author: COBBS, J. SMITH, J.

text:
    SUSTAITA v. VALLE.
    No. 8535.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 4, 1931.
    On Motion for Rehearing, March 18, 1931.
    On Second Motion for Rehearing, April 29, 1931.
    G. O. Brown and Samuel Belden, both of San Antonio, for appellant.
    G. Woodson Morris, of San Antonio, for appellee.
   COBBS, J.

Isidora Garcia, during his lifetime, instituted this suit against Jose Sustaita, to recover damages on account of severe and permanent injuries, alleged to have resulted from an automobile accident between an automobile in which the plaintiff was a passenger and one driven by the servant of appellant. He alleged that he, was a passenger in an automobile being operated by a third party, and, when said automobile arrived at the intersection of Dolorosa street and South Flores street in the city of San Antonio, Bexar county, Tex., the automobile operated by the servant of appellant suddenly crashed into the automobile in which said plaintiff was riding and threw him violently upon the- pavement. This accident occurred on October 9, 1927.

About July, 17, 1929, Isidoro- Garcia, the original plaintiff, died, and Senobia Valle, ap-pellee, intervened in the cause and filed her fourth amended original petition, in which she alleged that she was the daughter and sole surviving heir at law of said Isidoro Garcia, that there was no administration upon his estate, and that there was no necessity for an administration, and asked that the suit proceed in her name as plaintiff.

Appellee alleged that, on account of the negligence of defendant’s agent in the operation of said automobile at the time and place, as aforesaid, her deceased father was severely and permanently injured, and that he died as a result of said injuries in the city of San Antonio, Texas, on or about July 17, 1929, and that, by reason of the wrongful death of her father, she has been damaged by appellant in -the sum of $20,000. Appellee also sought'to recover the damages sustained by her father from the time of his injury until he died.

The ease was submitted to a jury on special issues, and they returned answers favorable to appellee, finding the damages sustained by Isidoro Garcia to be $500 and the damages to the appellee, his daughter, to be $1,500.

We think the allegations are sufficient to show that Isidoro Garcia was damaged, and the mannér in which he was damaged, and overrule this assignment of error.

The intervention of 'the daughter was proper, and she was not required to file a new suit. It was the original cause of action. The cause of action survived to appellee, his sole heir. Articles 2078, 2086, and 5526, R. S. 1925. We think the appellee had the clear right to come into this suit and show the right to recover. for the physical pain and mental anguish suffered by her father before his death. Gulf, C. & S. F. Ry. Co. v. Moore et al., 28 Tex. Civ. App. 603, 68 S. W. 559; M., K. & T. Ry. Co. of Texas v. Groseclose (Tex. Giv. App.) 134 S. W. 736. Also see article 3353a, Rev. Statutes 1895.

There was no request made by appellant for an issue as to whether or not the action of the deceased in riding in the automobile at the rate referred to in special issue No. 24 was the proximate cause of his injuries. There was no such issue presented. A finding thereon adverse to the plaintiff would have constituted a complete defense to plaintiff’s recovery, so the failure of defendant to submit an issue of proximate cause was a waiver thereof. Ormsby et al. v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

Senobia Garcia Valle, appellee herein, testified as follows: “I said I was the daughter of Isidoro Garcia. I am a widow. I have been a widow more than 20 years. I was born in Mexico and came to the United States in 1908 'with my husband. My husband died in 1910. After that I lived by myself. My father came to this country'in 1904. After that he lived in Falfurrias, Texas. He lived down there with a person he was working for. I have lived with my father in the United States here. I lived with him when I was left a widow which was 20 years ago. My father and I lived in Falfurrias. We lived there from 1910 to 1914. My father made the living when we were living together. We lived in Falfurrias three years and going on four. There were no other members of the family besides my father and myself. I had one little girl. From Falfurrias I came here to visit some relatives and my father stayed there. He came to San Antonio in 1920. I lived, at that time on Morales Street with a lady. My father was the one who was furnishing me my living because I didn’t work. As to whether or not my father came to live with me later, from 1920 until the day he died he was in my company. He was with me from 1920 until the day he died he was in my company. He was with me from 1920 until the day he died. My daughter and my father and myself lived together here in San Antonio, Texas. My father had two trades, carpenter and baker. We lived here in San Antonio at several places. As to what my father made a day, when he had regular work he used to make $12.00 and $15.00 a week. He kept up the family. I know when he was injured. It was in October of 1927. He was working before he was injured. At that time we were living at 412 North San Saba. Before his injury he was in good health. He had not been sick before that. I said that I remember the day he was injured. At the time he was injured he was working at the Sentinel Restaurant. He was washing dishes there because he didn’t have any -other work. I learned that he had been injured the day he got hurt which was on Sunday, on the 9th day of October, 1927. I saw him that day. When I came home from church he was in bed and I asked, ‘Father, what’s the matter with you?’ I was surprised to see him in bed. I examined his body and found a blow here (indicating). There was a bump there. I pulled up his shirt aud I' saw where he had a blow there. Then I went and got some turpefitine and put some on there and put a bandage around him. I rubbed him and put a bandage around him. You could see that he was very sick from the blow. He did not work that day. H'e stayed in the house that day and he stayed in the house the next day. He was confined to his bed three weeks and during that time he appeared to be in pain. He felt sick. That’s why he didn’t get up from bed. He lost his employment and did not go back to work- after that. When he got up after three weeks he had to walk with a walking stick. There were steps going up to our house and he was not able to go up and down those steps like he did before. Afterwards I went to work but for three weeks I didn’t work. I didn’t work for three weeks because my father was in bed but after that I went to work at a house here doing some sewing. I did not leave anybody there with him because I didn’t have anybody to leave. The kind of work I do is ironing. After that my father did not work any more but before his injury he worked. My father died on the 17th day of July, 1929. He walked with a cane after the injury. I was there when my father died. I got there when I. went to my dinner because I used to eat with him. I would go to work in the morning and come back at noon and eat with him." I saw him that morning on the 17th of July, 1929, and the next time I saw him was when I came and found him dead. That was at 412 North San Saba. After the injury my father was bent and appeared to be suffering plenty of pain. He would walk bent down and appeared to be suffering plenty of pain. That appearance lasted all the time up until the day he died. After the injury I maintained myself and daughter and I do it now.”

Appellee made'Buggestion of the death of her father and was permitted to intervene and prosecute this suit. There is shown no evidence of any debts, and therefore there was no necessity for any administration. Article 4675, R. S. (as amended by Acts 1927, c. 239, § 2 [Vernon’s Ann. Oiv. St. art. 4675]).

There is nothing shown against the right of the daughter to recover in this case. The father was an honest, hard-working, and capable man, supporting his daughter; a man who had two trades, that of a carpenter and baker. He was strong and hearty, and worked up to the very time of his injuries.

There was no evidence or pleading that required the submission of the question of invited guest or joint enterprise between deceased and the driver of the automobile.

On the proposition of the negligence of the defendant’s agent in this case, there were on the part of plaintiff submitted twenty-three -'questions, to each and every one of which the jury rendered a finding in favor of plaintiff. This record shows that the driver of defendant’s car was operating same with utter disregard for the rights of others in the qse of the public highway. By his own statements and out of his own mouth he shows conclusively who caused the accident. He said on cross-examination: “He tried to get out of my way but I hit him in the back. The engine of his car was facing South Flores. It knocked off just one wheel. At that time the brakes on my car were not very good and I couldn’t stop it right quick because my work don’t permit me to keep good brakes all the time because I am running all the time. If I could have stopped it right there he could have gone on by but I didn’t stop here.” So we see that he is condemned by his own words.

The plaintiff’s real loss can never be replaced, but "since the jury, after hearing all the evidence in this case and after a fair and impartial tidal gave her the amount of this judgment, and believing that there are absolutely no errors herein, the judgment will be in all things affirmed.

On Motion for Rehearing.

SMITH, J.

As stated in the original opinion, Isidoro Garcia brought this action against appellant to recover damages for personal injuries sustained by him in an automobile accident occasioned by the negligence of appellant. Subsequently, and during the pendency of the suit, Garcia, the original plaintiff, died as a result of said injuries, whereupon his daughter, Senobia Valle, intervened, and, setting up the fact of the death of her father, .continued to prosecute the suit in her individual name, upon the theory that the original cause of action survived to her as the sole heir at law of the decedent. She alleged that there was no administration upon the estate of the decedent, nor any necessity therefor. Upon the trial, however, she offered no proof of either of said facts, and those allegations stand unsupported by any evidence.

It is now well settled in this state, subject to certain clearly defined exceptions not applicable here, that, before heirs, as such, can maintain suit to recover upon a chose in action or other property belonging to the estate of their ancestors, they must both allege and prove that there is no administration pending upon the estate of the decedent, and no necessity for such administration. A petition which fails to allege those facts is subject to general demurrer, and, in the. absence' of affirmative proof of such facts, when alleged, the plaintiff cannot recover. 1 Tex. Jur. p. 66, § 45; Laas v. Seidel, 95 Tex. 443, 67 S. W. 1015; Richardson v. Vaughan, 86 Tex. 93, 23 S. W. 640; Youngs v. Youngs (Tex. Civ. App.) 16 S.W.(2d) 426; Id. (Tex. Com. App.) 26 S.W.(2d) 191; Provident Life & Accident Ins. Co. v. Johnson (Tex. Civ. App.) 235 S. W. 650; Ry. v. Rogers, 15 Tex. Civ. App. 680, 89 S. W. 1112; Johnson v. Bank (Tex. Civ. App.) 242 S. W. 293.

This rule was laid down in Texas generations ago (Green v. Rugely, 23 Tex. 539; Giddings v. Steele, 2S Tex. 748, 91 Am. Dec. 336; Webster v. Willis, 56 Tex. 468), and has been uniformly enforced by our courts. It is clearly applicable in- this case,, for, while appellee alleged that there was no administration upon the estate, nor any necessity therefor, no evidence whatever was introduced to establish those facts. As was said in Baas v. Seidel, supra, and approved in many other cases, including the recent case of Xoungs v. Toungs, supra, “If the plaintiff in this ease had alleged that there was no administration upon the estate of the decedent, and no necessity for such administration, but had failed to prove it upon a trial, judgment must have been given for the defendant.” The rule is founded upon clear and cogent reasons, some of which are well stated in Gid-. dings v. Steele, supra.

■ Appellant’s motion for rehearing must be granted, and the judgment reversed and the cause remanded.

On Second Motion for Rehearing.

Appellee asserted and recovered upon two distinct and severable causes of action against appellant, first, for damages on account of physical and mental injuries and loss of time incurred by the decedent by reason of the negligence of appellant; second, for damages on account of the wrongful death of the decedent.

Damages .recovered in the first case properly belonged to the estate of the decedent, and were therefore recoverable by appellee individually only in the absence of administration of the decedent’s estate, or of a necessity therefor.

Damages in the second case, for the wrongful death of the decedent, were recoverable by appellee individually, since they were not subject to the debts of the decedent, but vested directly in appellee immediately upon the wrongful death of her father. Article 4675, R. S. 1925 (as amended by Acts 1927, c. 239, § 2 [Vernon’s Ann. Giv. St. art. 4675]).

In this state of the record, and in view of the full development of the ease upon a proper trial thereof below, we have concluded that the justice of the case requires that we reverse the judgment in so far as damages were awarde'd to appellee for physical pain and suffering and loss of time of decedent, and that the cause of action thereon be remanded' ¡for another trial, but in all other respects the judgment will be affirmed, at the cost of ap-pellee.

Reversed and remanded in part, and in part affirmed.


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    McCABE et al. v. MOORE.
    No. 7578.
    Court of Civil Appeals of Texas. Austin.
    April 15, 1931.
    Rehearing Denied May 6, 1931.

      G. S. Arnold, of Robert Lee, for appellants.
    J. A. Tbomas, Lloyd Kerr, and Louis D. Gayer, all of San Angelo, for appellee.
   BLAIR, J.

.Appellee, G. J. Moore, sued appellants, ■ J. Q. and Frank McCabe, in trespass to try title to 23 acres of land out of survey 18, block W, Texas & Pacific Railway Company land, containing 147.4 acres, and at the conclusion of the testimony obtained an instructed verdict and judgment for tbe 23 acres against appellants’ claim of title thereto by the 10-year statute of limitation; hence this appeal.

The evidence established appellants’ claim of limitation title as a matter of law. The entire survey 18 was patented to appellee, Moore. May 26, 1902, he sold the east 48 acres to W. O. Locke, and he and Locke agreed upon a boundary line between the 48 acres and the 100. acres remaining without a survey, and shortly after the sale constructed a fence on this agreed boundary line, with the agreement that, if either party therfr after surveyed their land and found the fence not to be on the true boundary so as to divide the land, 48 acres to Locke and 100 acres to appellee, either party could remove the fence to the true boundary. October 1, 1913, W. O. Locke and wife sold the land to appellant Frank McCabe, the son of appellant J. Q. MeOabe, who in fact bought the land for his son. December 28, 1928, Frank McCabe sold the 48 acres to appellant J. Q. McCabe. Neither of the appellants ever knew of the agreement between Locke and appellee Moore to remove the fence to the true boundary if the land was ever surveyed by either of them until the filing of this suit in 1929, and about 14 years after appellants purchased the 48 acres from Locke. The 23 acres in controversy was inclosed by the fence with the 48 acres, and lies between the fence and immediately west of the 48 acres. Frank McCabe testified with respect to his claim to the 23 acres:

“My father made the deal for the land when Mr. Locke and his wife deeded it to me. He practically made the purchase and had the deed made in my name, — he let me have the school land out of the deal. Like my father, I did not know1 there were more than 48 acres east of the road until the survey was made. We considered we owned everything under the fence. Until the survey was made I didn’t know there was an excess.”

Appellant J. Q. McCabe testified as follows:

“It had been in my possession or in my pasture and Frank and I were using it jointly, that is he was using my other land in the pasture and I was in possession of it when I got that deed. My title came through Frank McCabe. I have claimed all that land lying east of the fence through my purchase from Frank McCabe, since the date of that deed. * * ⅞ I used this land for grazing purposes. * * ⅜ I rebuilt the fence since I got it and put a net wire fence next to the road,- * * * and have had continuous possession of it ever since. ITaave claimed all that part of that survey as my own from the time I purchased it. * * * I took possession of all the land east of the fence under that déed from Frank McCabe. It is also true that Frank took possession of the same thing from Mr. Locke, and it is by reason of that purchase from Locke, and only by that purchase that Frank and I made any claim' to any of the land east of the fence. * * * I thought I was buying to the fence when, I was buying it. Moore was there all the time. I thought the fence was located correctly. I thought the 48 acres went to the fence line. If there was more land in there I didn’t daim it by reason of mistake — I didn’t have any claim on it except limitation. If limitation gave me any right I had it, and if not I didn’t. The deed recited that I paid the money. * * * The land I bought from Mr. Locke as well as the land bought by Frank, was enclosed with a three-wire fence, I believe it was sufficient to turn stock. * * ⅜ ⅛⅛. Moore never told me that he owned any land over there. ⅜ ⅜ ⅜ Up to the time of the survey there had never been any dispute between us about that line * * *. Of my own knowledge no 'one except myself and Frank McCabe claimed any land in that enclosure. * * ⅜
“With reference to whether I ever claimed the land east of the lane other than the 48 acres I bought and paid for, I claimed all the land by that deed and any rights under the limitation law, if I have held it long enough. 1 didn’t know any excess was there, but I claimed it because I thought it was my 48 acres.”

A plea of title by the 10-year statute of limitation is supported by possession for the required period and claim of ownership under a deed, although the deed does not include the disputed tract. Bruce v. Washington, 80 Tex. 368, 15 S. W. 1104; Henderson v. Nelson (Tex. Civ. App.) 284 S. W. 318; Daughtrey v. New York & Texas Land Co. (Tex. Civ. App.) 61 S. W. 947; Houston Oil Co. v. Olive Sternenberg & Co. (Tex. Com. App.) 222 S. W. 534; 2 Tex. Jur. 125, § 65. So, under this rule, the fact that appellants held adverse possession of the 23 acres under the belief that it was included in their deed to the east 48 acres of survey 18, and that they had perfect title to it, when in fact it was not so embraced, “does not deprive it of any element necessary to support the plea of limitations.” Jayne v. Hanna (Tex. Civ. App.) 51 S. W. 296. And, since it appears that appellants took possession of all land inclosed by the fence, which had then been constructed for more than 11 years, and asserted ownership of the disputed tract within that inclosure for an additional period of more than 14 years, their claim of title by limitation is sustained, although they may have testified on the trial to the effect that they never knew any land was in their in-elosure except the 48 acres described in their deeds. Sanders v. Moore (Tex. Civ. App.) 157 S. W. 441, 442 (writ ref.).

Appellee contends that appellants’ possession of the 23 acres was permissive only under the evidence. The proposition is predicated upon the agreement, between appellee and Locke that, if the fence was found on a survey by either party not to be on the true boundary of the 48 acres, same could be moved to the true boundary when established; which agreement appellee contends was binding upon the parties and their privies.

It is true that a mere permissive possession, however long continued, will not give title by adverse possession, but that rule has no application here for at least two reasons, as follows:

(1) An oral boundary agreement is not binding upon subsequent purchasers without' notice of it. Houston v. Sneed, 15 Tex. 308; Harris v. Kiber (Tex. Civ. App.) 178 S. W. 673; Louisiana & T. Lumber Co. v. Dupuy (Tex. Civ. App.) 113 S. W. 973; Merrell v. Kenney (Tex. Civ. App.) 45 S. W. 423; 7 Texas Jur. 196-198, §§ 55 and 56, and cases there cited. The evidence is undisputed that appellants knew nothing of the alleged oral boundary agreement between appellee and Locke to remove the fence frdm the then agreed boundary to one to be established in the future at the option of the party making a survey to establish same, until the filing of this suit, which was more than 14 years after they had purchased and taken possession of the supposed 48 acres as inclosed by the fence. Since appellants had no notice of the alleged agreement, they are not privy to it, and their possession was not permissive, .but adverse under the claim of ownership of all land inclosed by the fence. Jones v. Andrews, 62 Tex. 668. Appellee cites the case of Esser v. Kneupper (Tex. Civ. Appl) 205 S. W. 508, in support of his permissive possession claim. That case merely holds that where, in fencing land, one party procures permission from adjoining owners to make offset in fence from the known boundary, in order to avoid crossing a deep gully or ravine, under agreement to later adjust or buy the parcel so inclosed by the one fencing, the possession of such parcel, absent further agreement or notice that fencer was claiming it, was not adverse so as to support limitation. ’These facts furnish no analogy here, where the boundary was not known to the parties, and where they constructed a fence on the then agreed boundary, with the further agreement that the fence might at the option of either party be moved to the true boundary if same should ever be established by a survey.

(2) The alleged oral agreement to remove the fence to the true west boundary of the 48 acres when same might be established by a survey made at the option of either party in the future is in violation of the statute of frauds (Rev. St. 1925, art. 3995, par. 4), and therefore unenforceable. The rule is thus stated in 7 Texas Jur. 199, § 57: “It is essential to the validity of a parol agreement as to boundaries that the line be in dispute, or that its true location be unknown to the parties. * * * In addition * » * it is requisite that the agreement be definite and unconditional.” Harn v. Smith, 79 Tex. 310, 15 S. W. 240, 23 Am. St. Rep. 340; Decker v. Rucker (Tex. Civ. App.) 202 S. W. 1001.

The alleged agreement to establish the true west boundary of the 48 acres by a survey was indefinite as to when the survey should be made. It was also conditional, in that it was optional whether either party should ever make the survey. In fact, to enforce this agreement and remove the fence from the. first agreed boundary, where it has been located for more than 25 years, would in effect leave the matter where it was originally, that is, as if no agreement as to boundary had ever been made, because the law would fix the west boundary of the 48 acres as the true one under the terms of the deed. And, while the evidence detailed may not estop appellee from contending that the original location of the fence was subject to the agreement to remove on survey and fixing true boundary, it furnishes a strong circumstance that the fence was located on the agreed boundary under- the rule that one is presumed to know the boundaries of his own land; and appellee having permitted the fence to remain on the admitted agreed location for more than 25 years is also a strong presumption that he agreed that. the line on which the fence was constructed was the true one. Bohny v. Petty, 81 Tex. 524, 17 S. W. 80; Lagow v. Glover, 77 Tex. 448, 14 S. W. 141.

We reverse the judgment of the trial court, and here render judgment for appellants for title and possession of the 23 acres of land in controversy.

Reversed and rendered.


author: JACKSON, J.

text:
    SMITH et al. v. RICKERTS et al.
    No. 3503.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 18, 1931.
    Rehearing Denied April 15, 1931.
    Will Crow, of Canadian, for appellants.
    Hoover, Hoover & Cussen, Edward C. Fisher, and W. D. Fisher, all of Canadian, and Sanders & Scott, of Amarillo, for appellees.
   JACKSON, J.

Mary Smith, a widow, for herself and as next friend for the minor plaintiffs, Willie Fields, Ethel Fields, and Ida May Fields, instituted this' suit in the district court of Hemphill county, Tex., against Raymond Franklin Fields, Lillian Ruth Fields, and William Clayton Fields, minors, and S. E. Allison as guardian of the minor plaintiffs and minor defendants, to recover title and possession to an undivided three-fourths interest in the north half of section 244, block C, situated in Hemphill county, Tex.

The plaintiffs made numerous other parties defendants in the suit, but no complaint is made of the action of the court in disposing of the rights of such other defendants, and it is unnecessary to make any detailed statement of the pleadings relative to such other defendants.

The plaintiffs, ip. addition to a formal action in trespass to try title, alleged that the land in controversy was incapable of partition among the owners thereof, asked that a receiver be appointed, the land sold, and three-fourths of tbe.proceeds of the sale be awarded to them in proportion to their respective interests, and that one-fourth of the pro'ceeds of the sale be awarded to such of the defendants as were entitled thereto in proportion to their respective interests.

The plaintiffs set out in full the facts upon which they rely to show that they had acquired title by inheritance to an undivided three-fourths interest in the land and the facts which they contend limit the defendants to their respective rights in the remainder of said land.

The minor defendants, Raymond Franklin Fields, Lillian Ruth Fields, and William Clayton Fields, by their next friend, Ernest Par-cell, answered by general denial and pleaded the facts upon which they base their claim by inheritance to an undivided 1844%o240 interest in the land involved in this suit.

The case was submitted to the court without the intervention of a jury and judgment rendered decreeing that the minor plaintiffs were each entitled to 200⅜0240 undivided interest, that the minor defendants were each entitled to S48%0240 undivided interest, and that Mary Smith was entitled to 170⅞0240 divided interest in the land. '

The title to the remainder of the land was decreed to be in the other parties to this suit, and the rights of each of such other parties were disposed of by the judgment of the court, and no complaint is made of the action of the court in disposing of the rights of such other parties.

A receiver was appointed, the land ordered sold, and the proceeds awarded to the minor plaintiffs and minor defendants and Mary Smith in conformity to their respective interests as determined by the court, and from this action of the court the plaintiffs below, hereinafter called appellants, have prosecuted this appeal.

The findings of fact filed by the trial court necessary to a disposition of this appeal are, in substance: That all the parties to the suit agreed, and the court found, that the land in controversy is incapable of partition. That the appointment of a receiver was necessary, and that the land be sold and the proceeds thereof be divided among the heirs and owners, according to the respective interests as determined by the court. That S. E. Allison is the legal guardian of the estate of the minor plaintiffs and minor defendants.

That William S. Fields died intestate about October 18, 1923, at his residence in the state of Oklahoma. That he left surviving him as heirs at law Mrs. Minnie Rickerts, Lindsey Fields, a single man, James Fields, a single man, and Clayton Fields, all of whom were his children by his first wife, Mary L. Fields, who died in 1904 at their home in the state of Missouri. That he also left surviving him as heirs at law his second wife, Emma Vincent Fields, and his children’ by her, who are the minor plaintiffs herein. That the plaintiff Mary Smith was the daughter of Emma Vincent Fields by a former marriage.

That about May 14, 1908, William S. Fields and his minor son Clayton Fields, who was then about sixteen years of age, entered into a parol contract whereby it was agreed that the father would purchase the land in controversy, take title thereto in his own name and hold it for himself and his minor son Clayton Fields, each to have and own a one-half interest therein undér the terms and conditions of said parol agreement. That by said contract William S. Fields obligated himself to furnish the necessary farming implements and the necessary stock with which to stock the premises, and Clayton Fields obligated himself to take possession of and reside on the land, fence it, and make other valuable improvements thereon, put it in cultivation, farm it, harvest the crops and pasture, attend to and care for the stock furnished. It was agreed that, after the payment of the necessary expenses, all money derived from the operation of the farming and stock-raising business on such land,should be turned over to William S. Fields and the purchase money for the lands paid out of such moneys. That, for the labor and services of .Clayton Fields, he should have and own an undivided one-half interest when he had improved it according to his contract and the purchase money therefor had been paid out of the moneys earned by him.

That, in pursuance to such parol contract, William S. Fields purchased and had conveyed to him, in his name, by warranty deed dated May 14, 1998, the land involved in this controversy. That the purchase price therefor was $2,400, $800 of which was paid in cash and the balance evidenced by five equal promissory notes, payable annually and secured by a lien against the land. That the cash payment was made out of the community estate of William S. Fields and his second wife, Emma Vincent Fields. That neither William S. Fields nor his second wife ever lived upon, occupied, claimed, or used said land as a homestead, and never resided in the state of Texas. That shortly after the purchase of the land and the receipt of the deed therefor from -the grantor Clayton Fields came to Texas, took possession of the land, operated the farming and live stock business thereon, a'nd occupied said land continuously until the year 1921. That Clayton Fields made improvements upon the land, and performed the services according to the parol agreement in good faith, paid some of the taxes after he became of age, delivered the funds accumulated by such operations to his father, who discharged therewith the deferred payments evidenced by the notes given to the grantor as part payment for the land. That the father was also reimbursed out of the moneys earned from the operations of said farm and stock business, the $800 originally paid by him as the cash consideration in the purchase of the land. That about September 16,1913, while Clayton Fields was still residing upon and in possession of the land, the vendor’s lien notes therefor, having been paid out of the moneys earned as aforesaid, were released.

That William S. Fields always recognized and admitted that Clayton Fields was the owner of a one-half interest in the land, and would have executed a deed therefor but for the objection of his second wife, who threatened to leave him if he conveyed an undivided one-half interest in the land to Clayton. Fields.

That Clayton Fields married and resided on said premises with his wife about two and one-half years before 1921, at which time they moved from Texas to Missouri on account of the health of Mrs. Clayton Fields. That the minor defendants were the children of Clayton Fields and his wife, Mrs. Clayton Fields. That Clayton Fields at all times claimed and asserted that he owned a one-half undivided interest in the land, and that both Clayton Fields and his father performed all the terms and conditions of the parol contract under the terms of which Clayton Fields was to receive a one-half undivided interest in the land. That Emma Vincent Fields died at her home in the state of Oklahoma about the 29th day of June, 1926. That Clayton Fields died intestate on or about the 25th of September, 1925. That Mrs. Minnie Rickerts had sold her interest in the estate, and filed a pleading disclaiming all right, title, and interest therejn. That Mrs. Clayton Fields, the surviving wife of Clayton Fields, deceased, also filed a disclaimer of any right, title, or interest in and to said lands or any part thereof.

That the parol contract or agreement between William S. Fields and his son Clayton Fields was a valid and enforceable contract. That William S. Fields emancipated his minor son Clayton Fields, who thereby was authorized to transact business for himself and became entitled to have, earn, and own a one-half undivided interest in the land which he acquired and paid for under the terms of the parol agreement with which he complied, all of which was recognized by William S. Fields.

The facts found by the trial court upon which .he disposed of the interests of the parties about which no complaint is made it is unnecessary to set out.

The appellants by numerous assignments challenge as error the action of the trial court in overruling their exceptions to the sufficiency of the pleadings of the minor defendants and the sufficiency of the evidence to establish a parol contract of sale between William ,S. Fields and Clayton Fields.

The appellants’ assignments directed at the action of the court in overruling their exceptions to the allegations in the answer o-f the minor defendants relative to the parol contract between William S. Fields and Clayton Fields cannot be sustained. Such exceptions were but general demurrers, and, in our opinion, the allegations in the answer were sufficient, but, in any event, any defect in the pleadings of the minor defendants were supplied by the allegations of the plaintiffs in their pleadings.

The appellants challenge as error the action of the trial court in permitting, over their objections, the witness Mrs. Minnie Rickerts to testify as to the parol contract and transactions between William S. Fields and his son Clayton Fields, by the terms of which the minor defendants claimed a one-half undivided interest in the land in controversy, because said witness was a party defendant, interested in the subject-matter of the controversy, and was inhibited from testifying to such contract and transactions by article 3716, R. C. S.

The record discloses that Mrs. Minnie Rick-erts had, long prior to the institution of the suit, sold and conveyed all of her undivided interest in and to the land in controversy, and that she disclaimed any interest therein. She deeded her undivided interest in and to the land to her grantee, and warranted title to said undivided interest to said grantee. However, she did not convey any specific interest. Neither did the deed recite that she owned any certain interest. The uncontroverted testimony is to the effect that she deeded only the undivided interest that she inherited, whatever such interest might be. The evidence also shows that, if the parol contract between William S. Fields and Clayton Fields was invalid, her interest would have been greater than if such contract were upheld, and her testimony was therefore against interests if for any reason, after her conveyance and disclaimer, she could have asserted any rights in the estate. Under these conditions, her testimony was not inhibited by the statute. Oury v. Saunders, 77 Tex. 278, 13 S. W. 1030; L. Gurley v. Hanrick’s Heirs (Tex. Civ. App.) 139 S. W. 721. The testimony of this witness and other facts and circumstances in the record, to the admission of which no objection is made, were sufficient to authorize the finding of the court that the oral contract and sale from William S. Fields to Clayton Fields was valid.

Appellants’ assignments presenting "as error the action of the court in admitting the testimony of certain other witnesses named relative to the parol contract between William S. Fields ' and his son Clayton Fields become immaterial, because, if the testimony objected to was inadmissible, the case having been tried before the court, the presumption is that he gave no consideration to such testimony.

The appellants’ assignments alleging as error the action of the trial court in • excluding the testimony of the plaintiff Mary Smith relative to the parol contract and transactions between William S. Fields and Clayton Fields are not tenable, because she was a party to the suit, interested in the subject-matter as an heir and recovered judgment, and was therefore inhibited from testifying under article 3716.

The testimony in the record, in our opinion, is sufficient to warrant the finding of the court, not only that the contract of sale and transactions between William S. Fields and Clayton Fields were valid, but also that Clayton Fields was emancipated by his father and authorized to transact business for himself and to acquire the equitable title to a one-half undivided interest in the land.

Chief Justice Phillips, in Hooks et al. v. Bridgewater, 111 Tex. 122, 229 S. W. 1114, 1116, 15 A. B. R. 216, says: “From an early time it has been the rule of this court, steadily adhered to, that to relieve a parol sale of land from the operation of the statute of frauds, three things were necessary: 1. Payment of the consideration, whether it be in money or services. 2. Possession by the ven-dee. And 3. The making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor; or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced.”

After discussing the elements necessary to constitute a valid parol contract of sale, he says: “Where there is payment of the consideration, the surrender of possession and the making of valuable and permanent improvements on the faith of the purchase with the owner’s knowledge or consent, there is created an estoppel against him and it may fairly be said that a fraud upon the pur-, chaser would result if the owner were permitted to repudiate the contract.”

The court, upon sufficient testimony, found that Clayton Fields paid the considerátion for a one-half interest in the land by his services, that he took possession of the land, and that he made valuable and permanent improvements thereon with the knowledge and consent of his father, thus bringing the parol contract within the principles announced by Chief Justice Phillips.

William S. Fields, the holder of the legal title, if he had been living, would have been estopped under this record from denying the equitable title of Clayton Fields to a one-half undivided interest in the land, and his heirs are in no better position than he would have been if living. Smalley et al. v. Paine et al., 62 Tex. Civ. App. 52, 130 S. W. 739.

Prior to the purchase and conveyance thereof to William S. Fields in his own name, the parol contract was made, by the terms of which Clayton Fields agreed to pay the purchase money for an undivided one-half interest therein by his services. The record in this case discloses that, out of the earnings derived from the labor and services of Clayton Fields after he had been emancipated, the purchase money, not only for his one-half undivided interest, but for the entire tract, was paid.

That a son, emancipated by his father, is entitled to transact business for himself, and to the money he earns and the property he acquires, is well settled. Schuster v. Jewelry Co., 79 Tex. 183, 15 S. W. 259, 23 Am. St. Rep. 327; Washington v. Washington et al. (Tex. Civ. App.) 31 S. W. 88; Duveneck v. Kutzer, 17 Tex. Civ. App. 577, 43 S. W. 541; Granrud et al. v. Rea, 24 Tex. Civ. App. 299, 59 S. W. 841; Turner v. Brown (Tex. Civ. App.) 200 S. W. 1161.

Whether a child has been emancipated by his father is a question of fact for the court or jury where the evidence on the issue is conflicting, but, if the facts are undisputed, it is a question of law. 46 C. J. 1346, § 201.

The facts and circumstances in this record showing that William'S. Fields had emancipated his son Clayton Fields are uncontro-verted, and the holding of the trial court that the son had been emancipated is correct.

In view of this record- and the authorities cited, it is our opinion that the parol contract by which Clayton Fields acquired the equitable title to a one-half undivided interest in the land is not void because of the statute of frauds. There being no reversible error presented, the judgment of the trial court is affirmed.


author: RANDOLPH, J.

text:
    FIRST NAT. BANK OF O’DONNELL et al. v. CITIZENS' NAT. BANK OF LUBBOCK.
    No. 3599.
    Court of Civil Appeals of Texas. Amarillo.
    April 22, 1931.
    Rehearing Denied May 20, 1931.
    Carl Rountree and R. Dyrel Kirk, both of Lamesa, for appellants.
    Bean & Klett, of Lubbock, for appellee.
   RANDOLPH, J.

This suit was filed by the appellee against the appellant and one M. C. Hamilton on a promise made by appellant to pay a check of the defendant Hamilton drawn on defendant bank. On trial, it appearing that Hamilton had received his discharge in bankruptcy, judgment was rendered discharging him, and judgment was also then rendered in favor of the plaintiff and against the defendant bank. From this judgment, appeal is had to this court.

The defendant filed its plea of privilege to be sued in the county of its domicile, and in reply the plaintiff filed its controverting affidavit. At the request of the plaintiff the plea of privilege was postponed and tried with the main case on its merits. On hearing the plea of privilege, was overruled, and this action of the trial court is also assigned as error on this appeal.

The plaintiff’s petition, • leaving out the formal parts, alleges substantially that Hamilton presented to the. plaintiff at its banking house in Lubbock a cheek or draft of date August 21, 1929, for the sum of $275, signed by the defendant Hamilton and drawn on the First National Bank of O’Donnell, Tex., and payable to the order of the plaintiff and requesting that the plaintiff cash said instrument and pay the said Hamilton the money thereon according to the face thereof; that the said Hamilton was not a customer of plaintiff and did not have any funds in plaintiff’s bank to his credit, and that plaintiff was unwilling and refused to cash said draft or pay said Hamilton in advance; that Hamilton stated and represented to plaintiff that he had the money in the defendant bank to pay said check or draft, and that same would be honored by the defendant First National Bank of O’Donnell on presentment and would be paid by said defendant bank; that thereupon the plaintiff called the defendant First National Bank of O'Donnell by telephone and informed defendant that said check or draft had been presented by Hamilton, and that he had requested plaintiff to advance the amount thereof and had represented to plaintiff that said check would be honored and paid by defendant bank; that the plaintiff asked said defendant bank whether it would pay said check when presented, if cashed by the plaintiff, and the defendant bank then and there represented that it would, and then and there bound and obligated itself by such promise to honor said check or draft upon presentment and pay same. That thereupon the plaintiff, purely as an accommodation to the defendants, and without any consideration whatever moving to the plaintiff, then and there cashed said check and paid the sum of $275 to the said Hamilton upon the representations and promises of the said defendant bank; that the plaintiff would not have paid said sum of money except for such representations, promises, and agreement on the part of the said defendant bank; that thereby the plaintiff acquired and became the holder of said instrument in due course of trade for a valuable consideration, and immediately caused same to be sent to the defendant bank and presented for payment and then to the defendant Hamilton when payment was also ■ demanded of him, which payment was refused by both defendants.

As an alternative plea, the plaintiff adopts the foregoing allegations of fact in a plea of fraud whereby defendant caused it to be deceived, etc., and upon which it relied and paid out the money to Hamilton.

Defendant bank filed its plea of privilege to be sued in Lynn county, the county of its domicile and residence. This plea of privilege, in connection, with the controverting affidavit, was heard with the case on its merits. Defendant hank also filed its answer, consisting of general exceptions, special exception, general denial, and special denial, setting up defendant’s claim as to the occurrences wherein the plaintiff bank telephoned the defendant bank.

The case was submitted to a jury upon special issues, and by their answers' the jury found: (1) That W. S. CJathey (assistant cashier of defendant bank) unconditionally promised the Citizens’ National Bank to pay the-draft in question; (2) that at the time such promise was made the First National Bank of O’Donnell did not intend to pay such draft in the event the draft on Colorado City was not paid, (3) the Citizens’ National Bank did not know before it paid the $275 to Hamilton on the draft that the draft would not he paid by defendant unless the draft on the Colorado City was paid.

The plaintiff’s witness Hardwick, its cashier, testified substantially as follows:' That he was assistant cashier of the plaintiff bank ion or about August 21, 19-29. It was a part of his duties to look after the payment and collection of items coming into the bank. On 'or about that day a man named M. C. Hamilton came into the bank for the purpose of having the bank cash a $275 check drawn on the First National Bank of O’Donnell. The instrument handed him is the one Hamilton presented. Hamilton said he wanted to cash a check for $275. He had not drawn the draft, it was then drawn in the bank, the witness writing the draft and Hamilton signing it. Hamilton said he had the money there (the defendant bank) and for the witness to call the defendant bank and see if it was good. Hamilton was not a customer of plaintiff bank and did not carry on deposit any money in that bank. The witness did not pay -out the money to Hamilton, but refused to pay it out until he telephoned the defendant bank. As soon as the draft was made out, Hardwick talked to W. S. Oathey of the defendant bank. In that conversation the witness Hardwick testifies he related to Oath-ey the fact that Hamilton had a check for •this amount drawn on the defendant bank that he wanted witness to advance him the cash on. Witness told Cathey that Hamilton was in there and wanted to cash a check for $275 and asked him if the check was good. Cathey said, “Wait a minute,” and came back and said Mr. Hamilton ‘ had a cheek out for collection and then witness asked him the direct question, “Will you pay this check?” because it was nothing to witness to cash Hamilton’s check, and, knowing him like he did, he would not have cashed it at all unless he felt certain the check was all right and he asked the direct question: “Will you pay this check for $275.-00?” And Cathey said he would; he, however, told the witness that Mr. ’ Hamilton, had out a collection, but witness testifies he would not have paid it on the strength of that because witness wanted to know if the money was there before he gave Hamilton $275. He believed Cathey’s statement that he made the witness. Witness did not understand that Cathey told him that he would pay the check if he made the collection for Hamilton, ’and no such statement was made. Cathey did not in any way indicate to witness that the collection he had for Hamilton was not good or might be doubtful, or that the payment of his check would be conditioned on the collection of Hamilton’s check that the defendant bank had for collection.

Cathey, the assistant cashier of the defendant bank, testified:

“I remember the conversation with Mr. Hardwick relative to this check or draft. I talked to someone on that occasion from the Citizens National Bank, but I did not know1 at that time that it was Mr. Hardwick. They asked me whether or not my bank would pay this draft. We held quite a little conversation right there and I told him, ‘Knowing Mr. Hamilton as I did,’ that is what Mr. Hardwick said about knowing him as he did, ‘Knowing Mr. Hamilton as I did I told Mr. Hardwick that Mr. Hamilton had a collection item out that I felt reasonably sure would be paid as they had always been paid’. ‘In the course of a few months time he had had four or five drafts drawn on the Colorado City Bank and to that date none had been turned down, they had all been paid, but he did not have any money on deposit and I felt reasonably sure his draft would be paid, but he didn’t have the money to pay it with on deposit.’ He did not have any money on deposit then.
“I think Mr. Hamilton’s financial condition at that time was rather hard and it was my interpretation that he was heavily involved. I believe he owed our bank at that time. I understood that he later filed a petition in bankruptcy.
“I 'did not tell Mr. Hardwick that we would pay this check or draft when it came in to our bank. I told him I thought it would Be paid, that he had a draft out for three hundred dollars. I might not have stated the amount, but I think I did because I had just handled it ‘ a day or two prior to that to Colorado City and I felt like it would be paid. I think I told him that whether -or not we would pay this draft would depend on whether that draft was paid, because that was the only way we could have paid it. I told him I felt sure the draft to Colorado City would be paid. I felt like the draft he had out for collection would be paid as they had prior to that. I do not recall exactly whether I said that if if was paid that I would pay this check, but I presume so because that is the only way I had of paying it. If this draft had been paid I am sure I would have paid this check or draft. I did not have any intention of conveying the idea to Mr. Hard-wick that we would pay this draft unconditionally whether the money was on deposit or not.
“This draft was later presented to our bank and payment was refused because of no funds.”

The defendant bank, appellant here, bases its appeal upon two propositions: First, because the trial court erred in overruling defendant’s general demurrer and third special exception to the plaintiff’s petition, for the reason that said petition failed to allege that defendant, appellant, ever promised in writing to pay the check declared .upon; second, that the court erred in overruling defendant’s plea of privilege, because the testimony of plaintiff’s cashier conclusively showed that plaintiff relied solely and alone upon the oral promises of defendant’s assistant cashier to pay the check in question, which is an insufficient showing for the reason that the defendant bank could not be held liable until it had accepted the check in writing.

From these propositions it is clear that the only question for our decision is: Did the fact, that the promise by the defendant bank to pay the check was an oral promise to pay defeat plaintiff’s cause of action?

The plaintiff insists that the promise, being an independent promise to pay the $275 and one not arising out of the instrument nor based thereon, does not come within the provisions of the Negotiable Instruments Act that “no person shall be liable on a negotiable instrument whose signature does not appear thereon” (Rev. St. 1¾5, art. 5932, § 18), does not apply to plaintiff’s cause of action, and that for the same reason the statute of frauds (Rev. St. 1925, art. 3995, par. 2) does not apply.

The following cases are cited and quoted from upon the proposition that the promise was not required to be in writing under the statute of frauds or under the Negotiable Instruments Act.

In the case of First State Bank of Windom v. McElwrath et al. (Tex. Civ. App.) 266 S. W. 837, 838, Justice Levy, speaking for the Tex-arkana court and discussing the question as to whether an oral guaranty of a vendor’s lien note is legally enforceable where the party purchasing the note did so in reliance on the cashier’s statement that “the 'bank is behind it,” holds that the bank in reality promised to pay the amount of the note in case the maker of the note did not pay same. In that case Judge Levy says: “No legal reason why the guaranty should be in writing in order to make it enforceable is apparent. If an oral guaranty is made of payment of a vendor’s lien note, transferred for a valuable consideration by delivery only, the promise is not within the statute of frauds.”

He also quotes from Dan. on Neg. Inst. (5th Ed.) § 1763, as follows: “When a third person gets credit or forbearance upon the guaranty of another, even when it is contemporaneous, the latter’s promise is clearly a promise to answer for his debt. But there are cases in which a guaranty is really to answer for one’s own debt, though having the appearance of a promise to answer for another’s and in such case it is not within the statute of frauds. Thus where a third person’s note was transferred with mere verbal warranty that it ‘was good and collectible’ in part payment of a horse, it was held valid, because in reality a promise to pay the amount, unless the third person paid it for 'him. This doctrine is uniformly adopted in the United States where the guaranty is upon a pre-existing consideration, as well as where it is for a debt contracted, goods sold, or obligations exchanged, at the time the guaranty is made. Where one who sells a note guarantees its payment, the guaranty is an original undertaking, and need not be written.”

He ruled that the Negotiable Instruments Act, declaring that no person shall be liable on a negotiable instrument whose signature does not appear thereon, has no application to a suit on a guaranty pf payment of a vendor’s lien note transferred by delivery only, and, to sustain this, Judge Levy quotes from Swenson v. Stoltz, 36 Wash. 318, 78 P. 999, 2 Ann. Cas. 504, as follows: “The liability sought to be enforced neither arises out of the instrument, nor is it based thereon. This note made by third parties is merely an incidental and collateral matter to the agreement sued upon, * * * which is in effect_ an agreement to make good to respondents that from which they parted, and which they turned over to the party here sought to be charged. • * * The (Uniform Negotiable Instruments) Statute was not intended to change the rule, * * * where the obligation is the absolute one of the guarantor, and is not a liability on the instrument itself.”

The Austin Court of Civil Appeals lays down the rule that, where there is an original promise to pay or perform some obligation, it does not come under the terms of the Negotiable Instruments Act, and, quoting from 27 C. J. 135, recognizes the further rule laid down there that: “The test is whether the promise was in fact made and intended as collateral or original, and determining this question regard must be had to the situation of the party, and all the circumstances of each case.”

In the case at bar, as stated above, the jury has found, and this finding is supported by the evidence, that the defendant hank unconditionally promised to pay the draft in question to the plaintiff, and this finding is binding on ns.

We therefore hold that the promise of the defendant bank to pay plaintiff bank was an original and independent promise to pay such, sum, and that it does not come under the provisions of the Negotiable Instruments Act, neither does it come under the provisions of ■the statute of frauds, and therefore need not be in writing to be enforceable.

Supporting these propositions we cite, also, Hubb Diggs Co. v. Ft. Worth State Bank, 117 Tex. 107, 298 S. W. 419; Evans v. Shaw (Tex. Civ. App.) 268 S. W. 1037; Gonzales v. Garcia (Tex. Civ. App.) 179 S. W. 932; Roach, Stansell & Crane v. Timpson (Tex. Civ. App.) 170 S. W. 863, 864; Carlisle v. Frost-Llewellyn (Tex. Civ. App.) 196 S. W. 733, 735.

We place especial stress on the decision in Hubb Diggs Co. v. Ft. Worth State Bank, supra, and the approval by the Supreme Court of the Windom-McElwrath Case, supra.

The sole question presented to us that the court erred in overruling the plea of privilege is based on the ground and only the ground that the promise sued on was not in writing. What we have said above disposes of that question, and we sustain the court’s overruling the plea of privilege.

We affirm the judgment of the trial court.


author: PER CURIAM.

text:
    FRANZ et al. v. KNEESE.
    No. 8595.
    Court of Civil Appeals of Texas. San Antonio.
    April 29, 1931.
    N. T. Stubbs, of Johnson City, for appellant.
    J. B. Wieser, of Fredericksburg, for appel-lee.
   PER CURIAM.

Appellee has filed motion to strike appel-. lants’ brief, and dismiss the appeal. It appears 'from the record that appellants did not file their brief in this court until within two days of the submission of the cause, and too late to enable appellee to reply thereto. Appellants’ brief will therefore be stricken from the record, and the appeal dismissed.


author: PELPHREY, C. J.

text:
    HOLMES et al. v. YATES et al.
    No. 2530.
    Court of Civil Appeals of Texas. El Paso.
    April 16, 1931.
    Rehearing Denied May 14, 1931.
    Jones & Lylés, of Del Rio, and R. J. Randolph, of Austin, for appellants.
    J. W. Hill and Smith & Neill, all of San ■Angelo, Burney Braly, of Ft. Worth, and R. J. Fellingham, of Chicago, Ill., for appellees.
   PELPHREY, C. J.

On February 16,1887, O. W. Williams, deputy county surveyor of Pecos county, made out original field notes of sections 101 and 102, block 194, Texas Central Railway Company surveys; the latter section being the public school alternate of section 101; each of the four lines of said surveys having a length of 1,900 varas. Such field notes were filed in the general land office March 3d of the same year, and called for an acreage of 640 acres in each section. The commissioner of the general land office claimed that such field notes were in conflict with Block 194, Gulf, Colorado & Santa F<§ Railway Company, an older and superior location. Upon instructions from the land commissioner, Williams made out corrected field notes for the two sections calling for the east and west lines to have a length of 1,209 varas instead of the original 1,900 varas. The original field notes were marked in the land office, “cancelled by corrected notes.”

On April 14, 1894, a patent was issued to M. C. Miller, assignee, to section 101 as containing 407 acres.- Section 102 was classified on December 2, 1887, as dry grazing land, 6401 acres, and appraised at $2 per acre. In the revised list of unsold' school land in Pecos county, made September 27, 1901, section 102 was classified as dry grazing land, 407 acres, and appraised at $1 per acre. It was again classified as dry grazing land, 407 acres, on November 30, 1901, and on November 20, 1903. On November 20, 1908, it was classified as grazing and mineral, 407 acres, and appraised at $2 per acre, and on May 21,1912, it was classified as mineral and grazing, 407 acres, and appraised at $1.50 per acre. On July 24,1914, Rube Holmes made application to purchase section 102 as 407 acres, appraised at $1.50 per acre as additional land to his home tract; the application containing an express reservation of the mineral estate if the land were, classed as mineral. This application was filed in the land office July 29, 1914, and the land was awarded to him August 26,1914. Holmes proved his three years’ occupancy of the land and obtained a certificate thereon, and on October 22, 1917,'sold the section, described as 'containing 407 acres, to J. I-I. Tibbett.

In 1918, shortly after the sale to Tibbett, Rube Holmes died intestate. On October 9, 1920, I. G. Yates filed a letter of inquiry as to a vacancy which included the land in controversy. A survey was made of the alleged vacancy by R. S. Dod, a licensed state land surveyor, and on November 8, 1920, a set of field notes of a survey, designated as survey 34½, :made by Dod, were filed in the land office. Thereafter Yates made application to purchase said survey, and on April 13, 1927, a patent therefor was issued to him. Yates subsequent to his application to purchase executed certain oil and gas leases, and the production of oil and gas began on said land in September, 1927. On December 27, 1928, Mrs, Ruby Holmes, individually and as survivor of the community estate of herself and her deceased husband, Rube Holmes, filed an application for an adjustment of the account on shetion 102 in the land office, which was refused by the land commissioner.

On March 19, 1928, corrected field notes made by J. A. Simpson, licensed land surveyor, of section 102, were filed in the land office. The notes included the original 407 acres and the 212.3 acres in dispute. These notes were disapproved by the commissioner. Mrs. Holmes, on February 16, 1929, filed in the land office her affidavit to the effect that she was the owner of the 212.3 acres in controversy, that same had never been transferred or sold, and tendered the sum of $500 to pay interest or principal and interest thereon. This affidavit was accompanied by a photostatic copy of the Simpson field notes. The tender was rejected, and on August 14, 1929, Mrs. Holmes and George S. Anderson, to whom she had executed an oil and gas lease, brought this suit in trespass to try title and. for damages for the oil-produced and taken from the property against Yates and the Mc-Man Oil & Gas Company and the Continental Oil Company.

Appellees answered by plea of not guilty, pleaded the three, five, two, and one year statutes of limitations, estoppel, and alleged that they were bona fide purchasers for value, without notice, and as such were entitled to be protected against appellants’ right of recovery.

The ease was tried before the court, and resulted in a judgment that appellants take nothing, from which they have appealed.

Opinion.

Appellants’ brief contains eight assignments of error and sixteen propositions thereunder.

Without attenuating to take up and discuss them in order, we think their case depends upon the soundness of their contention that when Rube Holmes, in 1914, applied to buy section 102, listed as containing 407 acres, he acquired an absolute title to all the land embraced in the original field notes of this section filed in 1887, which did not conflict on the ground with prior surveys. As the basis for this contention, they claim that the corrected field notes were unauthorized and therefore cannot be given effect as a substitute for the originals.

It is not denied that there was not, as indicated by the map of Pecos county in the land office, sufficient vacant land between Runnels county school land league No. 3 and block 194, Gulf, Colorado & Santa Fé Railway Company, to permit the location of four surveys having a width north and south of 1,900 varas, and it is admitted that on the ground there was not sufficient land to accommodate four such sections.

Article 3918 of Revised Statutes 1879 provides: “If, upon examination of the field-notes of a survey in the general land-office, they are found to be incorrect, it shall he the duty of the commissioners -to cause a plain statement of the errors, with a sketch of the map, to he forwarded by mail or by the party interested, to the surveyor who made the survey, with a requisition to correct the same and return corrected field-notes to the general land-office.”

It goes without saying, we think, that the commissioner was not expected to accept field notes which showed, according to the records of his office, a conflict between the land called for by them and a prior survey.

Therefore the action taken by the commissioner in calling for corrected field notes was called for by the statute, and, upon receipt of such corrected field notes, covering land which the records. there disclosed called for all the vacant land available, his acceptance of such field notes, in our opinion, fixed the boundaries of such survey, and a person contracting to purchase from the state thereafter was bound by such field notes.

We fail to be able to distinguish between the facts here and those in the case of Miller v. Yates, 15 S.W.(2d.) 730, and we see no reason why the doctrine there laid down by this court should not apply here.

Long years after the filing of the corrected field notes in the land office, Rube Holmes applied to purchase section 102. At the time of his application, the field notes on file in the land office showed that section to contain only 407 acres. He paid the cash payment called for by such field notes and obligated himself to. pay a total consideration based on 407 acres as appraised by ,the commissioner. Neither he nor the commissioner were aware of the existence of the land in dispute, and we fail to see how his widow can now successfully claim that by thus contracting the title to all lands not in actual conflict vested in him.

We have considered the other assignments presented by appellants, and, while we deem it unnecessary to discuss them, we have concluded that they should be overruled.

While there are other grounds upon which we might base a judgment of affirmance, we think the one above discussed is sufficient to show that appellants failed to show such title in themselves as would support an action of trespass to try title, and the judgment must accordingly be affirmed.

On Motion for Rehearing.

We have carefully examined the motion of appellants for rehearing and find nothing presented therein which would cause us to recede from our previous holding.

The motion is therefore overruled without further comment.'

Appellees have also filed a motion requesting us to make additional findings of fact and conclusions of law and to pass upon their several counter propositions. They call our attention to the fact that in the case of Miller v. Yates (Tex Civ. App.) 15 S.W.(2d) 730, we inadvertently stated that at the time of the filing of the original field notes of surveys 101, 102, 103, and 104, by O. W. Williams, deputy surveyor, in 1887, there was actually on the ground enough unappropriated public domain between the south line of Runnels county school land league No. 3 and the north line of block 104, Gulf, Colorado & Santa Fé Railway Company to accommodate the location of four full surveys having a width of 1,900 varas north and south, while in the instant case we say: “It is not denied that there was not as indicated-by the map of Pecos County in the Land Office sufficient vacant land between Runnels County School Land League No. 3, and Block 194, G. C. & S. E. Ry. Co., to permit the location of four surveys having a width north and south of 1900 varas and it is admitted that on the ground there was not sufficient land to accommodate four such sections.”

It probably was not admitted in Miller v. Yates, supra, as here, that there was an actual conflict on the ground, and appellees may be correct in their belief that such statement caused the granting of the writ in that ease.

Such is not true here, however, and certainly the Supreme Court will not grant a writ based upon the fact that no conflict existed on the ground.

While in this particular the facts in the present case and Miller v. Yates are apparently different, yet, as said in our original opinion, we can see no reason why the doctrines laid down in that case should not apply here. We feel so confident of the correctness of our original holding in this case that we deem it unnecessary to incumber the record with a discussion of appellees’ counter propositions, and their motion will accordingly also be overruled.


author: WALKER, J.

text:
    BLACKWELL-WIELANDY CO. v. SABINE SUPPLY CO.
    No. 2076.
    Court of Civil Appeals of Texas. Beaumont.
    April 7, 1931.
    Rehearing Denied April 15, 1931.
    Crook, Defier, Cunningham & Murphy, of Beaumont, for appellant.
    W. E. Lea, of Orange, for appellee.
   WALKER, J.

This is an appeal from the order of the district court of Orange county sustaining ap-pellee’s plea in abatement against appellant’s petition, and dismissing the case.

Appellant pleaded:

First. That it was a corporation “organized under the laws of the State of Missouri, having its principal place of business In St. Louis, Missouri, successor in interest of Blaekwell-Wielandy Book & Stationery Company, a Missouri corporation.” The suit was against appellee under the allegation that it was “a Texas corporation having its principal office and place of business at Orange, Orange County, Texas.” There was no allegation that appellant had a permit to do business in Texas, nor did appellant allege an excuse for its failure to secure a permit.

Second. It was alleged that on the 14th of March, 1924, appellant entered into a written contract with appellee to make for it “a general hardware catalogue” in accordance with the terms, stipulations, and specifications set forth in the contract, a copy of which was made an exhibit to the petition, and its principal conditions formally pleaded as the basis of appellant’s cause of action.

Third. The contract, as pleaded, was evidenced by a letter written from St. Louis, Mo., by appellant to appellee dated March 1, 1924, setting forth all the obligations of the contract and the rights and duties of the parties thereto, and closing with the following condition: “An acceptance of this estimate constitutes a contract between us.” The letter was duly signed by appellant and duly accepted by appellee at Orange, Orange county, Tex., as follows: “Accepted March 15, 1924, The Sabine Supply Company by B. P. Brown, President.”

Fourth. The main conditions of the contract on the issue made by appellee’s plea in abatement were as follows:

(a) “The Sabine Supply Company agrees on its part to furnish complete data, showing-all items to be listed in catalog 4 months from date of contract. We agree to deliver P. O. B. St. Louis 100 complete catalogs within 30 working days after complete final stone proofs, including index, have been O. K’d by you and received by us, and the balance within 30 working days thereafter. In the event of any books being imperfect, misprinted or defective in binding, we will put the same in acceptable condition at our expense upon their return to us.”

(b) “The catalog is to be compiled in a systematic manner by the method we have devised and the Jobber agrees to co-operate with the publisheu in checking, correcting and approving the compiled copy before it is set in type, and placing on each compiled page his O. K. as our authority to set the same in type. The catalog is to be compiled a section at a time and in numerical sequence as data furnished us. When a section has been completed the compiled pages will be forwarded to the customer for checking and corrections. No compiled page will be set in type until the same has been returned with customer’s O. K. thereon.”

(e) “We will furnish you two stone proofs of each page, one of which you are to retain, and the other to be returned with such corrections as you may find necessary. These corrections to be charged to you, as specified in the estimate. All copy and proofs will be forwarded charges prepaid, and it is expected that the same shall be returned prepaid.”

(d) “Payments to be made as follows: 30 days after receipt of invoice. Terms net, no discount.”

(e) “You agree to appoint one man who will have exclusive authority to deal with our Compilation Department in furnishing data, checking, correcting and approving the compiled copy, conduct correspondence relating to this catalog, and whose O. K. on compiled copy and proof sheets will be final.”

In describing the manner of the execution of the contract, appellant pleaded as follows: “The Sabine Supply Company, defendant herein, selected a man by the name of Ingram, who was then in their employ, for the purpose of having exclusive authority to deal with the Compilation Department as above set forth and in this connection the plaintiff says that after said contract was executed the plaintiff sent from its office in St. Louis a representative to the office of the Sabine Supply Company at Orange Texas, who worked with the said Ingram, the representative of the Sabine Supply Company, in securing all of the data on what was known as data shéets, which was furnished by said The Sabine Supply Company through its agent and representative Mr. Ingram.”

Fifth. The contract price for all work to be done under the contract was fully pleaded, together with the price to be paid for additions, changes, and alterations in the work. It was further pleaded that the catalogues were duly printed and delivered to and accepted by appellee; that under the contract the cost to appellee of the catalogues amounted to the sum of $15,687; that this sum was invoiced to appellee under two invoices, first for the sum of $12,691, which was paid, and, second, for the sum of $2,996, for 1,498 hours of additional labor and service performed at •the request of the defendant, for which it agreed to pay a sum of $2 per hour, making a total of $2,996. The suit was for the second invoice, on allegations that, though the sum was due and demand had been made therefor, appellee refused to pay it.

Against this petition appellee filed the following plea in abatement: “And now comes the defendant by its attorney in the above styled and numbered cause and says that plaintiff is a foreign corporation, and at the time of the commencement of this suit, plaintiff was a foreign corporation and had not complied with the laws of Texas, which require a foreign corporation doing business within the State to file its articles of incorporation with the Secretary of the State of Texas, nor has it received from said Secretary a permit to do business in the State and is not legally qualified to maintain this action in this court; and this the defendant is ready to verify. Wherefore defendant prays Judgment of this court whether plaintiff can maintain this action herein, and that defendant he dismissed with his costs, etc.”

Without hearing any proof, the plea in abatement was sustained, and judgment entered dismissing the suit. Appellant has duly prosecuted its appeal from this judgment

Opinion.

The plea in abatement was erroneously sustained. Where it affirmatively appears in the petition a foreign corporation was transacting business in this state at the time its cause of action accrued, to defeat a plea in abatement, the plaintiff must both allege and prove that at the time its cause of action accrued it was operating under a permit from the appropriate state authority. But, where the petition does not disclose that the plaintiff is engaged in - business in this state or that the demand did not arise from an intrastate transaction, then the plaintiff need not allege that it had a permit in order to ‘avoid the foarce of the plea in abatement. The authorities sustaining these propositions are cited by Judge Smith in Washington-Dean Co. v. Crow Bros. (Tex. Civ. App.) 1 S.W.(2d) 914. Again it has been said that, where there is nothing in the petition filed by a foreign corporation from which it can be inferred that it is engaged in business in this state, or that the transaction out of which the cause of action arose took place in this state, the petition need not show that the plaintiff has a permit to do business in this state. Brin v. Wachusetts Shirt Co. (Tex. Civ. App.) 43 S. W. 295; King v. Monitor Drill Co., 42 Tex. Civ. App. 288, 92 S. W. 1046; Brown v. Guarantee Savings Loan & Investment Co., 46 Tex. Civ. App. 295, 102 S. W. 138; New State Land Co. v. Wilson (Tex. Civ. App.) 150 S. W. 253; Jackson Woolen Mills v. Moore (Tex. Civ. App.) 154 S. W. 642.

Appellant fully pleaded all the circumstances of its cause of action. From the allegations of the petition appellee’s cause of action was an interstate transaction. The catalogues were to be printed in the city of St. Louis, Mo., and delivered and accepted by appellee in the city of St. Louis, Mo. That appellant sent a representative from its office in St. Louis to the office of appellee, Sabine Supply Company, to assist in the preparation of the data, did not make the transaction intrastate. Thus it was held in Caddell v. J. R. Watkins Medical Co. (Tex. Civ. App.) 227 S. W. 226, that, where produce was manufactured in another state and shipped to the purchaser in this state, the transaction was interstate commerce, and the manufacturer was not required to obtain a permit in order to lawfully carry on such commerce. In Law Reporting Co. v. Texas Grain & Elevator Co. (Tex. Civ. App.) 168 S. W. 1001, it was held that a contract to.furnish a transcript of the testimony at a hearing before the Interstate Commerce Commission was not transacting' business in Texas, where the work was performed in a sister state and transmitted to the purchaser in Texas. In Leschen & Sons Rope Co. v. Moser (Tex. Civ. App.) 159 S. W. 1018, it was held that a sale by a foreign corporation of the material for an aerial tramway did not constitute doing business within the state, even though it furnished a superintendent of construction. The proper construction of article 1529, R. S., upon which the lower court based its judgment, permits corporations to sue in this state for the purchase price of interstate shipments. Texas & P. Railway Company v. Davis, 93 Tex. 378, 54 S. W. 381, 55 S. W. 562.

As appellant was suing upon an interstate transaction, it follows that the judgment of the lower court must be reversed, and the cause remanded for a new ^rial.


author: RYAN, J. CURETON, C. J.

text:
    ANDERSON v. FIRST NAT. BANK OF EL PASO.
    No. 1245-5660.
    Commission of Appeals of Texas, Section B.
    May 16, 1931.
    S. J. Dodson, of El Paso, for appellant.
    Ponder S. Carter and C. L. Galloway, both of El Paso, for appellee.
   RYAN, J.

The Honorable Court of Civil Appeals for the Eighth Supreme Judicial District certifies:

“This is a suit by appellant against ap-pellee, the petition reading as follows:
“ ‘Now comes, Edgar Anderson who resides in El Paso County, Texas, complaining of the First National Bank of El Paso, Texas, as administrator of the estate of Jessie Mariner, deceased, hereinafter called defendant and for cause of action plaintiff represents to the Court that defendant is the duly qualified and acting administrator of the estate of Jessie Mariner, deceased; that the said Jessie Mariner, deceased, departed this life in El Paso County, Texas, on 18 day of Eteby. 1928, and that the First National Bank of El Paso, Texas, made application to the County Court of El Paso county, Texas, for letters of administration of said estate, and duly qualified as such at the July Term, 1928, of said court by filing its oath and bond as required by law, which was duly approved by the court; that said administration is now pending in said court and undisposed of; that the said Jessie Mariner, deceased, at the time of her death was justly indebted to and due Dr. Asa Brunson in the sum of three hundred and eleven ($311) dollars in this that on the 25th day of February, 1927, and at all times since he was and is' a duly qualified, licensed, and practicing physician in the'city of El Paso, Texas, and that on or about said date the said Dr. Asa Brunson in the regular course of practice as such physician was called to attend and treat the said Jessie Mariner for tuberculosis and it was then and there agreed by and between said Dr. Asa Brunson and the said Jessie Mariner that he should administer his special treatment to her in an effort to correct and cure the disease; that it was agreed by and between them that said Dr. Asa Brunson should be paid for his services the sum of $60.00 per month; that he did so administer the said treatment during the months of from August 25, 1927, to February 18, 192S, for which services she agreed to pay $336.00; that in addition to regular tuberculosis treatment above referred to the said doctor made ten extra visits to her home to see and treat her as a physician at a charge of three dollars per visit which is the usual and customary charge for such visits by a physician and of the reasonable value of $30.00; that the said Jessie Mariner paid the sum of $55.00 of said amount to the said Dr. Asa Brunson leaving .the sum of $311.00 due and unpaid.
“ ‘In the alternative plaintiff alleges that the said Dr. Asa Brunson attended the said Jessie Mariner in her last sickness as a physician; that she was suffering with tuberculosis and that he administered his treatment for tuberculosis to her for the time specified in the paragraph next above and made the extra visits designated therein and that the services so performed by him was of the reasonable value of $366.00 and she has paid thereon the sum of Fifty five dollars.
“ ‘That in case the court for any reason should find that there was no express contract entered into between the parties hereto for the performance of said medical treatment, then plaintiff alleges that the services having been performed and accepted the charge therefor being of the reasonable value of $306.00 he sues as upon a quantum meruit.
“ ‘Plaintiff further alleges that the said-Claim and account for medical services was duly assigned and transferred by said Dr. Asa Brunson to S. J. Dodson for a valuable .consideration and sufficient on or about 10 day of April, 1929, whereby the said Dodson became the legal owner and .holder of said account and claim for its true value; that thereafter on the day last named above said S. J. Dodson duly and legally assigned and transferred the said account and claim to the plaintiff Edgar Anderson for a valuable and sufficient consideration wherefore and whereby said Anderson is the legal owner . and holder of same and entitled to sue thereon.
“ ‘That the said estate of Jessie Mariner, deceased, is justly due and indebted to the plaintiff in the sum of $311.00 with legal interest as shown by the claim attached, to the original petition now marked Exhibit A, and hereby made a part of this petition to which reference is made.
“ ‘Plaintiff says that on or about the 21 day of Eeby, 1929, said claim against said estate of Jessie Mariner, deceased, duly verified as required by law heretofore referred to as Exhibit A was duly presented to defendant administrator by presenting the same to H. W. Moore, Assistant Trust Officer' for allowance or rejection and on the 29th day of March, 1929, it was returned to plaintiff not allowed, with the following endorsement thereon, to-wit:
“ ‘The within claim was presented to me" on the 21 day of Peby. 1929, and on this 19th day of March, 1929, I disallowed the same in full.
“ ‘First National Bank of El Paso, Texas.
“ ‘Adm. Estate of Jessie Mariner
“ ‘By H. W. Moore, assistant trust officer.’ to which reference is made a part hereof.
“ ‘Plaintiff says and so represents to the court that said claim was rejected and not allowed by defendant as the administrator of said estate and plaintiff brings this suit to establish said claim against the estate for the full amount.
“ ‘Wherefore, parties being before the court plaintiff prays for judgment for the said sum of $311.00, interest and costs and for such other and further relief both in law and equity as plaintiff may justly be entitled to.’
“This suit was filed more than ninety days after the rejection of the account by the Administrator.
“The appellee’s general demurrer to the petition was sustained and the suit dismissed. The basis of the trial court’s ruling was that the suit had not been filed within 90 days after the rejection of the account by the Administrator.
“Upon appeal this. Court sustained the action of the trial court in sustaining the demurrer. Attached hereto and made a part of this certificate is a copy of the opinion of this Court which discloses the theory upon which this court sustained the ruling of the trial court upon the demurrer.
“This Court doubts the soundness of the theory upon which it based its affirmance of the trial court’s ruling. This Court also doubts the correctness of the ruling in Wells v. Hobbs, 57 Tex. Civ. App. 375, 122 .S. W. 451, referred to in its opinion and relied upr on by appellant.
“In this situation this court deems it advisable to present to the Supreme Court for adjudication under article 1851, R. S., and i.t does hereby respectfully so present to such Court, this question:
“Was the .petition subject to general demurrer because the suit was not brought within 90' days after the rejection by the administrator of the account sued upon as required by article 3522, R. S.?”

Opinion.

The two counts in the petition, one being upon an express contract and the other an implied contract, are virtually' the same, and they are both claims for money. A claim for money means literally the claim that á debt exists. Western Mortgage & Inv. Co. v. Jackman, 77 Tex. 625, 14 S. W. 305. The fact that the claim must be sworn to indicates that the amount must be to a certain extent definite and not uncertain and contingent. In Barlow v. Anglin (Tex. Civ. App.) 45 S. W. 857, it is said the statute only contemplates claims for money, and has no application to cases where the demand is for uncertain or unliquidated damages,, or for land. Robinson v. McDonald’s Widow & Heirs, 11 Tex. 385, 62 Am. Dec. 480; Evans’ Adm’r v. Hardeman, 15 Tex. 481; Bullion v. Campbell, 27 Tex. 653; Graham v. Vining, 1 Tex. 644; Dunn v. Sublett, 14 Tex. 529. Rent accrued at testator’s death is a claim for money to be presented. Roddy v. Harrell, (Tex. Civ. App.) 40 S. W. 1064.

, The suit in Barlow. v. Anglin, supra, was for specific property, the money demand was merely prayed for in case the property was hot delivered; the primary cause of action fixed the status of the demand, and therefore was not required to be presented for allowance before suit. •

While it is true that the claim must be for a definite sum, yet it is not restricted • to “liquidated claims”; it includes 'such claims as may be reduced to a definite sum upon proper data, and not a claim where the unfathomable discretion of a jury must determine the amount. Garrett v. Gaines, 6 Tex. 435. Thus, the claim for services of an attorney to the intestate, though no fee was agreed upon, is one for money, and should be presented. Stark v. Hart, 22 Tex. Civ. App. 543, 55 S. W. 378; Gammage & Hunter v. Rather, 46 Tex. 105; Robb v. Smith, 40 Tex. 96. So should any other claim susceptible at the time of presentation of being reduced to a definite sum, Graham v. Vining, 1 Tex. 644; Graham v. Vining, 2 Tex, 446; Roddy v. Harrell (Tex. Civ. App.) 40 S. W. 1064; Western Mortgage & Inv. Co. v. Jackman, 77 Tex. 625, 14 S. W. 305; Jenkins v. Cain, 72 Tex. 91, 10 S. W. 391; Buchanan v. Wagnon, 62 Tex. 375.

If the claim cannot be verified with a reasonable degree of certainty, it need not be presented before suit. King’s Adm’r v. Cas-sidy’s .Adm’r, 36 Tex. 538. So a mere demand for unliquidated damages need not be presented before suit (Ferrill’s Adm’x v. Mooney’s Ex’rs, 33 Tex. 224; Sutton v. Page, 4 Tex. 142; Merle v. Andrews, 4 Tex. 214), as for example, damages for breach of contract (Robinson v. McDonald’s Widow & Heirs, 11 Tex. 385, 62 Am. Dec. 480; Bullion v. Campbell, 27 Tex.. 655), or damages for trespass (Ferrill’s Adm’x v. Mooney’s Ex’rs, 33 Tex. 220), or for wrongful levy of attachment (Blum v. Welborne, 58 Tex. 157; Garrett v. Gaines, 6 Tex. 442; Evans’ Adm’r v. Hardeman, 15 Tex. 483; Wells v. Hobbs, 57 Tex. Civ. App. 375, 122 S. W. 451).

Those cases are sufficient to illustrate the unliquidated demands that need not be presented to the administrator before suit, and are not applicable here.

We therefore recommend that the question be answered in the affirmative.

CURETON, C. J.

The opinion of the Commission of Appeals answering the certified question is adopted and ordered certified.