text:
    McCANLESS et al. v. DEVENPORT.
    No. 10823.
    Court of Civil Appeals of Texas. Dallas.
    May 9, 1931.
    Rehearing Denied June 27, 1931.

      William Hodges, of Texarkana, and Will Hancock, of Waxahachie, for appellants.
    J. Lee Gammon and Mark Smith, both of Waxahachie, for appellee.
   LOONEY, J.

P. F. Devenport’s first wife, Mrs. May Dev-enport, died during the • year 1909, leaving three children horn to the marriage, appellants and another, Billy Devenport, who died intestate, leaving as his only heirs his father and appellants. At the time of the death of Mrs. Devenport, she and her husband owned and occupied a community homestead, referred to herein as the Waters street property. P. F. Devenport and appellee, referred to herein -as Mrs. P. F. Devenport, were married during the year 1910, and the Waters street property continued as the homestead of the family until the death of Mr. Devenport September 24, 1927, and during their marriage was improved with their community funds, to the extent of $1,500. At the time of his death, Mr. Devenport owned a seven-twelfths undivided interest in the homestead property, also an undivided one-half interest in two lots located on Franklin street in said city, referred to hereafter as the Franklin street property, so at the institution of this suit, appellants owned, as heirs of their mother, a five-twelfths undivided interest in the Waters street property and, as heirs of their father, a seven-twelfths undivided interest in same, and an undivided one-half interest in the Franklin street property, subject however to homestead and other rights of appel-lee.

Soon after the death -of Mr. Devenport, appellants filed this suit (No. 13476) against ap-pellee for partition of the Waters street property, and about the same time they and other owners of the Franklin street property filed another suit (No. 13477) against appellee for partition of the latter property. Not' being capable of division, the Franklin street property was sold under order of court and-the proceeds ($3,800) were paid into the registry of court, and thereafter, on proper pleading, the two suits were consolidated and the share of the proceeds belonging to the estate of P. F. Devenport ($1,745.98) was left in the registry of court subject to distribution. The parties agreed that the Waters street property (homestead) was incapable of division, that it should also be sold and the proceeds divided in accordance with their legal rights, and for this purpose an agreement was entered into, to the effect that the property was worth $3,000, and that the interest of the parties should be based upon that valuation.

Appellee claimed an allowance of $1,000 for one year’s support; $500 in lieu of exempt personal property; $3,500 in lieu of homestead; and $2,531.87 for improvements made upon the Waters street property with funds belonging to the community estate of the second marriage.

The ease was submitted and -taken under advisement October-, 1929, and on February 28,1930, the last day of the term, judgment was rendered directing sale of the homestead property, establishing allowances ánd the rights of the parties as follows: Appel-lee was allowed $250 for one year’s support: $2,000 as the cash value of an allowance in lieu of a homestead; $570.70 as the cash value of her one-third life interest in the estate of her deceased husband, and $750 the value of her one-half interest in the claim for improvements placed upon the homestead property; the court directed that $1,745.98, the entire proceeds of the Franklin street property, be used in making up the homestead allowance, that the necessary additional amount ($254.02) be paid from the proceeds of the Waters street (homestead) property, and that payment of these sums to. appellee' be unconditional, and without remainder to appellants. The clerk was also ordered to pay appellee, from the proceeds of the homestead property, $750, her interest in the claim for improvements; $570.70, the cash value of her one-third life interest in the estate of deceased ; and $250 for one year’s support. To appellants, the court adjudged', share and share alike, the proceeds of five-twélfths ($625) of the original value ($1,500) of the homestead property, also the fund remaining after satisfying allowances in favor of appel-lee, above mentioned; and further that appellants recover of appellee $150, the amount’'a's-certained to be due for rents. Appellants’ excepted and gave notice- of and perfected appeal.

The facts are undisputed, and as tie judgment of the trial court is, in our opihion, •erroneous in several respects, we will proceed to render sueli judgment as we think should have been rendered. Article 1856, R. S. 1925.

The questions discussed have been properly-raised and briefed.

1. Appellants insist that the court erred in rendering judgment on the last day of the term, in violation of rule No. 66.

Appellants’ .bill of exception contains matter showing that the court did in fact violate rule No. 66, as contended, but they failed to show that any injury was suffered as a consequence. It was formerly held that the violation of this rule was reversible error, whether injury resulted or not (see Camoron v. Thurmond, 56 Tex. 26), but such is not the rule now. Rule 62a provides, among other things, that “no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of opinion that the error complained of amounted to such a denial of the rights of the parties as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. * * * ”

In Wells Fargo & Co. v. Benjamin, 165 S. W. 120, 127, Judge Hodges, speaking for the Texarkana court, said: “But we take it that the promulgation of rule 62a is the positive announcement by our Supreme Court of a change of judicial policy in respect to such matters; that the presumption in favor of injury, if not shifted, is abolished; that hereafter no case should be reversed because of errors in such rulings” unless it should be made to appear that the error complained of was prejudicial. In Golden v. Odiorne, 112 Tex. 547, 548, 249 S. W. 822, 823, Judge Mc-Clendon, for the Commission, said: “The evident purpose of rule 62a was to prevent the reversal of trial court judgments for technical and unsubstantial errors, and to cast the burden of showing prejudice upon the party complaining of the erroneous 'ruling, so far, at least, as it was within his power to do so. * * * Under the doctrine of harmless error, our courts have always declined to disturb a ruling or judgment of the trial court, athough palpably erroneous, where it appeared that no injury resulted to the complaining party. Rule 62a merely enlarged this doctrine, so as to cast upon the complaining-party the burden of showing at least that the error probably resulted to his prejudice.” This contention of appellants is overruled.

2. Appellants complain of the action of the court in allowing appellee $250 for one year’s support, because, they say, the undisputed evidence showed that she had separate property ample, for her maintenance during the first year after the death of her husband. On this issue appellee testified: “At the time of Mr. Devenport’s death I collected on account of his sickness and death the sum of $989.43 from the Woodmen of the World. Since the death of my husband, I have had on hand all of the property exempt by law from execution which I have needed in my business; and' have not had to borrow funds for- my support for the term of one year after the death of Mr. Devenport — have not borrowed any money, but just used what I had. I own another house and lot from which I collected $8.00 per month as rent.”

The controlling statutes are articles 3477 and 3478, and the pertinent provisions are these: “Such allowance [for one year’s support] shall be fixed with regard to the facts existing during the first year after such death. * * * guch allowance shall be made for the widow when she has separate property adequate to her maintenance. ⅜ * * ” As ap-pellee testified that she had adequate means for her support during the first year after the death of Mr. Devenport, the allowance of $250 for this purpose was unauthorized and forbidden by statute.

3. The court found the cash value of the homestead allowance to be $2,000, also that the cash value of appellee’s life interest of one-third in the real estate of deceased was $570.70, and directed payment of these amounts to appellee, unconditionally, without remainder to appellants. To this action of the court appellants assigned error, (a) because there was no evidence upon which the court could have based a finding of cash value, and (b) because the use by appellee of these allowances should have been limited to her lifetime, and some form of security should have been exacted for the return to appellants of these funds at the expiration of the estates.

In a number of compensation cases the rule has been announced that the present or cash value of lump sum payments cannot be arbitrarily arrived at, but must be based upon evidence showing the proper rate of discount. No evidence of this nature is contained in the record. Maryland, etc., v. Marshall (Tex. Civ. App.) 14 S.W.(2d) 337, 342; Petroleum Co. v. Bristow (Tex. Civ. App.) 21 S.W.(2d) 9, 13; Texas Emp., etc., v. Stephens (Tex. Civ. App.) 22 S.W.(2d) 144; Maryland, etc., v. Ham (Tex. Civ. App.) 22 S.W.(2d) 142. But by far the most serious objection to the order of the court is in directing unconditional payment of these funds to appellee, because the inescapable effect of the order is to confiscate appellants’ interests in remainder. At the death of P. F. Devenport the title to both parcels of real estate descended and passed in parcenary to appellants, subject however to the homestead right and life estate there- - in of appellee. The sale and conversion of the land into money, for purposes of partition, did not alter or change the respective legal rights of the parties — money took the place of land and is held upon the same basis of title as was the land. Lucas v. Lucas, 104 Tex. 636, 143 S. W. 1153, 1156; Hays v. Moore (Tex. Civ. App.) 144 S. W. 1054. The unconditional payment to appellee of the funds, representing her homestead and life interest, as directed by order of court, would unquestionably divest appellants of their title to the remainder, and result in a confiscation of their property. Hays v. Moore, supra. We therefore sustain appellants’ assignment complaining of the action of the court in this respect.

4. Appellants say that, as P. E. Dev-enport left surviving a constituent of the family, his interest in the Waters street (homestead) property descended to and vested in them, subject alone to appellee’s one-third life estate. This contention is based on the idea that appellee waived her homestead rights in the property. We do not think so. She recognized that the homestead lot was incapable of division (as did appellants) and sought its sale, in order, to accomplish partition, but insisted throughout upon an allowance in lieu of homestead. The homestead left her was not in condition, as to title, to be partitioned and used as a home, and as its proceeds alone were insufficient, this court was, in our opinion, justified in making appropriations from proceeds of both lots, to make up a sufficient homestead allowance. See Hoffman v. Hoffman, 79 Tex. 189, 195, 14 S. W. 915, 15 S. W. 471; Clift v. Kaufman, 60 Tex. 64; Crocker v. Crocker, 19 Tex. Civ. App. 296, 46 S. W. 870.

5. We think an allowance of $2,000 for homestead purposes, in view of all the facts and circumstances, is fair and just to all parties, but dissent from the trial court’s method of building up the fund. The court appropriated for this purpose $1,745.98, being the entire proceeds from the sale of the Franklin street property, and to complete the allowance added $254.02, taken from the proceeds of the homestead proper. This, in our opinion, was the reverse of what should have been done. These proceeds stood — as to title, rights, and interest — precisely on the same basis as did the lands before being sold; the seven-twelfths interest of deceased in the Waters.street property was impressed with the homestead interest of appellee, its value, based on the agreed valuation of the entire property, is $1,750, which should, in our opinion, be appropriated to make up pro tanto the allowance, and the same should be completed by appropriating, from the proceeds of the Franklin street property, the additional sum of $250.

6. The proceeds of the Franklin street property and the seven-twelfths interest of deceased in the Waters street property aggregate $3,495.98; in which, under the statute, appellee has a one-third life interest, which amounts to the sum of $1,165.32, but it is obvious that her one-third interest in the $2,000 allowed in lieu of homestead will, for all practical purposes, be merged with the latter estate, and necessarily dormant and inactive as long as she is permitted, under the law, to use and enjoy the homestead allowance. Merger of estates, as that term is understood, is the absorption of one estate in another, and results when a greater estate and a less meet at the same time in one and the same person, without an intervening estate. 10 R. C. L. 166, § 26; Larmon v. Larmon, 173 Ky. 477, 191 S. W. 110, 112. But as appellee’s homestead and life interests in the same property are of equal degree, neither being greater than the other, technically speaking, they do not merge, but rather the life estate is submerged, for the time the homestead right is exercised; however, to all intents and purposes, a merger is produced by the unity of possession. Boykin v. Ancrum, 28 S. C. 486, 6 S. E. 305, 309, 13 Am. St. Rep. 608.

That these two estates in the same property (the homestead and one-third life interest) may exist and be exhausted at the same time, was recognized by Courts of Civil Appeals in McCaskey v. Morris, 40 Tex. Civ. App. 390, 89 S. W. 1085, and in Haley v. Hail. (Tex. Civ. App.) 135 S. W. 663, 664. The latter case was a suit between the widow and the heirs of a deceased husband and father, to establish and partition the respective interests of the parties in the separate property of the deceased. The estate consisted of about 440 acres in three tracts, upon which the homestead of 200> acres was located. The judgment directed that the widow’s one-third life estate be set aside so as to be included within the 200 acres set apart for homestead. This judgment was affirmed and writ denied by the Supreme Court. In affirming the judgment, the Court of Civil Appeals said: “The practical effect of the decree was to require the one-third life estate of the appel-lee to be taken from the land upon which her homestead was located.” Again, the life estate of appellee in the remainder of the fund must be subordinated to her debt for $750 against the estate; therefore, after deducting from $1,745.98, proceeds of the Franklin street property, these two items, to wit, $250 used to complete the homestead allowance, and $750, debt against the estate, $745.98 remains, one-third of which ($248.66) represents the active life interest of appellee in the estate.

7. As above stated, the court found that appellee was entitled to $750, half of the community claim for improvements, and directed its payment from the proceeds of the homestead property. We think the court etred in appropriating proceeds oí the homestead for that purpose. At the death of P. E. Devenport, a constituent of his family (ap-pellee) remained, therefore his interest in the homestead descended and vested in appellants, free from debt, except for purchase money, taxes, or improvements contracted in writing, in the manner prescribed by the Constitution, and as it is not contended that the claim for $750 belongs to either of these categories, it was neither a charge upon the land nor its proceeds. See Allen v. Ramey (Tex. Civ. App.) 226 S. W. 489; Cline v. Niblo, 117 Tex. 474, 8 S.W.(2d) 683, 66 A. L. R. 916; Johnson v. Hampton, 117 Tex. 580, 8 S.W.(2d) 640; Hoefling v. Hoefling, 106 Tex. 350, 167 S. W. 210. However, we are of opinion that appellee’s right to be reimbursed otherwise, from the estate of her deceased husband, is fully sustained' by the authorities. See Schmidt v. Huppmann, 73 Tex. 112, 116, 11 S. W. 175; Bullock v. Sprowls (Tex. Civ. App.) 54 S. W. 657, 661; Barber v. Barber (Tex. Civ. App.) 223 S. W. 866; Clift v. Clift, 72 Tex. 144, 148, 10 S. W. 338; Furrh v. Winston, 66 Tex. 521, 1 S. W. 527; Summerville V. King, 98 Tex. 338, 83 S. W. 680; German v. Hunter (Tex. Civ. App.) 32 S. W. 344, 345. Appellee’s claim, being a debt against the estate, is collectible through an administration, but no reason exists for such circumlocution, as the same may be adjudicated and settled in this suit. The Supreme Court, in Moore v. Moore, 89 Tex. 33, 34, 33 S. W. 217, 219, dealing with a similar situation, said: “When an estate is sought to be divided through a suit in the district court for partition, that court has jurisdiction to settle and determine all of the rights and equities of the parties growing out of their joint or common ownership of the property. ⅜ * * It is the policy of our law to settle in one suit all litigation with reference to the subject-matter, and to adjust the rights of all the parties thereto, in so far as it can be done in accordance with our liberal rules of proceeding.- It would be simply multiplying suits to send the defendants into the same court, in another action against the same parties, in order to establish their rights with reference to the property then being litigated.”

In harmony with these views, we reverse the judgment of the trial court in part, reform and affirm the same in part, and remand with instructions, as follows: The allowance to appellee of $250 for one year’s support is set aside and judgment rendered for appellants on that issue; appellee is allowed $2,000 in lieu of the homestead, comprised of $1,750 proceeds of the interest of deceased in the Waters street (homestead) property, and $250 frcfm proceeds of the Franklin street property; $248.66 is apportioned as the active part of her one-third life interest in her husband’s real estate, also $750 in settlement of ■her claim against his estate.

To appellants is awarded, share and share alike, $1,250, proceeds of their undivided interest of five-twelfths in the Waters street property, $497.32, proceeds of the Franklin street property remaining after deducting allowances appropriated to appellee, and the judgment for $150 in favor of appellants against appellee, for rents, is affirmed.

Under orders of court, the homestead fund may be reinvested in another homestead with remainder to appellants on termination of the homestead right by death or otherwise; or-the homestead and life interest allowances may be loaned, on proper security, interest payable to appellee as long as the homestead right subsists or the life estate is in existence, with remainder to appellants; or these funds may be paid to appellee, on the execution by her of a refunding bond, properly secured, conditioned to pay appellants the principal of either or both estates upon the termination of either or both, as the case may be.

In order to consummate sale of the Waters street property under order of court heretofore made, and for purposes of settlement and investment of funds, the case is remanded to the trial court for further proceedings.

On Motions for Rehearing.

On motion for rehearing, appellants contend that we erred in approving the allowance to Mrs. Devenport of $750, being her half interest in the community fund used in improving the Waters street or homestead property; their contention being that as P. F. Devenport only owned a seven-twelfths interest in this property, his estate would not be responsible, to the community, in excess of the value of the improvements to his interest, and, as $1,500 was the value of the improvements to the entire property, seven-twelfths of the sum, or $875, would represent the improvement value to the interest of deceased, one-half of which, $437.50, would be the community interest of appellee, which amount should have been allowed instead of the sum of $750. The claim in favor of appellee for $750 was allowed as a debt against the estate of her husband and, in our opinion, it is none the less a debt in its entirety because the money was used to improve the homestead in which he only owned seven-twelfths of the fee. Our reasons for holdings on other questions are, in our opinion, sufficiently stated in the original opinion.

In paragraph 7 of the original opinion, we said, “At the death of P. F. Devenport, a constituent of his family (appellee) remained, therefore his interest in the homestead descended and vested in appellants, free from debt, except for purchase money, taxes, or improvements contracted in writing in the manner prescribed by the Constitution, and as it is not contended that, the claim for $750 belongs to either of these categories, it was neither a charge upon the land nor its proceeds.” Appellee challenges the correctness of this conclusion, and insists that the record does disclose the existence of a legal contract that fixed a lien, for paving improvements, upon the undivided interest of P. F. Deven-port in the homestead property, hence we are' asked to correct the conclusion accordingly. In view of the criticism, we have very carefully re-examined the statement of facts, and the only evidence in regard to a written contract for paving is the testimony of Mrs. Devenport, who said, “We (meaning herself and husband) signed a paving contract and the Bitulithie Paving Company did the paving in front of the lot, etc.” This evidence, in our opinion, falls far short of' showing the execution of a contract, such as the Constitution (section 50, art.-16) requires, in order to fix a lien on homestead property, hence we find no reason to correct the conclusion as stated.

Motions of the parties for rehearing are both overruled.

Overruled.


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    ANDERSON v. ANDERSON.
    No. 4031.
    Court of Civil Appeals of Texas. Texarkana.
    May 14, 1931.

      Oaven & Caven, of Marshall, for appellant.
    Beard & Abney, of Marshall, for appellee.
   LEVY, J.

(after stating the case as above).

The appellant predicates error in not awarding the appellee a simple judgment for $2,000 with interest, as in the nature of damages only for the breach of the contract to build a house. It is pointed out that the ap-pellee was not entitled to a decree setting aside the release of the lien of the deed- of trust without the restoration or offer to restore what she had received for the release by way of money and property. The plaintiff did not restore or offer to restore the $1,000 in money nor offer to reinvest the defendant with the legal title to the city lots. The rule sought to be invoked by the appellant is a general one applicable to a suit for cancellation for fraud of an instrument or a transaction. In order that complete relief may be awarded both the defendant and the plaintiff, it is the prime essential in the remedy of rescission of a contract or a transaction that the plaintiff should restore or offer to restore the money or property received, whenever restoration of what has been received is required. 2 Black on Rescission and Cancellation, § 616; Stewart v. Rwy. Co., 62 Tex. 246; Adams v. Loftin (Tex. Civ. App.) 1 S.W.(2d) 429; and many similar cases. Ordinarily where the contract or transaction was entire the complainant must restore the whole consideration and not a part only. There is, however, an exception to the aforementioned general rule as to the necessity of restoration on the part of the complainant in order to obtain relief. The exception is founded in the principle that the complainant or one seeking the rescission of a transaction- on' the ground of fraud is not' required to, make restoration of that which in any event he would be entitled to retain,.either by virtue of the contract sought to be set aside or of the original liability. 9 C. J, § 97, p. 1210; 7 Tex. Jur. § '47, p. 961; 4 R. C. L. § 24, p. 512; 2 Black on Rescission and Cancellation § 621; 5 Pomeroy, Eg. Jur. (2) 2110; Ry. Co. v. Jowers (Tex. Civ. App.) 110 S. W. 946; Oar v. Davis (Tex. Civ. App.) 135 S. W. 710; Chambers v. Wyatt (Tex. Civ. App.) 151 S. W. 864; Cearley v. May, 106 Tex. 442, 167 S. W. 725. Quoting from 2 Black. § 621, supra: “One seeking the rescission of a contract or other transaction is not required to make a tender or offer of restoration of that which he would be entitled in any event to retain, that is, either by virtue of original liability of the other party, if the contract should be rescinded, or under the contract itself, if rescission should be refused.”

5 Pomeroy, § 2110, supra: “Neither is a party obligated to return that which he will be entitled to retain, even though a cancellation be decreed.”

-9 C. J. § 97, supra: “One who seeks to rescind an instrument is not bound to restore that which he would be entitled in any event to retain.”

This exception, it is thought, has peculiar application to the facts and governs the present case. As appears, the $1,000 cash and the city lots of the value of $7,000, aggregating $8,000, received by the appellee, was intended and understood by both the appellant and the appellee to be at the time a partial payment on the $10,000 note, which had fallen due. The amount of the indebtedness, evidenced by the note, was, without dispute, just and owing as a valid debt. And the $10,000 indebtedness was intended by the parties at that time to be reduced and discharged by the amount of the partial payment so made and no more. The balance of the $2,000, remaining due on the note at the time, was to be paid merely by another mode of payment; that is, by way of building a house instead of in cash money. In such circumstances a restoration or the offer thereof of the partial payments was unnecessary prior to the commencement of the present action, for such conditions as might be essential for the protection of the appellant could be inserted in the judgment ultimately rendered. The partial payments so made could be and should be taken into account in the award of relief to the appellee.. As for instance, if her action for cancellation of the release of the lien should fall, she nevertheless would be entitled to the partial payment received by virtue of the. transaction itself, for it was only a part of what should have been paid to her in the first instance. If, on the other hand, she were entitled to have decreed the relief of cancellation asked, the partial .payments to her could be and should be credited, as was here done, upon the total liability of the original indebtedness of $10,-000, for, as a matter of law, the credits would have to be allowed in estimating the amount Of the judgment. Holland v. Cook, 10 Tex. 244; Harland v. Hendricks, 19 Tex. 292.

It is believed that the trial court has correctly ruled on the facts ■ and entered the proper judgment, and that such judgment should be. affirmed.


author: PELPHREY, C. J.

text:
    FIRES v. KINNEY-SHOTTS INV. CO. et al.
    No. 2544.
    Court of Civil Appeals of Texas. El Paso.
    May 21, 1931.
    Rehearing Denied July 2, 1931.

      C. A. Wright, of Fort Worth, for appellant.
    Jesse E. Martin and Dawson H. Davis,.both of Fort Worth (Homer B. Green, of Fort Worth, of counsel), for appellees.
   PELPHREY, C. J.

This is an appeal from a judgment of the county court at law of Tarrant county, Tex., that appellant take nothing in his suit against Kinney-Shotts Investment Company, a copart-nership, in which he was seeking to recover the sum of $240.94, as a penalty for the collection of usurious interest alleged to have been included in and collected upon a note executed by appellant to Wes-Tex Auto Sales, Inc., and assigned to Kinney-Shotts Investment Company.

On October 23, 1928, appellant purchased from Wes-Tex Auto Sales, Inc., an automobile, and on the 24th of October, 1928, executed and delivered to the Wes-Tex Auto Sales, Inc., his certain promissory note in the principal sum of $812.90, payable in installments. On the 26th of the same month the Wes-Tex Auto Sales, Inc., assigned said note to Kinney-Shotts Investment Company for a valuable consideration.

Appellant paid the full amount of the note to Kinney-Shotts Investment Company and then instituted this suit against both the Wes-Tex Auto Sales, Inc., and Kinney-Shotts Investment Company to recover the penalty provided for in article 5073, Revised Statutes. Prior to the trial appellant dismissed as to Wes-Tex Auto Sales, Inc. In a trial before the court, judgment was rendered that appellant take nothing, and he has appealed. At the request of appellant, the trial court filed findings of fact and conclusions of law.

The court first found the execution of the note by appellant to Wes-Tex Auto Sales, Inc., setting out the note, and that it had been transferred to Kinney-Shotts Investment Company for a valuable consideration, reciting the following indorsement: “For value received pay to Kinney-Shotts Inv. Co. or order with recourse on us. Wes-Tex Auto Sales, Inc. By P. A. Holmes, Treas.”

The following finding was also made: “That Kinney-Shotts Investment Company was and is a bona fide purchaser of said note and instrument in writing and a holder in due course thereof; that said note and instrument in writing was and is regular and usual upon its face; that said note and instrument in writing was purchased by and endorsed, sold, transferred and assigned to said Kinney-Shotts Investment Company by said Wes-Tex Auto Sales, Inc. long before its maturity; that said Kinney-Shotts Investment Company, at the time of the purchase and assignment of said note and instrument in writing and/or at any time subsequent thereto, had no knowledge and/or notice of any kind or character, of any defect and/or infirmity, which existed or may have existed in said note and instrument in writing and/or between the original maker and the holders thereof; that in so purchasing said note, as aforesaid, said Kinney-Shotts Investment Company held the same free and clear of and from any defect of title or prior parties and free and clear of and from defects and defenses available to prior parties among themselves.”

Opinion.

Appellant filed no motion for a new trial in the trial court but filed three assignments of error, in substance, as follows: (1) That the court erred in excluding certain evidence; (2) that the court erred in rendering judgment for appellee; and (3) that the court erred in refusing to render judgment in his favor. These three assignments are carried forward in appellant’s brief, as well as four others attacking the findings of the trial court.

There being no mótion for a new trial filed and no assignments attacking these findings filed in the trial court, they cannot here be considered. Henderson et al. v. Odessa Bldg. & Finance Co. (Tex. Com. App.) 27 S.W.(2d) 144, and authorities cited.

In the recent case of McDaniel v. Orr, 30 S.W.(2d) 489, the Commission of Appeals held that intent to charge usury is the ultimate issue in a case to recover the penalty for collecting usurious interest, and, the court having found here that Kinney-Shotts Investment Company had no notice of the usury included in the note, it naturally follows that it could have had no intent to charge or collect it.

The “yellow slip” sought to be introduced by appellant was properly excluded in the absence of any showing of knowledge of the recitals therein contained on the part of appellee. While it may have been admissible for the purpose of showing that usury was in fact included in the note, there was evidence on that question before the court, and the recitals of the yellow slip would have been corroborative only of that evidence. The court having found that appellee had no notice of any usury in the note, the introduction of the instrument would have had no effect on the judgment to be rendered, and, if there was any error, it was harmless, especially when appellant admitted that appellee had no notice of its recitals.

The trial court having found that appellee' had no notice of any usury included in the note, there could have been no intent on its part to charge or collect it, and, that finding not having been excepted to, the judgment will be affirmed.

Affirmed.

On Motion for Rehearing.

In our former opinion we refused to consider appellant’s four assignments which had not been filed in the lower court and did not appear in the transcript.

We based our holding on the decision in Henderson et al. v. Odessa Bldg. & Finance Co. (Tex. Com. App.) 27 S.W.(2d) 144, but after a more careful study o'f the question we have concluded that we were in error in such refusal. Gulf Manufacturing & Lumber Co. v. Newton (Tex. Civ. App.) 27 S.W.(2d) 873; Johnson v. Poteet (Tex. Civ. App.) 279 S. W. 902 (writ refused); Moody v. Bonham (Tex. Civ. App.) 178 S. W. 1020 (writ refused); Busbee v. Busbee (Tex. Civ. App.) 231 S. W. 441; 3 Tex. Jur. p. 832.

.[6] Those assignments do not question the finding of the court that Kinney-Shotts had no notice of any usury having been charged in the note. It may be conceded that usury was included in the note, but such fact does not appear on the face of the note, and therefore the burden was upon appellant to bring home to them knowledge of the fact that it was so charged, and until he had discharged that burden he could not recover the penalty from them.

Still being of the opinion that the judgment was correct, the motion for rehearing is overruled.


author: VAUGHAN, J.

text:
    MARYLAND CASUALTY CO. v. SMITH.
    No. 10825.
    Court of Civil Appeals of Texas. Dallas.
    May 16, 1931.
    Rehearing Denied June 20, 1931.
    Robertson, Robertson & Payne, of Dallas, for appellant.
    Logan N. Green and Chamberlain, Green & Wade, all of Dallas, -for appellee.
   VAUGHAN, J.

This suit was instituted by appellee against appellant under the Workmen’s Compensation Act of Texas (Rev. St. 1925, art. 8306 et seq., as amended), to set aside an award of the Industrial Accident Board, to recover from appellant compensation for the period of ap-pellee’s disability, and for’ the expense of medical treatment. No question is presented as to the pleadings, therefore no statement will be made in reference thereto. On May 26,1930, trial was had without a jury and the court rendered judgment in favor of appellee for $130.60, from which this appeal was duly-prosecuted.

From the uncontradicted evidence we find the following material facts necessary to the disposition of this appeal: That the motorcycle on which appellee was riding at the time he was injured was owned by him; that under his contract of employment with Cox-Ward Drug Company; he was required to furnish same to be used by him in the performance of his duties, viz., the delivering of packages and parcels for said drug company; that for such services, including the use of said motorcycle in connection therewith, said drug company contracted to pay appellee the sum of $27.50- per week; that said motorcycle was one of the instrumentalities of appellee’s employment; that said employer did not furnish a place for the storage of said motorcycle when not in use; that appellee at all times had to care for same so as to have it available for the performance of his duties; that appellee sustained his injuries at 5:45 p. m. September 25, 1928, while riding said motorcycle on a public street in the city of Dallas on his way to work; that at said time ap-pellee was about twenty blocks from his employer’s place of business and about one block from his residence; that appellee, under his employment, had definite hours of service, viz., from 7 a. m. to 11 a. m., and from 6 p. m. to 11 p. m., during each twenty-four hours; .that at the time appellant was injured he was not engaged in the performance of any duty under his employment, other than he was returning to his work; his next working period beginning at 6 p. m.

How should the language of the Workmen’s Compensation Act be interpreted that •a liberal construction may be placed thereon? Pronouncement has been made in a number of decisions that the Workmen’s Compensation Act should be liberally construed to the end that the purpose for which it was enacted should be accomplished; to this extent our appellate courts are in accord, but so much cannot be said perhaps in reference to the application of the virtues that lie within that beneficent rule in re the interpretation and application of the provisions of said statute. We are of the opinion that the term “liberal construction” means to give the language of a statutory provision, freely and consciously, its commonly, generally accepted meaning, to the end that the most comprehensive application thereof may be accorded, without doing violence to any of its terms.

What latitude of construction is available in the use of the words “about,” “furtherance,” and “affairs”? The synonyms of said words are given by Webster’s International Dictionary, Edition 1927, as follows: “Legally, about is neárly equivalent to more or less, but the variation legally permissible varies 'with what appears as reasonable in the contemplation of the parties under the circumstances. In concern with, engaged in, intent on, concerning, in regard to, on account of, touching, appertaining to, in connection with” ; furtherance, “act of furthering, helping forward, promotion, advancement, or progress”; affairs, “that which is done, or about to be done, matter, concern, business of any kind.” Lumbermen’s Recip. Ass’n v. Behnken et al. (Tex. Civ. App.) 226 S. W. 154, affirmed in 112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402. Hence, we are led to conclude that the following language of article 8309, R. S. 1925, “while engaged in or about the furtherance of the affairs or business of his employer,” should be construed as if same read, “while engaged in helping forward, or concerned in the progress of the affairs or business of his employer”; or, “while engaged in, or on account of- helping forward the affairs or business of his employer”; or, “while engaged in or concerned with the progress of the affairs or business of his employer.” To construe said provision in either of said respects would be but in consonance with the following express legislative intent, “that this law is designed to properly care for those injured in the industries of this State.” Acts 40th Legislature (1927) p. 84, c. 60, § 2; Fidelity Union Casualty Co. v. Munday (Tex. Civ. App.) 26 S.W.(2d) 676. Certainly the legislative intent so clearly expressed in reference to the Workmen’s Compensation Law should be given its full meaning and effect in applying that remedial statute, that the purpose for which it was enacted should be to all intents fully accomplished.

That the motorcycle was the property of appellee and not that of his employer created no legal distinction, as the relationship of the parties in regard to the use of the motorcycle would be the same in either case. As favorably bearing upon this phase of the case, see Petroleum Casualty Co. v. Green (Tex. Civ. App.) 11 S.W.(2d) 388.

Under the facts of this case we are clearly of opinion that, by giving said provision of article 8309, supra, a liberal construction, as we understand that term should be applied thereto, appellee was at the time he received his injuries “engaged in or about the furtherance of the affairs or business of his employer.” Novack v. Montgomery Ward & Co., Supreme Court of Minnesota, 158 Minn. 495, 198 N. W. 290, 292, in which it is held: “The injury is received ‘in the course of’ the employment when it comes while the employee is doing his work. It may be received, ‘in the course of the employment’ and still have no causal connection with it. State ex rel. D. B. & M. Co. v. District Court, 129 Minn. 176, 151 N. W. 912. ‘In the course of’ refers to the time, place, and circumstances under which the accident takes place. It may be ‘in the course of employment,’ and yet the employee may be standing still and not physically moving in his work. Kaletha v. Hall, 157 Minn. 290, 196 N. W. 261. He is still included when he does those reasonable things which his contact with his employment expressly or impliedly permits him to do. It ‘arises out of’ the employment when it reasonably appears from all the facts and circumstances that there is a causal connection between the conditions which the employer puts about the employee and the resulting injury.”

The judgment of the trial court is affirmed.

Affirmed.


author: JONES, C. J.

text:
    GULF, C. & S. F. RY. CO. v. CANDLER.
    No. 10841.
    Court of Civil Appeals of Texas. Dallas.
    May 30, 1931.
    Rehearing Denied June 27, 1931.
    Terry, Cavin & Mills, of Galveston, Lee, Lomax & Wren, of Fort Worth, and W. P. Donalson, of Dallas, for appellant.
    Pat H. Candler and Crane & Crane, all of Dallas, for appellee.
   JONES, C. J.

D. B. Candler, appellee, instituted this suit against the Gulf, Colorado & Santa Fé Railway Company, appellant, in the ordinary form of trespass to try title, to recover a triangular piece of ground located in the city of Dallas. Appellant disclaimed as to a part of the tract of land described in appellee’s petition, and as to the remaining part set up an easement for the construction of its railway tracks, claiming such easement under a decree in condemnation proceedings against W. C. Young, Sr., who is the common source of title, and prays that it be quieted in the ex-ércise of its rights thereunder.

The condemnation proceedings were had in 1882, and resulted in a judgment awarding appellant an easement for constructing its railroad on a strip of land 200 feet wide across a larger body of land owned by Young. The land in question is within the boundaries of this 200-foot strip of land. Shortly after the condemnation proceedings, and in the same year, Young entered into physical possession of the strip of land in suit, and inclosed it in a substantial fence, and continuously cultivated, used, and enjoyed same from said date until the year 1907, and during said time claimed said land as his own. On said date he sold the strip of land to another, and by mesne conveyances appellee became the owner of said land. Each owner of the land, including appellee, subsequent to the sale in 1907, maintained said land under a fence, used and enjoyed same, paid taxes thereon, and claimed it as his own.

The case was tried before the court on an agreed statement of facts, and resulted in a judgment in favor of appellee, from which this appeal has been duly prosecuted.

At the request of appellant, the court filed findings of fact and conclusion of law. The findings of fact adopted the agreed statement of facts, but, in addition thereto, made the finding that, “About the time this suit was filed, the necessity for laying additional tracks by defendant on the land in controversy arose and defendant then desired, and now desires, to use said land for said purposes,” is adopted as the finding of this court. The court also found that neither appellant, nor its predecessor in title to the 200-foot strip, ever used any part of the strip claimed by appellant in connection with the operation of its railroad.

That portion of the agreed statement of facts which is determinative of this appeal is: “That, if limitation title can be acquired to the right of way vested in defendant under the condemnation decree, then plaintiff and his predecessors in title have acquired title by limitation. That is to say, plaintiff and his predecessors in title have had physical possession of the tract of land in dispute, under fence, and have cultivated, used and enjoyed same and paid the taxes thereon for more than the full period of ten years prior to the filing of this suit.”

Appellant’s theory of the case is that, under the statutory law of this state, a railroad company in condemnation proceedings only acquires an easement in the land condemned for railroad purposes, and, as the fee to the land remains in the owner subject to such easement, the possession and cultivation by the owner of the fee, until such time as the railroad company may subject the land to the purpose for which it was condemned, is not hostile or adverse to the railroad’s easement in the land, and cannot ripen into title to such easement, unless there should be actual notice to the railroad of the hostile claim, and, as there was no such notice in the instant case, there is no limitation title in ap-pellee.

We cannot agree to this contention, for it does not state the rule of law announced by the decisions in this state, although there is authority for such announcement of the rule in some other jurisdictions. In this state the statute of limitation operates against railroad corporations whose lands are held adversely, as well as against individuals, and this applies to a right of way.

The agreed statement of facts above quoted declares, in effect, that, if limitation title can be acquired to the easement vested in defendant under the condemnation decree, then appellee has title to the strip of land by limitation. This language can only be construed to mean that every element necessary to acquire title to land by limitation is admitted to exist in this cause. In other words, it must be construed to mean that the possession by appellee and his predecessors in title, in addition to the existence of the other necessary elements for the acquiring of a ten-year limitation title, was hostile to the claim of the railroad company and its use of this land as an easement, and it becomes immaterial as to the manner in which such hostility was manifested. This admission warranted the trial court in the conclusion of law that “plaintiff is entitled to recover the title and possession of the land sued for.” Texas & P. Ry. Co. v. Belcher (Tex. Civ. App.) 226 S. W. 471; Texas & P. Ry. Co. v. Maynard (Tex. Civ. App.) 51 S. W. 255, and authorities cited in these cases.

Prior to the enactment of article 5517, R. S. 1925, exempting streets and highways from the limitation statutes, our Supreme Court applied the ten-year statute of limitation to streets and highways. Article 5517, R. S. 1925; Mayor, etc., of City of Galveston v. Luffkin, 23 Tex. 349; City of Galveston v. Williams, 69 Tex. 447, 6 S. W. 860; Ostrom v. City of San Antonio, 77 Tex. 345, 14 S. W. 66. It will be noted that the statute, exempting public streets and highways from the law of limitation, does not include railroads, and it cannot be extended beyond its terms in order to include therein such an exemption in favor of the railroads.

It is urged by appellant that the admission to the effect that, if appellee could acquire title to the strip of land by limitation, then he acquired it in the instant case, is qualified by an explanatory clause showing that the admission only is to the effect that appellee and his predecessors in title has had physical possession of the tract of land in dispute, under fence, and have cultivated, used, and enjoyed same, and paid the taxes thereon, for more than the full period of the ten-year limitation, and excludes' the idea that it is admitted that such- possession and use of the land was hostile to appellant’s claim. We cannot agree to this contention, for it excludes the fact that such possession, use, and occupancy of the land -could in any event be hostile to appellant’s claim of title to its right of way. We hold that what appellant claims as a qualifying clause does not limit the admission contained in the other clause.

It is urged that, in the reported cases in which the law of limitation is made to apply to a railroad right of way, it either appeared from the record, or is reasonably inferable therefrom, that the railroad held its right of way by conveyance of the fee, and that the rule applying the ten-year statute of limitation is necessarily different in a fee-simple title in the railroad to the land on which the right of way is located, and a title to a mere easement in the land for "the purpose of a right of way.

We are of the opinion that, if the fee-simple title to a right of way can he lost by adverse possession, it necessarily follows that the title to a lesser estate in a right of way may also be lost by adverse possession. The easement in the instant case contemplated that appellant’s possession of the land, when used for railroad purposes, should exclude any possession or use of the land by the owner of the fee. Louisville & N. Ry. Co. v. Smith, 125 Ky. 336, 101 S. W. 317, 128 Am. St. Rep. 254; Northern Pac. Ry. Co. v. Townsend, 84 Minn. 152, 86 N. W. 1007, 87 Am. St. Rep. 342.

Finding no reversible error, it is our opinion that the judgment of the lower court should be affirmed.

Affirmed.


text:
    HAYES et ux. v. GARDNER et al.
    No. 10987.
    Court of Civil Appeals of Texas. Dallas.
    May 30, 1931.
    Rehearing Denied June 27, 1931.
    Louis Wilson, of Dallas, for appellants.
    W. N. Coombes and W. B. Freeman, both of Dallas, for appellees.
   VAUGHAN, J.

On November 21, 1930, appellees, Mrs. Jennie Gardner et vir., J. W. Gardner, joined pro forma, and Mrs. Annie Wunderlick, as plaintiffs, filed their original petition against the Gardner Park Amusement Company, a private corporation, based upon several unsecured promissory notes executed by said amusement company, aggregating $18,234.65, of which it- was alleged that Mrs. Gardner owned $13,432.15 and Mrs. Wunderlick $4,-802.50, and upon nineteen bonds of said Gardner Park Amusement Company, each in the principal amount of $500, alleged to be owned by the said Mrs. Gardner and to be secured by deed of trust lien duly created and existing on certain improved real estate situated in Dallas county, and, on allegations made therefor, applied for the appointment of a receiver of all of the property of the Gardner Park Amusement Company, on which said deed of trust lien existed, said property not being described.

On November 21, 1930, said amusement company, acting through one D. C. Bell, its duly qualified secretary-treasurer, waived the issuance of citation on said petition, and accepted service of such process. The same day, on an ex parte hearing, Hon. Claude McCallum, judge of the 101st judicial district court of Dallas county, appointed one Joe K. Morris of Dallas county receiver of all and singular the property of the Gardner Park Amusement Company, with plenary powers as such receiver; said Morris on the same date qualified under said order by taking oath and executing bond as required by law, and immediately thereafter took possession of all of the property owned by said amusement company.

On December 30, 1930, appellants W. T. Hayes and wife, Beulah E. Hayes, filed their plea of intervention embracing and presenting (a) a petition for the appointment of a receiver of the property of the Gardner Park Amusement Company, and (b) a motion to vacate and set aside the order appointing said receiver. In re the appointment of a receiver, it may be stated that it was alleged that said amusement company was duly organized August 16, 1928, issues its bonds consecutively from 1 to 110, inclusive, in the sum of $500 each, and that to secure payment of same a deed of trust was executed on certain property describing it, owned by said amusement company, in which the Dallas Trust & Savings Bank was named as trustee, said instrument being denominated deed of trust and chattel mortgage and trust indenture agreement; that interveners owned and had duly presented for payment bonds numbered 50 to 56, inclusive, which had matured prior to said date, together with the coupons for the interest accrued on the remainder of the bonds of said series held by them, to said Gardner Park Amusement Company, and to its trustee, said Dallas Trust & Savings Bank; that said parties respectively failed and refused to pay to interveners the several sums of money on account of said matured bonds and interest on the unmatured bonds so held by them. Said petition contained all of the essential allegations necessary to show that interveners were entitled to the appointment of a receiver of the properties of said Gardner Park Amusement Company, not only for the protection of said interveners, but all parties holding the remainder of said bond issue, and other creditors of said amusement company. As to said motion, it is not necessary to. rehearse the grounds alleged, it being sufficient to state that same were sufficient to require the court to set aside the order appointing and to vacate the appointment of said Morris as receiver; and, further, the validity of said order is not questioned by either of the parties to this appeal.

On- December 30,1930, an order was entered by Judge McCallum, requiring J. W. Gardner, Jennie Gardner, Gardner Park Amusement Company, Annie Wunderlick, J. K. Morris, receiver, and Dallas Trust & Savings Bank, to appear before the 101st district court on January 24,1931, at 9 a. m. o’clock, to show cause why the relief sought by appellants should not be granted.

On February 3, 1931, under leave granted by the court, appellees filed their first amended original petition, alleging in a more extended and accurate manner the existence of debts held by Mrs. Gardner and Mrs. Wunderlick, maturity of the notes past due, failure to pay same on demand after maturity, the insolvency of said amusement company, and grounds for the appointment of a receiver. Said amendment was filed over appellants’ objections, which, under the view we take of this ease, it is not necessary to review, further than to state that, among the grounds urged, were that, the receiver having been appointed on appellees’ original petition, the grounds on which said appointment was made could not be amended so as to make valid the appointment of the receiver upon said original petition, and that said amended petition did not allege grounds upon which the appointment of a receiver could be legally made.

On February 14, 1931, appellants’ motion to vacate and set aside the order of November 21, 1930, appointing Joe K.- Morris receiver, was duly heard and in all things sustained, all costs of suit to that date was taxe.d against appellee, and all costs of the receivership was taxed against said amusement company, and said receiver ordered to file his. final report showing all receipts and disbursements, and return all property that came into his possession as such receiver to said amusement company. Thereafter, and on the same day, the court considered the application of appellants,. and also the application of appellees presented by their first amended original petition for the appointment of a receiver of the property and assets of said amusement company, which resulted in the court finding therefrom that a necessity existed for the appointment of a receiver, and entered an order reappointing said Morris receiver of the properties of the Gardner Park Amusement Company, said order being in part as follows: “On the application of the intervenors, and the plaintiffs, it is accordingly ordered, adjudged and decreed by the Court that Joe K. Morris, of Dallas County, Texas, be and he is hereby appointed receiver of all the properties and assets, real, personal and mixed, of which the defendant, Gardner Park Amusement Company is seized and possessed or claims.

On February 14, 1931, the court heard application of receiver and appellants’ contest thereto for the allowance of the following sums, viz. $500 to the receiver for services rendered by him under his original appointment and $150 to his attorneys, and entered an order thereon allowing said Morris the sum of $500 as compensation for his services as receiver from November 21, 1930, to February 14, 1931, and the sum of $150 to Bailey, Nichols & Bailey for legal services rendered by them to said receiver.

By said order the court found that said receiver had operated the business of the Gardner Park Amusement Company profitably, having shown a continued net profit therefrom, that his services were reasonably worth the sum of $500, and that the services of his attorneys were worth the sum of $150, and ordered the payment of said sums to be made out of the funds “now on hand and in his possession and belonging to the defendant, Gardner Park Amusement Company.”

Appellants objected to said order, on the ground “that the indebtedness of said receiver has no right of priority over the first lien of these intervenors who are not' parties to the procurement of the receiver and the corpus of the mortgaged property cannot be used up in such receiver’s costs and the lien destroyed, and said receivership not being initiated by the intervenors herein, Articles 2302-2307 of Vernon’s Annotated Texas Statutes have no application, and said allowance would be improper and illegal.”

We are of opinion that, under the facts of this case, appellants’ objection to .the judgment of the court taxing the amounts allowed respectively as compensation to the receiver and to his attorneys for legal services rendered him was well taken, in that said judgment did not limit the payment of said sums to be made (a) out of earnings of the business of said amusement company during the time it was conducted by said receiver, or (b) out of proceeds arising from the sale of the corpus of the property of said amusement company, remaining after the payment of all debts secured by valid prior liens thereon, thereby X>reventing appellants’ lien from being subordinated to the allowances so made to the receiver and his attorney in the distribution of the proceeds arising from said mortgaged property. Craver et al. v. Greer et al., 107 Tex. 356, 179 S. W. 862; Hooven, etc., Co. v. T. Schriver etc. (Tex. Civ. App.) 184 S. W. 359; Van Valkenburgh v. Ford (Tex. Civ. App.) 207 S. W. 405; Gulf Pipe Line Co. v. Lasater (Tex. Civ. App.) 193 S. W. 773; Houston Ice & Brewing Co. v. Clint (Tex. Civ. App.) 159 S. W. 409; Houston Ice & Brewing Co. v. Fuller, 26 Tex. Civ. App. 239, 63 S. W. 1048; First State Bank of Hubbard et al. v. Farmers’ Oil & Gin Co. (Tex. Civ. App.) 178 S. W. 1015.

However, the trial judge, by the language of his order of February 14, 1931, limited the effect of the broad language of the judgment taxing the receiver’s compensation and his attorneys’ fee against said amusement company by directing payment of said sums to be made as follows: “And he (said_ receiver) is hereby instructed to pay out of the funds now on hand and in his possession and belonging to the defendant Amusement Company” said sums; as the word “funds,” as used in said order, means cash on hand or personal asset acquired by the receiver on account of and during the operation of the business of said amusement company. City of San Antonio v. Routledge, 46 Tex. Civ. App. 196, 102 S. W. 756, 768; McCammon v. Cooper, 69 Ohio St. 366, 69 N. E. 658, 659.

The trial court will therefore, in the distribution of the assets of said amusement company, so construe and give effect to said order in regard to the payment of said sums allowed said receiver and his attorney.

As to appellants’ objections to the court permitting appellees to file their first amended original petition, we do not think the court erred as contended by appellants. The court, having sustained appellants’ motion to vacate the order appointing the receiver under ap-pellees’ original petition, effectively terminated the situation- produced by that appointment as if same had never been made, and left appellees’ petition subject to further proceedings, with the right of appellees to amend same for the purpose of establishing any rights asserted by them, and to invoke any remedy to that end, as if some character of exception or demurrer addressed thereto had been sustained, it not being the purpose of the amendment to appellees’ petition to vitalize the appointment of the receiver under the original petition, nor to remove any of the defects therein upon which the motion to vacate the appointment of said receiver was sustained. In other words, the action of the court in vacating said receivership was not in any respect disturbed by said amendment; therefore the court did not err in permitting same to be filed.

Appellants contend that the order of date February 14, 1931, appointing said Morris receiver of the properties of said amusement company, was void, because the court based same on appellees’ amended petition and appellants’ petition in intervention, each seeking the appointment of a receiver to bo made by the court; this because said amendment did not allege grounds sufficient for such appointment to be made; therefore should have been granted solely upon appellants’ petition. Conceding that appellees’ petition did not allege grounds sufficient to justify the appointment of a receiver, that fact would not render invalid the appointment so made, as defects in said amended petition could not operate in any respect to impair the sufficiency of appellants’ allegations upon which the appointment could be amply justified and sustained. Therefore, as to the valid legal effect of said appointment, the receivership was granted per force of appellants’ petition.

All assignments of error have been considered, and, finding no reversible error presented thereby, are overruled, and judgment of the trial court is affirmed.

Affirmed.


author: HAUL, O. J.

text:
    JOHNSON et al. v. McMAHAN et al.
    No. 3621.
    Court of Civil Appeals of Texas. Amarillo.
    June 10, 1931.
    Rehearing Denied July 11, 1931.
    G. E. Hamilton, of Matador, for appellants.
    W. D. Wilson, of Spur, for appellees.
   HAUL, O. J.

The appellant Johnson, joined by W. P. T. Smith, sued Mrs. McMahan, as principal, and W. W. Sample, J. E. Morris, R. J. Hairgrove, and George S. Dink, as sureties on an injunction bond, to recover damages alleged to have resulted from the wrongful granting of a temporary injunction by the district court at the instance and request of the defendants.

The injunction was granted in cause No. 1002 on the docket of the district court of Dickens county; that being an action by Mrs. McMahan against the plaintiffs, who are appellants in this case, to restrain them from digging a ditch and for the additional item of $110 court costs which accrued in the first cause, No. 1002. The $110 item was expended by appellants herein for a statement of facts prepared in cause No. 1002 by the court reporter and delivered to them too late to be taxed in the cost bill of the transcript in said cause on appeal. In cause 1002 Mrs. McMahan executed a bond for temporary injunction in the sum of $500. Appellants herein seek to recover the $500 and $110 costs from her sureties on the bond and the further sum of $1,074 against Mrs. McMahan. Mrs. McMahan’s injunction bond is for the sum of $500, “conditioned that the said Mrs. O. O. McMahan would abide the decision which may be made therein,” and further binds her “to pay all sums of money and costs that may be adjudged against her if the injunction be dissolved in whole or in part.”

The district court granted the temporary writ of injunction on the 23d day of November, 1927. Smith has disclaimed in this action, and no further mention will be made of him in connection with the case. The writ of injunction commanded Johnson to desist from digging and excavating a ditch which he had commenced for the purpose of draining a lake or depression existing upon his land until the further orders of the court. The writ was made returnable at the November term, 1927, of the district court, which convened on the 28th day of November, 1927.

The substance of the appellant’s allegations, in addition to what has been stated, is: That he was the owner of a quarter section of land which had a shallow depression or basin upon it and in wet seasons this basin would fill with water, which was locally known as Dry Lake. That it was fertile and highly productive land, and Johnson was preparing to put same in cultivation, and, in order to drain the lake, which covered about 120 acres of his quarter section, he commenced to cut a ditch connecting the lake with Hackberry draw, and had obtained a strip of land from Smith through which the ditch would, be dug. By reason of the issuance of the temporary injunction, he was prevented from draining his land. That the suit was filed to the November term, hut too late for trial at said term, and that the case was not tried until the 9th day of June, 1928, at which time the court perpetuated the temporary injunction. Appellant charges: That it was only during the fall and winter months that he could cut the drainage ditch. That' it was a task of considerable magnitude, requiring the assembling of teams, implements, feed for his teams and laborers to do the work, which could not be done during the spring and summer months and during farming seasons. That he broke the land and put it in cultivation in the winter and in the spring of 1928. That his crops were planted at the date of the trial of said cause 1002. That even if the judgment of the court had been in his favor on the 9th day of June, it was then too late for him to have drained his land. That about the middle of July, 1928, as the result of heavy rains, the lake was filled with water, which destroyed his growing crops. That he had a cropper working said land and that plaintiff’s share was one-half. That certain crops of cotton and feed would have been ■made and gathered from the land but for the water that destroyed his said crops and caused his loss. That hut for the injunction he Would have drained the water from his land in time to have enabled his cropper to cultivate and raise the crops in 1928, and that plaintiff’s share of said crop would have amounted to $1,039. That, if Mrs. McMahan had sued praying only for a permanent injunction, he would have completed his ditch before planting time in 1928 and before the final judgment was rendered in June, and would have filed supersedeas bond and appealed from the adverse judgment, thus leaving his drainage system in good condition and protecting his crops until the case was decided in the appellate courts. That he appealed from the judgment rendered against him in June, which perpetuated the injunction, and that this Court of Appeals reversed the judgment of the trial court perpetuating the' injunction, and affirmed it as to the damages, holding that the injunction had been wrongfully issued; the decision of this court being based upon answers to certified questions from the Supreme Court. 15 S.W.(2d) 1023.

Plaintiff sued for additional damages in the sum of $35 for necessary and reasonable expenses incurred in removing a fence along the proposed line of the drainage ditch and rebuilding the same. He further alleges that in causé 1002 he paid for a statement of facts which he was not able to use and which was not taxed in the cost bill on appeal because it was delivered by the court stenographer too late.

The appellees answered by a plea to the jurisdiction of the court, alleging: That it appeared from the petition that this- suit was to recover on a bond in the sum of only $500. That, said bond being given in a temporary injunction proceeding, damages, if any, recoverable against either the principal or the sureties, were limited to the amount named in the bond; there being no allegation that the injunction was sued out maliciously and/ or without probable cause. That the allegations wliereby plaintiff was seeking to recover additional damages were made with the fraudulent intent of conferring jurisdiction on the district court. That the damages, if any, sought to be recovered, accrued after the temporary injunction ceased to function and after the injunction had been made permanent on a trial of the case on its merits; such damages not being recoverable on a temporary injunction bond, notwithstanding the reversal of the judgment on appeal.

Subject to their plea to the jurisdiction, the appellees also answered by general demurrer and several special exceptions. The general demurrer and special exceptions were overruled, with the exception of two exceptions, numbered 8 and 9, to the effect that plaintiff’s allegation that the injunction suit was brought too late for trial at the November term and that it was impossible to try the ease on its merits until the June term, 1928, were conclusions of the pleader and because appellant could have answered, moved to dissolve, and exercised the rights given by law in such cases, to have had the temporary injunction dissolved, and to the further effect that the item of $110 costs of the statement of facts in the injunction suit should have been included in the costs of'that suit, and that such item has been adjudged in the former case and plaintiff has no right to recover herein.

Defendants further interposed pleas of res judicata and estoppel, alleging: That at the June term, 1928, in said cause No. 1002, the appellant Johnson, who was defendant therein, filed a cross-action in which he sought to recover damages for the alleged wrongful issuance of the temporary writ of injunction in said cause, thereby putting his right to recover damages in issue. That, on the trial of said cause in the district court, Johnson offered testimony upon the issue of wrongful suing out of said injunction and his right to recover damages therefor, and at the conclu-slon of the trial, at his request, the trial court filed findings of fact and conclusions of law in part as follows: “I conclude that the defendant Johnson is not entitled to recover on his cross-action.” That the trial court,rendered judgment upon such finding that Johnson take nothing against Mrs. McMahan by reason of his cross-action for damages, and to that part of the judgment Johnson assigned no .errors, either in a motion for a new trial or on appeal, and that the appellate court affirmed the trial court’s judgment with reference to Johnson’s cross-action. That the Court of Civil Appeals did not include the matters set up in the cross-action in its certificate to the Supreme Court, and, no- writ of error having been filed, the judgment has .become final.

As heretofore stated, the trial court overruled the appellees’ plea to the jurisdiction, the general demurrer, and all of the special exceptions except the two numbered 8 and 9, which he sustained. The trial court also sustained the pleas of res judicata and estoppel and rendered judgment accordingly.

The first question to be considered is: Did the district court have jurisdiction?

The appellees insist that the $110 item which appellant paid for the statement of facts, and which was not delivered to him in time to be filed as part of the record in the first ease appealed,- is not recoverable in this action. We think if the statement of facts had been filed and the clerk had failed or refused to tax the amount as costs, the appellant could have recovered from the appellees the $110 in a separate action. Hunter v. Penland (Tex. Civ. App.) 32 S. W. 421; Thompson v. Morrow (Tex. Civ. App.) 147 S. W. 700; H. & G. N. Ry. Co. v. Jones, 46 Tex. 133; Clark v. Pearce, 80 Tex. 146, 15 S. W. 787; G., H. & S. A. Ry. Co. v. Ware, 74 Tex. 47, 11 S. W. 918. But the failure of appellant to secure the statement of facts in time to have it filed as a part of the record precludes him from having the amount paid taxed as costs or awarded to him in this or a separate action. L. C. Cunningham & Co. v. Perkins, 28 Tex. 488; Dillard v. First National Bank (Tex. Civ. App.) 143 S. W. 682; Hines v. Sparks (Tex. Civ. App.) 146 S. W. 289.

Upon the issue of jurisdiction of the district court, the appellees further insist that appellant cannot recover in a suit upon the injunction bond more than the penal sum named therein against either Mrs. McMahan or her sureties. He is not limited in his recovery against Mrs. McMahan by the amount named in the bond. We think the rule is established in this state that, where a party has been enjoined and has suffered damages by reason of the wrongful issuance of an injunction, he may recover against the sureties on the injunction bond the amount of his actual dam'ages not exceeding the sum named in it, and may in the same action recov'er against the principal on the bond all actual damages proximately resulting from its wrongful ⅛ suance, whether the injunction was sued- out maliciously or without probable cause.

In Miller Surfacing Co. v. Bridgers et al. (Tex. Civ. App.) 269 S. W. 838, 840, Judge Baugh made an exhaustive search of the authorities bearing upon the question, and said:

“The only Texas case directly in point to which our attention has been called or which we have" been able to find is that of Martin v. Sykes, 25 Tex. Supp. 197. In that case the court held that judgment against the sureties for an amount in excess of the bond was error, but not as to the principal, as she was liable for the original debt and damages thereon, regardless of the bond. As to limiting the liability of the principal on such bond to the penalty of the bond, there is considerable conflict of opinion in other jurisdictions. The rule as stated in 32 C. J. 465, is that, where suit is brought on the bond, the bond is controlling, and only such damages are recoverable as are clearly embraced within its terms. However, in 14 R. C. L. 481, we find that:
“ ‘What is said to be the better rule, however, is that, although a party may have his remedy on his bond, yet this is not exclusive, and he may, in a proper case, also have a right to maintain an action at law.’ ”

Judge Baugh further states that in cases of malicious prosecution exemplary damages cannot be recovered, and concludes:

■ “We think the better rule to be that appellants are not necessarily limited in their recovery to the amount fixed in the bond, but are entitled to recover the actual damages proximately resulting from the wrongful issuance of the injunction, whether maliciously sued out or not. Ry. Co. v. Miller (Tex. Civ. App.) 38 S. W. 1132; Lancaster v. Roth (Tex. Civ. App.) 155 S. W. 597; Anderson v. Wilson (Tex. Civ. App.) 204 S. W. 784. The amount of the bond in such cases is usually little more than -an estimate by the court based upon matters of opinion or ex parte statements, and, where it proves to be wholly inadequate to cover the injured party’s actual damages, we see no good reason why the party causing the damage should not be held responsible for it. ⅜ * * This rule, of course, would not apply to the sureties on the injunction bond. Their liability is limited to the amount fixed in the -bond.” People’s Trust Co. v. Riley (Tex. Civ. App.) 300 S. W. 142; Castleman v. Williams (Tex. Civ. App.) 263 S. W. 638.

So, if we are correct in this conclusion, the district court had jurisdiction.

The next contention to be considered is that, because the damages sought to be recovered in this action accrued after the final judgment in the district court, they are not within the terms of the bond given, because, as appellees insist, it was executed in order to obtain a temporary injunction, and covers only such damages as may accrue prior to the trial of the-case on the merits.

We do not'so understand the law. Generally no new or additional bond is required when a temporary injunction is made permanent by the final judgment rendered upon the merits. Cossar v. Klein, 227 Ky. 768, 14 S.W.(2d) 160; Davison v. Hough, 165 Mo. 561, 65 S. W. 731; Marion Electric Light Co. v. Rochester, 149 Ky. 810, 149 S. W. 977. Our statutes make no provision for the execution of an additional or new bond except in special cases provided as, for instance, where, by the injunction, the collection of money is restrained under article 4659. The condition of the bond in this case is that appellees will pay all sums of money and costs that may be adjudged against them if the injunction is dissolved. Where this is the provision of. the bond, it is held that no right of action accrues until the injunction is dissolved by final judgment. 1 Joyce on Injunctions, §§ 177, 177a; 1 High on Injunctions (4th Ed.) § 1649. The condition precedent expressed in article 4649, that the applicant for an injunction shall execute and file with the clerk a bond payable to the adverse party with two or more good and sufficient sureties, is mandatory. Ex parte Coward, 110 Tex. 587, 222 S. W. 531. We find no statutory provision requiring an additional bond where a temporary injunction is to be made permanent, except in cases coming within the terms of article 4659, nor have we found any case in which there was such a proceeding. We think the statute contemplates that the bond required by article 4649 is intended to protect the defendant against whatever damages may result from the time of the issuance of the writ until the injunction is dissolved, and that it protects the defendant in any proximate damages which may result even during the pendency of the appeal. Bass v. City of Clifton (Tex. Civ. App.) 297 S. W. 872, and authorities cited. It is held that, when the defendant has suffered the loss of his crops or rents by reason of the issuance of an injunction, such loss is a proper ground of recovery. 2 High on Injunctions (4th Ed.) § 1673 ; 2 Sutherland on Damages, pages 1742, 1743.

As hereinbefore stated, the appellant herein, as defendant in cause No. 1002, sought to recover the expenses incident to having assembled his teams, scrapers, and workmen for the purpose of digging the ditch. He does not seek in this action to recover upon any of these grounds.

The appellees insist that the judgment which denied Johnson damages in cause No. 1002 is an estoppel and res judicata of his right to recover any damages thereafter accruing, such as are sought in this action. We cannot assent to this proposition. The trial court’s judgment denied him a recovery in cause No. 1002 of the $300 damages which he alleges had accrued to the time of the suit. He did not appeal from that part of the judgment, so it was affirmed by this court and is res judicata of his right to recover, but only as to the items of damages asserted in that action. We do not agree with appellees in their contention that such judgment also adjudicates Johnson’s right to recover damages subsequently accruing. That judgment having decreed that the temporary injunction was properly issued and should be made permanent, it necessarily followed such a holding that Johnson was not entitled to recover the damages claimed in his cross-action. If Mrs. McMahan was entitled to the injunction, no damages could result. It having been held that the judgment of the trial court was erroneous in so far as it granted the injunction, it does not estop Johnson nor is it res judicata in a subsequent action except as to the items of damage set out in his pleadings in the other ease. That part of the judgment which denies Johnson a recovery of damages is merely an incident to the court’s determination that Mrs. McMahan was entitled to ■the injunction, and our construction of the judgment is that it does not settle the abstract legal question of the right of a party injured by the wrongful issuance of an injunction to whatever damages may thereafter proximately result. The judgment against Johnson, dated June 9, 1928, denying a .recovery of the damages which had accrued to that date, is not an adjudication of his right to recover the damages sued for herein resulting from the destruction of his crops in July after the final judgment was rendered in the trial court. It is shown that about the middle of July there was a heavy rain which filled the lake and completely destroyed the crop which appellant had growing there. We are sustained in this holding by numerous Texas cases as well as by the text-writers.

Hermann v. Allen, 103 Tex. 382, 128 S. W. 115, 116, seems to be a case in point. Allen sought to recover damages for the issuance of a writ of injunction sued out against him by Hermann restraining him from moving a house which belonged to him, but which was situated on land belonging to Hermann. Allen pleaded in reeonvention his right to the house and the wrongfulness of the injunction. The case reached the Supreme Court, where it was said that the pleadings put in issue the right of Allen to move the house and to recover damages caused by Hermann’s interference with that right. After discussing the rules relating to the effect of a judgment where a claim is put in issue and a judgment is rendered and of cases in which though there is a claim, it is not set up and is separable from the cause of action pleaded, the court said:

“The reason for this difference is that a judgment is logically to he taken as disposing of all the issues pending for decision under the pleadings in the cause, unless the court exclude some of them from the effect of the adjudication, an exception made by other decisions. * * * The trial court, therefore, erred in this ease in refusing to instruct that •the former judgment precluded a recovery by plaintiff herein of any damages which accrued prior to the time of its rendition. The judgment of the Court of Civil Appeals [118 S. W. 794] was pronounced upon the record of the trial court, and, of necessity, the effect of its adjudication of the present question is the same as if the trial court had rendered it. It follows that damages which accrued after the end of the trial in the district court may still be recovered.” Orsak v. Kaspar (Tex. Civ. App.) 11 S.W.(2d) 618; Texas, etc., Ry. Co. v. O’Mahoney, 24 Tex. Civ. App. 631, 60 S. W. 902; H. E. & W. T. Ry. Co. v. Charwaine, 30 Tex. Civ. App. 633, 71 S. W. 401; Clark v. Dyer, 81 Tex. 339, 16 S. W. 1061; 2 Freeman on judgments (5th Ed.) page 1263; 15 R. C. L. 968.

We find it necessary to consider only one other question. The appellees insist t¿at the appellant cannot recover because he failed to take any action by appeal or otherwise to have the temporary injunction dissolved.

It is said in 8 R. C. L. 442, § 14: “It is a fundamental rule that one who is injured in his person or property by the wrongful or negligent acts of another whether as the result of a tort or a breach of contract, is bound to exercise reasonable care and diligence to avoid loss or to minimize the resulting damage and that to the extent that his damages are the result of his active and unreasonable enhancement thereof or are due to his failure to exercise such care and diligence, he cannot recover; or as the rule is sometimes stated, he is bound to protect himself if he can do so with reasonable exertion or at trifling expense and he can recover from the delinquent party only such damages ás he.could not with ■reasonable effort have avoided.”

The right of a party injured by' the abuse of the process of the court is the subject of an interesting note in 33 A. L. R. 1479. And the duty of appellant to minimize the damages is discussed in 17 O. J. pp. 767, 778. In view of the record before us, it becomes a question of fact whether it was the duty of Johnson, under all the circumstances, to move to dissolve the temporary injunction and prosecute an appeal and whether an appeal would have been effective. The court did not .decide the case upon this issue, and, in view of another trial, the attention of counsel is called to the line of cases which holds that the filing of a supersedeas bond hás the effect of suspending the injunction pending the appeal. Williams v. Pouns, 48 Tex. 141; Riggins v. Thompson, 96 Tex. 154, 71 S. W. 14; Ex parte Rains, 113 Tex. 428, 257 S. W. 217; Haley v. Walker (Tex. Civ. App.) 141 S. W. 166; and many other cases might be cited.

For the reasons stated, the judgment is reversed, and the cause remanded.


author: COBBS, J. SMITH, J.

text:
    EUREKA SECURITY FIRE & MARINE INS. CO. v. DE ROSS.
    No. 8598.
    Court of Civil Appeals of Texas. San Antonio.
    April 22, 1931.
    Rehearing Granted May 20, 1931.
    Appellee’s Motion for Rehearing Overruled July 8, 1931.

      T. M. West, Harry L. Howard, and Nat D. Hardy, all of San Antonio, for appellant.
    Briscoe & Morris and Joe D. Hill, all of San Antonio, for appellee.
   COBBS, J.

Appellee sued appellant in the county court to recover on a certain fire insurance policy issued to her by appellant on a certain residence, for the sum of $1,000, alleging that the insured property was totally destroyed by. fire during the term of that policy, and that appellant was therefore liable to her for the full amount of the policy, with interest at the rate of 6 per cent, from the date of the fire.

The defendant answered (a) that the policy had been canceled at the time of the loss; (b) that Mrs. Margaret De Ross was not the sole and unconditional owner at the time of the fire; and (c) that the policy was void because the building was vacant and unoccupied for a period of ten days or more, in violation of the vacancy clause in said policy.

The case was tried to a jury upon two issues only. (1) Whether or not the fire occurred during the term of the policy, which was answered in the affirmative; (2) whether or not the insurance policy was canceled prior to the fire, which was answered in the negative.

These were issues of fact to be answered, and the jury answered both in favor of the appellee. The ease involves no intricate issues of law.

The facts found by the jury clearly establish that the fire originated during the existence of the policy and was a total loss. It is true that Margaret De Ross was not the sole and unconditional owner; still she was handling the property for the true owner as a tenant in common for and with the other owners, having an insurable interest therein, possessing all the rights of the sole owners for whom she was acting.

The evidence showed that the property was bought by Charles Stafford, as a home, on April 30, 1903, and occupied by him and his wife, Betty Stafford, until the year 1913, when Charles Stafford died and left his widow and seven children. Mrs. Margaret De Ross, a widow, was one of the seven children.

Mrs. Stafford testified: “As to why it was insured in her name, she came to live with me to take care of the home property. She had an interest in it. She was one of the seven children and I was not able to do anything, she came to take care of me, and I turned the property over to her.” She further testified that in April, 1923, the insurance agent, Ramsey, came out to their home where they were living, inspected the property, and insured it in the name of her daughter, Mrs. De Ross, for three years, and that Mrs. De Ross had always looked after this property and had collected the rents, paid the insurance, and taken care of her.

The court submitted two issues to the jury, which were the only ones pleaded by the defendant, to wit:

“Number One — Did the fire occur prior to noon March 31st, 1928?
“Number Two — Had the policy of insurance been cancelled prior to said fire?”

To question No. 1 the jury answered “Yes,” and to question No. 2 the jury answered “No.”

Upon these issues and findings of the jury the court gave judgment for the plaintiff for $1,000, with legal interest from the 9th day of July, 1928, being the date the proof of loss was received by the defendant.

Where property is owned and is a homestead, the surviving widow, on the death of her husband, although she owns only an undivided interest in the property, has an insurable interest in it. Hoyle v. Republic Ins. Co. (Tex. Com. App.) 14 S.W.(2d) 816; East Texas Insurance Co. v. Crawford (Tex. Sup.) 16 S. W. 1068; Rolater v. Rolater (Tex. Civ. App.) 198 S. W. 391.

A widowed daughter living with her mother is entitled to a homestead and has an insurable interest. Childers v. Henderson, 76 Tex. 664, 13 S. W. 481.

A homestead is not subject to partition. Hall v. Fields, 81 Tex. 562, 17 S. W. 82.

Possession of one tenant in common is in right of all the other owners. Phillipson v. Flynn, 83 Tex. 583, 19 S. W. 136.

The survivor is entitled to the use of the home. Adair v. Hare, 73 Tex. 275, 11 S. W. 320.

Mr. Ramsey was the agent of the insurance company, and from the statement of facts it appears that policy No. D-75229 insured the property for $1,000 from March 31, 1926, to March 31, 1927, the premium being $15.30.

By policy No. D-76117, dated March 19, 1927, the property is insured for $1,000 from March 31, 1927, to March 31, 1928, and the premium charged was $18. The company undertook to cancel this policy without notice. On March 8, 1927, A. M. Ramsey was collecting the rent and insuring the property, and on that date he collected $33.30 for insurance on this property, as shown by his letter to Mrs. De Ross in which she was demanding her policy; thus we see that the said Ramsey in 1926 for the same policy charged $15.30 and in 1927 he charged $18, and- still he collected from Mrs. De Ross on March 8, 1927, the sum of $33.30.⅜ He had received for the company $15.30, another year’s insurance, and it is not strange, under these circumstances, that he refused to deliver the policy to. A. E. Lowe and that the company failed and refused to place him on the stand on the trial of this case, as he would have been compelled to account for $33.30 instead of $18 stated to be the premium in the policy of insurance dated March 19, 1927. The proof of loss was sent to Dallas to the general agent and received by him July 9, 1928.

The facts sustain the findings of the jury and the judgment of the court. The judgment is affirmed.

On Motion for Rehearing.

SMITH, J.

1 It was provided in the insurance contract involved that said policy “shall be void * * * if the interest of the insured in the property be other than unconditional and sole ownership,” ’ and appellant set up and proved said condition as a defense to ap-pellee’s recovery.

The record shows, and it is conceded by appellee, that the insured, Mrs. De Ross, had only an inherited interest in an undivided one-fourteenth of the insured property, which obviously is far short of the “unconditional and sole ownership” required in the contract as a condition to her right to enforce its provisions.-

The condition is reasonable, material, valid, and enforceable. It is a contractual warranty which the law enforces. Crescent Ins. Co. v. Camp, 64 Tex. 521; Id., 71 Tex. 503, 9 S.W. 473; Nat. Fire Ins. Co. v. Carter (Tex. Com. App.) 257 S. W. 531; Fireman’s Fund Ins. Co. v. Wilson (Tex. Com. App.) 284 S. W. 920; Niagara Fire Ins. Co. v. Pool (Tex. Civ. App.) 31 S.W.(2d) 850, 852. As was said by our Supreme Court in the case first cited; “Whether the interest of the survivor is legal or equitable, or whether he is or not a trustee, can' make no difference, since it seems indisputable that he is not the sole and unconditional owner, for his own use and benefit, upon any authority, or tested by any theory of law. The risk increases as the interest of the assured is lessened, and the condition that the actual interest, if less than that perfect proprietorship described in the policy, shall be stated in the policy, is sustained by greater reason than supports many material warranties in such contracts. But whether reasonable or not can make no difference. The parties have made the agreement and put it in language unambiguous and emphatic; it is neither immoral nor against public policy, and we have been able to discover no law to prevent the consummation of the lawful intent of the parties, plainly expressed.”

It is true that an insurer may waive such condition and thereby cut itself off from asserting it as a defense, but no such waiver was pleaded in this case, or submitted to the jury, and therefore appellee did not show herself entitled to recover.

Of course it is true, as appellee contends in her brief, that Mrs. Margaret De Ross had an insurable interest in the property, but that is beside the question presented in the appeal. That question is one of sole ownership only.

Other questions are raised in the appeal, but the one decided above is controlling, while the others, not likely to arise upon another trial, need not be decided or even discussed.

Because appellee did not meet the condition of sole ownership, or plead and establish by jury findings a waiver thereof upon the part of appellant, the judgment must be reversed and the cause remanded.

FLY, a J.

I concur in the above opinion.

On Appellee’s Motion for Rehearing.

SMITH, J.

It appears from the record that Mrs. De Ross was one of seven children who, together with their mother (the community survivor), constituted the family entitled at one time to the homestead rights in the property afterwards destroyed. The question of homestead was not mentioned in the pleadings, but it is inferable from the evidence that Chas. H. Stafford held the legal ■title to the property at the time of his death in 1913; that he was survived by his wife and their seven children, who continued to occupy the property as a homestead until 1923, when they moved from the premises and never returned thereto. Five years later the dwelling was destroyed by the fire in question. Mrs. De Ross, a widowed daughter, one of the constituent members of the family, had procured the issuance of a policy of insurance upon the dwelling, in the sum of $1,000, payable to herself individually and exclusively, and, when the property was destroyed by fire in 1928, she instituted this suit individually to recover the amount of the policy in her own behalf. Before the cause was tried, Mrs. De Ross died, whereupon her mother and brothers and sisters were substituted as plaintiffs and prosecuted the suit as the sole surviving heirs of Mrs. De Ross, who, it was alleged, died “intestate, left no debts and no necessity for administration exists.” It was further alleged &at Mrs. De Ross’s mother was entitled to one-half and each of the other substituted plaintiffs one-sixth of whatever sum might be recovered.

Appellees have presented a very able and earnest motion for rehearing, contending that the Interest of Mrs. De Ross was that of “sole, and unconditional ownership” of the property destroyed, within the terms of the insurance policy, because that property constituted a homestead and Mrs. De Ross was one of the constituent members of the family enjoying the homestead rights in the property. In support of their contention on rehearing, appellees cite the cases of Horn v. Arnold, 52 Tex. 164; Givens v. Hudson, 64 Tex. 473; Hoyle v. Ins. Co. (Tex. Com. App.) 14 S.W.(2d) 816; East Texas Ins. Co. v. Crawford (Tex. Sup.) 16 S. W. 1068; Rolater v. Rolater (Tex. Civ. App.) 198 S. W. 391. When the opinions in those eases are analyzed with referfence to this case, however, they do but declare the well-settled rules relating to homestead exemptions, defining the constituents of the family entitled to homestead rights, and establishing the insurable interests of husband and wife, and of community survivors. There is no intimation in them that the insurable interest of any constituent member of the family other than the surviving spouse is that of “sole and unconditional ownership” of the property constituting the homestead.

Appellees’ contentions on rehearing are in effect the same as those set up in their brief, and copied with approval in the original opinion herein, as follows:

“Where property is owned and is a homestead, the surviving widow, on the death of her husband although she owns only an undivided interest in the property, has an insurable interest in it. Hoyle v. Republic Ins. Co. (Tex. Com. App.) 14 S.W.(2d) 816; East Texas Insurance Co. v. Crawford (Tex. Sup.) 16 S. W. 1068; Rolater v. Rolater (Tex. Civ. App.) 198 S. W. 391.
“A widowed daughter living with her mother is entitled to a homestead and has an insurable interest. Childers v. Henderson, 76 Tex. 664, 13 S. W. 481.
“A homestead is not subject td partition. Hall v. Fields, 81 Tex. 562, 17 S. W. 82.
“Possession of one tenant in common is in right of all the other owners. Phillipson v. Flynn, 83 Tex. 583, 19 S. W. 136.
“The survivor is entitled to the use of the home. Adair v. Hare, 73 Tex. 275, 11 S. W. 320.”

It may be readily conceded, as therein contended by appellees, that the surviving widow has an insurable interest in the family homestead; that a widowed daughter living with her mother in the family homestead has an insurable interest therein proportionate to her estate therein; that a homestead is not subject to partition as long as it is occupied and claimed as such; that the possession of one tenant in common inures to the benefit of his fellow tenants; and that the survivor in community is entitled to the use of the home. . But those rules are all quite beside the question presented and decided in this case, and that is, that the insurable interest of a child of a deceased member of the community, and of the surviving spouse, possessing an inheritable undivided one-fourteenth interest in property once occupied by the family as a homestead, but not so occupied or claimed for a period of five years, is not that'of sole and unconditional ownership within the contemplation of the provisions of the insurance policy here in question.

It should be added that it is obvious from the record that the amount of insurance provided for in the policy and made payable to Mrs. De Ross far exceeded the value of her inheritable interest in the property insured.

Appellees’ motion for' rehearing must be overruled.