author: GALLAGHER, O. J.

text:
    STRANGE et al. v. COOPER GROCERY CO.
    (No. 599.)
    Court of Civil Appeals of Texas. Waco.
    Feb. 16, 1928.
    Rehearing Denied March 22, 1928.
    1. Reformation of instruments <&wkey;45(l6) — Evidence held to support finding of jury that defendants did not know they signed guaranty for debts incurred thereafter. •
    In aotion on notes alleged to have been secured by written guaranty of defendants, evidence held, to support finding of jury that defendants in signing a guaranty for one note of $10,000 did not know they signed a guaranty of notes for 1 debts of their principal incurred thereafter.
    2. Reformation of instruments <&wkey;45( 16) — Evidence held to. support finding that plaintiff’s agent authorized defendant to represent to codefendant that guaranty required covered part of purchase price of grocery business only.
    In action on notes given in part for purchase price of assets of grocery business and in part for debts incurred thereafter, secured by written guaranty of defendants, evidence held to support finding of jury that plaintiff's agent authorized one defendant to represent to his codefendant that sale of assets of grocery would be made if defendants executed a guaranty covering part of purchase price.
    3. Guaranty <&wkey;27 — Guaranty limited as to existing debt and unlimited as to future debts created separate, distinct, and severable guaranties.
    A guaranty of indebtedness created on date of guaranty and thereafter until notice was given in writing, which was limited as to the existing indebtedness and unlimited as to future indebtedness, created separate, distinct, and sev-erable guaranties.
    4. Reformation of instruments <&wkey;46 — Evidence held to raise issue whether unlimited guaranty of indebtedness was' embraced in written guaranty because of mutual mistake.
    In action on notes alleged to have been secured by defendants’ written guaranty of existing indebtedness of their principal not exceeding $10,000, and “any indebtedness created on this day or hereafter until notice in writing,” evidence held to raise issue whether unlimited guaranty for debts created thereafter was included in written guaranty because of mutual mistake of both parties.
    5. Reformation of instruments <&wkey;46 — Whether statement of plaintiff’s agent at time guaranty was signed was fraudulent representation that instrument tendered conformed to verbal agreement held for jury.
    Where in action on notes defendants alleged that their written guaranty was to cover note given for purchase of assets of grocery, but not for debts of grocery created thereafter, ancj, that verbal agreement was made with plaintiff to that effect, but that written gmaranty covered debts of their principal created thereafter, evidence held to raise issue whether statement of plaintiff’s agent at time he filled in printed form and delivered it for signing amounted to fraudulent representation that instrument tendered conformed to verbal agreement.
    6. Appeal and error <&wkey;930(3) — Where issues were not submitted to jury, reviewing court must deem them as found by trial court so as to support judgment.
    Where issues which under evidence should have been submitted to jury were not submitted to the jury, and no request to submit them was made, reviewing court is required to deem them as found by trial court in such manner as to support judgment rendered.
    7. Reformation of instruments <&wkey;I9(2)— Mutual mistake may arise by erroneously omitting from writing provision actually agreed on, or including provision not agreed on.
    A mutual mistake may arise after parties have verbally concluded their agreement in reducing it to writing by erroneously omitting provision actually agreed on, or including provision not agreed on.
    8. Reformation of instruments &wkey;>19(l) — Equity will grant relief against mistake of both parties in reducing agreement made to writing.
    Against mistake of both parties by which, in effort to reduce agreement made to writing, they mistake its terms so that writing does not represent real contract, equity will grant relief.
    9. Reformation of instruments <&wkey;25 — Mistake of one party through omission to read cannot ' avail as defense to other party equally in fault against suit to correct mistake.
    Failure of one to understand written agreement through omission to read or give sufficient attention to its contents cannot avail as defense to the other equally in fault against suit to correct mistake.
    10. Reformation of instruments <&wkey;2l — Where party reducing agreement to writing, knowingly including provision not agreed on, represents writing correctly expresses agreement, equity will grant relief notwithstanding other’s failure to read.
    Where one party to verbal agreement undertakes to reduce it to writing, but knowingly includes material provision not agreed on, and represents to the other party that writing correctly expresses real agreement, and other party, relying thereon and believing it expresses agreement made, signs it, equity will grant relief and writing will be made to conform to real agreement, and failure of the other party to read the instrument, though having opportunity to do so, is no bar to relief.
    11. Reformation of instruments <&wkey;47— In case of mutual mistake or misrepresentation on one side and mistake on the other, prior suit to reform instrument is unnecessary.
    Neither in cases of mutual mistake in execution of a written instrument, or misrepresentation on one side and mistake on the other, is prior suit to reform instrument required, but judgment in action on the instrument may be rendered in accordance with terms originally agreed on.
    12. Reformation of instruments t&wkey;25 — Negligence in signing written instrument to bar relief because of mistake must amount to violation of positive legal duty. '
    Eor negligence of complaining party to bar relief, because of mistake in execution of a written instrument, it must amount to a violation of a positive legal duty.
    13. Reformation of instruments <&wkey;46 — Whether defendants were culpably negligent in signing guaranty without reading it held question of fact.
    Where defendants in action on notes alleged they orally agreed to guarantee a note for part of purchase of assets of a grocery concern, but that written guaranty thereafter executed covered all indebtedness' incurred thereafter by the grocery, whether defendants were negligent in signing the guaranty without reading it held, under evidence a question of fact.
    14. Appeal and error <&wkey;930(3)— Negligence in not reading guaranty signed not being submitted, reviewing court in support of judgment must conclude defendants were not negligent.
    Where, in action on notes alleged to have been secured by unlimited written guaranty, issue whether defendants were negligent in signing guaranty without reading it was one of fact, and, not having been submitted to jury, reviewing court is required, in support of judgment rendered for defendants, to deem that trial court found that they were not negligent.
    15. Appeal and error &wkey;?930(3) — Reviewing court in support of judgment is required to treat guaranty as covering one note only and payments as applicable to other notes sued on.
    In action on notes secured by a guaranty of defendants covering part of indebtedness of makers, where trial 'court would have been justified under facts in finding that parties treated the guaranty as covering one particular note, and that they understood that payments made by makers were being applied to discharge other notes, reviewing court is required to deem such ifesue so found to' support judgment rendered.
    16. Appeal and error <&wkey;930(l) — Reviewing court must consider facts on controverted issues in light most favorable to judgment.
    Reviewing court is required to consider facts on controverted issues in light most favorable to the judgment rendered.
    17. Guaranty <&wkey;60 — Generally, guarantor cannot control payment made by debtor and require it to be applied to debt guaranteed.
    Generally, where creditor has several debts or one debt consisting of different items, part of which only is guaranteed, guarantor cannot control payment made by debtor and require it to be applied to part covered by guaranty;' especially when by agreement between debtor and creditor different application has been made.
    18. Guaranty <&wkey;60 — Defendants who guaranteed part of purchase price of grocery held liable on their guaranty until entire price was; ■paid.
    Where assets of grocery concern were sold for $22,000, $10,000 of which defendants guaranteed, guarantors were liable until the entire purchase price was paid, whether mortgage given by purchasers secure the entire price or only $12,000 thereof.
    19. Guaranty <&wkey;27— Guarantor may stand on strict terms of undertaking.
    A guarantor, like a surety, has a right to stand on the strict terms of his undertaking.
    20. Guaranty &wkey;>53(l), 56 — When creditor extends time of payment or accepts as' substi- ' tute obligation of different description, guarantor is discharged unless he assents thereto.
    When creditor has extended time of payment of principal obligation or has accepted as substitute therefor obligation of different description or of materially different terms or with additional signers thereto, guarantor is discharged unless he has assented to change or ratified it.
    21. Novation <&wkey;l2 — Evidence that debt guaranteed was renewed and extended by new and different note held circumstances to be considered on issue of novation on issue of guarantors’ liability.
    Where defendants guaranteed payment of note for purchase price of assets of a grocery, evidence that debt guaranteed was renewed and extended by a new and'different note held circumstances to consider on issue of novation as respects guarantors’ liability, though written guaranty provided that signers consent to any extension of time of payment and waive notice thereof, and consent to change of form of indebtedness from account to note, bill, or other form of indebtedness.
    22. Novation <&wkey;4 — Novation is substitution of new obligation with intent to discharge old • obligation.
    A novation is effected by substitution, concurred in by both debtor and creditor, of new obligation between same parties, with intent that old obligation for which it is substituted shall be discharged.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Novation.]
    23. Novation <&wkey;>7 — Assent to acceptance of no-vation need not be shown by express words, but may be implied.
    It is not essential that assent to acceptance of terms of novation be shown by express words, but same may be implied from facts, circumstances, and conduct.
    24. Novation <&wkey;4 — Novation results on agreement that original debt or note be surrendered and new or- substituted note be accepted as payment.
    •If it is agreed between parties that original debt or note shall be surrendered and new or substituted note shall be accepted as payment thereof, novation results.
    25. Novation <&wkey;3 — Discharge of original debt is sufficient consideration for new obligation,
    • but inference of novation is strengthened, if there is new consideration.
    The discharge of the original debt is a sufficient consideration for the new obligation, but inference that a novation has taken place is strengthened when a new consideration enters into new contract.
    26. Novation <&wkey;4 — Renewal of indebtedness between parties and surrender of old notes for which new notes are substituted may constitute novation.
    While renewal of indebtedness between same parties and surrender of old notes for which new notes are substituted does not of itself necessarily constitute novation, such action in connection with attending circumstances may be sufficient to do so.
    27. Novation &wkey;U3 — Whether acceptance of new note signed by one guarantor only was' novation of original note held under evidence for jury.
    , Where defendants guaranteed payment of a note given for purchase price of assets of a grocery, whether acceptance of a new note, including part of indebtedness which had not previously been guaranteed, and which was signed by only one of original guarantors, was novation for original note, held, under evidence for jury.
    Appeal from District Court, McLennan County; Giles P. Lester, Judge.
    Action by the Cooper Grocery Company against M. D. Dugger and others. Prom a judgment for the plaintiff against defendants W. L. Dugger and G. R. Strange, they appeal.
    Reversed and remanded for further proceedings.
    John McGlasson, and W. L. Eason, both of Waco, for appellants.
    Witt, Terrell & Witt and James P. Alexander, all of Waco, for appellee.
   GALLAGHER, O. J.

The Cooper Grocery Company, hereinafter styled plaintiff sued M. D. Dugger and M. D. Dugger, Jr., composing the firm of M. D. Dugger & Son, W. L. Dugger, and G. R. Strange, hereinafter styled defendants, to recover on nine promissory notes in the aggregate sum of $36,667.75. All said notes were payable to plaintiff and executed by defendants M. D. Dugger- & Son as principals. One of said notes in the sum of $13,667.75 was also signed by defendant W. L. Dugger. Plaintiff alleged that the payment of $10,000 of said note was secured by written guaranty signed by W. L. Dugger and said Strange, and that said guaranty also covered and secured the other eight notes sued on. M. D. Dugger & Son pleaded their discharge in bankruptcy. The pleadings of defendants Strange and W. L. Dugger were sufficient to raise the issues hereinafter considered.

The case was submitted to a jury on special issues. The findings of the jury in response thereto are, in substance, as follows:

(1) W. L. Dugger did not know before he delivered said guaranty contract to J. R. Milam that the same contained the clause, “and any indebtedness created on this day or hereafter.”

(2) W. L. Dugger believed when he signed the contract of guaranty that same covered only $10,000 of the purchase price of the assets purchased.

(3) J. R. Milam authorized W. L. Dugger to represent to G. R. Strange that the Cooper Grocery Company would sell the assets of the Dugger Grocery Company to M. D. Dugger & Son if he, the said G. R. Strange, and said W. L. Dugger, would execute a guaranty covering $10,000 of the purchase price of said assets,

(4) W. L. Dugger did represent to G. R. Strange that the Cooper Grocery Company would sell the assets of the Dugger Grocery Company to M. D. Dugger & Son if he, the said G. R. Strange, and W. L. Dugger, would execute a guaranty covering $10',000 of the purchase price of said assets.

(5) G. R. Strange did not know that the contract of guaranty covered any indebtedness except $10,000 of the purchase price of said assets.

(6) G. R. Strange relied upon said representations in signing said contract of guaranty.

The court rendered judgment on the verdict of the jury in favor of plaintiff, Cooper Grocery Company, against defendants G. R. Strange and W. L. Dugger, jointly and severally, for the sum of $10,000 as part of said $13,667.75 note on their written guaranty, and against W. L. Dugger as surety on said note for the remainder due thereon, and that plaintiff take nothing against the firm of M. D. Dugger & Son or the individual members thereof on account of their discharge in bankruptcy.

Opinion.

Plaintiff contends that the court erred in refusing at its request to charge the jury to return a verdict in its favor against the defendants Strange and W. L. Dugger for the amount of the eight notes aggregating $23,-000, upon which it was denied a recovery, and that the material findings of the jury on which such recovery was denied are without support in the evidence. There is very little conflict in the testimony with reference to the facts which led up to the execution and delivery of said .guaranty. A corporation known as the Dugger Grocery Company, in which all the Duggers had been interested, had become financially embarrassed and had made an assignment. The assignee, in due administration of his trust, sold the entire assets of said corporation, including its stock of goods, wares, and merchandise, its furniture and fixtures, 'and its notes and accounts, to plaintiff for the sum of $22,000. M. D. Dugger and his son, M. D. Dugger, Jr., desired to purchase all said assets and to continue the business under the firm name of M. D. Dug-ger & Son. Plaintiff desired to sell aU said assets to some one who would continue the business. W. L. Dugger; a son of M. D. Dug-ger, Sr., and a brother of M. D. Dugger, Jr., conducted the negotiations between the parties. He, however, was not a member of the firm of M. D. Dugger & S'on. Plaintiff proposed to sell the entire assets which it had bought from the assignee of the Dugger Grocery Company to M. D. Dugger & Son for the sum of $22,000. No money was to be paid. $10,000 of the purchase price was to be evidenced by a promissory note of the firm and secured by a guaranty signed by M. D. Dug-ger, W. D. Dugger, and G. R. Strange. According to some of the testimony, said entire purchase price was to be evidenced by promissory notes of the firm and secured by a mortgage on- the furniture and fixtures and an assignment of the notes and accounts transferred to the firm as a part of such purchase, and, according to other testimony, only the remaining $12,000 thereof was to be so secured. W. L. Dugger, who is a son-in-law of defendant Strange, suggested that said Strange would aid the Duggers to get back into business. The amount which he would be willing to guarantee was discussed. It was finally agreed that Strange and W. D. Dugger and M. D. Dugger should sign a guaranty for a part of the purchase price and that their liability thereon should be limited to $10,-000. There is no contention that anything -was said in any conversation leading up to the execution and delivery of the guaranty, or at the time of the execution or delivery thereof, with reference to either of said guarantors being bound for the payment of any indebtedness thereafter created by the film for future purchases. Plaintiff’s witnesses testified affirmatively that nothing of that kind was said. They did testify, however, that instead of saying “a guaranty,” Mr. ■Milam said “one of our guaranties,” and Mr. Milam further testified that W. D. Dugger had signed such a guaranty on one or more prior occasions, and that he thought the said Dugger understood that said form of guaranty, while limited as to past indebtedness, included future advances, and that he intended that indebtedness for such advances should be included in the guaranty sued on. On cross-examination this witness testified, in substance that he agreed to sell said assets to M. D. Dugger & Son for $22,000, to be secured by chattel mortgage on the furniture and fixtures, an assignment of the notes and accounts, and the guaranty of $10,000 of the purchase price by W. L. Dugger and G. R. iStrange, and that the deal was closed on that basis. W. L. Dugger testified that he did not read the guaranty under consideration and that while he had theretofore signed one or more guaranties to the plaintiff, he did not read them in detail, and that he did not know' that they nor the guaranty sued on contained any provision making the signers thereof liable for future purchases. He further testified that when the terms of sale were agreed upon, Mr. Milam took a blank guaranty and said:

“I will fix this for $10,000. You get Mr. Strange to sign it and you sign it.”.

All the guaranty was printed except the date, the names of the purchasers, M. D. Dug-ger & Son, and the specific amount named therein. These blanks Mr. Milam filled with a pen, writing “ten thousand dollars” in the appropriate blank as the specific amount of the guaranty. -Said guaranty, so far as material'to the particular issues here under consideration, reads:

“I, we or either of us hereby guarantee to said the Cooper Grocery Company, its successors and assigns, unconditionally, the payment of any indebtedness of M. D. Dugger & Son now existing in favor of the said the Cooper Grocery Company of Waco, Texas, not exceeding the sum of $10,000.00, and amy indebtedness created on this day or hereafter until notice in writing by registered mail.” (Italics ours.)

The construction of the language used by the parties at the time and the weight to be given to the testimony of the respective witnesses were matters for determination by the jury, and we cannot say that the first and second findings of the jury with reference to the understanding of W. D. Dugger in signing the guaranty sued on are without support in the evidence.

Plaintiff, in the negotiations with reference to the sale of said assets and the execution and delivery of said guaranty, had no direct dealings with the defendant Strange. After the guaranty was signed by W. D. Dug-ger it was delivered to him to procure the signature of Strange thereto, in the forenoon. Mr. Strange was then in the country. About 7 o’clock that evening Mr. Milam called W. L. Dugger by phone and asked if Strange had returned and if he had signed said instrument. On being informed that Mr. Strange was in town but had not signed the same, Mr. Milam said to Dugger:

“It is very important that we get it fixed Up to-night; suppose you run over and get Mr. Strange to sign it and bring it to the store and we will fix up the papers. You come by my house and get me.”

He further stated in that connection that he understood some one was figuring on filing a petition in bankruptcy, and he wanted the sale to go over before a petition in bankruptcy was filed. Dugger went immediately to Mr. Strange’s home and found him at the supper table. He presented the instrument to Mr. Strange and pointed out the “ten thousand dollars” written therein and said: “Here is the guaranty for ten thousand dollars.” Dug-ger testified that he was in a hurry and hurried Mr. Strange a little with reference to his signing the instrument, and while he did nothing to prevent Mr. Strange from reading the same, he did tell him, “You are just signing for ten 'thousand dollars, Mr. Strange.” Mr. 'Strange testified that when said instrument was presented to him at his supper table he did not, have his glasses and could not read the type without them; that he noticed the words “ten thousand dollars” in ink and then signed the instrument; that Dugger told him that the guaranty so signed was for $10,-000; that he believed and relied on. said statement and signed the instrument without reading it; that he would not have sighed the same if he had known it contained said clause with reference to future purchases. Dugger returned the guaranty to Mr. Milam at once,- and the deal was closed according to agreement. The particular finding of the jury assailed by plaintiff in this connection is the third one above quoted, with reference to Dugger’s authority from Mr. 'Milam to state to Mr. Strange the terms of the trade between plaintiff and M. D. Dugger & Son, the consummation of which was dependent upon his signing the guaranty tendered for his signature. The statement thereof made by Dug-ger to Strange as to the terms of the guaranty required as found by the jury does not differ materially from Mr. Milam’s testimony on cross-exa.mination, as hereinbefore recited. Both the testimony of said witness and the finding of the jury explicitly state that one of the conditions for the sale of said assets to Dugger & Son was the execution by said Strange and W. D. Dugger of a guaranty of $10,000 of the purchase price thereof. There is no testimony in the record that Mr. Milam told Dugger to make this specific statement to Mr. Strange. The testimony, however, does disclose that Mr. Milam, acting for plaintiff, was not only willing to sell the assets of the former corporation to M. D. Dug-ger & Son upon the terms agreed upon, but that he was anxious to do so and insistent that the deal should be closed at once; that he called Dugger about 7 o’clock at night and requested him to go and secure the signature of Mr. Strange to said guaranty and return the same to him at once. He necessarily understood, or ought to have understood, that Mr. Strange would want to know the terms of the trade that would be effected by his signing said instrument and the delivery of same to Dugger to be tendered to plaintiff and acted on by it. He ought to have reasonably anticipated that Dugger would make a statement of the terms of such trade and the nature of the guaranty required and he had a right to assume that such terms would be correctly stated. It seems from the finding of the jury that Dugger did state such terms as he understood them and in accordance with the testimony of Mr. Milam on cross-examination. Under the circumstances, we think that the jury had a right to infer and find as a fact that Mr. Milam contemplated that Dugger would make some such statement concerning the trade to be consummated as the result of . the signing of said instrument by Strange, and 'that Dugger had implied authority from him to do so. We 'therefore hold that the finding of the jury so assailed is not without support in the evidence.

The guaranty under consideration is a limited one as to existing indebtedness and an unlimited one as to future indebtedness. Plaintiff in its fifth counter proposition construes these provisions to be separate, distinct, and severable. We agree with that construction. The evidence shows that the first provision with reference to a limited guaranty of existing indebtedness, was the only one mentioned or discussed and the one verbally agreed upon between the parties at the time. The evidence also shows that the second provision, with reference to an unlimited guaranty of future indebtedness arising from subsequent purchases, was not even mentioned by plaintiff’s representative or any one else in the course of the negotiations. One contract of guaranty, in which liability was strictly limited, was discussed, agreed upon, and embodied in the written guaranty. Another and additional contract of guaranty, not discussed, in which liability was unlimited and which was therefore potentially far more onerous, was also embodied in the written guaranty tendered for signatures. The printed form was furnished and the blanks therein filled by plaintiff’s representative. According to Dugger’s testimony, plaintiff’s representative said in that connection, “I will fix it for $10,000,” which was in exact accord with the verbal agreement as testified by him, and that said representative handed it to him and requested him to sign it and secure the signature of Mr. Strange thereto. The jury foúnd that Dugger did not know that this printed form contained the additional, separate, and more onerous guaranty of indebtedness created by future purchases. The defendants Strange and Dugger contend that said additional, separate, and more onerous provision was embraced in the. guaranty signed by them by reason of a mutual mistake of both parties. Such contention is in effect, that the fact that the printed form used contained such a provision and did not therefore 'accurately express the guaranty discussed and agreed upon was for the time being overlooked by the plaintiff’s representative and unknown to Dugger. We think the evidence raised this issue and that Mr. Mil-am’s testimony on this issue' was not legally conclusive. Such testimony was given long after the transaction. In addition thereto, he was an executive officer of the plaintiff corporation and its representative in consummating the same. The accuracy of his recollection and the weight to be given to his testimony in view of the attending circumstances in evidence were for the determination of the court or jury passing on such issue. Dunlap v. Wright (Tex. Civ. App.) 280 S. W. 276, 279.

The defendants Strange and Dugger further contend that if said additional and more onerous guaranty was not embodied in the written instrument signed by them by reason of mutual mistake of both parties, that its presence there resulted from fraud, express or implied, on the part of plaintiff, and mistake on their part. We think the evidence raised an issue as to whether the statement made by Mr. Milam at the time he filled the blanks in the printed form and delivered the same to Dugger for signing, under and in connection with the attending circumstances, amounted to a representation, express or implied, that tlie instrument tendered conformed to the verbal agreement -with respect thereto which had just been discussed. This issue, like the preceding, was one for the determination of the court or jury passing upon the same. Since neither of these issues was submitted to the jury and since there was no request for the submission of the same, we are required to deem them as found by the trial court in such manner as to support the judgment rendered. Plaintiff contends in this connection that defendants Strange and Dug-ger had an opportunity to read the guaranty before signing the same, and that each of them was negligent in not doing so, and that neither of them can therefore be heard to say that he was mistaken with reference to its contents. This contention will be discussed in connection with the authorities hereinafter cited on such issue.

A mutual mistake may arise after the parties have verbally concluded their agreement in reducing that agreement to writing, by erroneously omitting some provision actually agreed upon or including some provision not agreed upon. , 2 Pom. Eq. Juris, p. 1742, § 853. Against a mistake of both parties by reason of which, in the effort to reduce the agreement they have made to writing, they mistake its terms so that the writing does not represent the real contract, equity will grant relief. In such eases the failure of one to understand through omission to read or give sufficient attention to its contents cannot avail as a defense to the other equally in fault against a suit to correct sueh mistake. Kelley v. Ward, 94 Tex. 289, 296, 297, 60 S. W. 311. Where one of the parties to a verbal agreement undertakes to reduce the same to writing, but knowingly includes therein some material provision not agreed upon and expressly or by necessary implication represents to the other party that such writing correctly expresses the real agreement, and such other party, relying on such representation and believing that the writing does correctly express the agreement actually made, signs the same, equity will grant relief, and the writing will be made, to conform to the real agreement. In such cases, as in the case of mutual mistake, a mere failure to read the instrument, though there was opportunity to do so, is no bar to appropriate relief. Conn v. Hagan, 93 Tex. 334, 338, 339, 55 S. W. 323; Kelley v. Ward, supra, p. 297 (60 S. W. 313), quoting with approval from the case of Albany City Savings Institution v. Burdick, 87 N. Y. 40; Chatham v. Jones, 69 Tex. 744, 749, 7 S. W. 600; Cooper Grocery Co. v. Rowntree (Tex. Civ. App.) 260 S. W. 333, 334; Strickel v. Brownfield State Bank (Tex. Civ. App.) 250 S. W. 258, 259; Granger v. Kishi (Tex. Civ. App.) 153 S. W. 1161, 1163; Compagnie Des Metaux Unital v. Victoria Mfg. Co. (Tex. Civ. App.) 107 S. W. 651, 652; Commercial Jewelry Co. v. Braczyk (Tex. Civ. App.) 277 S. W. 754, 756, and eases there cited. Neither in cases of mutual mistake, or misrepresentation on one side and mistake on the other, is a prior suit to reform the instrument required, but under our blended system of law and equity, a judgment may be rendered thereon in accordance with the terms originally agreed upon. Etna Insurance Co. v. Brannon, 99 Tex. 391, 397, 398, 89 S. W. 1057, 2 L. R. A. (N. S.) 548, 13 Ann. Cas. 1020.

The general rule with reference to whether negligence on the part of a party complaining will bar equitable relief from a mistake of fact is stated by Mr. Pomeroy in his work on Equitable Jurisprudence, vol. 2, p. 1748, part of section 856, as follows:

“It has sometimes been said in very general terms that a mistake resulting from a complaining party’s own negligence will never be relieved. This proposition is not sustained by the authorities. It would be more accurate to say that where the mistake is wholly caused by the want of that care and diligence in the transaction which should be used by every person of reasonable prudence, and the absence of which would be a violation of legal duty, a court of equity will not interpose its relief; but even with this more guarded mode of statement, each instance of negligence must depend to a great extent upon its own circumstances. It is not every negligence that will stay the hand of a court. The conclusion from the best authorities seems to be that the neglect must amount to the violation of a positive legal duty.”

Aside from the question of mutual mistake, or misrepresentation and mistake, whether Dugger and Strange, or either of them, was under the terms of the rule just quoted guilty of culpable negligence in signing the guaranty under consideration without reading it, is, upon consideration of the evidence as a whole, a question of fact. There is evidence tending to excuse them from such a charge. The question of negligence on their part was not submitted to the jury, and we are required to deem such issue so found by the trial court as to sustain the judgment rendered. We are therefore of the opinion that the judgment of the court refusing plaintiff a recovery on the said guaranty for $23,-000 of indebtedness incurred for purchases subsequent thereto should be affirmed.

Defendants Dugger and Strange contend that the court erred in rendering judgment against them on said guaranty for $10,000, or any other sum. The basis of this contention is that since the purchase price of the assets of the Dugger Grocery Company bought by M. D. Dugger & Son from plaintiff was $22,000, and since said guaranty covered only $10,000 of such purchase price, and since the remainder thereof, amounting to $12,000, had been paid, the law requires such payment to be applied first to the discharge of said guaranty, and that the same has therefore been satisfied and that they are released from liability thereon. We will make a brief recital of the facts pertaining to this contention. In doing so we will follow the yule which requires us to consider the facts on controverted issues in the light most favorable to the judgment rendered by the trial court. The mortgage and assignment are not in the record, and there is some testimony tending to show that the same secured the whole of the purchase price of said assets; but Mr. Milam testified, in substance, that he told W. L. Dugger that plaintiif would sell said assets to said firm for $22,000', and would take a lien on the fixtures and a transfer of the notes and accounts as security for $12,-000 of such purchase price, and would require a guaranty signed by him and Strange for the remaining $10,000. Such mortgage, assignment of notes and accounts, and personal guaranty were all given as required. W. L. Dugger immediately entered the employ of M. D. Dugger & Son. According to Mr. Strange’s testimony, W. L. Dugger represented him in a general way in all matters connected with this transaction. W. L. Dugger participated in closing the deal with plaintiif. The entire purchase price of $22,000 was evidenced by notes. $12,000 of this amount was represented by notes maturing from January 1 to April 1, 1924. The remaining $10,000 of such purchase price was evidenced by a single note for that amount, due January 1, 1925. The division of this indebtedness into separate notes as aforesaid was participated in by W. L. Dugger and approved by him. He continued in the employ of the firm until it went into bankruptcy and was at all times active in the management of its affairs. Said notes, amounting in the aggregate to $12,000 and maturing in 1924, were paid off prior to February, 1925. At that time the $10,000 note was all of said purchase price that remained unpaid. It was renewed at that time and made payable October 1, 1925, and an additional sum of $3,667.75 included therein. There is no contention that this additional sum was covered by said guaranty. W. L. Dugger participated in this renewal transaction and signed said renewal note as surety. He was cognizant of the payments made by said firm and the application of the same to-the full satisfaction and discharge of said notes evidencing said $12,000 of the purchase price, and it appears that he as a representative of the firm personally participated therein. We think under the circumstances that the trial court would have been justified in finding that all the parties, including the-guarantors, represented by said W. L. Dug-ger, treated the guaranty as covering the $10,000 note, and understood that the payments made by the firm were being applied to discharge the other purchase-money notes, and either approved such application or at least acquiesced therein. Such • being the case, we are required to deem such issue so found as to support the judgment rendered by the trial court.

The facts of this case distinguish it from the cases cited and relied on by 'defendants. Regardless of assent of the guarantors to or their acquiescence in the application of the payments made by the firm to that part of the indebtedness secured by the mortgage on the fixtures and the assignment of notes and accounts, the general rule is that where the creditor has several debts, or one debt consisting of different items, part of which only is guaranteed, the guarantor cannot control a payment made by the debtor and require it to be applied to the part covered by his guaranty, especially when by agreement between the debtor and creditor a different application has been made. 28 C. J. p. 1005, § 166, and cases cited in support of the text. The case of Kortlander v. Elston (C. C. A.) 52 F. 180, 183, 184, involve'd a contract for the sale of certain real property by one Elston to one Carman for the sum of $12,000, payable in installments. Kortlander guaranteed the payment of the first $3,000 of the purchase price. Fire insurance policies covering the improvements on the property, together with some personal property therein contained, were assigned to Elston by Carman as additional security for the payments to be made under the terms of said contract. A fire occurred, and insurance to the amount of $4,-050 was collected and held by Elston. Car-man, after having paid a very small sum on the contract price for said property, made default. Elston then sued Kortlander on his guaranty. Kortlander contended that the insurance money collected by Elston and held by him should be applied to the discharge of the first payments due under said contract, and, since the same amounted to more than $3,000, the sum guaranteed by him, that he should be discharged from further liability on his guaranty. The trial court charged the jury that Elston had a right to hold the insurance money realized on the buildings as security for the payment of the whole debt, and that Kortlander had no right in law or equity to demand that the money be applied to the amount due under his guaranty. The opinion of the Circuit Court of Appeals was written by Chief Justice Taft, who was at that time one of the judges of that court. After expressly approving said charge, said opinion continues as follows:

“The primary equity growing out of the relation of creditor, debtor, and surety is that the creditor be paid what is due him; and he does not lose this equity as against the surety, except by misconduct to the latter’s prejudice. When the creditor in the original contract has received collateral covering the entire debt, and a personal guaranty on part of it, the legal and the natural presumption, in the absence of circumstances showing the contrary, is that he has taken the personal guaranty as additional or cumulative protection for his debt. In order that his debt may be paid, therefore, he has the right to exhaust all his securities, and in doing so he may apply the collaterals to that part of the debt not covered by the personal guaranty, and hold the guarantor to the full measure of his contract. * * * In the case at bar, the guaranty and the collateral security were given concurrently, each with reference to the other, and no one can doubt the intention of the parties to the original contract, that the creditor should use and exhaust both, if necessary, to pay his whole debt. The authorities in support of our view are numerous. In Hanson v. Manley, 72 Iowa, 48, 33 N. W. 357, a chattel mortgage secured four notes. There was a surety upon the two notes first due. It was held that the proceeds of the mortgage might . be applied by the creditor on the notes on which there was no surety. In Nichols v. Knowles (C. C. A.) 3 McCrary, 477, 17 F. 494, Judge McCrary decided that where a creditor held several notes secured by mortgage, one of which was also sepured by the indorsement of a third party, it might be inferred, in the absence of evidence, that the parties intended to apply the proceeds of the sale of the mortgaged property first to the notes not otherwise secured, so as to give the creditor the full benefit of all his security. To the same effect are Mathews v. Switzler, 46 Mo. 801; Wood v. Callaghan, 61 Mich. 402, 28 N. W. 162 [1 Am. St. Rep. 597] (where English v. Carney [25 Mich, 183], supra, is distinguished); Gaston v. Barney, 11 Ohio St. 506; Stamford Bank v. Benedict, 15 Conn. 437; Field v. Holland, 6 Cranch, 8 [3 L. Ed. 136]; Western Transportation, etc., Co. v. Kilderhouse, 87 N. Y. 430; First Nat. Bank of Buffalo v. Wood, 71 N. Y. 405 [27 Am. Rep. 66]; Gordon v. Bank, 115 Mass. 591.”

The rule of law announced by that distinguished jurist and applied in the disposition of that case is applicable here, whether said mortgage and. assignment were given to secure the whole purchase price of said assets or only $12,000 thereof. In either event, unless the guarantors have been otherwise discharged, plaintiff is entitled to hold them liable until the remainder of the original purchase price of said assets is paid. Hutches v. J. I. Case Threshing Mach. Co. (Tex. Civ. App.) 35 S. W. 60, 64 (writ refused) ; Borschow v. Stephenson (Tex. Civ. App.) 166 S. W. 121, 122; Rotan Grocery Co. v. Martin (Tex. Civ. App.) 57 S. W. 706-708; Henry v. Safford (Mo. App.) 241 S. W. 951, 953; Phillips v. Bossard (D. C.) 35 F. 99; Alexander v. United States (C. C. A.) 57 F. 828; Gile Grocery Co. v. Lachmund, 75 Or. 122, 146 P. 519.

In this connection, however, in view of another trial, we call attention to the fact that there is testimony tending to show that the fixtures included in the original purchase of said assets by the firm were mortgaged by them to secure the whole purchase price, and that the notes and accounts included in said assets were assigned to plaintiff as security therefor, and that the guarantors so understood at the time they signed the guaranty. The date of said assignment of the notes and accounts was on or about December 15, 1923. The evidence does not disclose what amount of money was collected out of the same or the application made thereof. The evidence shows that the firm of M. D. Dugger & Son filed a voluntary petition and were adjudged bankrupts thereon on the 31st day of December, 1926. The evidence further shows that the notes and accounts and fixtures belonging to said firm at that time wpre sold by their trustee in bankruptcy to plaintiff on the 1st day of February, 1927, and that said notes and accounts sold for the sum of $3,000 and said fixtures for the sum of $2,000. It is reasonable to suppose that the notes and accounts purchased by plaintiff at the bankrupt sale of the assets of said firm were other and different notes and accounts from those assigned to secure the original purchase price, and that the assignment under which plaintiff claimed and received from the bankrupt court the net proceeds of the sale thereof was executed and delivered long after said original purchase. There is nothing in the evidence, however, to indicate that there was any substantial change in the business fixtures included in the original purchase at the time said firm filed its petition in bankruptcy. Plaintiff claimed and received from the bankrupt court the net proceeds of the sale of said fixtures. The evidence does not disclose the amount of such net proceeds in either case. Mr. Milam testified that all they received on account of said sales was credited on an open account owed to plaintiff by said firm. There is, however, a credit indorsed on the $13,667.75 note for the sum of $3,343.-50. The source from which the funds so credited were derived is not disclosed by the evidence. The court in rendering judgment applied this credit on that part of said note not covered by the guaranty. If said original assignment of notes and accounts and mortgage on the fixtures were to secure the entire $22,000 purchase price of said assets, then any of the proceeds of the same received by plaintiff from the bankrupt court should be applied in reduction of the amount remaining unpaid on said guaranty.

Defendants Strange and Dugger, as a defense to liability on the guaranty sued on, pleaded that after the indebtedness secured thereby had been reduced to $10,000 or less, such indebtedness was renewed and extended by a new and different note; that said note was not signed by defendant Strange; that the same was executed in full settlement, satisfaction, and novation of all indebtedness guaranteed by said Strange; and that plaintiff thereby waived any further liability on the part of said Strange and was precluded from asserting any further claim against him. The evidence discloses that at the time of the purchase of said assets by said firm plaintiff held an unsatisfied indebtedness against the Dugger Grocery Company amounting to something more than $5,200; that W. L. Dugger had guaranteed the payment of same; that either as a part of said transaction dr in connection therewith, the firm of M. D. Dugger & Son and W. L. Dugger executed and delivered their promissory note therefor to plaintiff. According to plaintiff’s contention and the testimony of its witnesses, this note was not given as a part of the purchase price of said assets and was not covered by said guaranty. On or about the 7th of February, 1925, said note was past due and a balance of $3,667.75 remained unpaid. The $10,000 note constituting the remainder of the purchase price of the assets was also unpaid and had been past due since January 1, 1925. Mr. Milam, acting for plaintiff, called W. L. Dug-ger, who seems to have been acting for the firm at the time, and told him that that was the end of their fiscal year and that they wanted to have a settlement and make arrangements for the ensuing year. He proposed that the $10,000 note and said balance of $3,667.75 should be combined in a renewal note for the aggregate of both said sums, and further proposed that, in addition to the signature of the firm thereto, W. L. Dugger and Mr. Strange should both sign the same. In connection with said proposition he prepared the $13,667.75 note sued on and tendered it for signature, stating that that was all they owed plaintiff at that time. W. L. Dugger replied that he would sign said note in addition to the signature of said firm, but declared that he would not ask Mr. Strange to sign it. He stated as a reason for such refusal that Mr. Strange was getting old and he did not want to bother him and did not want him to pay said note and that such note was perfectly good without his signature. He testified that he stated to Mr. Milam in this connection that plaintiff had carried the firm for $17,000 the year before and that it could certainly carry them for $13,000 then. He peremptorily refused to have M. D. Dugger, who had also signed the guaranty individually, to sign the same, and again refused to ask Mr. Strange to do so. After some insistence on the part of Mr. Milam and argument between them, Dugger still refused to ask Mr. Strange to sign said note, and declared that he would make arrangements to refinance the debt before he would ask Mr. Strange to do so. Dugger testified in this connection that he could and would have arranged to pay plaintiff’s debt before he would have asked Mr. Strange to sign said note. According to his testimony, Mr. Milam then replied that he wanted the firm to continue to do business with them, and said:

“I’ll tell you what I will do; I will take M. D. Dugger & Son’s note with your indorsement and will mark these others ‘Paid’ and give them to you.”

Said note was then signed by the firm and by W. L. Dugger as surety. Mr. Milam accepted the same, marked both the old notes “Paid,” and delivered them to Dugger. No reference whatever was mad^e to the guaranty sued on at any time during this controversy nor thereafter until the maturity of said note in the fall of 1925, at which time, owing to adverse business conditions, the firm of M. D. Dugger & Son had become considerably involved.

The evidence above recited shows that the $13,667.75 note sued on and recovered on herein is other and different from any of the notes originally guaranteed. A guarantor, like a surety, has a right to stand on the strict terms of his undertaking. When the creditor has extended the time of payment of the principal obligation, or has accepted as a substitute therefor an obligation of a different description or of materially different terms or with additional signers thereto, the guarantor is .discharged, unless it is shown that he assented to such change or ratified the same. 28 G. J. pp. 995, 996, part of section 155; Bank of Commerce v. Webster, 70 Okl. 68, 172 P. 942, 943, and authorities there cited; Harper v. Stroud, 41 Tex. 367, 372-373; Ford v. First Nat. Bank (Tex. Civ. App.) 34 S. W. 684, 686, 687; Chapman v. Morrison (Tex. Civ. App.) 282 S. W. 606, 607. In this case the plaintiff relies on the fact that the written guaranty introduced in evidence provides that the signers thereof consent to any extension of time of payment made or thereafter to be made ■and waive notice thereof, and consent that the form of indebtedness may be changed from account to note, bill, or any other form of indebtedness. We think the changes made by the execution and delivery of said $13,-667.75 note differed in some respects from the terms stipulated in said guaranty, and that such differences are circumstances to be considered in determining tbe issue of novation hereinafter discussed.

A novation is effected by the substitution of a new obligation between the same parties with the intent that the old obligation for which the same is substituted shall be discharged. Both debtor and creditor must concur in this intention. 29 Cyc. p. 1131; Meador v. Rudolph (Tex. Civ. App.) 218 S. W. 520, 526, and authorities there cited; Forreston Gin Co. v. Waxahachie Nat. Bank (Tex. Civ. App.) 271 S. W. 290, 292. It is not essential that assent to the acceptance of the terms of novation be shown by express words, but the same may be implied from the facts and circumstances and the conduct of the parties. 29 Cyc. p. 1132; Meador v. Rudolph, supra. If it is agreed between the parties that the original debt or note shall be surrendered and that the new or substituted note shall be accepted as payment thereof, a novation results. 20 R. C. L. p. 365, § 6. The discharge of the original debt is a sufficient consideration for the new obligation, but the inference that a novation has taken place is strengthened when a new consideration enters into the new contract. 29 Cyc. p. 1135. While the renewal of an indebtedness between the same parties and the surrender of the old notes for which the new notes are substituted, does not of itself necessarily constitute a novation, such action, considered in connection with attending circumstances, may be sufficient to do so.

In this case not only was the time extended, but the guaranteed debt was combined with another not guaranteed; the new note was signed by W. L. Dugger, one of the guarantors, which made him a conventional surety thereon. Whether such action as to him substituted the relation of surety for the relation of guarantor or was in addition to such relation need not be determined. He at least assumed a new and different legal relation to the guaranteed indebtedness. The statements made by him at the time to the effect that the renewal note was less than the amount of the original purchase price which plaintiff had carried on the credit of the firm alone, the distinct refusal to ask Strange to sign the new note, the specific agreement to mark the old notes “Paid” and surrender the same, and the consummation of such agreement, and further, the fact that according to Dugger’s testimony, if such agreement had not been made and consummated said indebtedness would not have been renewed but would have been paid off, with the necessary inference that plaintiff would have lost the patronage of the firm, are all matters to be weighed in determining whether the renewal note was given, by the makers and accepted by plaintiff in novation of the old debt. Defendants requested the submission of this issue, and the court refused to submit the same. While we are not prepared to approve the form in which the submission of such issue was requested, we think it was sufficient to call the court’s attention thereto and to require a proper submission thereof. W. L. Dugger, who acted both for himself and for the principal debtors in said! transaction, contends that said renewal note was executed and delivered in satisfaction, discharge, ‘and novation of the balance due on the original purchase price of the assets sold to said firm and in full satisfaction and discharge of all prior liability therefor, including the guaranty sued on. Whether such was in fact his intention and purpose at the time, and whether Mr. Milam, acting, for plaintiff, in' accepting said note and surrendering the old notes, so understood and agreed, should have been submitted to the jury for determination by proper issues.Two separate causes of action are sued on in this case. One is based on the notes sued on, which were given for purchases by said firm on or after February 7, 1925. The other is based on said'renewal note. These causes of action are severable. The judgment of the court denying plaintiff a recovery on the notes given for purchases subsequent to said last-named date is affirmed. Moore v. Moore (Tex. Civ. App.) 259 S. W. 322, 327. The judgment of the court awarding plaintiff a recovery upon said $13,667.75 note is reversed, and the cause of action asserted thereon remanded to the trial court for further proceedings not inconsistent with this opinion.

      £=»For other cases, see seme topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=»For other cases see same topio and KEY-NUMBER In all Key-tyumbered Digests and Indexes

      &wkey;Eor other oases see same t&pic and KEY-NUMBER, in all KeyiNumbered Digests and Indexes


source: Caselaw Access Project

author: BARCUS, J.

license: Public Domain

text:
    DRANE et al. v. HUMBLE OIL & REFINING CO. et al.
    (No. 611.)
    Court of Civil Appeals of Texas. Waco.
    March 8, 1928.
    Rehearing Denied March 29, 1928.
    1. Appeal and error <&wkey; 1001 (I) — Jury’s findings on issues of fact supported by evidence will not be disturbed on appeal.
    Jury’s findings on issues submitting question of fact, being supported by the evidence, will not be disturbed on appeal.
    2. New trial <&wkey;l55 — Statute held not to authorize granting of motions for rehearing in cases tried at former term of court (Rev. St. 1925, art. 19'15).
    Though under Rev. St. 1925, art. 1915, trial court may by agreement of all parties hear and try certain causes in vacation, such article relates to trial of causes and not to granting of motions for rehearing in case which was tried at a former term of court.

      3. New trial <&wkey;(55 — Motion for rehearing must be acted on during same term in which case is tried (Rev. St. 1925, art. 2232).
    Under Rev. St. 1925, art 2232, a motion for rehearing must be acted on during term of court in which same is tried, and trial court cannot grant motion after termination of term in which case is tried.
    4. Courts <&wkey;66(7) — 'Term extended for purpose of completing case then on trial expires on such case being finally disposed of, which occurs when motion for. rehearing is overruled.
    When term of court has been extended for purpose of completing case then on trial, term expires when trial of ease for which term was extended is finally disposed of, and case becomes finally disposed of when trial court overrules motion for rehearing.
    5. New trial &wkey;l 17(3) — Court held to have properly refused to consider supplemental motion for new trial filed after adjournment and taking of appeal.
    Court properly refused to consider supplemental motion for new trial, filed at 25 days after adjournment of court term, which had been extended in order to complete trial of case in question, and after cause hád been appealed, since court had no jurisdiction to hear and determine it-.
    6. Appeal and error <&wkey;499-(3) — Bill of exceptions failing to show ground of objection to admission or exclusion of evidence will not be considered on appeal.
    Where bill of exceptions fails to show ground of objection made to admission or exclusion of testimony by trial court, it will not be considered by appellate court.
    7. Appeal and error &wkey;>662(3) — Party accepting bill of exceptions qualified by judge is bound by such qualification.
    When a party excepts and has filed a bill of exception which has been qualified by trial court, he is bound by such qualification.
    8. Appeal and error &wkey;>l052(5), 1056(4) — Error, if any, in admission or exclusion of testimony on issues which jury did not answer, held harmless.
    Admission or exclusion of evidence relating to issues which jury did not answer because unnecessary by reason of their answers on other issues, even if error, was harmless.
    9. Appeal and error <&wkey;242(3) — Appellate court will not review special exceptions unless shown to have been presented and acted upon by trial court.
    Unless judgment of trial court shows that special exceptions were presented to and acted on by trial court, appellate court is not authorized to review them.
    10⅛ Appeal and error <&wkey;l040(1)— Rulings on special exceptions to pleading cannot be held error, where injury was not shown or that objections were not cured by amended or substituted pleadings.
    No error was shown by rulings of trial court in sustaining or overruling special exceptions to pleadings, where no attempt was made to show that any injury resulted therefrom or that any testimony was excluded or admitted by reason thereof, or that objections made to pleadings were not cured by subsequent amended or substituted pleadings.
    Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.
    Action by E. N. Drane and others against the Humble Oil & Refining Company and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    S. M. Kerr and Richard & A. P. Mays, all of Corsicana, for appellants.
    H. B. Daviss, W. A. Tarver, and Wayne R. Howell, all of Corsicana, R. E. Seagler, C. A. Sweeton, W. W. Moore, Wright Morrow, and J. A. McNair, all of Houston, John H. Sharp, of Ennis, and C. S. Bradley, of Groes-beek, for.appellees.
   BARCUS, J.

Appellants filed this suit against eleven different oil companies and the Powell Salt Water Company, seeking damages to 746.8 acres of land owned by them and located within the levee district on Richland and Chambers creeks in Navarro county, and seeking an injunction restraining appellees from permitting salt water and other mineral waters from running down said creeks along the levee embankments surrounding said land. Appellants alleged that when the levee was built inclosing said land owned by them, the channels of said creeks were changed to run along by the -levee embankments on tbe outside of the levee inclosing their lands. They further alleged that appellees had a large number of oil wells on the tributaries of Richland and Chambers creeks, and that they had permitted and allowed a large quantity of salt water and oth- < er mineral waters and oil products to flow into said creeks; that said salt water and other mineral water and refuse oil from said creeks had percolated under said land by subterranean flow or seepage, and had by hydrostatic force and capillary attraction been gradually driven upward toward the surface on their land within said levee and had caused said land to be materially damaged, and that unless restrained, said salt water and other mineral water and refuse oil would by said process utterly destroy their land. The cause was submitted to a jury on ten special issues. The first three issues submitted were, in substance:

(1) Whether the appellees, and each of them, acted jointly and together in the discharge of said salt and other mineral water • into Richland and Chambers creeks.

(2) Whether the appellees, and each of them, acting jointly and together with the other persons and corporations named in the easement or right of way agreement, discharged the salt and mineral waters into Richland and Chambers creeks (the other parties named in the easement being 24 different individuals and corporations in addition to appellees).

(3) Whether the salt or mineral water discharged into said creeks had percolated through the water sand of said channel and gone out under the lands of appellants and damaged the same, or any part thereof.

The court instructed the jury that if they, answered issue No. 3 in the negative, they need not answer any of the subsequent questions. The jury answered each of the first three issues in the negative and, by reason of the court’s instruction, did not answer any of the remaining questions. There was no objection made by appellants to said instruction as given nor as to the manner and form of said issues as submitted, and no contention was made by appellants until after the jury returned its verdict that the issues as submitted were not properly raised by the pleadings and the evidence. Appellants requested a large number of special issues, some of them embracing, in effect, some of the issues submitted by the trial court. Upon the findings of the jury the court entered judgment denying appellants any recovery.

By their propositions 1 to 4, appellants contend that the evidence does not support the answer of the jury to any one of the three issues which the jury answered. The statement of facts embraces 1,165 pages. Without attempting to state the evidence that will support the answers of the jury, we will state that we have carefully examined the record and think the evidence is sufficient to support the answer to each of said three issues. Under the first issue as submitted, the jury, in order to have.answered the question in the affirmative, were required to find that appellees, and each of them, were acting together and jointly in the discharge of salt water and other minerals in Richland and Chambers creeks, and for the jury to have answered the second issue in the affirmative they were required to find that appel-lees, and each of them, were acting together and jointly and acting with 24 other parties in the discharge of salt water and other minerals into Richland and Chambers creeks. We have examined the statement of facts, and find that the evidence with reference to whether the parties named were acting jointly and together is very conflicting, and we cannot say that the jury’s findings with ref-"erenee thereto are not supported by the testimony. In order for the jury to have answered the'third issue in the affirmative, they were required to find that the salt or mineral water which had been discharged into Richland and Chambers creeks had percolated under the levee and out under the land of appellants to such an extent that same had injured said land. There are hundreds of pages of evidence in the record on this question. It was a very sharply contested issue, and the evidence is amply sufficient to support the jury’s finding on said issue. Each of said questions having submitted an issue of fact, and the evidence being sufficient to support the jury’s findings, we will not disturb same, and said propositions are overruled.

By propositions 5 to 11, appellants contend that the trial court committed error in refusing to consider their supplemental motion for a new trial, which they filed some 25 days after the adjournment of court. The record shows this cause was tided at the April term of court, which by operation of law would have adjourned on June 25th. On June 25th the trial court made an order extending the term of said court until July 2d in order that the trial of this cause might be completed. On June 28th, after the cause had been given to the jury, all of the attorneys in open court verbally agreed that the losing party might have 30 days after July 2d, the time the court had fixed for its adjournment, in which .to file a motion for rehearing. The court, however, refused at said time to extend the term of court for that length of time, on the theory that he perhaps did not have the authority to extend the April term of court over into the July term of court, which began on July 4th. The jury returned its verdict on June 28th, and on July 2d, within the time to which the court had extended the April term, appellants filed their motion for rehearing, which was on said date overruled, and appellants excepted and gave notice of appeal, and on July 20th perfected their appeal by filing and having approved their appeal bond. On July 27th appellants filed their supplemental motion for rehearing and set up, in addition to the things contained in their original motion, misconduct on the part of the jury. The trial court refused to consider said motion on the ground that the term of court had expired and the cause had been appealed and that it did not, therefore, have jurisdiction to hear and determine said motion. Article 1915 of the Revised Civil Statutes, provides that the judge of a district court may in vacation, by agreement of all parties, make any orders or try cases (with certain exceptions) the same as in term time. Appellants contend' that under this statute the trial court had a right, since all the parties had agreed that a motion for rehearing might be filed within 30 days after the adjournment of court, to hear and determine the supplemental motion filed within said 30 days after -the court had adjourned. We cannot agree with this contention. While it is unquestionably the law that the trial court may by agreement of all parties hear and try certain causes in vacation (Cowan v. Capps [Tex. Civ. App.] 278 S. W. 283; Id. [Tex. Com. App.] 286 S. W. 161; Seagraves v. Green, 116 Tex. 220, 288 S. W. 417; Glenn v. Milam [Tex. Sup.] 263 S. W. 900), as we construe this article, it relates to the trial of causes and not to the granting of a motion for rehearing in a case which was tried at a former term of court. It is the uniform holding of our courts, under article 2232 of our Revised Statutes, that a motion for rehearing must be acted on during the term of court in which same is tried, and that the trial court has no power to grant a motion for rehearing after the termination of the term of court in which the case was tried. Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100; Etna Ins. Co. v. Dancer (Tex. Com. App.) 215 S. W. 962; Green v. Green (Tex. Com. App.) 288 S. W. 406; Rupert v. Brook Mays & Co. (Tex. Civ. App.) 299 S. W. 474; Home Benefit Ass’n v. Boswell (Tex. Civ. App.) 268 S. W. 979; Frick-Reid Supply Co. v. Jones (Tex. Civ. App.) 286 S. W. 650. Where a term of court has been extended for the purpose of completing a case then on trial, it has been held that said term expires when the trial of the case for which the term of court was extended is finally disposed of, and that the case becomes finally disposed of when the trial court overrules the motion for rehearing. Stephenson v. Nichols (Tex. Com. App.) 286 S. W. 197; G., C. & S. F. Ry. Co. v. Muse, 109 Tex. 352, 207 S. W. 897, 4 A. L. R. 613.

In this ease the trial had not only been concluded by the court having overruled the motion for new trial, but appellants had excepted to said ruling and had perfected their appeal by giving the bond required by law, before the supplemental motion was filed on July 27th. We think the trial court did not commit error in refusing to consider said supplemental motion, since it had at the time same was filed no jurisdiction to hear and determine same.

By propositions 12, 3, and 17 to 34, appellants complain of the action of the trial court in admitting or excluding testimony. We have carefully examined each of these propositions and the assignments of error and bills of exception to which they relate. Many of the bills of exception do not show on what ground of objection the trial court excluded the proffered testimony. Our courts have uniformly held that where a bill of exception fails to- show the ground of objection made to- the admission or exclusion of testimony by the trial court, same will not be considered by the appellate court. Progressive Lumber Co. v. Marshall & E. T. Ry. Co., 106 Tex. 12, 155 S. W. 175; Dancy v. Peyton (Tex. Civ. App.) 282 S. W. 819; Dennis v. Wolfe (Tex. Civ. App.) 276 S. W. 339; Cockrell v. Steffens (Tex. Civ. App.) 284 S. W. 608. A number of the bills of exception were qualified by the trial court in such a way as to clearly show no error. Our courts uniformly hold that when a party accepts and has filed a bill of exception which has been qualified by the trial court, he is bound by said qualification. San Antonio Traction Co. v. Settle, 104 Tex. 142, 135 S. W. 116; Key v. Brammer (Tex. Civ. App.) 283 S. W. 924, and authorities there cited. The large majority of the bills of exception relate to the admission or exclusion of evidence which was offered for the purpose of establishing the amount of damage,-if any, and with reference to whether appellants were entitled to an injunction against appellees to prevent a nuisance. In view of the findings of the jury on the 'first three issues, they did not answer any of the other issues to which this testimony would have related, and if it could be said there was any error in the admission or exclusion of any of said testimony, it becomes harmless. We have, however, carefully examined each of said propositions, and same are overruled.

By propositions 35 to 45, appellants complain of the action of the trial court in refusing to give certain special charges and special instructions which they requested. We have examined each of these and do not think they show any error.

By propositions 46 to 59, appellants complain of the action of the trial- court in sustaining a number of special exceptions of appellees to appellants’ petition, and, by propositions 60 to 67, complain of the action of the trial court in overruling a number of special exceptions which they leveled at the pleadings of appellees. The record shows that the only exceptions ruled on by the trial court were presented by appellants, and appellees in March during the January term of court, and thereafter in June during the April term of court appellants filed their trial amendment and appellees filed their third amended answer, on which they went to trial, in lieu of all other pleadings which they had theretofore filed. Neither the first nor second amended answers of appellees is contained in the transcript, and we cannot therefore determine whether the third amended answer is the same as the former pleadings against which the special exceptions were leveled. Neither can we determine whether the special' exceptions of appellees leveled at appellants’ petition, which were sustained, were not cured by the trial amendments; Our courts hold that unless the judgment of the trial court shows that the special exceptions were presented to and acted on by the trial court, the appellate court is not authorized to review the same. Southern Casualty Co. v. Welch Motor Co. (Tex. Civ. App.) 291 S. W. 272, and authorities there cited. Appellants do not attempt to show that they were in any way injured by any'of the rulings of the trial court in sustaining or overruling any of the special exceptions, or that any testimony was excluded or admitted by reason thereof. Neither do they attempt to show that the objections made to the pleadings were not cured by the subsequent amended or substituted pleadings by the respective parties. We do not think any error is shown by the rulings of the trial court in sustaining or overruling any of the special exceptions by the respective parties. Golden v. Odiorne, 112 Tex. 544, 249 S. W. 822.

Appellants, by propositions 14, 15, and 16, complain of the action of the trial court in refusing to grant them a new trial because of the argument of counsel for appellants in the trial court. We have carefully examined these assignments, and do not think the trial court in any way abused its discretion in refusing to grant appellants a new trial because of the argument of which complaint was made. Brazelton v. St. L. S. W. Ry. Co. (Tex. Com. App.) 296 S. W. 290.

Appellants by their sixty-eighth proposition complain of the action of the trial court in instructing the jury to return a verdict in favor of appellee Republic Production Company. We have carefully examined the record, and do not think the court committed any error in giving said instruction.

We have examined all of appellants’ assignments of error and propositions thereunder, and same are overruled. The judgment of the trial court is affirmed.
      @=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <Js»For other cases see same topic and KEY-NUMBER in all Key-Numbered-Digests and Indexes


author: HIGGINS, J.

text:
    SURTEES v. HOBSON et al.
    (No. 2135.)
    Court of Civil Appeals of Texas. El Paso.
    March 8, 1928.
    Rehearing Denied March 29, 1928.
    1. Estoppel @=»27(2) — Estoppel by deed precludes parties and privies to deny its force by evidence of inferior solemnity.
    Estoppel by deed precludes competent parties to a valid sealed instrument and their privies to deny its force and effect'by any evidence of inferior solemnity, or allege title or right in derogation thereof, or deny truth of material fact asserted therein.
    2. Estoppel @=^31 — One in representative capacity, conveying property of estate, is estop-ped by deed from thereafter asserting interest owned by him individually.
    Where one in representative capacity undertakes-to convey land as property of estate he represents, he is by his deed estopped from thereafter asserting against his grantee and those in privity with him interest owned by him individually in the land; such rule being effective without regard to covenant of warranty in deed.
    3. Estoppel @=>31 — Guardian having demised interest in land as guardian was precluded from asserting against grantee and his assigns his individual life estate.
    Where plaintiff, as guardian, joined by adult children, demised and granted surface and mineral interest in land as if it were property of adults and estate of minors, reserving only royalty interest in oil produced, he was thereby precluded from asserting against grantee therein'and his assigns his individual life estate in the land and minerals.
    Appeal from District Court, Bexar County ; Robt. W. B. Terrell, Judge.
    Action by A. W. Surtees against A. W. Hobson and others. From a judgment for the defendants, plaintiff appeals.
    Affirmed.
    See* also, 297 S. W. 531.
    Wm. C. Church, Douglas N. Lawley, and Jas. V. Graves, all of San Antonio, for appellant.
    Clamp & Searcy, J. B. Lewright, and Thomson, Dilworth .& Marshhll, all of San Antonio, for appellees.
   HIGGINS, J.

Ethel Surtees owned as

her separate property 60½ acres of land in Bexar county. She died intestate, leaving as her heirs at law her husband, A. W. Surtees, appellant herein, and six children. January 31, 1921, appellant was" appointed and qualified as guardian of the persons and estate of five of the children; the other one having then reached majority. Prior to February 1, 1922, another of the children reached majority. February 8, 1922, in his capacity as guardian of the estate of the four minor children, and acting under order entered in the guardianship proceedings, appellant executed a mineral lease upon the land mentioned, whereby he granted, demised, leased, and let the same to A. W. Hobson for the purpose of mining and operating for oil, gas, and other minerals, laying pipe lines, building tanks, power stations, and structures to produce, save, and care for said products. The two children who had become of age joined in the lease. The lease contained this covenant, viz.: “Lessors warrant and agree to defend the title to the land as described."

The lease recites it was executed in consideration of $2,000 in cash paid to the lessors. It contained the usual one-eighth royalty clause in favor of the lessors.

W. T. Voorhees and Mrs. J. Lillian Hoh-weisner, by assignment from Hobson, acquired an undivided one-half interest in the lease.

Prior to the execution of the lease, no well had been drilled upon the land, but thereafter Hobson and his associates drilled eight wells thereon from which oil in paying quantities has been and is now being produced.

One-eighth of all oil produced has been paid to the lessors as stipulated. For the remaining seven-eighths of the oil, Hobson and associates have received the market value thereof, amounting to $62,311.56; the cost of producing and marketing the oil produced being $37,389.62.

This action was brought by A. W. Surtees in his individual capacity against Hobson and the latter’s assignees.

It was averred by the plaintiff that he and the defendants and the plaintiff’s children, naming them, were the joint owners of the land and mineral interests, describing the proportionate interest of all the parties named; the plaintiff asserting a life estate in one-third of the fee.

It was further averred the defendants had taken from the land, oil of the value of $47,-190.76, and converted same, to which plaintiff was entitled to one-third, and defendants had not accounted to him therefor; that defendants are continuing to withdraw oil and gas from the land and threaten to continue to do so and appropriate same, and will do so unless restrained or a receiver of the properties appointed. Judgment was sought for partition of the land, petroleum and gas rights therein, for an accounting of the proceeds of the oil and gas theretofore produced, and for his interest in said sum of $47,190.76, for injunction restraining defendants from appropriating plaintiff’s rights in the oil and gas, for the appointnient of a receiver, and for general relief.

The children of Ethel Surtees who had reached their majority, together with A. W. Surtees, as guardian for those children who remained minors, entered their appearance in the cause “as plaintiffs,” and adopted the pleading of A. W. Surtees, and prayed judgment for such relief as they were entitled to.

Judgment was rendered denying any relief to A. W. Surtees and said children, from which A. W. Surtees, individually, alone appeals.

From what has been said, it is apparent this appeal involves only the right of A. W. Surtees individually against Hobson and his assignees. What right, if any, Surtees has against the children, is not here in issue.

The agreed facts disclose that, prior to the acceptance of the lease Hobson was advised by his attorney that the title of the children was subject to a life estate in one-third of the land in favor of appellant. For this and other reasons it is asserted an estop-pel in pais has not arisen against appellant, nor has he waived his rights. The proper disposition of this action is not controlled by the law of waiver or the doctrine, of estoppel in pais. The doctrine of estoppel by deed is essentially different from an es-toppel in pais and founded upon a different theory. Corzine v. Williams, 85 Tex. 499, 22 S. W. 399. Estoppel by deed precludes the competent parties to a valid sealed instrument and their privies to deny its force and effect by any evidence of inferior solemnity. They cannot allege any title or right in derogation of the deed nor deny the truth of any material fact asserted in it. Bigelow on Estoppel (6th Ed.) 362 ; 21 C. J. 1066; Corzine v. Williams, supra.

Whatever may be the rule in other jurisdictions, if is settled in this state that, where one in a representative capacity undertakes to convey land as the property of the-estate which he represents, he is by his deed' estopped from thereafter asserting against his grantee and those in privity with the latter an interest owned by him individually in-the land. And this is true without regard to-a covenant of warranty contained in the deed.

In Millican v. McNeill, 102 Tex. 189, 114 S. W. 106, 21 L. R. A. (N. S.) 60, 132 Am. St. Rep. 863, 20 Ann. Cas. 74, an administrator under a void order of sale undertook to convey a lot with special warranty 'of title. In holding the administrator estopped to thereafter assert a life estate in the lot, Justice Williams said:

“We do not base our opinion upon the covenant of warranty in the administrator’s deed, finding it unnecessary to go to the extent of holding that such warranty hound McNeill personally, although there is authority for the proposition. Aven v. Beckon, 11 Ga. 1; note to Allen v. Sayward, 17 Am. Dec. 221 et seq. That question would become important if those holding under the deed were claiming a title acquired by McNeill after its execution. The principle controlling this case is that which estops the maker of a deed purporting to convey an estate of a particular kind from after-wards asserting that such an estate did not pass. McNeill owned the life estate when he made the deed in- question and had full power to convey it then. His deed undertakes to convey the lot itself and full title to it as the property of the estate, without méntion or reservation of any claim of his own. Although he assumes to convey as administrator, he assumes as well that the title is in the estate, and he should: not be heard afterwards to assert that any part of it was in himself.”

See, also, Corzine v. Williams, supra; Rutherford v. McGee (Tex. Civ. App.) 241 S. W. 629; Tomlinson v. Drought & Co. (Tex. Civ. App.) 127 S. W. 262; Ford v. Warner (Tex. Civ. App.) 176 S. W. 885; Moody v. Bonham (Tex. Civ. App.) 178 S. W. 1021.

In the present case appellant, as guardian,. joined by the two adult children, has-demised and granted unto Hobson certain surface rights and the mineral interest in the-land as if it were the property of the adults- and estate of the minors, reserving only in favor of the grantors a royalty of one-eighth-interest in the oil produced. Appellant is thereby precluded from asserting against Hobson and his assignees a life estate in the land and minerals.

This conclusion renders it unnecessary to consider the relief, if any, 'to which he might otherwise have been entitled as the life tenant, under the rulings in Swayne v. Lone Acre Oil Co., 98 Tex. 605, 86 S. W. 740, 69 L. R. A. 986, 8 Ann. Cas. 1117, and Whitaker v. Surtees (Tex. Civ. App.) 248 S. W. 432. For this reason there is no occasion to discuss the other propositions submitted by appellant.

Affirmed.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PELPHREY, C. J.

text:
    TOWN OF PLEASANTON v. VANCE.
    (No. 2121.)
    Court of Civil Appeals of Texas. El Paso.
    March 8, 1928.
    1. Municipal corporations ©=>978(9) — Town’s petition in suit to collect taxes held demurra-ble where alleged right was based on ordinance and legislative act, but ordinance made no levy and petition did not allege amounts due (Acts 40th Leg. [1927] o. 233).
    In town’s suit for collection of taxes, wherein plaintiff based its right on an ordinance of the city council and on a special act (Acts 40th Leg. [1927], c. 233, known as House Bill No. 644), petition Weld demurrable since ordinance made no levy and petition itself did not allege amounts claimed by town to be due.
    2. Taxation ©=>507 — Lien for taxes attaches only to land for taxes assessed against it.
    It is well settled that the lien for taxes attaches only to the land for taxes assessed against it.
    3. Taxation ©=>518 — Owner is entitled to pay taxes on separate tracts without paying on ail property assessed against him (Rev. St. 1925, art. 7174).
    Owner of land is entitled to pay taxes on separate tracts, valued separately, as provided by Rev. St. 1925, art. 7174, without paying on all the property that may be assessed against him. 1

    4. Taxation ©=>335 — Presumption is property owner performed duty and returned property as it appears on tax rolls (Rev. St. 1925, arts. 7152, 7193).
    In the absence of a contrary showing, it will be presumed that the owner of property performed the duty imposed upon him by Rev. St. 1925, art. 7152, and returned property as it appears on tax rolls, instead of assessor’s having rendered property for taxation as provided by article 7193.
    5. Municipal corporations ©=>978(9) — In tax collection suit, sustaining special exception to town’s petition because petition and schedules did not show amount of taxes claimed to be due on each separate lot held proper (Rev. St. 1925, art. 7174).
    In tax collection suit by town, court’s sustaining special exception to petition because petition and tax schedules failed to show amount of taxes claimed to be due on each separate tract or lot, valued separately, as provided by Rev. St. 1925, art. 7174, Weld proper.
    Error from District Court, Atascosa County ; John M. Green, Judge.
    Tax suit by the Town of Pleasanton against P. A. Vance. Judgment for defendant, dismissing the suit, and plaintiff brings error.
    Affirmed.
    See, also, 277 S. W. 89.
    W. M. Abernethy, of Pleasanton, and Dib-rell & Mosbeim, of Seguin, for plaintiff in error.
    Powell & Green, of San Antonio, for defendant in error.
   PELPHREY, C. J.

Plaintiff in error brought this suit in the district court of Atas-cosa county to recover delinquent taxes alleged to be due the town of Pleasanton by defendant in error for the years ,of 1918 to 1924, inclusive, amounting to $830.66. A general demurrer was sustained to the amended petition of plaintiff in error as to the years of 1918 to 1923, inclusive, but not as to 1924.

A special exception was urged by the defendant in error to the petition, and particularly as to the tax schedules, because the petition and schedules failed to show the amount of taxes claimed to be due on each separate tract or lot.

This exception was also sustained by the court, and, upon plaintiff in error refusing to amend, the suit was by the court dismissed.

From the action of the trial court in sustaining the general demurrer and special exception and the order of dismissal, the town of Pleasanton has brought the case to this court by a writ of error.

Opinion.

Plaintiff in error based its right to recover the taxes sued for on two theories: (1) That the taxes accrued by virtue of an ordinance of the city council of the town of Pleasanton, Tex., passed at the regular meeting held on the 7th day of December, 1925; or (2) that it was entitled to recover from defendant in error by virtue of a special act of the Fortieth Legislature (c. 233) of the state of Texas, known as House Bill No. 644.

The ordinance which plaintiff in error depends on reads as follows:

“Whereas,' this city council having been brought to a knowledge that its levy of taxes for the years 1917, 1918, 1919, and 1920 have been declared invalid by a decision of the proper courts of this state by reason of a failure on the part of the council to comply strictly with the requirements of the laws in such cases made and provided, and said levies are therefore not of such binding effect as to create the statutory lien upon lots and lands situated within the corporate limits of the town of Pleas-anton, and it further appearing to the council that, in levying taxes for the years 1921, 1922, 1923, the laws relating to the levy of taxes by cities and towns have not been strictly complied with, and that, therefore, the taxes so levied for said years are also invalid:
“Therefore, be it ordained by the city council of the town of Pleasanton, That the levies of taxes on real estate by the city council of the town of Pleasanton for the years 1917, 1918, 1919, 1920, 1921, 1922, and 1923, upon lots and lands situated within the corporate limits of said town, be and they are hereby canceled as to all taxes now remaining unpaid; and,
“Be it further ordained that ail city taxes heretofore fully paid in accordance with the levies, for said years 1917, 1918, 1919, 1920, 1921, 1922, and 1923, be and are hereby accepted by the city council in full payment and settlement of all claims for city taxes against the property for which said taxes were paid for said years or any of them; -and
“Be it further ordained by the council that W. M. Abernathy be and he is hereby authorized, • empowered', and directed to make a list in triplicate showing a complete description of aE real estate situated within the corporate limits of the’ town of Pleasanton, subject to taxation, upon which the taxes for the years 1917, 1918, 1919, 1920, 1921,1922, and 1923 remain unpaid, and present such list to this city councE for its inspection and approval.”

As we view the above ordinance, it.neither makes nor attempts to make any levy upon the property involved in this suit. It merely attempts' to cancel the invalid levies theretofore made, and does not even attempt to fix any rate of taxation on the property upon which taxes at that time remained unpaid. There being no levy made, the peti-tion, in so far as it alleges a cause of action by virtue of such ordinance, is subject to a general demurrer, and the court's action in sustaining the demurrer to that part of the petition was correct.

Plaintiff in error sets out in its petition the special act of the Fortieth Legislature, but nowhere in its petition alleges the amount or amounts due it under the invalid assessments which the Legislature by the act referred to attempts to validate. ■

If plaintiff in error expects to recover upon the invalid levies previously made and subsequently validated by the Legislature, the amounts due under such invalid levies would necessarily need to be alleged and proved.

The schedules incorporated in the petition are aEeged to have accrued by virtue of the ordinance above quoted, and there is nothing in the petition to show either what the levies • were for the years referred to or the amounts due and unpaid therefor. We are, therefore, of the opinion that the action of the court was correct in sustaining the general demurrer to the petition in so far as the taxes for the years of 1917, 1918, 1919, 1920, 1921, 1922, and 1923 are concerned.

The following ordinance was also alleged to have been enacted relative to the taxes for the year 1924;

“Be it ordained by the city councE of the ■town of Pleasanton, Tex., That the following rates of taxes be, and the same are hereby levied for city purposes for the year 1924 upon aE property situated within the limits of the town of Pleasanton and subject to taxation under the Constitution and laws of the state of Texas, viz.:
“For general fund, 15 cents on the $100 valuation.
“For waterworks fund, 25 cents on the $100 valuation.
“For refunding warrants sinking fund, 20 cents on the $100 valuation.
“For street and bridge fund, 15 cents on the $100 valuation.
“Be it further ordained that poE tax of $1 be and the same is hereby levied upon all persons residing within the corporate Emits of the town who are 21 years of age and not over 60 years of age, and who are liable to payment of a poll tax under the laws and Constitution of the state of Texas.”

Plaintiff in error alleges that the taxes set out in the schedule for the year 1924, accrued by virtue of the above ordinance which was passed by the council on the 11th day of July, 1924.

Defendant in error leveled the following special exception at the petition of plaintiff in error, and particularly at the part thereof referred to as the “schedules,” pages 2 to 8:

“XV. Defendant specially excepts to plaintiff’s first amended original petition herein, and particularly to that part thereof referred to as the ‘schedules,’ pages 2 to 8, because the valuations placed upon the several separate and distinct parcels and lots of defendant’s land for purposes of taxation by the town of Pleasanton are nowhere shown therein, and because different and distinct lots, having different and distinct values, are grouped together in said schedules and a total amount of taxes claimed thereon is set opposite said group, making it impossible for this defendant to determine upon what basis of valuation, as to each separate and distinct tract or lot of -land, ’the plaintiff is claiming the taxes asserted to be due it; because said petition, and especially said schedules, wholly fail to inform this defendant what part of said taxes is claimed to be due. upon each of said tracts and lots, and because this defendant is unable to determine from'said petition, and especially from said schedules, upon which of said lots or tracts an excessive and arbitrary valuation has been placed by the assessor of the town of Pleasanton, or if said valuation was made by the board of equaHzation in abuse of the discretion of said aEeged board, although this defendant knows that the total amount of taxes is out of aE proportion to the reasonable value of said property, and that some, if not all, of said lots have been assessed at an arbitrary, excessive, discriminatory, and confiscatory valuation.”

The exception was sustained by the court, and its action in so doing is made the basis of several of the assignments of plaintiff in error. While it is true that the law makes it the duty of the owner to render his property for taxation (article 7152, Revised Statutes 1925), it is also the duty of the assessor to render it in cases where the owner fails from any cause to do so. Article 7193, Revised Statutes 1925.

It is well settled that the lien for taxes attaches only to the land for taxes assessed against it, and that an owner is entitled to pay taxes on the separate tracts without paying on all the property that may be assessed against him. Richey v. Moor, 112 Tex. 493, 249 S. W. 172.

It seems also to be well settled that, in the absence of a showing to the contrary, it will be presumed that the owner of property performed the duty imposed upon him by the statute and returned the property as it appears on the tax rolls.

In the ease before us, we find the following allegation relative to . the rendering of the property as shown by the schedules:

“(8) That the legal officers of said town duly and legally levied, reassessed, valued, rendered, and reported the above-described property of defendant for the respective amounts of taxes, interest, penalties, and costs for the respective years as in said schedules set out and itemized'; that said property was listed, inventoried, and rendered and taxes were reassessed upon said listing, inventoried, and rendered for the respective amounts as shown and itemized in said schedules, and that the said taxes accrued and became due for the respective years as in said schedules shown.”

The schedules referred to show that the several lots were not valued separately as required by article 7174 Revised Statutes 1925, and the petition shows that the property was rendered by the officers of the town.

This being true, the petition was subject to the objection made, and the court was correct in sustaining the exception and, upon the refusal of plaintiff in error to amend, correctly dismissed the suit.

This disposes of the questions raised, and the judgment of the trial court is in all things affirmed.

Affirmed.
      <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes