author: ORITZ, J. CURETON, C. J.

text:
    LONE STAR GAS CO. v. STINE et al.
    No. 1463-5700.
    Commission of Appeals of Texas, Section A.
    July 22, 1931.
    Ben H. Powell, of Austin, Karl F. Griffith and Roy C. Coffee, both of Dallas, and Taylor, Muse & Taylor, of Wichita Falls, for plaintiff in error.
    , Kay & Akin and C. C. McDonald, all of Wichita Falls, and G. B. Smedley, of Fort Worth, for defendants in error.
   ORITZ, J.

During the years 1911 and 1912, the defendants in error, J. H. Stine et al., were the owners of certain land in Clay county, aggregating more than 750 acres. On November 23, 1911, and December 5, 1911, Stine et al. for a cash consideration of $24,738 executed and delivered to -the gas company certain gas deeds conveying to the gas company: “All our rights, title and interest, ownership and claim, both present and prospective, in all natural gas in and under the following tract and parcels of land,” (here follows description of land).

These conveyances were duly acknowledged, delivered, and recorded.

At the same time the above gas deeds were executed and delivered, the parties entered into an “operating agreement.” The pertinent parts of this agreement are set out in the opinion of the Court of Civil Appeals, and in the interest of brevity will not be repeated here.

On the trial of the case in the district court, it was shown that the gas company drilled a number of wells on the land in question, and now have about eight such wells producing gas. Prior to 1916, this gas was conveyed -by the gas company to a compressor near the wells where it was compressed in order to increase the pressure in the mains, and thus facilitate its transportation through the pipe line. The gas was run from the compressor into the pipe line, which conveyed it to where it was sold for fuel purposes. During this time, when the weather was cold, and because of such low temperature and high pressure, gasoline, which was a part of the gas, and was in gaseous form when it came from the wells, would sometimes accumulate in the drips along the line in such quantities that it could be taken and used as motor fuel.

We here quote and adopt the following facts found by the Court of Civil Appeals: “In the year 1916 the appellee built its absorption plant, and after the completion of that plant the gas from the appellants’ land was conveyed from the wells to the compressor station, and from the compressor station to the absorption plant, where it was run through a certain kind of crude oil. This crude oil absorbed from the gas the gasoline which was carried along with the gas in the form of vapor, and the dry gas, after the gasoline had thus been absorbed from it, went Into the main lines of appellee, and was transported to various cities for fuel purposes. One of appellee’s witnesses described the process of extracting the gasoline as being a method by which gas was run through a certain kind of oil so that the oil became saturated with the hydrocarbons that go to make gasoline. The testimony is that this gasoline vapor may be converted into gasoline either by the absorption method used by the appellee, or by compression and cooling. That is, that by compression and lowering of temperature, the gas or vapor will be changed from its vaporous form into liquid, and this is the method which is ordinarily used in changing casinghead gas into gasoline.”

This suit wás instituted in the district .court of Olay county, Tex., by Stine et al. against the gas company for an accounting, and for a one-eighth royalty on all gasoline that was produced by the gas company by the process shown above.

The case was tried in the district court with a jury, but at the close of the testimony the trial judge directed a verdict for the gas company. The verdict was returned as directed, and judgment entered accordingly. On appeal by Stine et al., tbe Court of Civil Appeals reversed tbe judgment of tbe district court and rendered judgment for Stine et al. 23 S.W.(2d) 752. The ease is in tbe Supreme Court 011 writ of error granted" on application of tbe gas company.

As we understand tbe opinion of tbe Court of Civil Appeals, it bolds that as a matter of law tbe gasoline manufactured from tbe natural gas which flowed from tbe gas company’s wells was oil within tbe meaning of tbe deeds and “operating agreement,” supra. We think this bolding is error. Humble Oil & Refining Co. v. Poe (Tex. Com. App.) 29 S. W.(2d) 1019, 1020; Magnolia Petroleum Co. v. Connellee (Tex. Com. App.) 11 S.W.(2d) 158.

A careful reading of tbe gas deeds and “operating agreement” clearly discloses that the “operating agreement” does not and was not intended to in any way subtract from tbe estate conveyed by the gas deeds, but was intended merely to provide a method by which tbe owner of tbe gas estate and tbe owners of tbe oil estate could work together and protect tbe interests of each. We must therefore determine what was conveyed by tbe gas deeds.

At this point, we deem it expedient to quote tbe following from Judge Leddy’s opinion in Humble Oil & Refining Co. v. Poe, supra:

“It is difficult to conceive upon what theory defendant in error was entitled to recover for gasoline which could have been manufactured from gas produced from a gas well, in tbe face of tbe provision in tbe lease that ‘lessee agrees to pay tbe lessor at tbe rate of $250 each year, payable quarterly in advance, for the gas from each well where gas only is found, while tbe same is being used off tbe premises.’ * ⅜ *
“Plaintiff in error acquired the right to use the gas produced from a gas well it might drill on the premises covered by tbe lease by tbe payment of the agreed rental of $250 per annum. Having bought and paid for such gas it owned the same, including all of its constituent elements, and therefore bad the lawful right to make such use of it as it might deem proper. Wilson v. King Smith Refining Co., 119 Okl. 256, 250 P. 90; Shaw v. Fender, 138 Ga. 48, 74 S. E. 792; McRae v. Smith, 164 Ga. 23, 137 S. E. 390; Magnolia Petroleum Co. v. Connellee, supra.

Tbe real questions presented in tbe Poe Case, supra, and tbe questions here presented, are in law tbe same. In tbe Poe Case, tbe oil company bad a lease, while in tbe instant case tbe gas company has a deed to “all natural gas.” In tbe instant case, tbe gas company has tbe right, under its deeds, to “drill for and develop gas and take tbe same free from any charges or royalty.” Tbe gas company paid a large consideration running into thousands of dollars for “all natural gas” in and under these lands. An examination of tbe several instruments clearly discloses that tbe gas conveyed was not limited to any particular kind or character of gas, but tbe conveyance is all-embracing as regards gas, and covers and includes “all natural gas.” Tbe term “all natural gas” would include all tbe substances that come from tbe well as gas, and that regardless of whether such gas be wet or dry. It is undisputed in the evidence that tbe term “natural gas” includes numerous elements or component parts, but the very language of tbe conveyance is such as to include therein all these component parts which were in gaseous form when they came from tbe wells.

It is a fact disclosed by this record that gas and gasoline can be manufactured from coal. Could it be successfully contended that if tbe owner of land should convey all the coal in, on, and under such land, and reserve all oil and gas,- that be could claim as gas and oil tbe gas and gasoline manufactured from tbe coal? We think not; yet, such a claim would be as just and as logical as tbe one here advanced by Stine et al. Furthermore, suppose Stine et al. had taken their oil and manufactured gas therefrom, Could tbe gas company have claimed the same under their gas deed? We think-to state such a question is to demonstrate tbe fallacy of tbe contention here made by Stine et al. In other words, if it is permissible under these gas deeds and “operating agreement” for Stine et al. to take from tbe gas company tbe oil element which formed a constituent gaseous part of tbe gas as it came from tbe well, it would be equally as permissible for tbe gas company to take from Stine et al. tbe various gaseous elements which form component parts of oil.

Tbe evidence in this case conclusively shows that tbe gasoline in controversy here was manufactured from gas which came from tbe wells as gas. This gasoline was separated from tbe gas and became liquid only when it was subjected to tbe manufacturing process shown above. It is true that tbe gasoline element was in tbe gas when it came from tbe well, but it was then in gaseous form, that is, it was a,n element or component part of tbe natural gas, and gas or natural gas was tbe thing conveyed by tbe deeds. Tbe legal effect of tbe deed was to convey “all natural gas,” and by tbe term “natural gas” is meant all tbe constituent elements composing tbe same. Tbe gas company, having become tbe owner of “all natural gas” in or under this land, has tbe right to make such use thereof as it sees fit. It may sell tbe gas in its natural form as it came from tbe earth, or it may split it into its constituent elements and sell such elements, including tbe gasoline.

Tbe Court of Civil Appeals bolds that tbe instant case is ruled by tbe bolding of Section B of tie Commission, speaking through Judge Speer, in Reynolds v. McMan Oil & Gas Co., 11 S.W.(2d) 778. We have carefully examined that opinion in the light of the contract there construed and think that a correct conclusion was reached, as applied to that contract construed in the light of that record. We frankly admit that we have not attempted to harmonize all that was there said with what was said by Judge Leddy in the two other opinions hereinabove cited. We are persuaded, however, that there is nothing said in the Reynolds Case which was necessary to a decision of that case that can be construed as announcing a rule which would operate to give Stine et al. any interest in the gasoline manufactured from the natural gas taken from the wells in' the instant case. In the instant case, the grant to the gas estate is general and all-embracing, and nowhere in the gas deed or in the “operating agreement” is there any language used that can be construed as making any exception to the general grant of “all natural gas” contained in the gas deeds. Stine et al. conveyed to the gas company “all natural gas in and under” this land, and further they expressly granted to the gas company the right, “at all times to enter upon the land, drill for and develop gas and take the same free from charges and royalty,” and they should abide such contract as they made it.

We recommend that the judgment of the Court of Civil Appeals be reversed, and the judgment of the district court affirmed.

CURETON, C. J.

Judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed, as recommended by the Commission of Appeals.


source: Caselaw Access Project

author: LEDDY, J. CURETON, O. J.

license: Public Domain

text:
    WANN v. METROPOLITAN LIFE INS. CO.
    No. 1279-5737.
    Commission of Appeals of Texas, Section B.
    July 22, 1931.
    McLean, Scott & Sayers and Mack & Mack, all of Fort Worth, for plaintiff in error.
    Vinson, Elkins, Sweeton & Weems and Fred R. Switzer, all of Houston, for defendant in error.
   LEDDY, J.

On May 5, 1925, defendant in error issued its group policy No. 2000G to the Southern Pacific Company, and on the same date issued its certificate'No. 79350 to plaintiff in error, William Charles Wann, reciting that, subject to the terms and conditions of the group policy aforesaid, he was insured in ,the sum of $250. On September 12, 1925, said company issued its rider No. 7938 showing that the amount of said insurance was increased to $2,500.

Plaintiff in error, while engaged in the performance of his duties as an employee of the railway company, to whom was issued the above group policy, sustained certain injuries which he claimed totally and permanently incapacitated him from performing any labor. Subsequently he brought this suit to recover the compensation provided in said policy for this character of disability. ⅛ paragraph 2 of his petition, the insurance contract relied upon is thus described: “That heretofore, on the 5th day of May, 1925, the defendant insurance company contracted, covenanted and agreed in writing to insure William Ghas. Wann, one of the plaintiffs, against bodily injury and disease contracted while said insurance ivas in force and effect, thereby resulting in total and permanent disability; that said certificates of insurance were issued on the consummation of said contract, said certificates being numbered 79350 and 79350a, Group Policy No. 200-G and Group Policy No. 2000; that said certificates, as stated, were issued to plaintiff on the 5th day of May, 1925, and provided that in the event said William Ohas. Wann Sid sustain injury by which and as a result thereof he became totally and permanently disabled, or if the plaintiff William Chas. Wann, contracted disease by which he became totally and permanently disabled that said insurance corporation agreed, upon proof and the receipt of proof of such disability, to pay unto the said William Chas. Wann monthly installments at the rate of $86.25 per month until the full and entire amount provided for by the terms of said policy, to-wit, $2587.50, as specified in the contract, had been and was fully paid up.”

Upon the trial plaintiff in error offered in evidence the certificate and rider evidencing his right to disability benefits under the group policy. The certificate reads as follows:

“Metropolitan Life Insurance Company
“Incorporated by the State of New Tort
“A Mutual Life Insurance Company
“Serial No. 79350
“This Is To Certify
“That under and subject to the terms and conditions of Group Policy No. 2000G William Charles Wann an employee of Southern Pacific Lines in Texas and Louisiana (herein called the employer) is insured for Two Hundred Fifty Dollars.
“If death occur while the employee is in the employ of the employer, or prior to the next monthly premium due date of the Group Policy following the date of discontinuance of employment, the amount of insurance in force on said employee, in accordance with Group Policy as above, will.be paid to Agnes Wann, Beneficiary.
“The right to change the Beneficiary is reserved.
“No assignment by the employee of the insurance under the above Group Policy is valid.
“Privilege of Continuance.
“In the event of the termination of the employment for any reason whatsoever, the employee shall be entitled to have issued to him by the Metropolitan Life Insurance Company, without further evidence of insurability, and upon application made to that Company within thirty-one days after such termination, and upon the payment of the premium applicable to the class of risk to which he belongs and to the form and amount of the Policy at his then attained age, a Policy of life insurance in any one of the forms customarily issued by such Company, Term Insurance excepted, in an amount equal to the amount of his protection under the Group Insurance Policy at the time of such termination.
Metropolitan Life Insurance Company. New York, May 5, 1925.
"Form C707 S. P. Certificate F. H. Ecker, President.
“Dec. 1923”

There is printed on the back of Exhibit 1 the following:

“Total and Permanent Disability Benefits
“Any employee shall be considered as totally and permanently disabled who furnishes due proof that, as the result of bodily injury suffered or disease contracted while his insurance was in force and prior to his sixtieth birthday, he is permanently, continuously and wholly prevented thereby from performing any work for compensation or profit.
“Upon receipt of due proof of such disability, the Metropolitan Life Insurance Company will pay to such employee, in lieu of the payment at death of the said insurance on the life of such employee, equal monthly installments based on the amount of insurance in force on such employee at the date of receipt of proof of such disability, as shown in the following table:
Amount
"Amount of No. of Monthly of Each
Insurance Instalments Instalment
$ 250 5 $50.00
500 10 50.35
1,500 30 51.75
“For amounts of insurance in excess of $1,500 the same number of instalments (30) on the basis of $34.50 monthly for each $1,000 of insurance.
“Such instalment will be made only during the continuance of such disability.
“In the event of the death of such employee during the period of total and permanent disability, the present value of any installments remaining unpaid shall be paid, in one sum, to the designated beneficiary.
“This Certificate is valuable to you, and should be kept in a very safe place, known to your beneficiary.”

The rider attached to the certificate provided:

“Metropolitan Life Insurance Company
“Subject to the Terms and Conditions expressed in Policy No. 2000G Serial No. 79350-A, the amount of Insurance on the life of William Charles Wann an employee of Southern Pacific Lines in Texas and Louisiana has been increased Twenty Two Hundred Fifty Dollars.
“New York September 12, 1925
“Haley Fiske, President.
“(Effective Date) Form G.76B S. P. T. L. Nov. 1927 GHT”

The group policy referred to in the certificate, and rider was not offered in evidence, nor was any effort made to prove its contents.

But one issue was submitted to tbe jury, and in response thereto a finding was made that plaintiff in error, William Charles Wann, by reason of the injuries sustained, was permanently, continuously,- and wholly prevented “from the substantial performance of any work for compensation or profit for which he was otherwise fitted.” Upon this finding judgment was entered for the insured against defendant in error for the amount provided in the certificate aforesaid.

Upon appeal the Court of Civil Appeals, 28 S.W.(2d) 196, held that the certificate and rider issued to plaintiff in error constituted a complete contract of insurance. The judgment in his favor was reversed and rendered in favor of the insurance company by that court, upon the ground that the evidence failed to establish plaintiff in error was totally and permanently disabled within the meaning of the provisions of the certificate. Both parties have been granted writs of error.

Defendant in error" insists that the Court of Civil Appeals erred in holding that plaintiff in error was entitled to recover under the certificate and rider introduced in evidence without proof of the contents of the group policy because the former showed upon their face that they were issued merely for the purpose of evidencing the right of the insured to participate under the terms of the latter policy and were therefore subject to^all of its terms and conditions.

It appears that the insurance company entered into a contract with plaintiff in error’s employer to insure its employees under terms mutually agreeable to both parties. Under this contract a policy was issued and delivered to the employer containing the terms and conditions under which the insurance was to be effective. The insurance company then issued its certificates to the various employees intended to be covered by the group policy, which evidenced-their right to participate in this insurance upon the terms and conditions outlined in said policy. Under such contract the certificate issued to the plaintiff in error did not constitute the complete contract of insurance. It merely evidenced his right to participate in the insurance provided by his employer under the terms and conditions imposed in the group policy when construed in connection with the certificate. Carruth v. Ætna Life Ins. Co., 157 Ga. 608, 122 S. E. 226, 230; Seavers v. Metropolitan Life Ins. Co., 132 Misc. Rep. 719, 230. N. Y. S. 366, 370.

The certificate delivered to plaintiff in error provides in plain and specific "language that he is insured subject to the terms and conditions of the group policy issued to his employer. It recites: “This is to certify that under and subject to the terms and conditions of group policy No. 2000G William Charles Wann, an employe of the Southern Pacific lines in Texas and Louisiana (herein called the employer) is insured for Two Hundred-Fifty Dollars.”

In the rider attached to the certificate the reference to the group policy is likewise clear and explicit in its provisions. It is provided: “Subject to the terms and conditions expressed in Policy No. 2000G the amount of insurance on the life of William Charles Wann ⅞ ⅜ ⅞ ilag been increased Twenty Two Hundred Fifty Dollars.”

Plaintiff in error’s cause of action, as disclosed by his pleading, was based upon the issuance of the group policy. Obviously -he was not entitled to recover by merely offering in evidence the certificate and rider attached thereto. These instruments disclose upon their face that they were not intended to and do not constitute a complete contract of insurance. Even if he had predicated his cause of action solely upon the certificate and rider, without any reference to the group policy, a recovery would not have been authorized when it was shown by the express terms of these instruments that they constituted but a part of an indivisible contract.

It is argued that the certificate with rider attached issued to Wann was so complete in its terms that it was not essential for him to establish the provisions of the group policy. The parties to this contract expressly agreed that plaintiff in error was insured subject to the terms and conditions of the group policy. How.ever complete the terms of the certificate may appear to be, the fact remains that the parties agreed it should be subject to the terms and conditions of another .instrument In the face of- such an agreement plaintiff in error had no right, without the consent of the insurance company, to change this contract so as to entitle -him. to recover without regard to the terms and conditions of the policy expressly made a part of the contract. The terms of the certificate may have been materially modified by stipulations contained in the group policy. ,

In order for plaintiff in error to set up a cause of action under the terms of the certificate, it was incumbent upon him to allege- and prove that the provisions of the group policy, when construed in connection with the certificate and rider, entitled him to recover for the disability resulting from the injuries sustained in the service of his employer.

In a similar situation the Supreme Court of Georgia, in the case of Carruth v. Ætna Life Ins. Co., before cited, decided that the certificate issued to an employee and the group policy constituted an indivisible contract and that recovery could only be had under the entire contract. In discussing this question, the court said: “The policy and the certificate are interlocked like the Siamese twins. Contemporaneous instruments, each. affecting. and controlling the same subject-matter, to wit, insurance of the life of an employee of the Lanette Cotton Mills by the Ætna Life Insurance Company, the two writings may be considered as essential, indivisible parts of one contract.”

In Seavers v. Metropolitan Life Ins. Co., cited supra, an employee who held a certificate which entitled him to participate under a group policy issued to his employer claimed the right to adopt his own method of changing the beneficiary because the certificate which evidenced his right to benefits under the group policy was silent in this respect. It was held, however, that, inasmuch as the certificate was issued to him subject to the terms and conditions of the group policy, its provisions for changing the beneficiary must be followed. In passing upon the question, the court said: “The certificate is required as evidence of the contract and to apprise the insured of his rights thereunder. The provisions of the statute bear no other interpretation. The statements in the certificate follow the direction of the statute, and this instrument does not purport to be the contract of insurance. The company certifies that the employee is insured ‘under and subject to the terms and conditions of group policy No. 468G.’ The language of the certificate is plain and unmistakable. Thei'e can be no complaint of vagueness of expression or .subtle avoidance of clarity.”

The doctrine announced in the foregoing cases is but the application of the familiar rule of construction that, where an instrument refers in specific terms to another instrument in such a way as to show a clear intention to make it a part of the contract, both instruments must, be introduced in evidence before a recovery can be had thereunder. Spande v. Western Life Indemnity Co., 61 Or. 220, 117 P. 973, 122 P. 38; Bradstreet v. Rich, 74 Me. 303; Casey v. Holmes, 10 Ala. 776; 13 C. J. 757.

We do not deem it proper to pass upon the question as to whether or not plaintiff in error was shown to be totally and permanently disabled within the meaning of the language of the certificate, as upon another trial the certificate must be construed in connection with the -terms and provisions of the group policy.

We therefore recommend that the judgments of the trial court and the Court of Civil Appeals be reversed, and the cause remanded for another trial.

CURETON, O. J.

Judgments of the district court and Court of Civil Appeals are both reversed, and the cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: SHORT, P. J. CURETON, C. J.

text:
    BLAKESLEY v. KIRCHER et ux.
    No. 1277-5733.
    Commission of Appeals of Texas, Section B.
    July 22, 1931.
    John T. Garrison and Arterbury & Coolidge, all of Houston, for plaintiff in error.
    Ewing Werlein, of Houston, for defendants in error.
   SHORT, P. J.

Jewel E. Kircher, his wife, and five other people, were riding in a large Cadillac car on a highway between Galveston and Houston, about 8:30 p. m. on the 21st day of February, 1929, going in a westerly direction, when their car collided with a car belonging to W. N. Blakesley, resulting in damages to both cars, and in physical .injuries to Mrs. Kircher.

The defendants in error brought this suit, alleging certain acts of negligence on the part of the plaintiff in error, as the proximate cause of the damage done and injuries inflicted. There was a trial to a jury, who answered certain special issues, and the judgment based thereon was rendered in favor of the defendants in error for $1,500, $1,150 of which were given for injuries received by Mrs. Kircher, and $350 for medical fees. There were no damages allowed for damage to the car, though the testimony shows that it was materially damaged. It appears that the plaintiff in error had been to church with his family, and. was traveling this highway, in an easterly direction, just prior to the collision, and had reached the point on the highway nearly opposite a small bridge which spanned a ditch connecting the highway with his premises. This highway had been recently constructed, and in the nighttime it appeared that the plaintiff in error had some difficulty in locating the bridge, and was looking for it, intending to turn to the left, and cross the bridge to cross and go upon his premises, which were located north of the highway. About the time he was proposing to make this turn, a car, traveling in the same direction, passed him to the left. Just before this car passed, the plaintiff in error saw a car from three to five hundred yards away, traveling on the right side of the highway, coming towards him; 'but the car passing the plaintiff in error prevented him seeing, for a time thereafter, the on-coming car. The plaintiff in error was in the act of turning his car to' the left, with a view of crossing the bridgé1, when the on-coming car came in contact with his. The left hind wheel of the car of the defendants in error apparently came in contact with the left front wheel of the plaintiff in error’s car. The defendant in error’s car traveled, after the collision, 147 feet, and when it came to a standstill, it had reversed its position, and the left wheels of the car were in the ditch. The collision does not seem to have moved, to any appreciable extent, the car of the plaintiff in error. However, it was found after the collision that the left front wheel of plaintiff in error’s car was over the line in the middle of the street, not exceeding 2½ feet to the north.

It was the theory of the defendants in error that the plaintiff in error’s car was moving rapidly across the street, and that it came- in contact with the defendants in error’s car by suddenly darting out of the darkness to the north, and that no amount of caution on the part of the defendants in error could have avoided the collision under the circumstances, since there was nothing at that point, where the collision occurred, to arrest the attention of the driver of the Cadillac car, and since it was on the right side of the road and had the right of way.

It was the theory of the plaintiff in error that his car did not strike that of the defendants in error’s, by reason of it having been in motion and across the line, but that the Cadillac car struck his car, by reason of the negligence of the driver of the Cadillac car, in driving at a negligent rate of speed, and the failure of the driver to keep a proper lookout.

The jury found that the driver of the Cadillac car was driving at an excessive rate of speed and had failed to keep a lookout, but also found that neither of these acts of negligence was a proximate cause of the collision. The driver of the Cadillac car testified that he did not see the car of the plaintiff in error until the collision, but he also testified that at the speed he was driving, he could have stopped the car within 20 feet.

There were many acts of negligence alleged by the defendants in error, but the jury only found that the plaintiff in error was guilty of driving his car on the left-hand side of the road when the Kircher car was approaching in close proximity, and was negligent in turning his car to the left on the public highway at a time when the Kircher car was in close proximity, and that the plaintiff in error had driven part of his car to the north of the center of the highway, prior to the collision, and that he failed to keep on his right-hand side of the highway when the Kircher car was in close proximity. From the judgment entered the plaintiff in error prosecuted an appeal to the Court of Civil Appeals at Galveston, where two opinions were rendered; the majority opinion affirming the judgment of the district court, while the dissenting opinion, written by Judge Pleasants, holds that the judgment should be reversed and rendered in favor of the plaintiff in error. 26 S.W.(2d) 1091.

In view of the disposition we have concluded to make of this case, and of the fact that we have reached the conclusion that the testimony justified the findings of fact by Judge Pleasants in his dissenting opinion, and to avoid extending this opinion to an unusual length, by quoting from the testimony of the witnesses, we adopt as correct the findings of fact by Judge Pleasants. The findings are as follows: “Appellant at the time of the collision was proceeding slowly and cautiously to turn across the public highway from its south to its north side to enter his premises situated on the north side of the highway. As he started to make the turn across the center line of the highway, he was compelled to stop his car to permit an automobile approaching from his rear and going east on the highway to pass. Before making this stop, he had seen the lights of appellee’s automobile approaching from the east along the north side of the highway. After the automobile coming from his rear passed him it momentarily obscured the lights on the ap-pellee’s car. In this situation, appellant again put his ear in motion, and, when it had moved not more than 2½ feet across the center line of the highway, appellee ran his car violently dgainst appellant’s car, injuring both ears and causing serious personal injuries to ap-pellee and his wife. There were fourteen or fifteen feet of roadway on the north side of the highway between appellant’s car, when it was struck by appellee’s car, and the north edge of the roadway. The jury found that the appellant was negligent in driving his car across the center line of the roadway at a time when the appellee’s car was in close proximity, and that such negligence was the proximate cause of the injuries to plaintiffs; that appellant did not drive his ear against the left side of appellee’s car, and did not fail to keep a proper lookout for cars approaching from the east on the highway at the time he drove his car across the center line of the roadway. The jury also found that appellee Jewel E. Kircher ‘at and immediately prior to the time of the accident’ was negligently driving his car at a dangerous and excessive rate of speed, and negligently ‘failed to keep a proper lookout for vehicles that might be lawfully upon or attempting to cross the highway ahead of him.’ ”

It is, of course, correct to say that in cases of this character the “proximate cause” is always a fact to be ascertained by a jury, but it is equally true that there may be more than one “proximate cause” of injuries inflicted or damage done. In this case, the jury found the plaintiff in error to have been guilty of four negligent acts, each of which constituted the “proximate cause” of the injuries inflicted and the damages done, as above related. But as Judge Pleasants says, in his dissenting opinion, in speaking of this matter: “As a matter of fact, it could not be accurately found that the negligence of each was ‘the’ proximate cause of appellee’s injuries. It was the negligence of one or of both of the parties, and, if the negligence of the appellees directly contributed to the accident, it was ⅛,’ and not ‘the,’ proximate cause. The charge did not define contributory negligence, and the jury probably concluded that it was for them to say whose negligence was most responsible for the accident, and proceeded in good faith to apply the rule of comparative negligence.” It may be that the jury were justified in concluding that the negligence of the plaintiff in error contributed more to the injuries inflicted and the damage done than did the negligence of the defendants in error, but the rule of comparative negligence in this state does not prevail. The rule does prevail that in cases of this kind a plaintiff cannot recover for injuries which his own negligence direetly contributed to the cause. Since the jury were not required, under the charge of the court, to pass directly upon the pertinent question whether the defendants in error were guilty of contributory negligence, and since contributory negligence is a fact to be found by the jury, just as proximate cause is a fact to be so found, where the issue is presented by conflicting testimony, we are of the opinion the conclusion reached by Judge Pleasants, that under the facts found by him to be undisputed, and those found by the jury, the judgment of the Court of Civil Appeals below should be reversed, and judgment rendered in favor of the plaintiff in error is correct.

The majority opinion correctly says: “Negligence on the part of appellees will not prevent a recovery by them, unless it be shown that such negligence proximately contributed to or caused the injury. Contributory negligence is conduct for which a plaintiff is responsible, amounting to a breach of the duty which the law imposes upon persons to protect themselves from injury, and which, concurring and co-operating with actionable negligence for which a defendant is responsible, contribute to the injury complained .of as a proximate cause.” (Italics ours.) 45 Corpus Juris, 901, 943; Jones v. Gibson (Tex. Civ. App.) 18 S.W.(2d) 744, 745; Union Stock Yards v. Peeler (Tex. Civ. App.) 21 S.W.(2d) 1070.

After stating the facts, which he finds to be undisputed, and which we also find to be so undisputed, and giving due consideration to the facts found by the jury, to have constituted negligence on the part of the plaintiff in error, Judge Pleasants says: “If these undisputed facts, and the findings of the jury did not make a case of contributory negligence, as a matter of law, then no such case can be made.” In opposition to this declaration on the part of Judge Pleasants, the majority opinion says: “In order for the court to hold as a matter of law that an act of negligence was the proximate cause of a certain injury, the facts must be so clear that reasonable minds could not differ as to whether the injury would have occurred without such negligence. We think the facts in the present case fall far short of being such as would charge appellees with negligence contributory to the injury, as a ‘matter of law.” These two excerpts, one from the minority and one the opinion of the Court of Civil Appeals, present the different conclusions reached with reference to the legal liability of the defendants in error, as referring to the question of contributory negligence. With the facts found by the jury, and those which are undisputed in the record, bearing upon this question, it becomes a question of law to be determined by the court, whether the defendants were guilty of contributory negligence. Accepting as true the findings of fact by the jury with reference to the negligence of the plaintiff in error, we must assume that he was guilty of negligence in the particulars stated. However, since the findings of fact, by the jury, together with the undisputed facts shown by the record to have been established, clearly establish the proposition that the defendants in error were guilty of contributory negligence, in bringing about the collision and the consequent injuries, some of which undisputed facts are stated by Judge Pleasants, but not all of them, which clearly establish the fact that the defendants in error were guilty of contributory negligence, it necessarily follows, from the settled law on this subject, that the plaintiff in error is not liable in damages to the defendants in error. To state the question in another form, freedom from contributory negligence is shown by proof of such care as an ordinarily prudent person would have exercised, under the particular circumstances surrounding defendants in error at the ’time of the accident. Here the jury finds, expressly, that the defendants in error did not exercise the care of an ordinarily prudent person, under the particular circumstances surrounding them at the time of the accident, in that the Cadillac car was driven' at a greater rate of speed than it should have been driven, and also that immediately preceding the collision, the defendants in error were not exercising the care such as an ordinarily prudent person would have exercised under the particular circumstances surrounding them at the time of the accident, in failing to keep the proper lookout. These findings of fact, by the jury, are not challenged. When all the circumstances surrounding'the parties at the time are given due consideration, such as the fact that it was dark; that there were many pedestrians walking along the highway at that point; that the lights of the car, driven by the plaintiff in error, necessarily could have been seen by the defendants in error had they been keeping a proper lookout, and been traveling at a proper speed; the condition of the roadway at that point being such as to have enabled the defendants in error to have passed the car of the plaintiff in error without colliding with it, by merely turning slightly to the right of the defendants in error — we see no escape from the conclusion that the situation presents one where the defendants in error were guilty of contributory negligence as a matter of law. It is no answer to this proposition that ordinarily one is not required to look for danger when he has no cause to anticipate it, and when it does not exist, except on account of the negligence of another, when the findings of fact by the jury, and the undisputed facts, clearly establish contributory negligence on the part of the defendants in error. It is true that there was nothing at this point to arrest the attention of the defendants in error, or to justify them to anticipate that the plaintiff in error would be guilty of the acts of riegligenee of which the jury found he was guilty. We give full weight to these facts found by the jury against the plaintiff in error, and in passing upon this question, we only consider whether, under all the facts and circumstances existing at the time, the collision would have been averted had the defendants in error been traveling at a proper rate of speed, and been keeping the proper lookout. Had it been impossible for the defendants in error, at the point where the collision occurred, to have turned to the right, without running into another obstruction, or without going into the ditch, then it would follow that the rate of speed and the failure to keep a lookout would not have contributed to the injuries inflicted by the accident.

It is, of course, correct to say that in cases of this character, the proximate cause is a fact to be ascertained by a jury where the testimony is conflicting, but it is equally true that there may be more than one proximate cause of injuries inflicted, or damage done, and where the testimony is undisputed, or, if disputed, the facts, as found by the jury in this case, establish, as a matter of law, that a proximate cause of the injuries inflicted, and the damage done, was the negligence' of the defendant, it logically follows, under the law, that such a defendant is guilty of contributory negligence, by reason of the fact that one of the proximate causes was such negligence of such defendant. We cannot escape the conclusion reached by Judge Pleasants, especially in view of the-physical facts established, without dispute, found to have existed on the pavement near the scene of the collision, the condition of the tire of the left wheel of the Cadillac car, the position of the two cars with respect to the point of collision, when taken in connection with the facts found by the jury, convicting the defendants in error of negligence, and other undisputed facts establish, beyond any reasonable doubt, that this collision would not have occurred had 'the driver of the Cadillac car been exercising the care of an ordinarily prudent person in driving the ear and in keeping a lookout. In other words, it is our opinion that this testimony establishes a matter of law that the defendants were guilty of contributory negligence and therefore are not entitled to recover.

The record in this case is very voluminous, and the briefs of the parties extensively discuss the facts, and quote from many decisions, besides citing others. We find no fault with the authorities discussed, as doubtless each of them is correct when applied to the facts of the particular case. The point where the parties disagree in their respective briefs rests upon the application of the principles of law to the testimony, and we therefore do not think any amount of space which we might use in quoting- from the testimony would be of any benefit in the light of what we have said, nor do we think that it is nee-essary to discuss the several assignments of error presented by the plaintiff in error.

Agreeing with the dissenting opinion as to the law of the case on the point discussed, and disagreeing with the conclusion reached by the majority opinion, under the undisputed facts and those found by the jury, we recommend that the judgment of the Court of Civil Appeals affirming that of the district court be reversed, and that the cause be remanded to the district court for another trial.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both reversed, and the cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: CRITZ, J. CURETON, C. J.

text:
    DAVIS v. LUND.
    No. 1478-5732.
    Commission of Appeals of Texas, Section A.
    July 22, 1931.
    Canales & Eidman, of Brownsville, for plaintiff in error.
    J. Q. Henry, of Mission, for defendant in error.
   CRITZ, J.

Originally John F. Lund and wife, Emeline Lund, owned lots 1 and 2 in block 6, in Rio Grande City, ’Starr county, Tex. Both died many years ago, but the wife survived the ^usband by several years. The evidence is rather indefinite as to the dates of their deaths, but we presume that both were dead prior to 1897. If the above property were now awarded according to the laws of descent and distribution of this state, ignoring any deeds, it would belong one-fifth to Henry Lund, a grand-son of John E. Lund and Emeline Lund, one-fifth to Juleika Tort, a daughter, one-fifth to Lelia J. Eivet, a daughter, one-fifth to Catalina Lund, defendant in error, surviving widow of George E. Lund, deceased, and their surviving children, and a one-fifth to Ida Davis, plaintiff in error.

The record shows that in 1925 Lelia J. Eivet and Juleita Lund conveyed their one-fifth interest each to the plaintiff in error, Ida Davis. In 1901, George E. Lund and wife, Catalina Lund, conveyed the one-fifth interest of George F. Lund to Della W. I-Iord. This last one-fifth interest was owned at the time of trial by John A. Pope, Sr., and has been set aside to him, and is not in dispute here.

The record further discloses that, after the death of John F. Lund, his surviving widow remained in possession of this land until her death. After her death, George F. Lund moved on the land and occupied the same in full recognition of the rights and titles of the other heirs. At the time George F. Lund took possession, he was unmarried. He later married Catalina Lund, defendant in error here, and brought her to the premises, where they lived until his death, which occurred about the year 1915.' Catalina Lund has lived on the property since the death of her husband, and claims title under him.

In this sta’te of the record, .Ida Davis, a feme sole, in 1925, filed suit against Catalina Lund, and two other parties, who were later dismissed, to recover her interest, both heired and purchased from Catalina Lund, who was, and still is, in possession. Catalina Lund answered by general demurrer and plea of not guilty. Also, she specially pleaded the ten-year statute of limitation. Trial in the district court of Starr county, Tex., before the court without a jury, resulted in a judgment for Catalina Lund. This judgment was affirmed by the Court of Civil Appeals. 26 S. W.(2d) 434. The case is in the Supreme Court on writ of error granted on application of Ida Davis.

A reading of the judgment of the district court will disclose that he found for Catalina Lund solely on her plea often years’ limitation. We quote the following from the judgment:

“Thereupon both Plaintiff, Ida Davis, and Défendant, Catalina Lund, announced ready for trial and a jury being waived, all matters of facts as well as of law were submitted to the Court for determination; and the Court having heard the pleadings, the evidence and argument of counsel, is of the opinion that both the law and the facts are against the Plaintiff and in favor of the Defendant, Catalina Lund, on her plea of the ten year statute of limitations, covering the property and premises involved in this suit.”

From the statement we have made, it is evident that Ida Davis should recover title and possession of the land here sued for as against Catalina Lund, unless Catalina Lund can defeat such recovery by the ten-year statute of limitation. In order for Catalina Lund to prevail under the ten-year statute of limitation, three things must be established: (a) Catalina Lund’s husband having, entered upon the land in recognition of the title here asserted by Ida Davis, there must be a repudiation of the relationship thus established, and claim of title adverse to the title of Ida Davis ; (b) this repudiation and adverse claim must be clearly brought home to Ida Davis, and those under whom she claims, as limitation will only begin to run from that date; and (c) there must be adverse possession for ten years after notice of repudiation and adverse claim has been brought home to Ida Davis and those under whom she claims. Thompson v. Richardson (Tex. Com. App.) 221 S. W. 952, and authorities there cited; Freeman v. Pierce (Tex. Civ. App.) 250 S. W. 778 (Writ Ref.).

When we come to examine the record before us, we find absolutely no probative evidence to support a fact finding that George F. Lund ever repudiated his recognition of the title of Ida Davis in such a manner as to clearly bring notice of such repudiation home to her or those under whom she holds.

The only evidence in the record which even remotely bears upon the issue of notice of repudiation is a statement appearing in a deed of trust executed by George F. Lund and wife, Catalina Lund, dated April 19, 1915. This deed of trust covers property other than that in issue here. In this deed of trust, the following statement appears:

« ⅜ * ⅞ hereby designate the following described property, to-wit:
“Four-fifths (⅝) of Lots Nos. 1 and 2 of Block No. 6 of the town of Rio Grande City, in the county of Starr and State of Texas, as their homestead, and as constituting all the property (of nature similar to that herein conveyed) owned, used or claimed by them as exempt under said laws.”

The above deed of trust was recorded in the deed of trust records of Starr county, Tex., on the same day it was executed. The Court of Civil Appeals holds that the quoted recitation in the above instrument is both actual and constructive notice to Ida Davis of the adverse claim of George F. Lund, and of his repudiation of his recognition of her title.

We think the above holding of the Court of Civil Appeals is erroneous for the following reasons: (1) Because the deed of trust cov-eréd land other than the land in question here, and was therefore outside the chain of title here involved; (2) because the statement itself contains nothing that would put Ida Davis on notice that George F. Lund was repudiating, or had repudiated,' his recognition of her title.

With reference to the first reason above given, it is the settled law of this state that the recording of a deed or mortgage is constructive notice only to those who have subsequently acquired some interest or right in the property under the grantor or mortgagor. White v. McGregor, 92 Tex. 556, 50 S. W. 564, 71 Am. St. Rep. 875. It is also the settled law of this state that while a purchaser is bound with constructive notice of all instruments in his chain of title, the record of a deed or instrument lying outside such chain imports no notice to him. Brown v. Ackerman (Tex. Com. App.) 17 S.W.(2d) 771.

In this connection, we quote the following from Judge Gaines’ opinion in White v. McGregor, supra.

“The proposition is frequently announced that under the registration laws the proper record of an instrument authorized to be recorded is notice to all the world. Although the language of article 4652 of the Revised Statutes gives countenance to the doctrine as thus broadly stated, it has been decided by this court that the proposition is subject to important qualifications. For example, in Holmes v. Buckner, 67 Tex. 107, 2 S. W. 452, the court quote with approval the following language: ‘The registry of a deed is notice only to those who claim through or under the grantee (grantor) by whom the deed was executed.’ The doctrine was applied in the decision of that ease, and the decision has been followed in subsequent cases. Lumpkin v. Adams, 74 Tex. 96, 11 S. W. 1070; Jenkins v. Adams, 71 Tex. 1, 8 S. W. 603; Frank v. Heidenheimer, 84 Tex. 642, 19 S. W. 855. So, also, it is held in other jurisdictions that the record of a deed or mortgage is notice to subsequent purchasers from the same grants or, but not to prior purchasers. Doolittle v. Cook, 75 Ill. 354; Stuyvesant v. Hall, 2 Barb. Ch, [N. Y.] 151. In the case last cited the court says: ‘The whole object of the recording acts is to protect subsequent purchasers and incumbrancers against previous deeds, mortgages, etc., which are not recorded; and to deprive the holder of the prior unregistered conveyance or mortgage of the right which his priority would have given him at the common law. The recording of a deed or mortgage, therefore, is constructive, notice only to those who have subsequently acquired some interest or right in the property under the'grantor or mortgagor.’ ”

We also quote the following from Judge Leddy’s opinion in Brown v. Ackerman, supra.

“The law is thoroughly settled in this state that, while a purchaser is bound with constructive notice of all recorded instruments lying within his chain of title, the record of a deed or instrument lying outside of his chain of title imports no notice to him. Holmes v. Buckner, 67 Tex. 107, 2 S. W. 452; Lumpkin v. Adams, 74 Tex. 102, 11 S. W. 1070; Peterson v. McCauley (Tex. Civ. App.) 25 S. W. 826; Gamble v. Martin (Tex. Civ. App.) 151 S. W. 327; 3 Washb. on Beal Prop. p. 316; 27 R. C. L. p. 717, § 482.”

With reference to the second reason above given, we call attention to the fact that the statement contained in. the deed of trust merely states that four-fifths of lots 1 and 2, etc., is designated as the homestead of the grantors and constitutes all property “owned,” “used,” or “claimed” by them as such. The statement was not made to Ida Davis or for her benefit, but for the purpose of showing that the land included in the deed of trust was not a homestead, and for the further purpose of making designation of a homestead. The statement expressly includes within its terms lands “used,” as well as lands owned or claimed. It makes no direct claim that the land is owned by the grantors, but merely states that it is all the property “owned,” “used,” or “claimed” by them as exempt under our homestead laws. Certainly, if the statement here made had been actually brought home to Ida Davis, which it was not, under the circumstances here involved, it would not constitute such notice as would clearly bring home to Ida Davis notice that George F. Lund had repudiated his recognition of her title in the land. Also, it is the settled law of this state that a homestead may exist in rented premises, and when George F. Lund made a statement that he claimed a homestead in the land in question, “used” by him as a homestead, he made no statement antagonistic to the relation already ■existing between him and Ida Davis.

The defendant in error contends that Ida Davis, though alleging a common source of title, has failed to prove the same. We think this contention is untenable. It is conclusively shown that the common ancestors of both plaintiff and defendant were in possession of and claiming this land when they died. After the death of both of them, Geijrge F. Lund, the deceased husband of the defendant, went into possession of the land, and held the same in full recognition of the rights of the other heirs, and also in full recognition that John F. and Emeline Lund were the common sources of his title as well as the title of the other heirs. Furthermore, he only claimed a one-fifth interest therein as the heir of his deceased father and mother. This is shown by his own statement in the deed, by which he conveyed away his one-fifth interest above mentioned.. We quote the following from that deed.

“All that part of those certain lots situated in the town of Rio Grande City, Starr County, Texas, known as and called Lots numbered one (1) and two (2) of block numbered six (6) thereof, which to me belongs either by right of inheritance from my deceased parents J. E. Lund and Emiline Lund, either or both of them, or by right of inheritance from any one or all of my deceased brothers and sisters, or which belongs to me by rights accruing or accrued under the statutes of limitations, of this state, of three, five or ten- years, or otherwise. The part of the said lots which it is intended to be conveyed hereby is that of an equal one fifth part, undivided, of each of the said lots, the other four fifths parts belonging to my sisters and nephews and nieces, i. e. Lelia J. Eivet, Juleika York, Ida L. Davis and the minor children of my brother Horance W. Lund, deceased, for whose benefit, as well as for my own I have heretofore and up to this time held and hold the possession of the said lots to the exclusion- of all other persons whomsoever.”.

The above statement by George E. Lund shows conclusively that when he went into possession of this land he did so as an heir of his deceased father and mother, and that he fully recognized the rights and titles of the other heirs, and the source from which his and their rights were derived. Furthermore, the record shows that while George E. Lund was -thus in possession he brought the defendant to the land, and afterwards married her. It is also shown from the defendant’s own lips that she is claiming as an heir of her deceased husband; in this connection she testified;

“I claim this property as mine because he died; I claim by inheritance from my husband. The property belonged to my husband before I married him.”

Also, the record shows that after the death of George F. Lund the taxes were paid on this land in the name of his estate from 1917 to 1927.

We think such a record clearly establishes the common source of title as alleged by the plaintiff. This being true, and it appearing that the defendant’s rights arise only as an heir and surviving wife of her deceased husband, she can have no better title than he would have were he still living.

In connection with the above, we think it is settled that, where two parties claim title under the same grantor, each is estopped to deny that the grantor had title, and neither is required to show title in the common grantor. 9 R. C. L. p. 846. Also, the above rule is not confined to conveyances by deed, but applies as well where one or both parties claim by descent or devise from a common ancestor, and when parties, if living, would be thus estopped, their heirs and privies in estate are likewise estopped. R. C. L. Vol. 4, Permanent Sup., p. 2565; 7 A. L. R. 871.

Erom what we have said, it is evident that Catalina Lund has - absolutely failed to establish title by the ten-year statute of limitation as against Ida Davis.

We recommend that the judgments of the Gourt of Civil Appeals and district court be both reversed, and the cause remanded to the district court for further -proceedings, in accordance with this opinion.

CURETON, C. J.

The judgments of the district court and Court of Civil Appeals are’ both reversed, and the cause remanded to the District Court, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


text:
    SPANGLER et al. v. SPANGLER.
    No. 1275-5729.
    Commission of Appeals of Texas, Section B.
    July 22, 1931.
    Ward & Ward and J. E. Walton, all of Houston, for plaintiffs in error.
    Baker, Botts, Parker & Garwood, S. H. German, and C. L. Carter, all of Houston, for defendant in error.
   SHORT, P. J.

There are two applications in this ease, one by the original plaintiffs, Prank Spangler and S. H. Spangler, brothers of Harry Spangler, deceased, and the other by Sallie F. Spangler, who is the original defendant. Por convenience we will speak of these people in their original relations as plaintiffs and defendant.

The plaintiffs, in their petition, claimed to be the owners in fee simple of an undivided two-thirds interest in 426.66 acres of the Phillip Thompson survey of 640 acres situated in Plarris county. An undivided two-thirds interest of the 640 acres of the Phillip Thompson survey, on August 31, 1923, was conveyed by Chas. Peterson, the then owner thereof, by warranty deed to Sallie P. Spangler, who was the then wife of Harry Spangler. On February 2, 1894, there was a partition deed executed by the parties, whereby this particular land was partitioned to Sallie P. Spangler, as a part of her separate estate; the original deed having this recitation also. However, the plaintiffs claim that all of the purchase money of this land was paid out of the partnership funds of the three brothers in equal proportions, in consequence of which the three brothers became the real owners of the land, and after the death of Harry Span-gler the land then became the property of his widow, the defendant Sallie P. Spangler, she having acquired the interest of her husband under his will, and themselves, in equal portions. Sallie P. Spangler denied this and asserted ownership in all of the land.

The case was tried in one of the district courts of Harris county to a jury, who answered certain special issues, upon which the district court rendered a judgment in favor of the plaintiffs for a portion of the land, impressed, however, with a lien for the proportionate share of the taxes which the defendant had paid; it appearing that she had paid taxes amounting approximately to 83,500, while the plaintiffs had paid no taxes. The suit was filed November 15, 1927, the case having been tried upon the plaintiff’s second amended petition, filed February 1,1929. The defendant appealed from this judgment, and the Court of Civil Appeals at Beaumont modified the judgment of the district court and as modified affirmed it. 26 S.W.(2d) 463.

The facts found by the jury, as construed by the Court of Civil Appeals, which construction we approve, together with certain other undisputed facts, are to the effect that the three Spangler- brothers owned a cattle ranch in Wilbarger county, Tex., previous to the date of the deed to the Harris county land, and that the ranch business, for various and sundry reasons, had proved a financial failure, and the three brothers ceased to operate it, placing five several tracts of land, in each of which the partnership owned an equity, in the name of the several brothers for the purpose of enabling the brothers, so holding the land, to dispose'of them more conveniently and pay off the partnership’s debts.. Three of these five tracts of land had originally belonged to the public school fund, but had been purchased under the law then in force, and a part of the purchase money paid. The other •two were lands originally belonging to a railroad company. Sections S, 12, and 18 were put in the name of Harry Spangler, while the other two sections were placed in the name of the other brothers, respectively. It seems that these brothers had transferred each of these sections to their respective wives, and that Harry Spangler conveyed sections 8 and 12 to his wife, the defendant here, who after-wards disposed of them for the benefit of the partnership. However, these sections are not directly involved in this suit. It is only section 18 which is involved. This section 18 seems to have remained in the name of Harry Spangler, and Harry Spangler conveyed it to the original owner of the land involved in this case, as a part of the purchase money. The plaintiffs contend that this section 18 was partnership property and the jury so found. The defendant claims that it was not partnership property, but belonged to her husband, who, in conveying it to Peterson, in part satisfaction of what Peterson was to receive for the land he conveyed to the defendant, made the Harris county land a part of her separate estate. The defendant also claims that she paid Peterson in money out of her separate funds for the lands, $786.67, and afterwards paid, out of her separate funds, a certain vendor’s lien note, which Peterson owed and the payment of which she assumed, amounting to $533.33, aggregating $1,320. However, the jury having found that section 18 was partnership property, belonging equally to the three brothers, and it also having found that the value of this equity of the three brothers in this section was $248.22⅜, two-thirds of which value belonged to the plaintiffs, it necessarily follows that Peterson received, for his land, in cash, or its equivalent, $1,568.22½, of which the plaintiffs paid two-thirds of $248.22½, which is $168.48. Such being the respective sums paid by the respective parties, the lands then became partnership property owned by the three brothers, who had contributed $248.-22⅛ in the aggregate upon the one hand, and by the defendant, as a part of her separate estate, who had contributed the remainder of the purchase money, on the other hand. This partnership interest in this land continued, according to the record, until the death of Harry Spangler, which occurred in March, 1902, when his interest descended and vested in his wife, Sallie P. Spangler. Then the partnership interest in the land continued, after the death of the husband of the defendant, with only this change in the interest occasioned by the death of Harry Spangler.

The Court of Civil Appeals in its judgment found these facts, briefly above related, and rendered a judgment substantially in accord therewith, adjudging to the plaintiffs an interest of 46.2 acres in the land sued for, and charged this interest with the amount of taxes, which the defendant had paid thereon; the exact amount not being stated in the opinion. However, there seems to have been no controversy about the amount of taxes which the defendant had paid on all the land, and the amount due, by the plaintiffs, for taxes paid by the defendant on the land adjudged to the plaintiffs, is easily to be ascertained. The case was tried without regard to this question, and the respective rights of the parties, to the land involved, were based upon the respective theories of the parties. The plaintiffs claim that since the recitations in the deed by Peterson to Mrs. Spangler were to the effect that section IS was valued at $6 an acre, aggregating $3,840, the interest of the original partnership, composed of the three Spangler brothers, in the Peterson land, was necessarily valued at that amount. According to their contention they put in $2,560, while Harry Spangler put in $1,280. As heretofore stated, the theory of Mrs. Spangler is that section IS belonged to her husband, individually, and that the balance of the purchase money was paid out of her separate funds, in consequence of which all of the land, conveyed by Peterson to her, belonged to her individually, and was a part of her separate estate, as the deed declared.

As we have seen, according to the findings of fact by the jury, as construed by the Court of Civil Appeals, the theory of neither party was completely sustained. The equity of the three Spangler brothers, in section 18, did not have the value of $3,840, but only had a value of $248.22⅞. However, the three brothers did own this equity, thus valued, in this section, and as Harry Spangler conveyed it to Peterson, in part payment of the land which Peterson conveyed to Harry Spangler’s wife, it necessarily follows that the three brothers acquired an interest in the land which Peterson conveyed to Sallie E. Spangler, as a part of her separate estate, in the proportion that the funds of the partnership bore to the funds furnished by the defendant out of her separate estate. The rights of the parties having been thus fixed, and the testimony showing that these rights have continued, up to the present time, subject to the right of Sallie F. Spangler to be recompensed for the taxes which she had paid on the land belonging to the plaintiffs, it is the duty of the courts to so declare. The Court of Civil Appeals has reached a correct conclusion, except that it has adjudged to the plaintiffs 46.2 acres when, according to mathematical calculations, easily demonstrable, this amount of land should be reduced to 45 acres.

The first assignment of error presented by the plaintiffs challenges the correctness of the holding of the Court of Civil Appeals that the market value of section 18 was the basis of fixing the interest of the plaintiffs in the 'land conveyed to defendant, and that the court erred in not holding that the agreed valuation of section 18, and the Harris county land, was the proper basis upon which to fix the interest of the plaintiffs. We overrule this assignment. Had there been an exchange of land between Peterson on the one part, and the Spangler brothers upon the other, whereby the Spangler brothers received from Peterson, in full satisfaction of what Peterson agreed to pay them for the Wilbarger county land, belonging to Spangler brothers, then the proposition advanced by the plaintiffs would be a correct one. In that situation, the parties would have the right to agree that the lands exchanged should be given a certain value, though, of course,, this designated value might not be what the lands were really worth on the market. While in fact the real valuation of the lands would be in dollars and cents per acre, yet the agreed valuation would be a matter within the discretion of the parties, since there was no money to be paid by either. If we should assume as correct, the theory of the plaintiffs, that the Wilbarger county land was exchanged for the Harris county land, and ignore the facts which the jury found, and also the undisputed facts, then the assignment could be sustained. But the recitations in the deed, from Peterson to the defendant, are not in harmony with the pleadings of the plaintiffs, and the facts.found to exist, in support of those pleadings, since it appears that there were 426.66 acres of the Harris county land, which was valued at $12 an acre, and 640 acres of the Wilbarger county land, which was valued at $6,00‘ an acre, and this shows that Peterson must have received some money from some one in addition to the assumption of the debt amounting to $533.33, which, according to Peterson’s deed, Mrs. Spangler assumed to pay, and which the testimony shows she did pay. Assuming the testimony to be true, and the jury so found, Mrs. Spangler invested in this land, out of her separate estate, $786.67, and assumed to pay a debt of $533.33, which she afterwards paid. She having done this, and the partnership of Spangler brothers having paid the remainder of the purchase money, in the form of an equity in a tract of land owned by the partnership, due on the Harris county land, in order to determine the amount of the respective interests therein, it was necessaxfily incumbent upon the trial court to translate this equity owned by this partnership in land into dollars and cents, as Mrs. Spangler contributed money to the purchase of the Harris county land, since the dollar is a monetary unit of value in this country. So the court very properly asked the jury to determine what this value of this equity in this land, owned by this partnership, was in dollars and cents. The partnership having been composed of three persons, each owning an equal share in the equity, the answer of the jury as to the value of this equity coulcl have meant nothing save that it was the value of the equity of all of the partners. The Court of Civil Appeals so construed this answer, and we have no doubt that the construction is a proper one. This question was raised by the second assignment of the plaintiffs, and we overrule this assignment also. The third' assignment presented by the plaintiffs challenges the holding of the Court of Civil Appeals that section 18 could not legally be held in trust by Harry Spangler for his brothers, under the facts of this case. We sustain this assignment.

Section 18 was purchased by Mrs. Christiana Wemple May 21, 1S85, and was therefore purchased under the act of April 1888. The section was sold by her to Marshall & Iverr on June 28, 1889, and by them to S. H. Spangler December 3, 1SS7, and by him to Frank Spangler December 15, 1890, and by Frank Spangler to Harry Spangler on July 20, 1892.

The Court of Civil Appeals bases its holding on this question upon an opinion of the same court in Houston Oil Co. v. Votaw, 184 S.W. 647, in which a writ of error was refused by the Supreme Court. The opinion in that case was based upon the act of 1895 (Acts 24th Leg. c. 47), as amended by an Act of May 19, 1897 (Acts 25th Leg. c. 129), the provisions of which radically differ from those of the Act of April 12, 1883 (Acts 18th Leg. c. 88). The law in force at the time the decision in the case of Houston Oil Co. v. Votaw was rendered, required an applicant to purchase school lands, to make an affidavit that no other person was interested with him in the transaction, while the Act of April 12, 1883, in force at the time Mrs. Wemple purchased section 18, did not require her to make any such statement in her affidavit. The Court of Civil Appeals having relied exclusively upon Houston Oil Co. v. Votaw, in reaching the conclusion it did, and it appearing that the holding in that case is not ap plicable to the facts in this ease, and as we have found no other authority in support of this holding, we hold that the Court of Civil Appeals erred in this respect, and we therefore sustain this assignment. However, as had been seen, this error of the Court of Civil Appeals does not materially affect the conclusion finally reached by that court, since the court found, as a fact, that there was a new agreement, which recognized the trust relation of the respective parties thereto, to trade section 18 for the Harris county land and that the title to the Harris county land should be taken in the name of Sallie F. Spangler, and held by her in trust for the partnership, to the extent of the market value of the equity •which the partnership had therein. According to the facts found by the jury, and those which are undisputed, the owner of the Harris county lands received therefor, in dollars and cents, the sum of $1,320, a part of the separate estate of the defendant, and in addition thereto, -an equity in section 18, which equity had a market value, in dollars and cents, of $248.22½, belonging to the partnership of Spangler Brothers, aggregating $1,-568.22⅜. While the conveyance to the Harris county land was taken in the name of the defendant, yet in truth and in fact she agreed, in accepting this conveyance, to hold in trust for the three brothers, so much of the land as was represented by the value in money of what was furnished by them, and, of course, to hold the remainder in her own right. This was an express trust, according to the findings of fact, which had been completely created, and the rights of the beneficiaries had become thereby vested, and there is no testimony even tending to show that this trust had been in the least changed, altered, or modified by any of the parties, and remains intact up to the present time. The record further shows that this Harris county land had not produced any income, and that the defendant has not received therefrom any profit. Upon the contrary, it has been a burden to her, which burden, bp to the present time, she has borne alone. Hix v. Armstrong, 101 Tex. 271, 106 S. W. 317; Perry on Trusts, vol. 1 (6th Ed.) par. 128; 39 Cyc. 92.

We do not find it necessary to discuss the assignments of error presented by the defendant. The disposition we have made of the questions, presented by them, are indicated by what we have already said in disposing of the assignments of error presented by the plaintiffs. . This is especially true, in view of the fact that the opinion of the Court of Civil Appeals has very elaborately discussed all material questions presented by both applications, and with the exception of the one error, which we have discussed, we are convinced that the opinion of the Court of Civil Appeals correctly disposes of all the questions presented by both applications, with the additional exception, also noted, that in the judgment rendered by the Court of Civil Appeals the plaintiffs were erroneously awarded a recovery of 46.2 acres of land, whereas they were only entitled to recover 45 acres.

We recommend that the judgment of the Court of Civil Appeals be modified so as to adjudge to the plaintiffs against the defendant an undivided interest of 45 acres in the 276.66 acres described in the plaintiff’s petition, and not 46.2 acres, and that as modified the judgment of the Court of Civil Appeals be affirmed.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both reformed, and as reformed are affirmed, as recommended by the Commission of Appeals.


text:
    CARROLL et al. v. EDMONDSON.
    No. 1480-5736.
    Commission of Appeals of Texas, Section A.
    July 22, 1931.
    O. K. Shannon, Slay & Simon, Cecil Rotsch, and E. E. Sanders, all of Fort Worth, for plaintiffs in error.
    Charles T. Rowland, of Fort Worth, for defendant in error.
   CRITZ, J.

The opinion of the Court of Civil Appeals, 28 S.W.(2d) 250, makes a very clear and comprehensive statement of the facts and issues of this case, and in the interest of brevity we' here adopt such statement. We, however, make the following abridged statement in order that this opinion may be complete within itself.

One W. T. Pittman was the owner of four lots of land in the city of Waxahachie, Ellis county, Tex., on which was situated a two-story brick business' house, and in this house was located an elevator so constructed and installed in the building as to constitute it a part of the realty. Ralph Carroll, the plaintiff in error, held notes aggregating, exclusive of interest and attorney’s fees, the sum of $10,000, secured by deed of trust liens against the above premises and improvements. The above notes were defaulted on, and Carroll filed suit against Pittman and several other parties to recover a personal judgment on his notes, and foreclose his liens on the mortgaged premises and improvements. This suit was prosecuted to final judgment, the property sold under order of sale, and bought in by Carroll for $249.80, leaving more than $11,000 unpaid on the debt.

Prior to the filing of the above foreclosure suit, H. Edmondson, the defendant in error here, purchased from Pittman the elevator above mentioned, removed same from the building, and appropriated it to his own use. Also; the sale of the elevator to Edmondson was made without the knowledge or consent of Carroll, and none of the consideration paid therefor was received by him. Edmond-son was never made a party to the foreclosure suit.

Subsequent to the judgment of foreclosure, but prior to the sale under the order of sale issued thereon, the present suit was instituted in the district court of Tarrant county, Tex., by Carroll against Pittman and Ed-mondson. The trial was had on amended and supplemental petitions, which sought recovery from Edmondson for the value of the elevator. Under these pleadings, the facts above stated were fully pleaded.

The case was tried in the district court with a jury. In answer to a question submitting that issue, the jury found the elevator was worth $1,250 on the date it was removed from the building. Based on such answer, the district court rendered judgment in favor of Carroll and against Edmondson for $1,250, and also rendered judgment for Edmondson over against Carroll for a like amount. Ed-mondson appealed from the above judgment to the Court of Civil Appeals for the Second district at Fort Worth, which court reversed the judgment of the district court and remanded the cause for a new trial. The case is in the Supreme Court on writ of error granted on application of Carroll.

On the trial of the case in the district court, the defendant, Edmondson, offered testimony to the effect that the market value of the lots with the improvements thereon, after the elevator had been removed therefrom, was $20,000. That testimony was excluded upon objections of the plaintiff, Carroll.

The Court of - Civil Appeals held that the exclusion of the above testimony was error,- and this holding is assigned as error here.

We are of the opinion that the trial court erred in refusing to admit the above testimony, and that the Court of Civil Appeals was correct in so holding.

It is'the law of this state that a mortgagee of land is not the owner thereof, nor is he entitled to possession. A mortgage of real property is not regarded as a common-; law conveyance on condition, but merely as security for debt, the legal estate existing only for that purpose. Carey v. Starr, 93 Tex. 508, 56 S. W. 324; Schalk v. Kingsley, 42 N. J. Law, 32. It would therefore follow that in an action by the holder of a lien on real property against one who has injured, the mortgaged property, the lienholder would have no cause of action for damages to the property; but the injury to the security is the measure of his recovery. Carey v. Starr, supra; Schalk v. Kingsley, supra.

In the Carey Case, supra, our Supreme Court, speaking through Judge Brown, cites Schalk v. Kingsley, supra, and expressly approves and adopts the rule there announced. In the Schalk Case, the rule is clearly laid down by the Supreme Court of New Jersey that the mortgage is not regarded as a common-law conveyance on condition, but merely as security for debt, and that the measure of damages is not based upon the injury to the mortgaged preniises, but upon the loss occasioned to the holder of the lien by the injury to his security. We quote the following from the opinion in the Schalk Case:

“It would seem to be in consonance with legal principles to hold that this action in -this state must be based not upon the injury to the mortgaged premises, but upon the loss occasioned to the plaintiff by the partial destruction of his security, and that the extent of such loss must measure his damages.”

It follows that in the case at bar the measure of Carroll’s damage for the wrongful removal -of the elevator in question is not the market value of the elevator itself, but the injury done to Carroll’s mortgage by such removal, and if the property as left was of sufficient value to secure the debt, then. Carroll has suffered no injury.

From what we have said, it is evident that a finding by the jury as to the market value of the elevator can form no basis whatever for a judgment' for Carroll. The finding would have to be as to the difference in the value of the mortga'ged premises before and after the removal of the elevator; that is, the jury should find the value of the premises before the elevator was removed, and the value after such removal. In the present case, such difference would be the damage to the security if the security left be insufficient to secure the debt. Of course, if the jury finds the value of the premises with the elevator removed equal to or more than the mortgage debt, no injury whatever has resulted, and the verdict would be for Edmond: son.

It seems to be contended by Carroll that, since the mortgaged property with the elevator removed sold under order of sale in the former suit for less than the debt thereby secured, he is entitled to recover from Ed-mondson the value of the elevator, not exceeding the amount unpaid on the judgment. This contention is untenable. Edmondson was not a party to the judgment of foreclosure or any other proceeding had thereunder, and is therefore not bound by such judgment or sale price, as he would have been had he been made a party to -that suit. It is the settled law of this state that judgments are conclusive between the parties and their privies only. Bertrand v. Bingham, 13 Tex. 266. Edmondson was undoubtedly guilty of a wrongful act towards Carroll if he injured his security; that is,, if he injured the mortgaged property so as to impair the mortgage; but not being a party to the original foreclosure action, he is not bound by the sale price of the premises in that proceeding. Paddock v. Williamson, 9 S.W.(2d) 452, 454 (Tex. Civ. App. Writ Ref.).

Plaintiff in error contends that the holding of the Court of Civil Appeals in the instant case is in conflict with Paddock v. Williamson, supra. We think that case can give no comfort to plaintiff in error here, -but, on the other hand, is direct authority against his contentions here. We quote the following from' the opinion in the Paddock Case:

“ * * * The mortgagor and his vendees remained the holders of the legal title until divested thereof by a judicial sale, effective against all necessary parties. But had the judgment against the Bybees and Johnson, Baldwin, and Cook been executed by selling the land, the purchaser would not have acquired title to the timber ágainst Williamson and Strode & Pitts, since they were not parties to that suit, though they acquired the' title to tlie timber before Johnson, Baldwin, and Cook were made parties to the suit.”

It follows from what we have said that, since Edmondson was not made a party to the original foreclosure proceedings, and did not purchase and remove the elevator in question pendente lite, he is not bound by such foreclosure proceedings, and is entitled to show the value of such premises after the elevator was removed. It also follows that if the property as left was of a value equal to or more than Carroll’s debt, he has suffered no injury.

We recommend that the judgment of the Court of Civil Appeals, which reverses the judgment of the trial court and remands the cause for a new trial, be affirmed.

CURETON, C. J.

The judgment of the Court of Civil Appeals, reversing that of the district court, is affirmed, as recommended by the Commission of Appeals.