author: ALEXANDER, J.

text:
    WEBB v. BERGIN.
    No. 1022.
    Court of Civil Appeals of Texas. Waco.
    April 30, 1931.
    Rehearing Denied May 28, 1931.
    Taylor, Atkinson & Parmer, of Waco, and Crate Dalton, of Dallas, for appellant.
    Spell, Ñaman & Howell, of Waco, for appel-lee.
   ALEXANDER, J.

This was a suit originally instituted in the district court of Dallas county by Edward G. Bergin, as landlord, against H. B. Webb, as tenant, to recover certain rents alleged to be due by the tenant to the landlord for the use of a certain store building located in the city of Dallas, and to foreclose the landlord’s lien on certain fixtures that had been removed from the building by the tenant. The plaintiff later amended his petition making J. A. Webb a party defendant on the ground that he was claiming some interest in the fixtures. The case was removed to the district court of McLennan county on a plea of privilege. J. A. Webb held a prior mortgage on a part of the fixtures to secure the payment of .a note executed by H. B. Webb to him in the sum of $7,500, and asserted a claim against all of ' the’ fixtures under an agreement by which he claimed to have purchased the fixtures from H. B. Webb in cancellation of the $7,500 note and without notice of plaintiff’s lien. The trial court, on the verdict of a jury, rendered judgment for plaintiff against H. B. Webb for his debt in the sum of $1,000, and against both defendants foreclosing the landlord’s lien on all of the fixtures, except that part covered by the mortgage given to J. A. Webb to secure the payment of the $7,500 note. J. A. Webb appeals'.

On October 31,1028, the tenant, without the consent of the landlord, removed the fixtures from the building and carried them to McLen-nan county, and, on November 1st, sold them to J. A. Webb in cancellation of his note. On the same day and before the filing of this suit in the district court to foreclose the lien, the landlord filed in the justice court in Dallas county proper affidavit and bond and secured the issuance of a distress warrant. The warrant was levied on the property in the possession of J. A. Webb in McLennan county on the same day. Upon a trial of the case now before the court, H. B. Webb, the tenant, and J. A-. Webb each filed pleas in abatement seeking to abate this suit on three grounds, as follows: (a) The justice court in Dallas had no authority to issue the distress warrant because the property, at the time of the issuance of the writ, was located in McLennan county; (b) the distress warrant was issued after the property was removed from the leased building ; (c) at the time the distress warrant was sued out, the plaintiff had not filed a petition asking for foreclosure of his landlord’s lien.

Revised Statutes, article 5239, provides in part as follows: “When any rent shall become due, or the tenant about to remove from such leased or rented buildings, or remove his property therefrom, it shall be lawful for the person to whom the rent is payable, his agent, attorney or assignee, to apply to a justice of the peace of the precinct where the building is situated for a distress warrant, which shall be issued on an affidavit and bond. * * * ” The leased building in this case was located in Dallas county, and, by the very wording of the statute, the justice of the peace in that county had the right to issue the distress warrant, regardless of where the property was located. As to the right to have the distress warrant issue after the fixtures had been removed from the leased building, the statute provides that it may issue when the debt becomes due or the tenant is about to remove from the leased or rented building or remove his property therefrom. This fixes the time when the right first accrues, but it does not require that the right be exercised the very moment it accrues. It may be exercised at any time before the lien is lost'. Under Revised Statutes, article 5238, the lien continues -so long as the tenant occupies the leased premises and for one month' thereafter. If it were necessary that the distress warrant issue before the fixtures were removed from the-building in order to preserve the lien, the thirty days provided for in the statute would be worthless. It was not necessary that the distress warrant be sued out before the fixtures were removed from the building. Neither was it necessary that the petition asking -for a foreclosure of the landlord’s lien be filed before the distress warrant was issued. The purpose of Revised Statutes, article 5239, in authorizing the issuance of the distress warrant was to provide a speedy and effective remedy by which the property could be distrained and preserved until proper proceedings could be instituted and prosecuted to effect foreclosing the lien.

Moreover, and as a complete answer to all of the above propositions, the landlord’s lien was created by the statute and existed independent of the distress warrant. If in fact the distress warrant was issued without authority, or if it was in any wise defective, the landlord nevertheless had the right to foreclose his lien by the filing of the petition in the regular way. Brown v. Collins, 77 Tex. 159, 14 S. W. 173; Templeman v. Gresham, 61 Tex. 50; Newman v. Ward (Tex. Civ. App.) 46 S. W. 868; Polk v. King, 19 Tex. Civ. App. 666, 48 S. W. 601; Crutcher v. Wolfe (Tex. Civ. App.) 269 S. W. 841; Bourcier v. Edmondson, 58 Tex. 675.

The appellee, Bergin, sued the tenant. I-I. B. Webb, within thirty days after the fixtures were removed from the leased premises and prayed for a foreclosure of his land; lord’s lien. The appellant, J. A. Webb, however, was not made a party defendant until more than ten months after the fixtures had been so removed. It is appellant’s contention that, since he was not made a party to the suit within thirty days after the removal of the fixtures from the leased premises, the landlord lost his lien. The filing of the suit by the landlord against the tenant within the-thirty-day period was sufficient to preserve the lien as to the tenant. Appellant, having purchased the property from the tenant within the thirty-day period, took the same with notice of the claim of the landlord, and the landlord, upon discovering that the appellant was claiming-an interest in the property, had the right to make the appellant a party to the suit at any time before the landlord’s claim against. him was barred by the two years’ statute of limitation. York v. Carlisle, 19 Tex. Civ. App. 269, 46 S. W. 257; Ingraham v. Rich (Tex. Civ. App.) 136 S. W. 549; American Cotton Co. v Phillips, 31 Tex. Civ. App. 79, 71 S. W. 320; Mensing Bros. & Co. v. Cardwell, 33 Tex. Civ. App. 16, 75 S. W. 347; Zapp v. Johnson, 87 Tex. 641, 30 S. W. 861; Frith v. Wright (Tex. Civ. App.) 173 S. W. 453, 456.

The appellant claims that the trial court was without jurisdiction to foreclose the lien as to him, because befofe being made a party to this suit he had filed claimant's oath and bond for the trial of right of property and thereby withdrawn the property from the jurisdiction of the court in this case. As heretofore stated, the appellee, Bergin, filed affidavit find bond in the justice court at Dallas, sued out a distress warrant, and had same levied on the property in question. J. A. Webb, in whose possession the property was found, delivered to the sheriff levying the writ a claimant’s oath and bond for the trial of right of property, and secured a return of the property. The sheriff returned the claimant’s oath and bond to the district court of McLennan county. The plaintiff, in his petition in the ease at bar, thereafter made J. A. Webb a party defendant, and set up the issuance and levy of the distress warrant and the filing of the claimant’s oath and bond for the trial of the right of property. There was nothing to show that the trial of right of property suit growing out of the filing of the claimant’s oath and bond had been disposed of at the time this suit was tried. It was apparent from the face of plaintiff’s petition that J. A. Webb had acquired possession of the property by the filing of the oath and bond, ¿nd that the issues involved in that controversy - were still pending. It is appellant’s contention that, when he filed the statutory oath and bond and took possession of the property on which the foreclosure was sought under the provisions of Revised Statutes, articles 7402 to 7425, the court lost jurisdiction in the foreclosure suit over the property and was thereafter without power to enter judgment, as it did, foreclosing the lien.

In the case of Harris v. Wise (Tex. Civ. App.) 191 S. W. 588, the plaintiff sued J. L. Wise in the justice court in Kaufman county for debt and to foreclose a chattel mortgage lien, and had a writ of sequestration issued and levied on the mortgaged property. Kate Wise, wife of J. L. Wise, filed claimant’s oath and bond and secured possession of the property. The oath and bond were returned to the county court of Henderson. Plaintiff amended, making Kate Wise a party to the foreclosure suit in Kaufman county. Kate Wise failed to appear and answer the suit, and plaintiff took judgment for his debt against J. L. Wise and foreclosure of hjs lien against J. L. and Kate Wise. Kate Wise filed petition in the trial of right of property suit pending in Henderson county, and secured an injunction restraining a sale of the property under the order of sale issued out'of the justice court in Kaufman county. On an appeal of that case, the court held that, when Kate Wise delivered to the sheriff her claimant’s oath and bond, and these papers were filed in the county court o"f Henderson county, this ipso facto transferred the custody of the property to the county court of Henderson and all other courts lost jurisdiction over the same, and the judgment thereafter rendered by the justice court in Kaufman county foreclosing the lien on the property was void on its face and subject to collateral attack. The holding in this case was approved in the case of Sewell v. Pierce (Tex. Civ. App.) 244 S. W. 1034, par. 3.

In the case of Stewart v. Howell Co. (Tex. Civ. App.) 264 S. W. 208, 210 (writ of error refused) Stewart sued J. G. Brinkman in the Fourteenth district court of Dallas county for debt, and sued out a writ of attachment and had same levied on certain stock in Howell Company standing in the name of the defendant. Mrs. Pauline Brinkman, wife of defendant, delivered to the sheriff, levying the writ, claimant’s oath and bond, which papers were filed in the Sixty-Eighth district court of Dallas county. Later the plaintiff sued put a writ of garnishment in the Fourteenth district court and had the same served on Howell Company. On an appeal of the garnishment case the court held that, upon the filing of the claimant’s oath and bond in the Sixty-' Eighth district court, that court immediately acquired jurisdiction to'the exclusion of all other courts to hear and determine to final adjudication all questions concerning ownership of the stock claimed by Mrs. Brinkman on the one hand, and asserted by the plaintiff on the other by virtue of the levy of the writ of attachment. The court further said: “If said court [meaning the 14th District Court], by its judgment, had foreclosed the attachment lien created by the levy of its writ of attachment on said stock, and ordered the sale of same to have been made, such judgment and proceedings thereunder would have been void ab initio.”

Since it was apparent from the face of the plaintiff’s petition that J. A. Webb, before he was made a party to the foreclosure suit, had delivered the claimant’s oath and bond and acquired the possession of the property, and had thereby instituted trial of right of property proceedings for the custody of the property in another suit in the district court of' McLennan county, under the holding of the' above authorities, the trial court was without authority to enter a judgment in the foreclosure suit, being a different suit in the same court, foreclosing the plaintiff’s lien against J. A. Webb, until the trial of right of property suit was disposed of.

The judgment of the trial court in favor of the appellee, Bergin, against H. B. Webb for his debt, and foreclosure of his lien against H. B. Webb on the property in question, is affirmed. The judgment in favor of Bergin foreclosing the lien as against J. A. Webb is reversed, and the cause is remanded to the trial court, with instructions to dismiss the suit against J. A. Webb, without prejudice, however, to Bei’gin’s right to assert his claim in the trial of the right of property suit.


source: Caselaw Access Project

author: PEBPHRET, C. J.

license: Public Domain

text:
    ATLAS SUPPLY CO. v. HARDIE.
    No. 2537.
    Court of Civil Appeals of Texas. El Paso.
    May 14, 1931.
    L. B. Otey and McGown & McGown, all of Fort Worth, for appellant.
    Baskin, Eastus & Greines, of Fort Worth, for appellee.
   PEBPHRET, C. J.

Atlas Supply Company, an Oklahoma corporation, with a permit to do business in Texas, sued Joe Hardie for a balance of $6,206.51, alleged to be due on an account for goods, wares, and merchandise delivered by it to him and used in the Gale Apartments in the city of Fort Worth, Tex.

Appellant alleged that on or about March 2, 1925, down to and including November 14, L928, it delivered to appellee goods, wares, ■ and merchandise in the total amount of $27,-999.41; that of said amount $21,782.90 had been paid, which payments had been credited to the oldest items of the account, there being no request to credit tliem on any particular portion of the account; that a balance of $6,206.51 remained which appellee refused to pay; that appellee, on or about November 30, 1927, for a valuable consideration, in writing, acknowledged the correctness of the account and agreed to pay it. The account was itemized and sworn to by W. L. Black, as the authorized agent of appellant.

Appellee answered by general demurrer, special exception, a general denial, a plea of the two-year statute of limitations, except as to the latter items amounting to the sum of $217.30; that appellant had agreed that ap-pellee should assign to it a certain mechanic’s lien note in the approximate sum of $9,100, which had been executed to appellee for the labor, materials, and supplies furnished by. him, and had accepted said note in full payment and as security for the supplies furnished him; that appellant had agreed to look solely to such note for the payment of sums due and to become due, and that any excess or difference between the amount of said note and the supplies so furnished by appellant was to be paid to appellee in payment of the labor and material furnished by him; that appellant negligently and carelessly handled the collection of thenote, and, without his knowledge or consent, accepted a sum much less than the amount for which the note was given; and that by reason thereof appellee did not receive payment for the labor and material furnished by him, to his damage in the sum of $3,500.

Appellant, by supplemental petition, demurred to the answer, generally denied the allegations thereof, and specially denied accepting the $9,100 note in payment for the supplies furnished by it. ’ It admitted the acceptance of the note and alleged that it placed same in the hands of its attorneys for collection, but denied that the collection was handled negligently and carelessly or that the collection was handled without the knowledge or consent of appellee. It further alleged that appellee had other lien claims against the Gale Apartments for $650 and $1,890, respectively, which were also deposited with appellant as collateral and as security for its account ; that the three amounts were collected by appellant in a suit pending in the district court of Tarrant county; that the property was sold by a receiver, but on account of the vast number of lien claimants it received out of the sale only $6,000, which it applied on the indebtedness of appellee; that the account sued on only showing an application of $5,-250, appellant tenders $750 additional to be applied on appellee’s account; that appellant in the collection of the mechanic’s lien note and contracts acted diligently, and, in view of the involved status of the Gale'Apartments and the many conflicting lien claims, procured a good settlement; and that appellee authorized appellant to use its own discretion and judgment in the settlement thereof.

The cause was submitted to a jury as follows:

“Question No. One: Do you find that the defendant, Joe Hardie, is indebted to the plaintiff, Atlas Supply Company,, for any or all of the items set forth in their account filed herein ?
“Question No. Two: If you have answered the above question in the negative, you need not answer this question, but if you have answered same in the affirmative, then answer: In what amount do you find that the defendant, Joe Hardie is indebted to the plaintiff, Atlas Supply Company, for the items. set forth in their acount filed herein? Answer in dollars and cents.”

Upon the jury having answered the first question in the negative, and appellee having withdrawn Ms cross-action, the court rendered judgment that appellant take nothing and that appellee take nothing on his cross-action.

Opinion.

Appellant’s eight assignments of error question the sufficiency of the law and evidence to support the verdict and judgment and question the action of the trial court in refusing its requests for instructed verdicts in its favor on its cause of action and upon appellee’s cross-action.

The reasons given by appellant in support of the above assignments as set forth in its three propositions are: (1) That appellant having sued upon an open account, verified by its agent to be just and true, the introduction thereof is prima facie evidence thereof, and appellee not having denied that same was just and true, in accordance with article 3736, Revised Statutes 1925, appellant was entitled to an instructed verdict; (2) that appellee not having denied the account under oath, but havipg pleaded a cross-action for negligence in handling of the securities, which cross-action- he withdraws in open court, there remains no controverted issue of fact to be submitted to a jury, and the court should have instructed a verdict for appellant; and (3) that the suit being on a verified account and not denied under oath by appellee, and ap-pellee having testified that he had gone over the account and did not know what part he owed and what part he did not, there was no issue to submit to the jury.

We cannot agree with these contentions.

Appellee pleaded as follows: “Said defendant further alleges that it was agreed by and between plaintiff and defendant that the defendant would assign to plaintiff a certain mechanic’s lien note in the approximate sum of $9100.00, which had been executed to the defendant for said labor, materials and supplies to be furnished, and which was secured by a mechanic’s lien on the lot and improvements upon which said work was being done and that the said plaintiff thereupon accepted said note in full payment and as security for the supplies to be furnished by said plaintiff and agreed with this defendant to look solely to said note and the proceeds thereof for the payment of the sums due and to become due for said supplies so furnished and to be furnished.”

Appellant specially denied that it had so accepted the note.

Nor do we think the withdrawal by appellee of his cross-action in any way affected his right to be heard on the above plea. It seems to be well settled that the filing of a verified account does not preclude the defendant to deny his liability, and that it does not preclude him from proving that the account has been paid in whole or in part, or from asserting a counterclaim against the same. American Druggists’ Syndicate v. Holt Drug Go. (Tex. Civ. App.) 272 S. W. 508, and authorities there cited.

It is clearly apparent that appellee, by his answer, was contending that he was not liable because appellant had accepted the mechanic’s lien note iñ full payment for the supplies furnished, and it appears from appellee’s testimony that the supplies furnished went into the Gale Apartments, the one upon which the note was given to appellee.

If that be true, then appellee would not be liable, regardless of the fact of the correctness of each item on the account sued on.

We have therefore concluded that appellant was not entitled to an instructed verdict, and the judgment of the trial court is accordingly affirmed.


author: GALLAGHER, C. J.

text:
    TEAGUE SEWER CO. v. BENBROOK et al.
    No. 1055.
    Court of Civil Appeals of Texas. Waco.
    May 14, 1931.
    C. H. Machen, of Mexia, and L. W. Shep-perd, of Groesbeck, for plaintiff in error.
    Williford & WiXiford, of Fairfield, and A. B. & W. V. Geppert, of Teague, for defendants in error.
   GALLAGHER, C. J.

Tlie parties hereto will be designated as in the trial court. The defendant, Teague Sewer Company, owns and operates a sewer system in the city of Teague, and in connection therewith maintains and operates a septic tank, into which the raw sewage is deposited and frbm which the liquid portion thereof is discharged into a creek. Plaintiffs A. H. Benbrook and nine others own and occupy homes in the neighborhood of said septic tank. They instituted this suit, charging, in substance, that partially decomposed sewage was., permitted to escape from said tank into said creek and to settle and remain in stagnant pools therein; that foul and noxious odors escaped from said tank and arose from such stagnant pools, and reached and entered the homes of the several plaintiffs; that great swarms of mosquitoes bred in said creek and in said pools therein and reached and entered the homes of the several plaintiffs ; that said septic tank and the outflow therefrom were so maintained and operated as to constitute both septic tank and the creek into which tbe outflow therefrom was discharged a nuisance, which could be, and ought to be, abated. Plaintiffs alleged that they had been damaged in the value of the use of their respective homes, and prayed for recovery therefor and for a mandatory injunction requiring the defendant to abate such nuisance.

The case was submitted on special issues, in response to which the jury found, in substance: (1) That foul and noxious odors emanated' from defendant’s septic tank and the contents thereof flowing into the creek; (2) that mosquitoes bred in said creek in the outflow from said tank; (3) that the operation and manner of maintenance of said tank was the proximate cause of the breeding of said mosquitoes; (4) that such foul and noxious odors reached the premises of each of the pláintí'ffs in such manner as to cause each of them to suffer damage in the decreased value of the use of his property; (5) that mosquitoes which bred in the creek from the outflow from said tank reached the premises of each of the plaintiffs in such manner as to cause each-of them to suffer damage in the decreased value of - the use of his property. The court charged the jury not to assess against defendant damages, if any, occasioned by the decreased value of the use by plaintiffs of their respective properties resulting from any contributing causes, but to assess only such damages, if any, as were occasioned by, and resulted from, the maintenance and operation of said septic tank. The court then submitted ten separate issues, in response to which the jury found the amount of the decreased value of the use of the respective properties of each of the plaintiffs. The court entered a judgment in favor of each of the plaintiffs for the respective amounts so found by the jury. The court further ordered the defendant to abate said nuisance and to keep the same permanently abated. Defendant thereupon sued out a writ of error to this court.

Opinion.

Defendant presents as ground for reversal a proposition in which it contends that the trial court permitted plaintiffs’ counsel to violate the provisions of the rules prescribed for the presentation of argument in the trial of cases. The bill of exceptions upon which said proposition is predicated shows that the court submitted the case to the jury on fifteen special' issues, and allowed each side one hour and thirty minutes for argument before the jury; that one of plaintiffs’ attorneys opened the argument for them; that such argument covered a period of twenty minutes only; that during such argument “he did not discuss any of the special issues submitted by the court and did not undertake to discuss any issue in the' case and did not even refer to any of the issues submitted . by the court in his charge to the jury.” Said bill further shows that, immediately upon the closing of such argument, defendant in open court objected thereto, for the reason that the same did not fully open the case so that defendant’s attorneys could properly reply thereto ; that defendant in that connection moved the court to require plaintiffs to present whatever argument they desired to make on the several special issues submitted to the jury in order that its attorneys might have opportunity to reply thereto.

Said bill further shows that the court overruled said objection and refused to require plaintiffs’ attorney to fully open the ease; that defendant then through its attorneys presented its argument to the jury; that plaintiffs’ attorney then made the closing argument, covering a period of approximately one hour .and ten minutes, in which closing argument he discussed all of said special issues, none of which had been discussed in the opening argument. Plaintiffs in their brief question the accuracy of said bill, but we are bound by its terms. St. Louis, A. & T. Ry. Oo. v. Whitaker, 68 Tex. 630,' 634, 5 S. W. 44S; Wade v. Galveston, H. &' S. A. Ry. Go. (Tex. 'Civ. App.) 110 S. W. 84, 90 (writ refused). Rule 36 for the government of trial courts provides: “In all arguments, and especially in arguments on the trial of the case, the counsel opening shall present his whole case as he relies on it, both of law and facts, and shall be heard in the concluding argument only in reply to the counsel on the other side.” The bill of exceptions clearly shows a violation of the provisions of such rule. This precise issue was before the Court of Civil Appeals for the Eleventh District in the case of Bender v. Mettler, 17 S.W.(2d) 182, 184, and the court held the right guaranteed by such rule a valuable one to a litigant, and that injury from its violation would be presumed. This error requires a reversal of the judgment

Other propositions presented by defendant' complain of matters which will not necessarily arise in the same way, if at all, upon another trial.

The judgment of the trial court is reversed, and the cause is remanded.


text:
    GRUBB v. ANDERSON.
    No. 1061.
    Court of Civil Appeals of Texas. Waco.
    April 30, 1931.
    Rehearing Denied May 28, 1931.
    Oxford & McMillan, of Stephenville, for appellant.
    S. R. Allen, of Hamilton, for appellee.
   ALEXANDER, J.

This was an application by Gertrude Anderson for the probate of the alleged last will and testament of -Mrs. Abbie Grubb, deceased. The probate court of Hamilton county admitted the will to probate, and, upon an appeal to the district court of Hamilton county in a trial before the court without a jury, a like order was entered. Sam M. Grubb appeals.

The will was as follows:

“Hico, April 10th-, 1917.
“I, Mrs. Abbie Grubb, wife of M. W. M.' Grubb, mother of Sam M. Grubb, do testify that I let Sam M. Grubb have $100. One Hundred Dollars in cash out of the money belonging to the Heirs of Mrs. Sallie E. Anderson, which is at the present time unpaid, except six Dollars interest been paid, and further more my desire that this note shall be. paid out of my estate at my death to the Anderson heirs. Mrs. Abbie Grubb.
“W. M. Grubb “Witness
“Miss Mable Grubb “Witness and Gor.”

The appellant contends that the instrument offered for probate is not a will, but is a contract to pay a debt. In order for an instrument to be a will, it is sufficient if it is to be effective only at the death of the testator and is revocable during the testator’s life. 40 Cyc. 1084; De Bajligethy v. Johnson, 23 Tex. Civ. App. 272, 56 S. W. 95; Belgarde v. Carter (Tex. Civ. App.) 146 S. W. 964 ; 28 R. C. L. 60; Harris v. Harris (Tex. Civ. App.) 276 S. W. 964, par. 3. The mere fact that the instrument recites a reason or an apparent consideration for the making thereof does not destroy its effect as a will if it is in fact intended as such. 40 Cyc. 1079; Ainsworth v. Briggs, 49 Tex. Civ. App. 344, 108 S. W. 753; Williams v. Claunch, 44 Tex. Civ. App. 25, 97 S. W. 111. The courts in determining the intent of the testator will look to the language used in the purported will, his situation at the time of the making thereof, as well as his conduct wtih reference thereto thereafter. Low v. Low (Tex. Civ. App.) 172 S. W. 590; Darragh v. Barmore (Tex. Com. App.) 242 S. W. 714, 715, par. 5; Plsek v. Kostroun (Tex. Civ. App.) 6 S.W.(2d) 813, par. 2; Id. (Tex. Com. App.) 15 S.W.(2d) 220, par. 6; Page v. Barnes (Tex. Civ. App.) 258 S. W. 264. The instrument offered for probate does not appear to have been delivered to the Anderson heirs as a contract. The recitation of the fact that the testatrix had used funds belonging, to the beneficiaries in making a loan to her son, the natural heir of her estate, and that such funds had not "been repaid by the son, was but the expression of the reason for the making of what otherwise would have appeared to have been an unnatural will. The instrument was to become effective only at the death of the maker and was at all times subject to her control and was therefore revocable.

The appellant also contends that the instrument does not attemp't to make any disposition of the property of the deceased, and, moreover, it does not sufficiently designate the amount of the property, if any, so disposed of. We think the will undertook to bequeath to the devisees so much of the property of the testatrix as was necessary to pay the debt evidenced by the note executed by her son for the money so advanced to him out of the funds belonging to the devisees. It was not necessary that the will, by its own terms, fix the exact amount of the bequest. It was permissible to refer to the note for the data to be used in calculating the amount. Adams v. Maris (Tex. Com. App.) 213 S. W. 622 ; Allday v. Cage (Tex. Civ. App.) 148- S. W. 838; In re Bresler’s Estate, 155 Mich. 567, 119 N. W. 1104. The amount of the bequest was capable of being made certain by the use of the means referred to in the will.

It is true that the will did not definitely describe the note that was to be paid. The court permitted the introduction of oral testimony for the purpose of clarifying this issue. It appears that in 1908 Mrs. Sallie Anderson, who was a daughter of the testatrix, was in the insane asylum. Her children, who were minors, owned some funds that were being handled by the testatrix and her husband, W. M. Grubb. They loaned their son, Sam M. Grubb, $100 of the money belonging to the Anderson minors and took his note for that amount payable to “W. M. Grubb for heirs of Mrs. Sallie Anderson.” This note was never paid. It was attached to the will. There was evidence that this was the only note ever executed by Sam M. Grubb to his father or mother. We think this evidence makes it clear as to what note was referred to as the one that was to be paid out of the testatrix’ estate. We also think this testimony was admissible for the purpose of showing such intent by the testatrix. It is true that parol testimony is not admissible to contradict the terms of a will nor to show an intention evidenced by other language not used therein, yet extrinsic evidence is admissible to show the situation of the testator in relation to persons and things around him in order that his will may be read in the light of the circumstances in which he was placed at the time of making it. The law admits such testimony to enable the court to discover the meaning attached by the testator to the words used in the will, and for this purpose every material fact that will enable the court to identify the person or things mentioned in the instrument is admissible in order to place the court in the situation of the testator when he used the words in the will. Cleveland v. Cleveland, 89 Tex. 451, 35 S. W. 145, at page 147; Hawes v. Foote, 64 Tex. 22; Lenz v. Sens, 27 Tex. Civ. App. 442, 66 S. W. 110, 111; Hunt v. White, 24 Tex. 652; Lightfoot v. Poindexter (Tex. Civ. App.) 199 S. W. 1152, par. 6 (writ ref.).

The appellant also contends that the will does not sufficiently identify the beneficiaries therein. We think the terms of the will make it clear that it was the heirs of Mrs. Sallie Anderson who were intended as the beneficiaries. If we are mistaken in this, the parol testimony removes all doubt. Lightfoot v. Poindexter (Tex. Civ. App.) 199 S. W. 1152, par. 6 (writ of error ref.). The statute of descent and distribution may be resorted to for the purpose of determining who were such heirs. Dunihue v. Hurd, 50 Tex. Civ. App. 360, 109 S. W. 1145 (writ ref.); Craig v. McFadden (Tex. Civ. App.) 191 S. W. 203, par. 1 (writ ref.); 28 R. C. L. pp. 247, 273.

Binding no error, the judgment of the trial court is affirmed.


author: HALL, O. J.

text:
    CLAY et al. v. RICHARDSON.
    No. 3580.
    Court of Civil Appeals of Texas. Amarillo.
    April 8, 1931.
    Rehearing Denied May 27, 1931.
    F. W. Fischer and Bonner, Bonner & Chil-dress, all of Wichita Falls, and W. L. Scott, of Graham, for appellants.
    Taylor, Muse & Taylor, of' Wichita Falls, and L. C. Counts, of Olney, for appellee.
   HALL, O. J.

This action grows out of the sale by Clay to John Richardson of a moving picture business operated in Olney, Tex., by Clay and one B. T. Sanders; the contract of sale providing that the vendors nor either of them would enter into or engage- in the moving picture business in the town of Olney. Clay owned a town lot in Olney, upon which he later built and fully equipped a moving picture theater and was operating it through one L. K. Bray. Richardson brought suit, enjoining the operation of the competing show, and upon appeal the Fort Worth Court of Civil Appeals affirmed the judgment. See 290 S. W. 235, for a more detailed statement of the issues involved and the disposition thereof.

After the rendition of the judgment of the trial court enjoining the operation of the competing show, Clay and Bray, by permission of the trial judge, entered into a bond in the sum of $2,000, conditioned that they would prosecute their appeal with effect and would pay all damages which Richardson might suffer pending the appeal, and were permitted, upon the filing of said bond, to have the injunction suspended pending the appeal. Upon affirmance of the injunction judgment, Richardson sued Clay, Bray, and the sureties on that bond to recover as dam-áges the profits which he alleges he lost pending the appeal because of the operation by Clay of the competing show. In that action he recovered a judgment for $3,150 against the principals -in the bond and for $2,000 against the sureties, less $120 which the latter had paid as costs in the former suit. This ease also found its way hy appeal to the Port Worth Court of Civil Appeals, and the judgment was reversed and remanded because of the admission and exclusion of certain testimony, and the Supreme Court refused a writ of error. See 9 S.W.(2d) 413.

Because the statements of the nature of the transaction and of the issues involved are full and clear as set out in the published reports referred to, it will not be necessary for us to make an extended statement here.

The judgment from which this appeal is prosecuted was in favor of Richardson, but for a less amount than was recovered against the principals in the bond upon the former appeal.

By the first five propositions -the appellants contend that the petition was insufficient as against a general demurrer. That it shows to be a suit in the nature of a contempt proceeding for the violation of the injunction and is insufficient to recover in such an action, and that the bond given to suspend the perpetual injunction is not authorized by law, and the violation of its terms can form no basis for this action, and the damages claimed, being purely speculative, hypothetical, and remote, were not recoverable. It being further contended that the judgment against the sureties on the bond is not sus-4 tained by the pleading,. because the petition fails to allege any violation of the terms of the bond by the sureties who were bound by its terms to pay only the amount of costs incident to the first' appeal, which sums they have already paid.

As we understand the decision in 9 S.W. (2d) 413, these matters have all been definitely settled by the opinion of the Fort Worth court, and, even if we were authorized to hold differently, we would not do so because we approve the decisions with reference to such matters.'

By the sixth to tenth propositions appellants contend that the court erred in admitting secondary evidence to show the profits made and losses sustained by Richardson during the pendency of the appeal from the first judgment, without first having made the necessary proof of loss of primary evidence.

Reference to the last opinion in 9 S.W.(2d) 413, shows that the judgment upon which that appeal was based was reversed for this very reason and we are of the opinion that the grounds for again reversing it for that cause are more clearly reflected by the record than in the former appeal, and that the propositions urged are sound.

It is admitted and not denied that the ap-pellee kept a set of books showing his receipts and expenditures in the operation of his moving picture show for each of the years 1925, 1926, and 1927, though from his own testimony it is probable that they were not accurate in every particular. As shown by the bill of exception, he testified that he spent most of the receipts during the period of time covered by the bond; that he did not deposit the receipts every day in any bank; that he paid cash for the film rentals and spent most of what was received. It appears that during the 1925 period he bought fifteen automobiles which cost from $2,009 to $8,-000 each, but he does not remember how many theaters he conducted during 1925, or in what particular bank or banks he deposited the proceeds of his business. He is positive in his statement that' he carried his books to Bowden & Co., who made out his income tax returns, and he says he does not know that he ever took the books away from their office after the return was made, that he did not think he had any further use for them. It appears that Bowden, Eads, King, and Clark were all connected in or with the firm of Bowden & Co., besides some clerical help from time to time. That firm maintained an office at Wichita Falls, one at Fort Worth, and one at Hallas. Eads is the only one of the four men mentioned who testified with reference to the books and the search made for them. Why neither of the others testified does not appear. The record shows that' -Eads was not in the office for about six months of the year 1925, and he testified that the other members of the firm, as well as employees, had access to the books. It further appears that the other members of the firm and its employees were available as witnesses, and yet they were not offered. We cannot presume that Bowden & Co. would have destroyed valuable records of a client intrusted to them. The presumption, under the record, is that the books are somewhere in the archives of that firm in either one of its three offices where they have been stored by some member of the firm or some employee. Plaintiff testified that he spent a great deal, in fact, most of all that he took in. That he does riot remember of ever taking his books away from the office of Bowden & Co. When interrogated with reference to his income tax return, he said: “Well, I don’t carry too much in my head, of course.” He admitted that Bowden & Co. had given him a copy of his income tax report and that he probably had it somewhere, but had not looked for such copy. Eads testified that he presumed his firm had copies of the income tax report in their offices, and that the returns would show what Richardson received, and what he expended, but they were not produced.

The general rules in force in all common-law jurisdictions are as follows:

“Where a party seeks to introduce secondary evidence of the contents of documents, and as a foundation for the introduction of such evidence relies upon the fact that the original writings have been lost or destroyed or are inaccessible to him, he must first establish this fact by sufficient and satisfactory evidence.” 22 C. J. 1045, § 1342.
“It may be stated as a broad and general rule that the law will require evidence that a diligent and bona fide but unsuccessful search has been made for the document, in the place where it belongs or is most likely to be found, and that the party has exhausted in a reasonable degree all accessible sources of information and means of discovery which the nature of the case would naturally suggest; and such evidence will be sufficient.” 22 O. J. 1053, § 1353.
“As to the degree of diligence in searching for a lost document which must be shown in order to warrant the- reception of secondary evidence of its contents, no inflexible rule can be laid down, but the question is one to be determined largely by the particular circumstances of the case. It has been considered necessary to show that the search was made with the utmost good faith and was as thorough and vigilant as though, were the paper not found, its benefit would be lost. If any suspicion hangs over the instrument, or there are circumstances tending to excite a suspicion that it is designedly withheld, the most rigid inquiry should be made into the reason for its non-production; but where there is no such suspicion, all that ought to be required is a showing of reasonable diligence in the effort to obtain the original.” 22 O. J. 1055, § 1354.

The rule is settled in Texas that, as stated by the trial judge, there are no degrees in secondary evidence, and, while the appellants did not issue a subpoena duces tecum requiring Bowden & Co., or Richardson, to bring any copies of his income tax report, we think they were clearly entitled to these records, because they were admissible to impeach Richardson, if possible, who had stated broadly that his gross receipts were $400 to $500 per week before defendants began to compete with him, and that they were about $200 and less per week thereafter. Graham-Brown Shoe Co. v. Snodgrass (Tex. Civ. App.) 257 S. W. 632.

In Miller v. Cotten, 5 Ga. 341, Judge Lumpkin said: “I would sooner trust the smallest slip of paper for truth, than the strongest and most retentive memory, ever bestowed on mortal man.”

In Whitaker v. Parker, 42 Iowa, 585, Judge Beck said: “The memory of men as to facts is not as satisfying to the mind as a writing, in an investigation involving past events.”

And, in Thomas v. Paul, 87 Wis. 607, 58 N. W. 1031, 1032, Judge Orton said: “Oral testimony, depending on the memory of witnesses, is not as reliable as written or documentary evidence, but the jury would not usually need such an instruction. It is obvious and self-evident.”

In Kent v. IVTanchester, 29 Barb. (N. Y.) 595, Judge Bacon said: “Recollections are' sometimes vague, and impressions deceitful and illusory, but the written word stands, and speaks a uniform language.”

While Richardson might not have been permitted to introduce his income tax report in his own behalf, as against an objection that it was a self-serving declaration, yet when his oral testimony is so unsatisfactory and no sufficient search has been shown for the books which constitute the primary evidence and only one custodian of the books was called as a witness, it would seem that the fact that Richardson had made no effort to secure or produce copies of his income tax report, secondary evidence though they may be, is a circumstance which we feel constrained to take into consideration in determining the question of his testimony upon the stand. His original income tax returns are shown from the record to be on file in Washington. The federal statutes permit, as do the laws of Texas, copies of such instruments to be made ahd furnished those who are entitled to them. His tax returns were made from his own records by his own agents, employed for that purpose, and are presumably correct statements from his books.

We do not consent to appellants’ contention, however, that the income tax returns would be .primary and original evidence. While that is the rule in some jurisdictions and while it is the further rule that there are degrees in secondary evidence, that doctrine does not obtain in Texas.

Special issue No. 4 does not submit the question of damages in accordance with what we understand the rule to be.

As said in 6 Page on Contracts, § 3218: “If one who has entered into a valid contract not to engage in a certain business breaks such contract and competes with the promisee, the only available measure of damages is the amount of profits which the promisee has lost by reason of such breach, together with the diminution in value, if any, of the property which the promisee purchased from the promisor under the contract for the salé of his business and the like, of which the covenant not to compete was a part. In spite of the fact that this rule permits the recovery of profits, it has been adopted by the courts as the only alternative to denying recovery. If the promisee is unable to show the amount of profits which he lost by reason of such breach, he can recover only nominal damages. He cannot recover profits which the promisor has earned in such competing business.”

The appellants complain of the failure of the court to submit the issue of proximate cause and refusal to define it in his charge.

While the general rule for recovering damages in cases of breach of contract is that plaintiff must prove the damages claimed to have been the direct and immediate result of the breach by defendant, in our opinion proximate cause is foreign to the issues in a case of this character where no damages have resulted either to the person or corporeal property of the complaining party. We have found no ease which sustains the appellants’ insistence, and they cite none. In actions against carriers, railroads, telegraph and telephone companies, insurance companies, and between master and servant, where injuries either to the person or property of the complainant is the basis for the suit and the question of negligence or contributory negligence enters into the controversy, of course, proximate cause has its proper place. In the instant case proof of breach of the contract would entitle plaintiff to at least nominal damages, and the burden rested upon him to show the extent of the profits lost by reason of the breach. If his profits were reduced by reason of an inferior class of pictures exhibited, or unpopularity of the owner or the manager of the business or to unattraetiveness of the place from any cause whatever, he, of course, should not be entitled to recover losses resulting from such causes, but, as we understand the doctrine of proximate' cause, it would have been improper for the court to have applied it to a case of this character.

By the nineteenth proposition it is insisted that the court erred in failing and refusing to admit in evidence the testimony sought to be elicited, from the plaintiff on cross-examination showing that during the period in controversy plaintiff was a gambler, was plying his profession at Olney and at other places, including Mexico, and was using the cash proceeds from his picture show for the purpose of gambling; that he sometimes won and sometimes lost.

Bill of exception No. 2 is the basis for this proposition. All of the matters set out in the bill were passed upon on the former appeal, and the only new matter to be settled here is with reference to the plaintiff’s gambling. We question the right of appellants to' inquire into his gambling propensities and practices. Of course, if he was away from his business in Old Mexico and on the border and in other places for any appreciable length of time and denied that he was absent, then for the purposes of impeachment they might show that he was not at his place of business, and, if necessary, should be permitted to prove that he was away on a gambling excursion, but that is not the question presented here. In the evidence excluded, no effort was made to show how much money he lost, if any, in his gambling excursions. In so far as the court excluded the remainder of the testimony set out in the bill with reference .to his extravagance and profligacy, that ruling was held to have been error on the former appeal. If in his suit for divorce he made an affidavit to the effect that his community property on hand was only $3,000, the affidavit, would be the best evidence of its contents, and secondary evidence would not be admissible until the failure to produce the affidavit itself was properly accounted for. Evansich v. G., C. & S. F. Ry. Co., 61 Tex. 24; Waggoner v. Moore, 45 Tex. Civ. App. 308, 101 S. W. 1058; Jaffee v. Dechard (Tex. Civ. App.) 261 S. W. 390; P. & N. T. Ry. v. Porter (Tex. Civ. App.) 156 S. W. 267. He had no clear recollection of how many banks he patronized, nor could he tell how many moving picture shows he was operating in Olney and other places. He admitted having bought fifteen automobiles that ranged in price from $2,000 to $8,000, and the only account he could give of expenses was that he disbursed $50,000 paying expenses. He borrowed money in large sums from his father, and the bill of exception shows that he was extravagant in spending his money and careless in keeping his accounts.

It is true the jury found in answer to the third special issue that W. .T. Clay told Bird at the time the latter sold the $1,500 note for $900 that the injunction suit would be dismissed and the bondsmen’ released. This, however, if true, would not be a defense to an action for lost profits sustained, in a suit brought upon the bond.

For the reasons stated, the motion for rehearing is overruled, our former opinion is withdrawn, and the judgment is reversed, and the cause remanded.


author: WILLSON, C. J.

text:
    REEVES v. REEVES et al.
    No. 3973.
    Court of Civil Appeals of Texas. Texarkana.
    May 7, 1931.

      Hyer & Christian, of Fort Worth and Tomas G. Pollard, of Tyler, for appellant.
    D. R. Pendleton, of Tyler, for appellees.
   WILLSON, C. J.

(after stating the case as above).

At the date of the deed of March 26, 1929, from Cora Reeves and her husband, M. V. Reeves, to Curby Reeves, referred to in the statement above, Cora Reeves owned forty-two acres, undivided, of the seventy-two acre tract. Hence, if that deed should be given effect- or if it should not be given effect, and the deed of February 17,1930, from said Cora and M. V. Reeves to said Curby Reeves, also referred to in said statement, should be given effect, the title to said forty-two acres, undivided, was ,not in Cora Reeves as determined by the judgment, but was in said Curby Reeves; and Lura Belle Reeves, as next friend of her infant son, Thomas W. Reeves, has a right to complain as she does of the judgment, because of the failure of the court in rendering same to appoint a trustee or receiver to take charge of the forty-two acres and devote the rents and revenues, or so much thereof as may be necessary, to the support and education of said Thomas W. Reeves.

The theory upon which the court below held that neither of said deeds was effective was that it appeared each of them was without a consideration to support it, and was “not made (quoting from the court’s findings) with intention of passing title to Curby Reeves but for the purpose of enabling him to lease 'the. land for oil and gas mining purposes with more facility and the grantors were induced to execute the deeds by representations that same would not divest Mrs. Cora Reeves of her homestead.”

It appears in the record sent to this court that the only evidence of representations made to induce Cora Reeves and her husband to- execute the deeds specified was the testimony of said Cora Reeves as a witness as follows: “I was persuaded to make the other conveyance (that is, the deed dated February 17,1930), by Marvin Love. I signed a paper thinking to give him (probably meaning Curby Reeves) a chance to lease the land. He said it would cause me to get something myself.” Who Marvin Love was and what interest he had, if any, in the matter, did not appear in the testimony. Obviously, we think, the testimony of Cora Reeves just set out, if competent as evidence, difl not warrant a finding that the two deeds referred to, or either of them, was ineffective as conveyances of the land. And as obviously, we think, the further testimonies of said Cora Reeves that, quoting, “in making those deeds I didn’t know that I was disposing of my homestead' interest in the matter, I didn’t do it with the intention of disposing of my homestead,” did not warrant such a finding. In the absence, as was the case, of pleading and proof showing either fraud, accident, or mistake to have entered into the transaction, the fact that Cora Reeves and M. V. Reeves executed and delivered the deeds ’was conclusive of the fact that they intended the instruments to operate as conveyances of their title in the land, including their homestead rights.

Nor was the fact, as found by the court, that the deeds were without a consideration a reason for holding them to be ineffective as conveyances. The consideration recited in the deed of March 6, 1929, was $150 cash paid by Curby Reeves. The consideration recited in the. deed of February 17, 1930, was $500 paid in cash “and (quoting) the love and affection we have and bear for our son Curby Reeves.” Cora Reeves, as a witness, testified that “the $150 consideration (quoting) recited in that first deed from my husband and me to Curby Reeves was never paid. * * * I did not receive any consideration for either one of those deeds,” and M. V. Reeves, as a witness, testified-that neither he nor his wife, said Cora Reeves, “received any consideration for those conveyances.” But, as stated above, it appeared from the recitals in the deed of February 17, 1930, that the consideration thereof was love and affection Cora Reeves and M. Y. Reeves had for Curby Reeves as their son as well as the $500 recited to have been-paid to them. It is held that love and affection are a sufficient consideration to support a deed from parents to their child. Bishop v. Williams (Tex. Civ. App.) S. W. 512; Couch v. Schwalbe, 51 Tex. Civ. App. 94, 111 S. W. 1046. Hence the conclusion of the court below that the deed of February • 17, 1930, was without a consideration to support it was not warranted.

It appearing, as we think it did, that the forty-two acres, undivided, belonged to Curby Reeves, the court below should, it seems from the authorities, have appointed a receiver or trustee to take charge of same and apply the rents and revenues or such part thereof as was necessary, to the support and education of said Thomas W. Reeves, the infant child of the marriage between said Curby Reeves and Lura Belle Reeves. Hooten v. Hooten (Tex. Civ. App.) 15 S.W.(2d) 141, 143. In the case cited the court said;

“It is now the settled, law of this state that the primary duty of supporting minor children rests upon the father, both before and after -the divorce of the parents. Gulley v. Gulley, 111 Tex. 233, 231 S. W. 97, 15 A. L. R. 564, and cases there cited. It has also been definitely decided that the district court has authority, both in a divorce proceeding and after the decree of divorce has been granted, to make proper provision for the support of the minor children from the property of the father. Hedtke v. Hedtke, 112 Tex. 404, 248 S. W. 21; Hughes v. Hughes (Tex. Civ. App.) 259 S. W. 180; Bemus v. Bemus, 63 Tex. Civ. App. 148, 133 S. W. 503. ⅜ • * * In. the exercise of that power, the court ⅜ * * may fix a reasonable allowance to be paid periodically, and make the payment of such allowance a charge against the rents and revenues of property belonging to the father. Gully v. Gully (Tex. Civ. App.) 173 S. W. 1178; Sneed v. Sneed (Tex. Civ. App.) 296 S. W. 643, and cases cited. To accomplish that end the court may designate specific property and place it in the hands of a trustee to be used for the support and maintenance of the children during their minority. Fitts v. Fitts, 14 Tex. 443; Trimble v. Trimble, 15 Tex. 18; Simons v. Simons, 23 Tex. 344; Rice v. Rice, 21 Tex. 58; Bemus v. Bemus, and Hedtke v. Hedtke, supra.”

The judgment will not be disturbed so far as it denied the Stegalls and Lin-a Belle Reeves in her individual capacity a recovery of anything. It will be affirmed so far as it was in favor of Willie Reeves and awarded a partition of the seventy-two acres at the prayer of his guardian Emma Ford. It will be reversed so far as it was in favor of Cora Reeves and her husband, M. Y. Reeves, and the cause will be remanded to the court below for the partition awarded, with instructions to appoint a trustee to take- charge of the part allotted to Curby “Reeves in such partition and devote the rents and revenues, or the part thereof necessary, to the support, maintenance, and education of the infant Thomas W. Reeves during his minority.


author: LEVY, J.

text:
    HILL et al. v. PURE OIL CO.
    No. 3998.
    Court of Civil Appeals of Texas. Texarkana.
    April 16, 1931.
    Rehearing Denied April 30, 1931.
    Phillips, Trammell, Chizum, Price & Estes, of Fort Worth, for appellants.
    Yinson, Elkins, Sweeton & Weems, of Houston, and Wynne & Wynne, of Wills Point, for appellee.
   LEVY, J.

The action was by the Pure Oil Company, a corporation, for injunction, temporary and permanent, restraining George Hill, stated in the words'of the prayer of the petition, “from interfering with the plaintiff’s possession of the said property, from going upon the same for the purpose of drilling an oil well thereon, from erecting a derrick or any other building on the same, from drilling any character of well thereon, and from doing any and all acts of drilling or development of said property for oil, gas or other minerals.” The property right sought to be protected, and the subject-matter of the prohibitory writ, was a leasehold estate in a certain tract of land, described by field notes, “containing one acre, more or less.” As-the petition alleged, E. V. Tunnell and his wife executed a lease upon the land to E. G. Lewis, and E. G. Lewis transferred and assigned the lease to the Pure Oil Company. The lease granted the right to prospect and bore wells for gas and oil on the land, with the right to seven-eighths of all the 'oil and gas discovered. George Hill was, as alleged, asserting “some character of claim” to the oil and gas underlying a certain portion of the land (describing it) embraced within the description of the plaintiff’s lease, such claim being under “an oil and gas lease executed by R. E. Collett and wife to him.”

George Hill answered by general denial, plea of not guilty, specially denying the plaintiff’s -right of leasehold interest in the portion of the land in suit, and, further, by averments of title to him through and under conveyances to N. S. Maxfield and N. S. Maxfield to R. E. Collett, and by limitation under the ten-year statute of limitation, sought to have “a judgment establishing and confirming his title to the minerals in the lot in question.”

R. E. Collett filed a plea of intervention, adopting “the answer of the defendant, George Hill,” praying “that the deed of N. S. Maxfield to this intervenor be in all things fully established, and that the title of this in-tfex-venor to the lot in question be established and confirmed.”

The plaintiff replied to the cross-action setting up, in substance, that both it and M. R. Bolin, its predecessor in title, was an innocent purchaser for value and asked that the cloud cast upon its title be removed.

' It appears that upon filing the original petition of the plaintiff on April 14,1930, the trial judge indorsed thereon an order granting and directing the issuance of a temporary injunction against the defendant, George Hill. Thereafter, on May 21, 1930, the temporary injunction was, on application therefor and upon hearing,' dissolved by the trial judge. An appeal to the Court of Civil Appeals was timely taken from the order dissolving the preliminary writ, and the bond on appeal was filed on May 27,1930. There does not appear in the record any order of the trial judge suspending the order of dissolution pending the appeal, and the record does not reflect whether or not such appeal has been In any wise disposed of.

At the June term, 1930, of the court, the case was regularly called for trial and was finally tried before the court without a jury. The judgment entered was that: (1) The defendant George Hill, and the intervener, R. E. Collett, take nothing by their cross-action; and (2) a permanent injunction be granted perpetually restraining George Hill and R. B. Collett in the terms of the prayer of the plaintiff’s petition. The judgment further decreed, Upon the pleading of the plaintiff, “that the purported mineral lease covering the above described land executed £y R. E. Collett and wife to the defendant, George Hill on January 14, 1930, be and the same is hereby cancelled and that the cloud cast upon the plaintiff’s title to the mineral estate in and to said land by reason of said purported lease from R. E. Collett and wife, Dellar Collett, to George Hill, be and the same is hereby removed, and that plaintiff’s title to its mineral lease covering said land be and the same is hereby quieted.”

The trial court upon request therefor made-findings of fact. That the controversy may be made clearer, the statement is here made-that the case involves the title to a portion of land whose north and south boundaries are-forty feet in length and whose west and east boundaries are sixty feet in length. Within-this described part of land there is a rectangle about ten by fifteen feet in the southeast corner. The plaintiff contended that E. V.. Tunnell owned and conveyed to it all of this portion of the land except the rectangle in the-southeast corner, and that it was owned and conveyed to it by E'. B. Tunnell.

Upon the phase of the action, of injunction, as presented by the original petition of' plaintiff, the court concluded, viz.: “That the-plaintiff is entitled to judgment as against the defendant and the intervenor for perpetual injunction as prayed for.”

Upon the phase of the action, of title to the-land, as presented affirmatively by the cross-actions of the defendants and intervener, and the answer of the plaintiff thereto, the court made findings as hereinbelow set out:

1. The parties agreed upon G. W. Swindall as common source of title to the land involved in the suit.

2. All of. the 40x60-f oot tract, except the 10x15 feet in the southeast corner, passed by deed as follows:

G. W. Swindall and wife to O. W. White, dated January 1,1903, filed for record November 20, 1915.

G. W. White and wife to N. S. Maxfield, dated December 2, 1903, filed for record November 20, 1915.

N. S. Maxfield and wife to M. R. Bolin, dated November 21,1911, filed for record January 24, 1930.

3. The Bure Oil Company deraigns title and claims under deed from N. S. Maxfield to M. R. Bolin, and under a deed from M. R. Bolin and wife to E. V. Tunnell, dated January 5, 1912, and filed for record December 15, 1928; E. V. Tunnell and wife to E. G. Lewis dated June 28, 1927, and another lease of October 30, 1929, first filed for record July 14, 1927, and the second filed for record on November 22, 1929 (these oil and gas leases); E. 6. Lewis to the Pure Oil Company, dated July 12, 1927, and another lease dated November 30, 1929, the first filed for record September 27, 1927, and the second filed for record February 28, 1930 (these are assignments of the leases).

4. The title to the 10x15 foot rectangle- in the southeast corner was claimed by the Pure Oil Company under a deed from E. Y. Tun-nell and wife to E. B. Tunnell of date December 20, 1918, filed for record October 4, 1929 (this deed conveys an undivided one-half interest in lands including lands not involved in the suit);

E. Y. Tunnell and wife to E. B. Tunnell, dated November 11, 1929, filed for record November 11, 1929 (conveys undivided one-half interest),- describing the land in suit and other lands;

E. B. Tunnell and wife to W. E. McKinney, dated October 4, 1929, filed for record October 4, 1929 (oil and gas lease);

W. E. McKinney to L-. B. Pruitt, dated October 28, 1929, filed for record December 17, 1929 (assignment of said lease) ;

L. B. Pruitt and W. E. McKinney to Pure Oil Company, dated and filed for record December 12, 1929 (assignment* of said lease).

5. The court further finds, -viz.:

“The defendant and intervenors, in de-raigning- title to the land involved herein, introduced in evidence a deed from N. S. Max-field and wife to A. G. Maxfield of date December 7, 1906, which deed conveyed certain lands in the Mund Gross Survey and excepted, among others, a lot 40x60 feet theretofore sold by N. S. Maxfield to R. E. Collett. This deed was not recorded until November 20, 1915, and did not constitute an essential link in plaintiff’s chain of title.
“The defendant and intervenors also introduced a deed from A. G. Maxfield to N. S. Maxfield of date January 14, 1909, in which deed the same reference was made to the R. E. Collett lot. This deed was not recorded until November 20, 1915, and did not constitute an essential link in plaintiff’s chain of title.
“The defendant and intervenors also introduced a de'ed from N. S. Maxfield and wife to E. V. Tunnell, which deed contains the same recitations and reference to the R. E. Collett lot and is of date January 11, 1910. This deed was not recorded until November 20, 1915. I find that this deed was not an essential link in plaintiff’s chain of title.
“The defendant and intervenors further introduced a deed from E. Y. Tunnell and wife to E. B. Tunnell, of date. November 18, 1911. which deed contains similar references and recitations with respect to the R. E. Collett lot. Said deed was not recorded until November 20, 1915, and did not constitute an essential link in plaintiff’s chain of title.
“The defendant and intervenors further introduced a deed from E. B. Tunnell and wife to J. W. Neal of date of June 16,1913, and recorded November 20, 1915, which deed contains similar recitations and references with respect to the R. E. Collett lot. I find that this deed did not constitute an essential link in plaintiff’s chain of title and was executed subsequent to the time M. R. Bolin, plaintiff’s predecessor in title, acquired his deed to the lot in controversy.”

6. “I find that the defendant and interven-ors claim the lot in controversy under a deed executed and delivered from N. S. Maxfield, the common grantor of all parties, to said in-tervenor, R. E. Collett, which deed was executed in the early part of the year 1906 conveying the property in controversy to R. E. Collett but that said deed was never filed for record and was not introduced in .evidence upon the trial hereof, all evidence adduced with reference to it not being introduced in evidence being that it was lost or destroyed and never placed of record.”

7. The court 'further finds the following facts:

“I further find that at the time said Bolin purchased from said Maxfield the lot in controversy, to-wit: On November 21, 1911, said Bolin had no knowledge or notice, actual or constructive, of a prior conveyance from his grantor Maxfield, to Collett; that said Bolin in good faith paid said Maxfield a sufficient and valuable consideration for said property described in and conveyed by said deed, which included the land in controversy, and that said deed then represented and now represents a bona fide transaction between the parties thereto according to its terms, tenor and face, and that all facts then necessary to establish and constitute said Bolin a bona fide purchaser of said property for value concurred and existed at the time of the purchase by the said Bolin of the land in controversy.

“I further find that neither Collett nor any ■one for him at the time the said Bolin purchased the land in controversy from the said Maxfield, had such possession of or so occupied said land in controversy or any part thereof, or exercised such control thereof or did such things with respect to it as to put the said Bolin, or any ordinarily prudent per- ■ son, on notice or inquiry as to any right or title of R. E. Collett, or any one claiming under him, in and to said land, and that Collett’s possession thereof, if any he had, was not open, actual, visible, notorious and exclusive, and that sucb possession and use, if any lie bad ‘and made of said lot, was of a kind and character insufficient to operate as notice of adverse ownership.

“I further find that at the time of said Bolin’s purchase of said lot in controversy' on November 21, 1911, he had no notice, actual or constructive, of any deed or other instruments executed hy the said Maxfield, or any other person whomsoever to any person whomsoever in any way mentioning or referring to the said R. E. Collett lot or land, being the land in controversy, or otherwise putting him on notice of or inquiry as to any right or title of the said Collett; that said Bolin at said time from no other source and on no other, account had knowledge of or was in possession of any facts or circumstances giving him notice of or putting him on inquiry as to any right or title that Collett had in and to said premises.

The appellant excepts to the other findings not herein stated, and the objection is sustained.

The point presented first to be considered is that of whether or not the appeal from the order dissolving the temporary injunction divested the trial court of jurisdiction to finally try the case on its merits at the regular term of .court. It is believed the appeal did not impair the trial court’s1 jurisdiction for final trial of the action. The permanent injunction did not in any wise depend upon either the granting or refusing of the prelimina-. ry or interlocutory order for temporary injunction. In effect, the ruling applies as made in Staples v. State (Tex. Civ. App.) 244 S. W. 1064. There is distinguishment between this point and that in Whaley Farm Corp. v. Bieloh (Tex. Civ. App.) 9 S.W.(2d) 213.

Appellant makes the point that the findings of the trial court do not include a finding as to the plea of limitation, and therefore grounds for the reversal of the judgment exist. The appellant pleaded and offered evidence of title by the ten-year statute of limitation. The court upon request of appellants made and filed conclusion of facts. There was no distinct conclusion of fact upon limitation. After the filing of the conclusions of the trial court, there was no request for additional or supplemental findings, or request to have findings upon the issue of limitation.Gladys City Oil, Gas & Mfg. Co. v. Oil Co. (Tex. Civ. App.) 137 S. W. 171; Schauer v. Schauer (Tex. Civ. App.) 202 S. W. 1010. And the parties have on appeal-a full statement of all the evidence proven on the trial. Looking to the evidence, it may not be said that the possession of R. E. Collett or any one for him was such possession as would establish limitation title.

The whole ease on the merits depends upon whether or not M. R. Bolin was an innocent purchaser without notice. It is believed by this court that there is evidence, sufficient to support the trial court’s findings that neither R. E. Collett nor any one for him had such possession at the time M. R. Bolin purchased the land or so occupied or exercised control thereof as to put M. R. Bolin or any ordinarily prudent person on notice of any right or title of R. E. Collett. There is evidence that R. E. Collett in November, 1911, at the date of the deed of M. R. Bolin, was in possession and was openly using the property in • connection with his blacksmith shop. There is also evidence that* the lot was used exclusively in the nature of a vacant lot by the general public as a hitching ground for horses and to leave their wagons.

The remaining assignments present questions of fact. After full consideration thereof, we conclude the evidence supports the trial court’s findings and that such findings support the judgment. It is unnecessary to set them our here specifically. Cooper v. Newsom (Tex. Civ. App.) 224 S. W. 568.

The judgment is affirmed.


author: WILLSON, O. J.

text:
    THOMAS et al. v. MARMAR et al.

      No. 4001.

    Court of Civil Appeals of Texas. Texarkana.
    April 16, 1931.
    Rehearing Denied April 23, 1931.

      Wynne & Wynne, of Athens, for appellants.
    Gentry & Gray, of Tyler, John Broughton and Joe S. Brown, both of Houston, Sam McCorkle, of Mexia, and T. L. Poster, J. W. Timmins, and Martin Row, all of Dallas, for appellees.
   WILLSON, O. J.

(after stating the ease as above).

In the statement above it appears that both appellants Thomas and the Widemans . and appellee Marmar claimed to own the title in W. A. Dyer January 30, 1923, to the minerals in controversy' — appellants under a deed to them of that date from Dyer, and appel-lee under a deed to him dated January 13, 1926, from the sheriff of Henderson county. A part of the consideration for said deed to appellants was eight promissory notes, for $120 each, made by appellants to said Dyer, payment of which was secured by a vendor’s lien therein and in his said deed expressly retained by Dyer. One of the eight notes was paid. The seven unpaid and the lien securing same, and Dyer’s superior legal title to the land as the vendor thereof, were assigned and conveyed by Dyer to Marmar. Under that state of facts, Marmar, as the purchaser of the land at the sale under the judgment obtained in the foreclosure suit, became the owner of the superior legal title remaining in Dyer until the notes made to him by appellants were paid. The notes were never paid. Therefore, we think, the trial court did not err when he denied appellants the recovery they sought. White v. Cole, 9 Tex. Civ. App. 277, 29 S. W. 1148; Howell v. Townsend (Tex. Civ. App.) 217 S. W. 975; Van Valkenburgh v. Ford (Tex. Civ. App.) 207 S. W. 405, 416; Wier v. Yates (Tex. Civ. App.) 237 S. W. 623; Thompson v. Robinson, 93 Tex. 165, 54 S. W. 243, 77 Am. St. Rep. 843; Ufford v. Wells, 52 Tex. 612; Stone Land & Cattle Co. v. Boon, 73 Tex. 548, 11 S. W. 544.

Appellants’ contention to the contrary of the conclusion reached by the court below, which we think was a correct one, seems to be predicated, mainly, on the holding in Gardener v. Griffith, 93 Tex. 355, 55 S. W. 314. In that case, it appeared the administrator of C. Rusk sold and conveyed 425 acres of land belonging to Rusk’s estate to W. H. Harris. By virtue of a judgment in favor of the administrator, foreclosing a mortgage lien created by Harris on the 425 acres, a part, and only a part, thereof was sold. The suit was by a purchaser from Harris of a part of the 425 acres not sold under the foreclosure decree. It was against heirs of C. Rusk. The purchaser claimed that the effect of the foreclosure proceedings was to affirm the contract of sale and vest in Harris, the vendee, the legal title to the unsold part of the 425 acres. The Rusk heirs, on the other hand, claimed that the legal title to the land not sold under the judgment was in them. The contention of' the purchaser was upheld by the Supreme-Court. As we understand it, that case is so unlike this one on its facts as to render the-holding there without controlling effect here. There the foreclosure was on the title of the' mortgagor, while here it was on the superior title in the vendor. Van Valkenburgh v. Ford, supra; Wier v. Yates, supra. There the part of the land in controversy was not sold under the judgment, while here the entire tract, including the minerals in controversy, was sold.

Whether it appeared that appellants had rights they were entitled to enforce in a'proper proceeding, but could not enforce in a suit of trespass to try title, and what would he proper proceedings to that end, are not questions we are called upon to determine and we will not undertake to determine them.

There is no error in the judgment. Therefore it is affirmed.


author: SELLEES, J.

text:
    AMICABLE LIFE INS. CO. v. WHITE.
    No. 3963.
    Court of Civil Appeals of Texas. Texarkana.
    April 27, 1931.
    Rehearing Denied May 7, 1931.

      Williams, Williams, McClellan & Lincoln, of Waco, and Barney, Calhoun & Marsh, of Tyler, for appellant.
    Butler, Price & Maynor, of Tyler, for ap-pellee.
   SELLEES, J.

Appellee, James Hogg White, sued appellant, Amicable Life Insurance Company of Waco, Tex., on a life insurance policy issued by appellant to Stella Mae White, wife of appellee. The policy which was issued June 5,1926, designated appellee as beneficiary and promised to pay him as such the sum of $1,-000 in the event of insured’s death during the continuance of the policy. The first two annual premiums on the policy were duly paid in cash; the third annual premium was not paid in cash, but was settled by a note for $35.50, being the amount of the premium. The maturity of the note was extended to June 5, 1929, and at this time the fourth annual premium also became due. Neither the note nor the premium was paid, and the policy thereupon lapsed, save as its existence was continued by the nonforfeiture provisions of the policy. Insured died October 20, 1929.

Trial was before the court without a jury, and on July 22, 1930, the court entered judgment for plaintiff awarding him the full amount sued for, being the face value of the policy, less the amount of the premium note aforesaid, plus interest, statutory damage, and attorney’s fees, making an aggregate award of $1,349.23. To this judgment defendant excepted and gave notice of appeal, and had duly perfected his appeal to this court. The question presented on this appeal is simply whether or not the premium note under the provisions of this policy could be by the company charged for its payment against the reserve, in the policy, and thereby reduced the amount of the reserve which would have otherwise been available for the purchase of extended insurance, as provided by the nonforfeiture provisions of the policy.

It is admitted that, if the note could not be charged against the reserve of the policy, then the amount of the reserve was sufficient to purchase extended, insurance beyond the date when insured died, but, if the company could charge the note against t-he reserve, then the extended insurance ceased on September 30, 1929, before insured died 'October 20, 1929.- The facts introduced upon trial of this case were undisputed. The policy involved was introduced in evidence; the portions we deem material to the disposition of this case are as follows:

“ Annual Premiums of Thirty-five and 50/100 Dollars, to he paid on June 5, 1927, and of a like amount on the Fifth day of June in each year thereafter during the continuance of this Policy, or until the death of the Insured, or until premiums, including the first, shall have been paid for Twenty full years.
“Loans: After two full years’ premiums have been paid, at any time while this Policy is in force, the Company will loan, upon execution of a proper loan agreement by the Insured, and on the sole security of this Policy, a sum not exceeding the amount at the end of the current contract year named in the above Table under the head of “Cash or Loan Value,” at a rate of interest of six per centum per annum payable in advance. The Company may deduct from such loan value any existing indebtedness against the Policy, and may defer such loan, excepting loans made for paying premiums, for not exceeding three months after application therefor is made. Failure to repay such loan or to pay interest thereon shall not avoid this Policy until the total indebtedness thereon to the Company shall equal or exceed the loan value, as shown in the Table above. Upon endorsement on the Policy by the Company as to the existence of any loan, the Policy .will be return to the Insured.
“Non-Forfeiture: In event of default of any premium payment, after premiums shall have been paid for two full years, the Company will, subject to the other conditions of this Policy, grant the following option:
“Indebtedness: Any indebtedness existing against this Policy at date of default will cause a reduction of all values named in the above Table; the Cash Value will be reduced by the indebtedness; the Paid-Up Life Insurance will be reduced an amount equal to the total indebtedness multiplied by a factor obtained by dividing the amount of the total Paid-Up Life Insurance by the total Cash Value; the Extended Insurance will not be reduced in amount, but the duration of extension will be reduced based upon the amount available as a cash value, after deducting indebtedness, used as a single premium for the purchase of term insurance in accordance with the Mortality Table and interest rate used in the valuation of this Policy..
“Contract: This Policy and the application therefor, copy of which is attached hereto, constitute the entire contract between tho parties hereto.
“Indebtedness: Any indebtedness to the Company, including loans and interest accumulation, and any balance of the current Policy year’s premium remaining unpaid, will be deducted in any settlement of tins policy or any benefit thereunder.
“Premiums: The first year’s premium only may be paid to the agent. All subsequent premiums are due and payable in advance on or before the date due, at the Home Ofiice of the Company without notice. However, such subsequent premiums may be paid to an authorized agent of the Company on or before the date when due, but only in exchange for an official receipt signed by the President or Secretary, and countersigned by said agent. The premium is always considered as payable annually, in advance, but by agreement in writing and not otherwise may be made payable in semi-annual or quarterly payments. The payment of a premium shall not maintain the Policy in force beyond the date when the next payment is due, except as herein provided. Upon failure to pay a premium on or before the date when due, or any note or other obligation given therefor,' this Policy shall thereupon cease without any action or notice by the Company, and all rights shall be forfeited to the Company, except as herein provided. Notice of each and every premium due and to become due hereon is given and accepted by the delivery and acceptance of this Policy. Notice of premiums becoming due is sent to the Insured as a matter of accommodation, but the Company assumes no responsibility for the failure to send or the miscarriage or non-delivery of any notice.”

The policy contains two tables of guaranteed loan and surrender values, but it is agreed that the figures contained in the .following table are correct:

After Premiums For Cash Accumulated Coupons End Tear Cash or Loan Value For Paid-Up Life Inr surance For Extended Insuranc of $1,000.00 For
2 Tears $3.67 $19.67 2 Tears 140 Days 54
3 Tears 8.37 40.37 5 Tears 11 Days 112

In the paragraph of this policy entitled “Loans” the method by which indebtedness may be created against this policy is very plainly set out, and there can be little doubt that it was contemplated that before the insured could borrow from the reserve in this policy it would be necessary for the insured to execute a proper loan agreement and the company would take an assignment of the reserve in the policy to secure such loan and-would indorse upon the policy such assignment and return the policy to the insured.

We have reached the conclusion that, when the provisions of this policy provided for creating indebtedness against the policy in a certain way, that is, as above set out, reference thereafter made in the policy to “any indebtedness existing against the policy at date of default,” etc., meant such indebtedness as was placed against the policy in the way provided for and no other. •

If we are correct in the above holding, then the premium note could not piroperly be 'charged'against the reserve of this'policy, for there is no provision in the policy nor in the note that in any way could be construed as ' taking an assignment of the reserve in the policy for the purpose of securing such note. We are supported in this view by Mr. Cooley in his Brief of the Law of Insurance, volume 6 of Supplement, page 381, wherein this rule is laid down: “The payment of a premium in cash may be waived by the proper officer of an insurance company and a note or other obligation accepted. In such case, the provision for interest in the note supplies consideration for the delay in the payment of the premium. The note, however, is a separate and independent transaction and has no relation to the contract of insurance except as stipulated in the policy.”

The policy provides, as well as subdivision 1 of article 4732 of R. C. S. 1925, that all premiums of policies of insurance of this nature shall be payable in advance, and in subdivision 3 it is provided that the policy and application therefor shall constitute the contract between the parties. It seems clear that the language here used is too clear to admit of any other construction, but that the Legislature meant just what it said when it enacted subdivision 1 of the above article, and therefore, when the company accepted a note for the premium instead of cash, it was nevertheless a payment of the premium for that year, and, under subdivision 3, a premium note could in no way alter the rights of the parties under the provisions of the original policy agreement unless such policy at the time it was issued so provided, and, in the absence of a provision in the policy.of insurance here sued upon securing the premium note with the reserve in the policy, we are of the opinion that the appellant would be unauthorized to use the reserve for that purpose.

The judgment of the trial court is affirmed.


text:
    ROSE v. FIRST STATE BANK OF PARIS, TEX., et al.
    No. 3975.
    Court of Civil Appeals of Texas. Texarkana.
    May 12, 1931.
    Rehearing Denied May 21, 1931.

      King, Mahaffey, Wheeler & Bryson, of Tex-arkana, for appellant.
    W. E. Moore, of Paris, for appellees.
   LEVY, J.

(after stating the ease as above).

The point presented for decision is that of whether or not the cause of action was barred by the statute of limitations. The answer depends, first, on how the action should be classified. The asserted right of action is founded solely on article 533, R. S. 1925, which is as follows: “No president, director, manager, cashier or other officer'or agent of any bank or banking institution organized and doing business under the provisions of this article shall receive or assent to the reception of deposits, or create or assent to the creation of any debts by such bank after he shall have knowledge of the fact that it is insolvent or in failing circumstances. Every person violating the provisions of this article shall be individually responsible for such deposits so received and all debts so contracted. Any director who may have paid more than his share of the liabilities mentioned' in this article may have the proper remedy at law against such other persons as shall not have paid their full share of such liabilities. In case of the insolvency of one or more of such officers, agents or managers, the same' shall be paid for the time being by those who are solvent, in equal proportion.” The article is clear in the nature and purpose of its adoption, to impose upon the bank’s officers and directors, as such, the legal liability of becoming “individually responsible” when the special circumstances stated occurs, to pay to the specially named depositors “such deposits so received” by “such bank.” The word “deposits” as used is descriptive of the obligation assumed by the bank with the assent of the officers and directors “violating the provisions of this article.” A general deposit is, in truth, but a loan of money to a bank and the relationship of the bank to the depositor is legally regarded as that of debtor and creditor. Baker v. Kennedy, 53 Tex. 200 ; 7 C. J. § 326, p. 641. The effect of the provisions of the act, then, is an intention not to relieve the bank of any liability for the wrongful acts done by the officers and directors in receiving such deposits, but to impose this additional liabilty upon the officers and directors in favor of and for the benefit of the specially named creditors of the bank for the money so due from the bank to such creditors by reason of the financial condition of the bank. In the case of Fichtner v. Mohr (Mo.App.) 16 S. W.(2d) 739, in passing upon the Missouri statute which is in the words of the Texas statute, the court concluded that the liability thus imposed upon the officers and directors of the bank should be classed as a penal and not a contractual one. Stated in other words, the ruling was to the effect that the liability was not in the nature of a mere personal contract but a specialty debt created by statute. And in Wood on Limitation (3d. Ed.) § 39, p. 95, it is said: “The test whether a statute creates a specialty debt or not is whether independent of the statute the law implies an obligation to do that which a statute requires to be done, and whether independently of the statute a right of action exists for a breach of the duty or obligation imposed by the statute. If so, then the obligation is not in the nature of a specialty. * * * but if the statute creates the duty or obligation then the obligation thereby imposed is a specialty.” The distinction is, as given by section 36, Wood on Limitation, and reading: “In all cases where liability is created by the positive requisitions of a statute and not by the acts of the parties themselves, the liability is in the nature of a specialty, and is not within the statute of 21 James nor within the statutes adopted in the several states applicable to simple contracts, unless expressly made so.” Further, in. the like principles of statutory liability of stockholders, the rule appears, as stated in 1 Cook on Corporations, p. 585: “But the usual statutory liability of stockholders is not a penalty. The courts are nearly unanimous in holding that by statute where the stockholders in a corporation, instead of being relieved entirely from liability to the corporate creditors, are only partially relieved therefrom, . the additional liability is a contract liability, and will be enforced by the courts of any state. In other words, the ordinary statutory liability of stockholders is a contract liability, and is generally held to be such by the courts of all the states.”

Under the tests stated, undoubtedly the statute in the present case does create the duty or obligation upon the officers and directors to pay the deposit received by the bank for whom they assume to act, though independently of the statute the law does not imply any obligation upon the officers and directors to pay the debt; nor, independently of the statute, could any right of action for the debt of the bank be maintained by the creditors of the bank. Therefore the liability thus imposed should be classed as in the nature of a statutory liability imposed upon the officers and directors to personally pay the debt of the bank due by it to the plaintiff, a depositor creditor. It is a cause of action for a money Judgment and the obligation is to pay money only.

What period of limitation, then, is applicable to the case of liability as here provided? There appears a great variety of decided cases in relation to different statutes of limitation which have been applied to actions of debt created partly by statute and partly by contract, as well as to debts ere-ated solely by statute. Article 5529 fixes four years as the period applicable for “every action other than the recovery of real estate, for which no limitation is otherwise prescribed.” Another provision, subdivisión 4, article 5526, fixes two years as the period applicable for “actions for debt where the indebtedness is not evidenced by a contract in writing.” In the case of Corsicana National Bank v. Johnson, 251 U. S. 68, 40 S. Ct. 82, 89, 64 L. Ed. 141, the bank sued its director and vice president under the provisions of the federal statute for an excessive and bad loan of the bank’s funds. There the liability was a legislative or statutory liability to pay the loan, and the Supreme Court of the United States, in applying the Texas statute of limitations, held “in our opinion, the action is not one of the kinds specified in article 5687 [actions for debt], to which the two-year limitation applies, but is within the general description of article 5690 [the residuary section], and subject only to the limitation of four years.” Presumably the ruling was based upon the view, which is logically correct, that the wording of subdivision 4 of article 5526 merely separated and distinguished those eases resting on oral contract from those cases'resting upon written contract as provided by subdivision 1 of article 5527. Subdivision 1 of article 5527 provides for “actions for debt where the indebtedness is evidenced by or founded upon any contract in writing.” But the Supreme Court of this state, in the ease of Gordon v. Rhodes & Daniel, 102 Tex. 300, 116 S. W. 40, 41, decided prior to the above case of Bank v. Johnson, construed, the term “actions for debt,” as used in subdivision 4 of article 5526, as not intended as a separate and distinctive remedy for controversies arising out of mere personal contracts, but as intended to extend to and embrace liabilities that are payable in money only, although not resting upon mere personal contracts. The court cited and followed the early case of Robinson v. Yarnell, 16 Tex. 3S2, as so broadly holding. There is reflected the intention by such construction of the terms of the statute to have the words “action for debt”, embrace all liabilities payable in money only, when not founded upon a writing, whether upon a mere personal contract, or upon a specialty debt, or upon a strictly legislative liability., We feel bound by the construction so broadly given to the article in this case of Gordon v. Rhodes & Daniel, supra, and regard the interpretation as controlling the present appeal. The two years’ statute referred to was applied in the case of stockholders’ liability. Austin v. Proctor (Tex. Civ. App.) 291 S. W. 702. Similarly a statutory liability was considered to be within the provision of the statute of limitations relating to all actions founded upon any contract or liability “not in writing.” Nebraska National Bank v. Walsh, 68 Ark. 433, 59 S. W. 952, 82 Am. St. Rep. 301.

The case cited of McCord v. Nabours, 101 Tex. 494, 109 S. W. 913, 917, 111 S. W. 144, is distinguishable from the present suit. In that case, as in all similar cases, article 5529, being the residuary section, is held applicable because it was an equitable action “to set aside the transaction by .which McCord acquired the stock and to restore it to the estate for which he was assignee.” It was not a suit to enforce the payment of money only, as in the nature of an “action for debt,” but primarily to recover specific property. That same distinction would apply to the cases cited of Holland v. Ashley (Tex. Civ. App.) 158 S. W. 1033, and Teaman v. Galveston City Co., 106 Tex. 389, 167 S. W. 710, Ann. Cas. 1917E, 191.

The judgment is affirmed.