his left and to his right ?
“A Yes, sir. I saw Tony look in both directions and then before I turned my face around I looked that way and there was no car coming, and that was when I turned around and talked to the boys.
⅜ * * * * *
“Q But just a moment after you turned back to talk to Louis and Joe and the other boy, you heard the car strike Tony, is that correct?
“A Yes, sir.”

The motion is overruled.

Motion overruled.

      . Thompson v. San Antonio & A. P. Ry. Co., 11 Tex.Civ.App. 145, 32 S.W. 427 San Antonio Civil Appeals.

      . McGee v. State, 81 Tex.Cr.R. 210, 194 S.W. 951.

      . Employers Casualty Co. v. Smith, 284 S.W. 991, Dallas Civil Appeals; A. B. C. Rendering, Inc. v. State, 342 S.W.2d 345, Houston Civil Appeals.

      .In tills case the Court in discussing application of See. 12, Art. 827a, supra, which, authorizes the Highway Department to designate through highways by stop signs stated:
      “Certainly a stop sign erected without authority or maintained without it could impose no duty.”
      See also Mooneyhan v. Benedict, 284 S.W.2d 741, Austin Civil Appeals, writ ref., N.R.E.


author: FANNING, Justice.

text:
    Magadelina HERZOG et al., Appellants, v. Chris MATTERN, Appellee.
    No. 7368.
    Court of Civil Appeals of Texas. Texarkana.
    June 26, 1962.
    Rehearing Denied July 17, 1962.
    Gerald J. Creighton, Jr., Darden, Fowler & Creighton, A. K. Stewart,,Conroe, Jesse J. Lee, Williams, Lee & Lee, Houston, for appellants.
    Joe J. Newman, Houston, W. E. Barron, Navasota, for appellee.
   FANNING, Justice.

Appellants brought suit to construe the will jointly executed by Paul and Monika Mattern and to quiet title to the realty devised to them.

Paul and Monika Mattern executed the duly probated joint will whereunder Mrs. Mattern, the survivor, took their estate and the property remaining passed at her death to .their children. Their daughter Marie was devised 20 acres not here involved.

Then follows paragraph II which reads as follows:

“The remainder of all our real estate, wherever located or situated, which we may die seized and possessed of we give and bequeath to our beloved children, Chris Mattern, Jack J. Mat-tern, Magadelina Herzog, Paul J. Mat-tern, Barbara Mock, Reginia Gostslig, Johnnie Mattern, Agnes Pustka and Monika Mattern, to share and share alike in the division thereof; however, this bequest is made to our said named children with the provision that our son Chris Mattern shall have the right to purchase from each of the other children their interest in said real estate for the sum of $45.00 per acre, and in making such purchase from said other children our said son Chris Mattern shall be entitled to deduct from the price of $45.00 per acre such sums of money as he may have advanced to us during our lifetimes.”

After Mrs. Mattern’s death and the probation of the will, three of the children conveyed their interests to appellee. But the five appellant children, refusing to convey, although requested to convey by ap-pellee, brought this suit to relieve their title of appellee’s claim that he had the right under the will to purchase their interests at $45.00 per acre.

Appellants contended that the above quoted provision of the will was invalid. Ap-pellee contended that it was valid and also pleaded in detail various items of expense consisting of monies expended by Chris Mattern on behalf of his deceased parents, including among other items, a $1,094.15 funeral bill for his mother, certain medical fees paid for his parents, and other listed items with all items aggregating $2,237.82. Appellee also moved the trial court to consolidate the suit for declaratory judgment .and will construction case with a pending suit between the parties for the partition of the estate of Paul and Monika Mattern.

Appellants and appellee each filed motions for summary judgment, supported by affidavits. The trial court denied appellants’ motion for summary judgment.

The proof showed that appellee Mattern tendered the sum of $45.00 per acre for the purchase of the interests of appellants in the land devised to appellants, and that appellants refused to convey their interests to Mattern.

The trial court in its judgment found that the provision of the will in question devised to and vested in each of the children named therein, the fee simple title to all the property devised in said provision, subject however to the right of Chris Mattern to purchase said property at the stipulated sum of $45.00 per acre, and as to this feature of the case, the defendant-appellee’s motion for summary judgment was granted. Appellants have appealed.

Appellants on appeal present two points wherein they contend to the effect that the provision in the will which attempted to give appellee the right, unlimited as to time, to purchase the realty devised to appellants, at $45.00 per acre, was invalid and in violation of the rule against perpetuities.

In the construction of a will, the intent of the testator should be declared, and if legal, it should be enforced. Pritchett et al. v. Badgett, Tex.Civ.App., 257 S.W.2d 776, writ refused.

If it does not clearly appear from the language of a will that a lesser estate was intended to be created, a devise will be deemed to be one in fee simple. Art. 1291, Vernon’s Ann.Civ.St.; Frame v. Whitaker, 120 Tex. 53, 36 S.W.2d 149.

In Seay v. Cockrell, 102 Tex. 280, 115 S. W. 1160, it is said in substance that in the will there considered a fee simple estate was conveyed and a provision that the dev-isee should not sell was clearly void.

In Frame v. Whitaker, Tex.Com.App., 120 Tex. 53, 36 S.W.2d 149, the clause in the will was as follows:

“I give, devise and bequeath to my wife, Mrs. S. S. Frame, my farm located in Bexar County, Texas, and consisting of about 331 acres located on the Medina River and known as a part of the old Stanfield Farm to be used by her during the term of her natural life, but she shall not sell or dispose of the same in any way during her life time, provided however that she may dispose of the same by will to whom-so-ever she may desire. * * *»

It was held Mrs. Frame received a fee simple title. In the course of the opinion in Frame v. Whitaker, supra, it was stated:

“We hold simply that in this case, when the will is viewed and considered from every angle, it indicates the purpose and intent on the testator’s part to devise the land to his wife, and then restrict her right of alienation, and that such clause of restriction is void.”

This opinion was expressly adopted by the Supreme Court.

The case of Pritchett v. Badgett, Tex.Civ.App., 257 S.W.2d 776, writ refused, holds that where a testator devised lands to his son in fee simple, a provision of the will that the son could not sell or encumber the land for 20 years unless joined by testator’s executors, was void as being repugnant to the grant.

In Dodson v. Dodson, Tex.Civ.App., 299 S.W.2d 775, no writ history, it was held that a provision in a partition deed of fee simple estate, executed by heirs of decedents, that none of the tracts should be mortgaged, sold or in any way transferred, so long as any of the grantees should be living, to any person or persons except a legal heir of decedents was void as against public policy.

In O’Conner v. Thetford, Tex.Civ.App., 174 S.W. 680, 681, er. ref., there was involved a suit to remove cloud on title and construe a deed. The deed contained a proviso that as a controlling condition of the conveyance was to prevent the alienation, either voluntary or involuntary by the grantee of the premises, and in such event to terminate all estate passed to said grantee under the conveyance, and to revest immediately in the grantor. The court in affirming the trial court’s judgment declaring the restraint to be void, said in part:

“The tying up of property was regarded by the common law as an evil* and in order to prevent it two doctrines were established, one that all interest should be alienable, the other that all interest must arise within certain limits, the latter being known as the rule against perpetuities. In this case we are concerned only with the first doctrine, and the extent to which it exists in this state under the common law which has furnished our rules for construing deeds since its adoption in 1840. It is well settled that a general restraint upon the power of alienation when incorporated in a deed or will otherwise conveying a fee-simple title is void, but authorities differ in construing restraints on alienation for a limited time. One line of authority is to the effect that a restraint upon the alienation of a fee-simple title for a limited period, however brief, is inconsistent with and repugnant to the nature of such an estate, because one of the most important characteristics thereof is the power of alienation. The other class of cases holds a restraint upon the alienation even of a fee-simple title, if for a reasonable time, to be a valid restriction. * * * The first rule is the more logical and presents no difficulties such as will be encountered in determining what is a reasonable time. * * * ” (Emphasis added.)

In 41 Am.Jur., p. 116, it is stated in part as follows:

“According to the trend and the weight of modern authority, a deed or devise in fee simple to which is annexed a condition limiting the class of persons to whom the property may he aliened, or excluding a certain person or ciass of persons from owning the same, is to the effect that such an attempted limitation on the right of the grantee or devisee to alien the land is void. For example, it has been held that a testator cannot devise his estate to his children and prevent them from selling it to anyone except the surviving children and at a price to be determined by arbitration. * * * ” (Emphasis added.)

We hold that the portion of the provision in the will in question which attempted to give the appellee the right, unlimited as to time, to purchase at $45.-00 per acre, the realty devised to appellant children in fee simple title, was an attempted restriction upon the rights of appellant children of alienation of the property, was repugnant to the grant of a fee simple title to the appellant children and therefore was invalid.

We further hold that the portion of the provision of the will in question, which attempted to give the appellee the right, unlimited as to time, to purchase at $45.00 per acre, the realty devised to appellant children in fee simple title, also violates the rule against perpetuities and for that reason is also void. In this connection, see the following authorities: Art. 1, Sec. 26, Texas Constitution, Vernon’s Ann.St.; Henderson v. Moore, 144 Tex. 398, 190 S.W.2d 800; Anderson v. Menefee, Tex.Civ.App., 174 S.W. 904, er. ref.; 162 A.L.R. 581; Barton v. Thaw, 246 Pa. 348, 92 A. 312; Maddox v. Keeler, 296 Ky. 440, 177 S.W.2d 568, 162 A.L.R. 578.

In Henderson v. Moore, supra (190 S.W.2d 800) it is stated:

“The rule against perpetuities renders invalid any will which attempts to create any estate or future interest which by possibility may not become vested within a life or lives in being at the time of the testator’s death and twenty-one years thereafter, and when necessary the period of gestation. 41 Am.Jur. 50; 32 Tex.Jur. 834; 48 C.J. 937; Brooker v. Brooker, 130 Tex. 27, 106 S.W.2d 247; Neely v. Brogden, Tex.Com.App., 239 S.W. 192. When lives in being form no part of the period of suspension or postponement of the vesting of title, the limit of time against perpetuities is twenty-one years from the death of the testator. 48 C.J. 939. The rule is intended to prevent the taking of the subject matter of the perpetuity out of commerce or trade for the prohibited period. See authorities above.”

In 162 A.L.R., p. 581, it is stated:

“According to the weight of authority in jurisdictions applying the common-law rule against perpetuities, an option to purchase real property, unlimited as to the time for its exercise or extending beyond the period limited by the rule against perpetuities, violates such rule and is invalid.”

In Barton v. Thaw, 246 Pa. 348, 92 A. 312, the court stated:

“The case turns very largely upon the character of the interest in the surface which the optionees took under the covenant. If it was a present, fixed, and vested interest in the land, the rule against perpetuities would have no application. But is a mere option to purchase land, unlimited as to time and indefinite in duration, which may be exercised in 10 years, or in 100 years, or in 1,000 years, or which may never be exercised at all, depending upon the wish or pleasure of the op-tionee, a present vested interest? To ask this question would seem to answer it. In no proper legal sense can a mere privilege of exercising a future right to purchase be deemed a present vested interest in land. The optionees may never exercise their option, and, failing to do so, they would never acquire a vested interest in the land.”

In Maddox v. Keeler, 296 Ky. 440, 177 S.W.2d 568, 162 A.L.R. 578, the conveyance was on condition that should the grantee desire to sell, the grantor should have the option to purchase for $1,000. The court held that such option was against the perpetuity rule:

“Assuming, without deciding, that the option retained in the deed created a future equitable interest in the land, susceptible of inheritance, it is obvious that such interest is a limitation upon the power of absolute alienation, so long as it remains in existence. Gray’s The Rule Against Perpetuities, Fourth Edition, p. 355, Sec. 323. Such interest, therefore, being the subject of inheritance, would remain a limitation upon the power of alienation until the owner of the property concluded to sell or convey the tract to another. Thus, the right to exercise the option could pass from generation to generation, until finally it might vest in one coming into being after the expiration of twenty-one years and ten months after a life or lives in being at the time of the creation of the estate. * * *
“The clause under consideration specifies no limitation as to the time in which the option may be exercised, and if, as we have assumed for the purpose of this discussion, the right to exercise the option is such an equitable interest in real estate as will pass by descent to the heirs of the grantor, it is apparent, since the grantee and his heirs may not decide to sell or convey the property for an indefinite period of time, the limitation upon the power of alienation would extend indefinitely, which of course might be twenty-one years and ten months beyond a life or lives in being at the time of the creation of the estate.”

On the day when the testatrix died by possibility appellee might never be able or desirous of purchasing, or might (lie without having made any decision as to whether he wished to purchase. Also if appellee died without purchasing, his heirs, devisees or assigns by possibility might not desire to purchase, ad infinitum.

The portion of the provision in question attempted to place a limitation upon appellant children’s title to the fee, which limitation was uncertain whether, or when, or ever, it would be exercised. It would not be sufficient that the attemped right to purchase might be, or probably would be exercised, as the applicability of the rule against perpetuities is not determinable by actualities and probabilities but by possibilities. The very possibility that existed at 'the testator’s death that the attempted right to purchase might not be exercised for any reason whatsoever, at any time, is fatal.

Applying the Supreme Court’s test in Henderson v. Moore, supra, that any future interest, which by possibility might not become vested within the perpetuity period, is void and not enforceable, it follows that the portion of the provision in question violates the rule against perpetuities.

We hold that the trial court erred in granting the summary judgment it granted against appellants. We further hold that the trial court erred in not holding and declaring that the portion of the provision of the will which attempted to give appellee the right, unlimited as to time, to purchase at $45.00 per acre the realty devised to appellants, was invalid.

However the case being disposed of by summary judgment, was not fully developed upon the merits as to remaining undis-posed of controversies between the parties with respect to the partition of the estates of Paul and Monika Mattern and the adjudication of the various claimed equities between the parties. In this connection ap-pellee, among other claimed equities, contends that appellants’ bequests are chargeable with certain debts and expenses of the testator and testatrix.

The judgment of the trial court granting a summary judgment against appellants is reversed and judgment is here entered declaring invalid the portion of the will provision which attempted to give appellee the right, unlimited as to time, to purchase ■at $45.00 per acre the realty devised to appellants. The cause is remanded for further proceedings with respect to the partition of the estates of Paul and Monika Mattern, and the adjudication of the claimed equities between the parties in a manner not inconsistent with our holding here that the portion of the will provision which attempted to give appellee the right, unlimited as to time, to purchase at $45.00 per acre the realty devised to appellants, was invalid.

Reversed and remanded for further proceedings with instructions.


author: BARROW, Justice.

text:
    Gerald JOHNSON et al., Appellants, v. TEXAS GULF COAST CORPORATION, Appellee.
    No. 13905.
    Court of Civil Appeals of Texas. San Antonio.
    July 18, 1962.

      Hyde & Hamilton, J. W. Cooper, Jr., Corpus Christi, for appellants.
    Guy H. Allison, Corpus Christi, for appel-lee.
   BARROW, Justice.

This suit was instituted by Texas Gulf Coast Corporation against Gerald Johnson, Thomas Johnson (who is dead), Fayne Johnson, and Johnson Oil Supply Company, a partnership, seeking to establish plaintiff’s right and title to one sixty-fourth of eight-eighths (⅜4 of %ths) overriding interest under a certain leasehold estate in Jim Wells County, Texas, and asking for the execution by the defendants of such instrument as would be necessary to secure title to that interest in plaintiff, and for an accounting for the monies from the production under such interest.

The parties tried the case in the trial court on the agreed basis that the only question involved was:

(a) Whether or not one Lewis O. Kelsey, who was admittedly the agent of the defendants in negotiating the purchase of pipe from the plaintiff, had the authority to bind the defendants in an agreement executed by him for the defendants, whereby he agreed that the defendants would transfer to plaintiff a one-sixty-fourth of eight-eighths (⅝⅜⅛. of %ths) overriding royalty interest under a certain leasehold estate as an additional consideration over and above the out of stock price for the pipe, or,
(b) If he did not have the authority to do so, whether or not the defendants subsequently ratified such agreement.

Based upon the answers of the jury, the trial court rendered judgment in favor of plaintiff, and the defendants have prosecuted this appeal.

An overriding royalty in an oil and gas lease is an interest in land and ordinarily must be conveyed by an instrument in writing executed in the manner set forth in Art. 1288, Vernon’s Tex.Civ.Stats. See also, Art. 3995, Vernon’s Tex.Civ.Stats; Pantaze v. McDill, Tex.Civ.App., 228 S.W. 962; Summers, Oil & Gas, § 543.

However, the statute of frauds was not plead herein, and no question is raised to the effect that Lewis O. Kelsey had no written authority to convey the overriding royalty, or that it was not conveyed by an instrument in writing. Therefore, such questions will not here be considered.

The evidence shows that Lewis O. Kelsey was an agent of appellants here, who were defendants below. Appellants were in need of pipe in their drilling operations and Kelsey went to Victor VerMilyea, President of Texas Gulf Coast Corporation, in January, 1953, for the purpose of purchasing the needed pipe, which was in short supply and hard to obtain at that time.

A deal was there entered into between these two parties, purporting to act as agents of the appellants and appellee, respectively, whereby appellee agreed to furnish appellants the pipe desired. The pipe was to be paid for within ten days after delivery at the current out of stock prices, and in addition thereto appellants were to assign to appellee a ⅜4 of ⅜ interest in an overriding royalty of a leasehold interest located in Jim Wells County, Texas, known as the C. W. Ragland Lease. In this connection, Lewis O. Kelsey, purporting to act for appellants, executed two letter agreements. One was a letter dated January 12, 1953, signed by Lewis O. Kelsey, accepted by appellee, in which it was stated that an immediate assignment would be made of a ⅜4 of ⅜ free overriding royalty interest to appellee in the Ragland Lease, and that Johnson Oil Supply Company would commence drilling a well at its own expense. The other provided that, pursuant to the first letter, the appellee agreed to furnish certain listed tubular goods at prices quoted F.O.B. appellee’s Corpus Christi yard, and to be paid for ten days after delivery. The pipe was not paid for within the ten-day period, and about nine months thereafter appellants were required to sign a note payable to appellee in the sum of $10,836.57, and on the same day an assignment of an oil payment was executed by appellants. Later appellants executed a deed of trust covering this oil payment, and as appellee had not recorded its assignment, its interest was cut off. This oil payment is not to be confused with the free overriding royalty which is the subject of this suit.

VerMilyea testified that after the letter agreements were executed there were several meetings with Gerald Johnson, Kelsey and himself, at which the agreements were discussed. At that time Johnson did not deny Kelsey’s authority to sign the agreements, but, on the contrary, he acknowledged the agreements. VerMilyea testified:

“Q You stated that Mr. Johnson at one or more of those meetings agreed to give you a free overriding royalty interest, correct?
“A Yes, we all agreed to it.”

He further testified that after these conversations, he received a division order from appellants reflecting that appellee was the owner of a ⅜⅜ of interest in production on the lease in question. Further, that after execution of the division order, Johnson personally signed checks for production on the lease and furnished appellee with an income tax form which recited that the sums were paid as rents and royalties. VerMilyea also testified that Johnson had tried to buy appellee’s overriding royalty interest.

In their reply to appellee’s request for admissions of fact, appellants admitted that Kelsey was acting in their behalf in purchasing the pipe from appellee, and that he was authorized to execute an overriding royalty interest, but only as security for the indebtedness. Johnson denied having any knowledge of the letter agreements until after this suit was filed. He testified that he executed the division order to pay off the note and that since the note was now nearly paid off a new division order should be executed. In this connection, it is significant that the sale did not become a credit transaction and the note was not executed until nearly nine months after the sale and agreements were executed.

Thus we come to the all-important question as to whether Lewis O. Kelsey was authorized to assign to appellee the ⅜4 of ⅜ free overriding royalty of the Ragland Lease.

The following three issues were submitted to the jury and answered in the manner indicated:

“SPECIAL ISSUE NO. 1:
“Do you find from a preponderance of the evidence, if any, that the said Lewis O. Kelsey in entering into the agreements of January 12, 1953, being Plaintiff’s Exhibits Nos. 3 and 5, was acting with the express authority of one or any of the defendants herein? We, the Jury, answer: He was.
“SPECIAL ISSUE NO. 2:
“Do you find from a preponderance of the evidence, if any, that the said Lewis O. Kelsey in entering into the agreements of January 12, 1953, being Plaintiff’s Exhibits Nos. 3 and 5, was acting with the implied authority of one or any of the defendants herein? (Conditionally submitted and unanswered.)
"SPECIAL ISSUE NO. 3:
“Do you find from a preponderance of the evidence, if any, that the Defendants, or any of them, by a writing, adopted and confirmed the acts of the said Lewis O. Kelsey in entering into the agreements of January 12, 1953, being Plaintiff’s Exhibits Nos. 3 and 5? We, the Jury, answer: They did.”

Thus it will be seen that if the judgment here entered is to stand it must be upon the finding that Lewis O. Kelsey had expressed authority from Gerald Johnson, or some of the appellants, to execute the letter agreements signed by him, dated January 12, 1953, in which he agreed that Johnson Oil Company would execute an instrument assigning a ¾⅛ of % free overriding royalty in the Ragland Lease to ap-pellee, or upon the finding of the jury that the appellants, or any of them, by a writing, adopted and confirmed as their own act, the act of Lewis O. Kelsey in entering into the agreements of January 12, 1953.

Appellants assert by proper points that there is no evidence or that the evidence is insufficient to support these adverse findings. We overrule said points. The rule is that agency may be established by either direct testimony or by circumstances, such as the relation of the parties and their conduct concerning the transaction in controversy. Daugherty v. Wiles, Tex.Com.App., 207 S.W. 900; Stripling v. Hoing, Tex.Civ.App., 203 S.W.2d 1016; 2 Tex.Jur.2d, § 257.

Here the testimony of VerMilyea, together with admissions of Gerald Johnson, established that with knowledge of the agreements as made by the agent, Johnson did not question Kelsey’s authority or the agreements in any way, but, on the contrary, recognized the agreements and executed the division order.

Johnson testified that he told Kelsey that he would not give an overriding royalty interest in order to obtain the pipe, but the jury did not have to believe his testimony. We find, after consideration of all the evidence, together with the facts and circumstances surrounding same, that there is sufficient evidence to support the jury’s finding of express authority.

We further find that in signing the division order which reflected appellee as owner of the same interest as agreed upon in the agreement in question, appellant Gerald Johnson ratified, by a writing, the agreement. It is true that an ordinary division order relating to the sale of oil and gas does not convey title to the royalty involved. Thompson v. Thompson, 149 Tex. 632, 236 S.W.2d 779. However, that is not the issue before us in view of the agreed issue on which this case was tried.

Johnson testified that he executed the division order for the sole purpose of paying off the note. The jury by their finding rejected this intention. It is our duty to review all the evidence to determine if there is sufficient evidence to support this finding. Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126. After applying this rule, we find that there is sufficient evidence to support said finding to Question No. 3.

The judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    W. Lee MOORE, Jr., Appellant, v. Ruby SAVAGE, Appellee.
    No. 3999.
    Court of Civil Appeals of Texas. Waco.
    June 14, 1962.
    Rehearing Denied July 19, 1962.
    Fred S. Abney, Charles Ben Howell, Dallas, for appellant.
    Fritz and Vinson, Dallas, for appellee.
   McDONALD, Chief Justice.

This is an “unreasonable collection efforts” case. Arzalia Bailey, the borrower, and her employer, Ruby Savage, brought this suit for damages for excessive collection efforts by Signature Loans, Inc., alleging that W. Lee Moore, Jr. was alter ego thereof and jointly liable. Trial was to a jury. The jury, in answer to issues submitted, found:

I) Signature Loans made unreasonable collection efforts against Arzalia Bailey.

4) Arzalia Bailey did not suffer physical illness thereafter.

7) Signature Loans made unreasonable collection efforts against Ruby Savage.

8,9) Such collection efforts against Ruby Savage were not made with reckless disregard to her health and welfare or for the purpose of causing her pain and suffering.

10) Ruby Savage suffered physical illness and mental or emotional pain thereafter.

II) The unreasonable collection efforts were a proximate cause of the physical illness and mental and emotional pain.

14) Ruby Savage’s damages for such mental and emotional pain and physical illness were $500.

15) Ruby Savage is entitled to exemplary damages in the amount of $850.

The Trial Court rendered judgment for Ruby Savage only, for $500 against Signature Loans, Inc., and W. Lee Moore, Jr. W. Lee Moore, Jr. only, appeals, contending:

1) There can be no recovery in an “unreasonable collection efforts” case, unless the collection efforts be “wilful and malicious,” as distinguished from being merely “negligent.”

2) Issue 7, and the instruction concerning same, submitted to the jury by the Trial Court were erroneous.

3) W. Lee Moore, Jr., as officer and controlling stockholder of Signature Loans, Inc. is not liable personally for the torts of the corporation, and the evidence is insufficient to so hold him.

We revert to contentions 1 and 2. The Trial Court submitted Issue 7 as follows: “Do you find from a preponderance of the evidence that Signature Loans, Inc., through its agents, servants, or employees after December 19, 1957, made any unreasonable collection efforts upon Ruby Savage? Answer ‘Yes,’ or ‘No.’” The Court instructed the jury: “By the term ‘unreasonable collection efforts,’ as used in this charge, means such efforts as a person of ordinary care and prudence would not have used under the same or similar circumstances.” The jury answered the issue “Yes.”

Defendant contends that there can be no recovery in this type of case unless the collection efforts are “wilful and malicious” as distinguished from being merely “negligent.” Defendant further contends that to sustain recovery, plaintiff must prove defendant “intended” to cause her physical or emotional distress. Defendant further asserts that “A creditor has the right to be unreasonable. A creditor has no right to be outrageous.”

We reject the contentions. Wilful and malicious conduct are prerequisites to plaintiff’s recovery of exemplary damages, but not to actual damages. Negligent conduct of defendant which results in physical illness and mental or emotional pain, supports an award of actual damages. The record here reflects that Signature Loans’ employees called plaintiff’s business 15 times per day for some 3 months (albeit to collect the debt of Arzalia Bailey); demanded of Mrs. Savage at least twice that she pay Arzalia’s debt; defendant’s employee came out to Mrs. Savage’s business, a pre-school nursery, and made demands for payment in person of Arzalia, and of Mrs. Savage. The telephone calls to the nursery stopped only after Mrs. Savage complained to the police. Mrs. Savage begged defendants not to call, since her phone was for the business of the pre-school kindergarten.

The calls and efforts caused Mrs. Savage to be nervous, sleepless, have chest pains, and to go to the doctor. She suffered a heart attack and nervous exhaustion. She suffered a pre-existing allergy which became worse when she was nervous or upset, and became worse when Signature Loans was calling.

Mrs. Savage had no responsibility to pay Arzalia’s debt. We think the efforts against Mrs. Savage harsh, unreasonable, harassing and negligent. Moreover, it is more unreasonable to harass someone who does not owe a debt than it is to harass someone who does owe a debt.

It is our view that to make out a cause of action in “unreasonable collection effort” cases, it is unnecessary to plead or prove wilfulness or maliciousness, and that negligence causing physical illness will support recovery of actual damages. See: Wright v. E-Z Finance Co., Tex.Civ.App. (n. r. e.), 267 S.W.2d 602; Industrial Finance Ser. Co. v. Riley, Tex.Civ.App., 295 S.W.2d 498, affirmed 157 Tex. 306, 302 S.W.2d 652; Allison v. Simmons, Tex.Civ.App. (n. r. e.) 306 S.W.2d 206; Advance Loan Serv. v. Mandik, Tex.Civ.App., 306 S.W.2d 754; Western Guaranty Loan Co. v. Dean, Tex.Civ.App. (n. r. e.), 309 S.W.2d 857.

The record here reflects ample evidence to support the verdict and judgment, and same are not against the great weight and preponderance of the evidence under the rule of In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Defendant’s 3rd contention asserts that he is not personally liable for the torts of Signature Loans, Inc. It is undisputed that defendant Moore was President and controlling stockholder of Signature Loans, Inc.; that he exercised complete and independent control of the corporation. Under the record, the facts are sufficient to support the Trial Court’s conclusion that the “alter ego” should be held personally liable. Oriental Investment Co. v. Barclay, 25 Tex.Civ.App. 543, 64 S.W. 80; Bush v. Gaffney, Tex.Civ.App., 84 S.W.2d 759; Gamer Paper Co. v. Tuscany, Tex.Civ.App., 264 S.W. 132; Bergman Drive-In, Inc. v. Houston Sash and Door Co., Tex.Civ.App., 256 S.W.2d 661.

All of defendant’s points and the contentions thereunder made are overruled and the judgment of the Trial Court is affirmed.


text:
    The INTERNATIONAL FIDELITY INSURANCE COMPANY, Appellant, v. Harold JANSEN, Appellee.
    No. 4002.
    Court of Civil Appeals of Texas. Waco.
    June 21, 1962.
    Rehearing Denied July 19, 1962.
    Lyne Blanchette, Smith & Shelton, Donald F. Padgett, Dallas, for appellant.
    Jones, Phillips, Barnes & Watson, Jack Gay, Dallas, for appellee.
   McDONALD, Chief Justice.

This is a suit for benefits under a hospitalization insurance policy, based on confinement in a hospital from 3 March, 1959 to 3 March 1960. Defendant denied liability on the ground that its policy did not cover confinement for nervous or mental disorders; that “Wheatland Retreat” where plaintiff was confined, was not a hospital within the provisions of its policy; and that plaintiff’s wife had misrepresented the condition of plaintiff’s health in 1954, at the time it reinstated plaintiff’s policy.

Trial was to a jury which, in answer to Special Issues, found:

1) Plaintiff was not suffering from a nervous or mental disorder.

1A) Wheatland Retreat is a hospital within the provisions of the policy.

2) Plaintiff’s wife represented that plaintiff’s health was good at the time of application for policy reinstatement in 1954.

3) Such was a material matter.

4) Such representation was not false.

5) & 6) Defendant believed and relied upon such representation.

The Trial Court entered judgment for plaintiff on the verdict for $3022.50 benefits under the policy, $362.70 interest, $1000. attorney’s fees, and $500. if defendant appealed without success.

Defendant appeals, contending:

1) There is no evidence to support jury findings 1), and 1A).

2) There is insufficient evidence to support jury finding 1).

3) Jury finding 1A is against the great weight and preponderance of the evidence.

4) Jury finding 4 is against the great weight and preponderance of the evidence.

We revert to contentions 1, 2 and 3. The jury found that plaintiff was not suffering from a nervous or mental disorder; and that “Wheatland Retreat,” is a hospital within the terms of the policy.

Defendant admitted that plaintiff was sick and such sickness required his confinement as a bed patient in a hospital or other institution. Dr. Van Cleave testified that he suffered from a disease called cerebral arteriosclerosis; that arteriosclerosis is a malady of the blood system, especially of the arteries; that arteriosclerosis is not a nervous or mental disorder; that plaintiff has cortical atrophy; that cortical atrophy is not a mental or nervous disorder.

The policy provides for payment for confinement in “any Hospital, recognized as such by the American Hospital Association.” The record reflects that “Wheatland Retreat” was recognized as a hospital by the American Hospital Association. It had 3 medical doctors on its staff; 4 registered nurses on its staff; five licensed nurses on its staff; was listed in the telephone book as a hospital; had its own kitchen facilities; had oxygen equipment; was licensed as a hospital; had 40 to 50 average number of patients; and had facilities for overnight patients.

We think the evidence ample to sustain the jury’s answers to Issues 1), and 1A), and that such answers are not contrary to the great weight and preponderance of the evidence. See: In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; National Bankers Life Ins. Co. v. Hornbeak, Tex.Civ.App, (n. w. h.) 266 S.W.2d 228; Reserve Life Ins. Co. v. Jansen, Tex.Civ.App., 357 S.W.2d 770; Reserve Life Ins. Co. v. Marr, 9 Cir., 254 F.2d 289. Contentions 1, 2 and 3 are overruled.

Contention 4 is that the jury’s finding that plaintiff’s wife’s representation in 1954, at the time of reinstatement of the policy, was against the great weight and preponderance of the evidence.

The statement that plaintiff’s wife made in 1954 was that plaintiff was in good health “to the best of her knowledge and belief.” Defendant had the burden to establish by a preponderance of the evidence that such representation was false. Defendant failed to discharge this burden, and the jury’s answer is not against the great weight and preponderance of the evidence. Moreover, there is no showing that the statements made by plaintiff’s wife (who is now deceased), were made by plaintiff’s direction, or that he even knew of the reinstatement. See Golden State Mut. Life Ins. Co. v. Pruitt, Tex.Civ.App., 357 S.W.2d 812. Contention 4 is overruled. The judgment of the Trial Court is Affirmed.


author: WERLEIN, Justice.

text:
    CARNES CORPORATION, Appellant, v. THERMAL SUPPLY, INC., et al., Appellees.
    No. 13970.
    Court of Civil Appeals of Texas. Houston.
    June 21, 1962.
    Rehearing Denied July 13, 1962.
    Ross, Banks & May, Guy H. McDaniels, Jr., Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, M. W. Parse, Jr., Houston, for appellees.
   WERLEIN, Justice.

This suit was brought by appellant, Carnes Corporation, on an alleged itemized sworn account against some five partners doing business under the partnership name of United Supply Company, hereinafter called United, and against Thermal Supply, Inc., for the amount of such debt based upon a written agreement between United and Thermal whereby Thermal purchased the assets of United and assumed its liabilities. Trial was to the court without a jury. The trial court entered a take nothing judgment in favor of appellees.

At the request of appellant, the trial court filed its findings of fact and conclusions of law. The court found in substance that the merchandise described in appellant’s petition was sold pursuant to a purchase order of United and upon terms and sales price determined by the provisions of a written contract between appellant and United dated September 1, 1956; that on September 2, 1958 Thermal purchased the assets of United and assumed and agreed to pay or discharge United’s liabilities and obligations as are described in the written agreement introduced in evidence as Plaintiff’s Exhibit No. 2, and that the basic purchase price of $617,539.00 for the assets of United was not adjusted by reason of the transaction made the basis of appellant’s suit; that Thermal offered to return to appellant the merchandise described in appellant’s petition, and such offer was refused; and that the contract between appellant and United was assigned by United in the sale of its assets to Thermal without objection on the part of appellant, and was not can-celled until December 8, 1958.

In its conclusions the court stated that appellant conceded that “The Defendants alleged and proved that an illegal agreement existed between Carnes and United at the time the merchandise was ordered in that such agreement contains provisions viola-tive of the Anti-Trust statutes of Texas,” and that the debt created is unenforceable against United and absolutely void under Article 7437, Vernon’s Annotated Texas Statutes, and hence is not a liability or obligation within the meaning of and intent of the parties expressed in the contract between United and Thermal; that appellant cannot establish a claim against Thermal without showing the illegal transaction between appellant and United in which the merchandise was sold; and that Thermal is not liable to appellant in quasi contract since it has not been guilty of any wrongful conduct, and offered to return the merchandise, which offers were rejected by appellant.

No statement of facts has been filed herein. Based ttpon appellant’s judicial admission that it could not recover against United, and upon a consideration of the evidence and the written agreement upon which appellant sued Thermal, the trial court held that none of the defendants was liable to appellant and entered a take nothing judgment. Appellant, apparently conceding the illegality of the contract between it and United, makes no contention that the judgment is erroneous as to United. Appellant acknowledges that its suit against Thermal is based upon a written contract between Thermal and United. Although such contract was introduced in evidence in the trial court, it is not before this Court, and we have no knowledge of its terms or provisions. The admissions made by appel-lees pursuant to appellant’s request for admissions, do not support appellant’s claim against Thermal in view of appellees’ denials to some of such requests. The law is well settled that one claiming to be a third party beneficiary succeeds or fails according to the provisions of the contract sued upon. Western Union Telegraph Company v. Douglass, 1911, 104 Tex. 66, 133 S.W. 877; Burke v. Scott, Tex.Civ.App., 237 S.W.2d 655, writ, ref., n. r. e.; First Nat. Bank of Breckenridge v. First Nat. Bank of Stamford, Tex.Civ.App., 53 S.W.2d 75, error dism.

The trial court found that Thermal agreed to discharge such liabilities and obligations of United as are described in the written agreement between United and Thermal. Since such agreement is not before us, it is impossible for this Court to determine what liabilities and obligations are described therein. The trial court with the agreement before it, concluded that appellant’s claim is not a liability or obligation within the meaning and intent of the parties expressed in the contract between United and Thermal. The trial court further found that the merchandise in question was sold pursuant to the admittedly illegal contract between appellant and United, and concluded that appellant could not establish its claim against Thermal without showing the illegal transaction between appellant and United. The law is well settled that if the party who seeks to enforce a demand, has to depend upon or require assistance from an illegal transaction in order to establish his case, he cannot recover. Wiggins v. Bisso, 1898, 92 Tex. 219, 47 S.W. 637; Read v. Smith, Tex.Sup.1883, 60 Tex. 379; 13 Tex.Jur.2d, Contracts, § 215.

Since the contract upon which appellant bases its claim against Thermal is not before us and no statement of facts has been filed, and there are no findings of fact or conclusions of law upon which appellant might recover against Thermal, we cannot say that the trial court erred in denying appellant’s claim. It is not open to question that in the absence of a statement of facts, every presumption must be indulged in favor of the trial court’s findings and judgment. Commercial Credit Corporation v. Smith, 1945, 143 Tex. 612, 187 S.W.2d 363, and authorities cited.

Judgment affirmed.


text:
    S. J. ROGERS et al., Appellants, v. Neal H. BARBEE, Appellee.
    No. 13979.
    Court of Civil Appeals of Texas. Houston.
    June 28, 1962.
    The Kempers, Houston, W. L. Kemper, Houston, of counsel, for appellant.
    Paul P. Regnier, John E. McGillicuddy, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from a judgment overruling a plea of privilege.

On January 23, 1961, Neal H. Barbee filed his original petition naming as defendant Texas State Optical, Inc., in which he sought damages by reason of certain claimed acts of negligence on the part of employees of defendant at “one of defendant’s many retail outlets in Harris County, Texas.” He also alleged warranty and breach thereof. Citation was issued to “Texas State Optical, Inc., a Texas Corporation” and the Sheriff’s Return by the Sheriff of Jefferson County, Texas, recited execution in Jefferson County, Texas, by delivering to the defendant a copy of the citation and a copy of plaintiff’s original petition on January 26, 1961, “by serving N. J. Rogers, Partner.”

On February 14, 1961 the defendant’s original answer was filed. This answer consisted of a plea of privilege beginning, “Come now each of the Defendants in the above-entitled and numbered cause, including S. J. Rogers and N. Jay Rogers * * and an answer to the merits. Included in the plea of privilege was a denial that the defendant “named in this suit as Texas State Optical, Inc.,” was a corporation and an allegation that Texas State Optical was the name of the partnership of S. J. Rogers and N. Jay Rogers.

On the 3rd day of March, 1961, plaintiff filed an amended petition in which S. J. Rogers and N. Jay Rogers doing business as Texas State Optical were named as additional defendants. On the same day plaintiff filed his controverting plea to the plea of privilege “heretofore filed by the Defendants, S. J. Rogers and N. Jay Rogers d/b/a Texas State Optical a co-partnership, and Texas State Optical, Inc., * * *”

On March 8, 1961, an answer, including a plea of privilege, was filed for Texas State Optical, Inc. On March 15, 1961 plaintiff filed another controverting affidavit “to the Plea of Privilege heretofore filed by the Defendants, S. J. Rogers and N. Jay Rogers d/b/a Texas State Optical a co-partnership, and Texas State Optical, Inc., a Texas corporation, * * *”

On March 20, 1961, a citation was issued on plaintiff’s first amended original petition, which was duly served on March 22, 1961.

Thereafter defendants filed a motion requesting that the Court transfer the case to the District Court of Jefferson County, Texas, as required by the provisions of Rules 86 and 87 of the Texas Rules of Civil Procedure, because, among other reasons, plaintiff failed to file a controverting affidavit within ten days after his attorney of record had received a copy of such plea.

On January 15, 1962, plaintiff’s motion to dismiss as to Texas State Optical, Inc., was granted by the Court. The motion to transfer and the plea of privilege were overruled on the same day after a hearing before the Court at which evidence was introduced.

This case is governed by the rule announced by the Supreme Court of Texas in Adams v. Consolidated Underwriters, 133 Tex. 26, 124 S.W.2d 840, as follows:

“When a person intended to be sued is sued and served by a wrong name, and such person fails to appear and plead such misnomer in abatement, and suffers judgment to be obtained, he is bound by such judgment, and in all future litigation he may be connected with such suit or judgment by proper averments; and when such averments are made and proved, the party intended to be named in the judgment is affected or concluded to the same extent that he would have been if he had been named and served by his true name. 1 Freeman on Judgments, par. 154, p. 279; Abilene Independent Tel. & Tel. Co. v. Williams, 111 Tex. 102, 229 S.W. 847; Tryon v. Butler, 9 Tex. 553; McGhee v. Romatka, 92 Tex. 38, 45 S.W. 552.”

The plaintiff intended to sue the owner of the retail outlets in Harris County, Texas, operating under the name of Texas State Optical. Texas State Optical, Inc. was not in existence when plaintiff’s cause of action arose. Citation was served on the true owners of the retail outlet named in the petition. Texas State Optical, a Co-partnership, answered by plea of privilege and to the merits. Unquestionably the partnership would have been bound by any judgment rendered. Kirk v. Harrington, Tex.Civ.App., 255 S.W.2d 557.

Plaintiff, by dismissing his cause of action as to Texas State Optical, Inc., demonstrated that the party he intended to sue was the partnership. If the answer had not been filed, a default judgment binding on the partnership could properly have been granted in the corporate name. Abilene Independent Telephone & Telegraph Co. v. Williams, 111 Tex. 102, 229 S.W. 847; Craig v. White Plaza Hotel, Inc., Tex.Civ.App., 289 S.W.2d 625, writ ref., n. r. e.

In Kirk v. Harrington, supra, the court said:

“There is no question but that appellant inserted himself in the suit in one of the following capacities: a real party at interest; the real party at interest; or intervener with an ultimate or contingent interest, based upon any liability of the defendant named as a corporation. In any event, his intervention was with interest as a defendant, at least upon the plea of privilege and he should be so treated. 67 C.J.S., Parties, § 69, p. 1009. If appellant was either a real party at interest or the real party at interest, he was entitled to proceed and to file his plea of privilege.”

Since the plea of privilege was served on February 15, 1961, it appears from the record that no controverting plea was filed within the ten days as required by Rule 86, Texas Rules of Civil Procedure. Plaintiff filed no motion to extend time for filing his controverting affidavit and set up no facts constituting good cause for failure to file his affidavit within the ten day period. Under these circumstances the trial court was without jurisdiction to enter any order other than the order transferring the case pursuant to the plea of privilege. Bell v. Jasper Lumber Co., Tex.Civ.App., 287 S.W.2d 746, error dism.; Farr v. Weeden, Tex.Civ.App., 308 S.W.2d 74; Smith v. Isaac, Tex.Civ.App., 326 S.W.2d 922.

Since the plea of privilege served on plaintiff’s attorney on February 15, 1961, was filed on behalf of Texas State Optical, Inc., as well as the partnership, the trial court lost jurisdiction of the case after the ten day period for the filing of the controverting affidavit. The amended petition filed March 3, 1961, would not affect the duty of the trial court to transfer the case to the proper county. Until the order transferring the cause was properly entered, the clerk of the Court could properly accept instruments to be filed in the case. Security State Bank of McCamey v. General Lloyd’s Fire & Cas. Ins. Co., Tex.Civ.App., 256 S.W.2d 185; Gomez v. Newlin, Tex.Civ.App., 288 S.W.2d 255.

The judgment of the trial court is reversed and remanded with instructions to transfer the case to the District Court of Jefferson County, Texas.